Welcome To Chewing Gum H&S Enforcement

The Government’s love of on-the-spot fines is coming to a quarry or recycling site near you. The Regulatory Enforcement and Sanctions Bill is set to introduce the mentality of high street chewing gum dropping sanctions to the complex world of health and safety and environmental compliance. MQR takes a look at what the Bill will mean.

If it has passed you by, there is a change coming to health and safety law. Not in the content of workplace legislation but in the way infringements are dealt with. The doors are opening on the time of chewing gum spot-fine style H&S enforcement.

Prowling in the shadows is the Regulatory Enforcement and Sanctions Bill. Consultation closed in August and the Department for Business, Enterprise and Regulatory Reform (BERR) has responded in true Government style by dismissing most points made by the 154 respondents – there were 220 invitations to respond – and has promised to press on ahead with its implementation by April next year.

In short, the Bill is based on the recommendations of the Cabinet Office-sponsored Macrory Review, which identified inconsistencies and restraints in the powers available to regulators.

Split into two parts, it seeks to provide sanctions options to bodies such as the Environment Agency, local authorities, and the HSE, other than costly criminal prosecutions for smaller offences. It especially targets repeat offenders.

For its part, the Health and Safety Executive (HSE) doesn’t want to see it enacted: “We feel our current toolbox of sanctions is good enough,” a HSE spokesperson told MQR. The HSE’s Principal Inspector for Quarries Phil Smith explains further: “What we want to see is bigger fines across the board to act as more of a deterrent to those breaching the regulations not more tools.”

So what is the Bill about? The first section seeks to establish a new statutory body called the Local Better Regulation Office to act as watchdog for the new regime while part two highlights four main new sanctions for the regulator toolkit.

These comprise fixed monetary penalties, discretionary requirement notices, cessation notices and enforcement undertakings (see box right).

How it will all fit together in practice is still unknown. One problem raised is the matter of levels of fines. Herbert Smith lawyer Herbert Watson explains: “If the level of fine is the same as in the court system then you could effectively be blocking a firm from its right to be heard in a court of law.”

Offences under the Health and Safety at Work Act are triable summarily – in the Magistrates’ Court – or on indictment. Maximum penalties vary, but the top end penalty in a Magistrates’ Court for contravening regulations under the act – and it is with regulatory breaches that the legislation is intended – is a £5,000 fine.

If authorities have the right to impose up to £5,000 fines, as the Government appears to support, then a right to trial has been taken away, says Watson.

To counter this argument the Government has promised to look at beefing up the appeals process that will accompany the new legislation. Also, says Weightmans associate solicitor Glyn Thompson, it is not without precendent.

“Speed camera fines work in the same way. They get passed the strict rule of law position by looking at impact and relative cost.

“An on-the-spot fines system saves the company any negative publicity and both sides the costs of going through the legal process. However, the Government needs to ensure a transparent appeals process is in place,” he told MQR.

It is difficult not to think of the words “local authority cash cow” in relation to the scheme. In fact it is a central Government cash cow with all money going to the Consolidated Fund (see box). However, consultee concerns have led it to look into feeding some of the money back into regulators to pay for costs.

But it is also “...considering whether to allow regulators to recover reasonable investigative costs” from businesses where a discretionary requirement or cessation notice has been imposed. However, again it is promising safeguards against trigger-happy machine-gun style speeding ticket delivery.

The updated legislation will be laid before Parliament in the first week of November. So if it has passed you by we recommend a taking look.

Thompson feels that when enacted it will take around two years to roll out probably starting with local authorities and then the HSE and EA before moving to the smaller authorities. His advice is simple. Ensure you comply with the law.

“A local authority officer told me recently he can prepare for weeks for just one case,” says Thompson. “Under the new rules he said he could hand out 10-14 penalties in just one day.” You have been warned!