Health and safety: the state of play

The HSE Board agreed on 26 June 2013 to withdraw by the end of 2013 the Approved Code of Practice (ACoP) on children in agriculture (L116). The HSE originally proposed withdrawal in its 2012 consultative document on the future of 30 ACoPs, which was a response to a recommendation in the 2011 Löfstedt report that it review all of its ACoPs (see Regulation). Of the 48 respondents who expressed a clear view on the agriculture ACoP, 30 (62%) supported withdrawal. Nevertheless, at its December 2012 meeting, the HSE Board asked for further information before proceeding. The HSE insists that the ACoP "adds little in the way of practical guidance or understanding as to how compliance may be achieved", because: the Regulations are so specific; the advice and guidance on the employment of young persons "largely reiterates" the requirements of the Management of Health and Safety at Work Regulations 1999, rather than describing how compliance should be achieved; practical guidance on child safety in agriculture is readily available in other HSE guidance publications more suited to its audience; and that before withdrawing the ACoP, it would review and revise guidance, which it duly did with a revised version of INDG472 during summer 2013. The HSE is, however, aware that withdrawal "could send a dangerous (negative) message to the industry", and the board agreed that withdrawal should be accompanied by a "strong cross-industry communications strategy/plan".

• HSE (2013), Proposal to withdraw the "Preventing accidents to children in agriculture" ACoP, HSE Board paper HSE/13/65; HSE (2013), Preventing accidents to children on farms, INDG472.

Gangmasters

On 10 September 2013, the Department for Environment, Food and Rural Affairs (Defra) announced a triennial review of the Gangmasters Licensing Authority (GLA), which all non-departmental public bodies undergo (the HSE's own triennial review is ongoing - see Health and Safety Executive). The Gangmasters (Licensing) Act 2004 provided for a licensing scheme to regulate the supply of labour to the farming, food processing and shellfish gathering sectors, and established the GLA as a non-departmental public body to administer the scheme. The triennial review examines whether or not the functions of the GLA are still needed and, if so, whether or not the GLA is the most appropriate body to deliver those functions. The closing date for comments was 17 September 2013 - a very short consultation period - and Defra is analysing the feedback and will publish its findings "later in 2013/14".

Despite the announcement of the triennial review, Defra has still not published its response to a controversial consultation exercise that ran between 26 April and 21 June 2013 on amending the scope of GLA licensing, changing the size and structure of the GLA Board and suggesting ideas for alternative sanctions that the GLA might apply. In terms of scope, Defra proposed removing from the remit of the GLA: the forestry sector other than orchards, woodland pasture and free range egg production; apprenticeships; cleaning contractors; gathering, processing and packaging of cultivated shellfish; land agents; voluntary workers; public and quasi-public bodies; and raising crops and livestock as a service to a third party. Defra (2013), Consultation on changes to the scope and governance of the GLA.

The Labour Party leader, Ed Miliband, had previously pledged in a party political broadcast that a future Labour Government would extend the GLA's remit to cover construction and other sectors; the commitment was confirmed on 7 March 2013 by the shadow home secretary, Yvette Cooper. The proposed extension would form part of a wider package of reforms to protect migrant and other vulnerable workers.

The GLA previously consulted between 28 January 2013 and 22 March 2013 on the administration of its licensing arrangements. This consultation reviewed the GLA application inspection process and sought views on how the GLA could improve the license application process so as to reduce the costs and "burdens" for applicants while ensuring "that those individuals and organisations that represent the greatest risk of non-compliance with the GLA's licensing standards, and therefore potential risk to workers, continue to be tested in a robust but proportionate manner". The GLA has not published its analysis of the responses.

• GLA (2013), GLA application and inspections consultation.

ACoPs

Consultation ran between 8 July and 30 September 2013 on the HSE's proposal to merge its two Approved Codes of Practice (ACoPs) on asbestos. The HSE Board approved the consultation document at its June 2013 meeting. The proposal would withdraw ACoP L127, which covers the management of asbestos in non-domestic premises, and simplify and merge its provisions into L43, which covers work with materials containing asbestos. The new L43, which will be called "Managing and working with materials containing asbestos", will apply to those responsible for the maintenance of non-domestic buildings (to which the duty to manage asbestos applies), as well as employers and employees involved in work activities that may result in the disturbance of asbestos-containing materials. The HSE believes the revisions will make it clearer what dutyholders can do to comply with legal requirements and also reflect the changes introduced by the Control of Asbestos Regulations 2012, which relate to the notification of certain non-licensed work with asbestos and the consequent arrangements that dutyholders need to make in respect of segregation of asbestos work areas, medical examinations for employees and retention of health records. The HSE included an outline of the proposals in its 2012 consultation on 30 ACoPs, eliciting support from 141 (88%) of 161 respondents. HSE officials are currently analysing responses to the 2013 consultation and will send the HSE Board an analysis of responses and a final draft of the ACoP in November 2013, with the ACoP coming into force by the end of 2013. The board also agreed to discuss the changes in public at the November 2013 meeting, after the June 2013 meeting took the asbestos proposals as a "below the line" paper.

• HSE (2013), Consultation on draft revised ACoP "Managing and working with asbestos", CD255; HSE (2013), Consultation on proposal for a revised ACoP on managing and working with asbestos which consolidates ACoPs L127 (The management of asbestos in non-domestic premises) and L143 (Work with materials containing asbestos) into a single document, HSE Board paper HSE/13/67.

REACH

Consultation ran between 18 July and 15 August 2013 on proposals from the Department for Environment, Food and Rural Affairs (Defra) to address the conflict between the management of the asbestos legacy and the Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). The sale and use of asbestos has been restricted in the EU for many years but, according to Defra, the scope of the restriction under REACH was "unintentionally" extended to cover the sale and use of second-hand articles containing asbestos. Such articles, adds Defra, "must have the asbestos content removed if placed on the market, creating potential health risks from disturbing otherwise secure asbestos. Alternatively, they may be disposed of before the end of their useful life. This imposes unnecessary costs on business and others."

Defra therefore proposes amending the REACH Enforcement Regulations 2008 to adopt a derogation that is now available under EU law that allows member states to provide for exemptions so that second-hand articles containing asbestos can still be placed on the market, subject to conditions that ensure a high level of protection of human health. The derogation will mainly affect the railways, road transport, museums and industrial equipment. Defra anticipates the change will save business £29 million annually. Although Defra was aiming to introduce the legal amendments on 1 October 2013, this did not happen. The HSE's acting chief executive, Kevin Myers, reported to the HSE Board's meeting on 25 September 2013 that "discussions continue" with Defra. Discussions in 2009 were similarly "ongoing" and have been described in this fashion by the HSE ever since, while previous HSB state-of-play tables describe a long list of missed target dates.

• Defra (2013), REACH - consultation on the marketing and use of second-hand articles containing asbestos.

Hidden Killer

The HSE is "working closely" with the Cabinet Office on running a new asbestos communications campaign. An HSE spokesperson told HSB in October 2013 that the HSE wants to run a campaign that "builds on" the Hidden Killer initiative but has more "preparatory work to do" and is therefore "not yet in a position to confirm the exact details". Hidden Killer proved one of the HSE's most successful campaigns when it ran in 2008 and 2009/10, but the HSE has not run any similar communications campaigns since 2010 because of a central government spending freeze. In 2011, construction union UCATT claimed the HSE had cancelled a third phase of Hidden Killer because of the freeze. Although the HSE told HSB at the time that UCATT may have "misinterpreted" its comments and that the campaign had merely entered a "stocktaking" phase, the third phase never did appear. A paper to the HSE Board's August 2013 meeting confirmed the discussions about a new campaign that would be aimed at: making at-risk workers aware of the dangers posed by asbestos; helping them understand how they can change their work behaviours to protect themselves; and encouraging them to take this action. The HSE advised also that it was "on track" to publish a report in October 2013 on current asbestos-related attitudes and behaviours; the research has informed the communications strategy, and the HSE has submitted updated plans to the Cabinet Office.

• HSE (2013), Update on HSE activities on asbestos, HSE Board paper HSE/13/75.

Biosafety framework

Following the linking of the 2007 outbreak of foot-and-mouth disease (FMD) to biosafety failures in the use of live FMD virus at a contained use site at Pirbright, Surrey, a review by former HSC chair Bill Callaghan identified confusion caused by the three different legislative approaches and recommended the legislation be brought within a single regulatory framework. An attempt to do this by a Legislative Reform Order, however, ran into what the HSE described as "legal difficulties, which, at the final stage, proved insurmountable". The HSE is now pursuing a three-strand approach to securing a single regulatory framework, starting with the consolidation of four sets of Regulations on the contained use of genetically modified organisms (GMOs).

The second strand envisages the HSE using the alignment "opportunity" afforded by two European Commission initiatives: the 2013-15 review of all health and safety Directives issued under the 1989 Framework Directive, including the 2000 biological agents Directive (which could result in consequential amendments to the Control of Substances Hazardous to Health Regulations 2002); and, by adding to a proposal for consolidating EU animal health law, a new provision that animal pathogens are not released from laboratory research and similar facilities (this is unlikely to be finalised before 2015). Third, the HSE is considering the options for overhauling the operational arrangements to deliver an improved Specified Animal Pathogens Order licensing scheme. Separately, the HSE will "look to remove … should an opportunity arise" the exemption from Fee for Intervention of contained use work with human pathogens and contained use of GMOs where there is a human health risk. The HSE points out that the basis of the exemption was that it would be a short-term measure until the single regulatory framework was in place.

• HSE (2013), An update on HSE's work to consolidate legislation on human pathogens, animal pathogens and genetically modified organisms following the Callaghan and Löfstedt reviews, HSE Board paper HSE/13/33.

Biocides - consolidation

New Regulations were laid before parliament on 27 June 2013 and came into force on 1 September 2013 that roll five statutory instruments on biocides and two on related topics into a single set of Regulations. The consolidation implements a recommendation of the 2011 Löfstedt Review. Consultation on the "seven into one" proposals and on the enforcement of, and arrangements for, the EU biocides Regulation ran between 20 December 2012 and 31 January 2013, eliciting 20 replies. Of the 16 respondents that answered the relevant question, 11 agreed with the consolidation proposals. The HSE Board approved the new Regulations in April 2013.

• The Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations 2013, SI 2013 No.1506; HSE (2013), Outcome of consultations on proposals to consolidate biocides, PIC and CLP Regulations (the "7 into 1" package) and the proposed biocides fees Regulations, HS/13/39; HSE (2012), Consultation on regulatory measures to support EU chemicals legislation and proposals on reducing seven existing sets of domestic regulations into one statutory instrument ("7 into 1" package), CD249.

Biocides - EU Regulation

Regulations came into force on 1 September 2013 that establish the administrative and enforcement arrangements for the EU biocides Regulation 528/2012. Consultation ran between 20 December 2012 and 31 January 2013, eliciting 20 replies; of the 16 respondents that answered the relevant questions, 15 considered the proposed enforcement provisions were "about right". (The Regulations also consolidate seven biocides-related items of legislation) While the provisions of an EU Regulation come directly into force in member states, the domestic Regulations were needed to appoint Competent Authorities for biocides, implement enforcement arrangements and provide details of the transitional measures for existing biocidal products. Provisions in the domestic Regulations relating to the classification, packaging and labelling of dangerous substances and preparations, and the export and import of dangerous chemicals, come into force in 2014 and 2015. The Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations 2013, SI 2013 No.1506. The HSE has also published information about the requirements of the biocides Regulation on its biocides microsite. The HSE advises the site will help companies marketing a biocidal product, or producing an active substance, to comply with the requirements of the Regulation.

The HSE carried out a second, limited consultation between 25 February 2013 and 22 March 2013 on proposed fees Regulations to enable it to recover its full costs while operating as the UK biocides competent authority under the EU biocides Regulation. The Regulations were laid before parliament on 27 June 2013 and came into force on 1 September 2013.

• The Biocidal Products (Fees and Charges) Regulations 2013, SI 2013 No.1507; HSE (2013), Consultation on fees to support EU biocides Regulation 528/2012; Regulation (EU) No.528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, OJ L167/27.6.12.

The EU biocides Regulation replaced a 1998 Directive, although it maintains the Directive's two-step approval process, ie evaluation of the active substance at EU level, and product authorisation at member state level. The Regulation also: provides for the authorisation at EU level of certain biocidal products; improves the functioning of national authorisations and mutual recognition by introducing binding deadlines and strengthening the system of mutual recognition dispute settlement; reduces the number of animal tests by obligatory data sharing with respect to vertebrate animal studies; strengthens the rules on data waiving (ie no request for data that is not necessary); extends the scope to cover articles and materials treated with biocidal products that are imported from third countries; sets a harmonised fee structure covering the conditions and criteria for setting the fees in all member states; and involves the European Chemicals Agency in the scientific work on biocides.

On 22 May 2013, the European Commission published a proposal for a Regulation amending the Biocides Regulation to correct technical and legal mistakes in the Regulation, "many of which were identified by the UK," according to the HSE. Council negotiations began in July 2013 and were due to resume in October 2013. The HSE expects negotiations will not prove contentious; adoption is possible by the end of 2013, with the amending Regulation coming into force in mid-2014.

• European Commission (2013), Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No.58/2012 concerning the making available on the market and use of biocidal products with regard to certain conditions for access to the market, 16 May 2013, OJ COM(2013) 288 final.

Published

HSE (2013) Is your mask protecting you?; HSE (2013), Using cut-off saws: A guide to protecting your lungs, INDG461; HSE (2013), The pesticide users health study - an analysis of cancer incidence (1987-2004), HSE RR956; HSE (2013), The pesticide users health study - survey of pesticide usage, HSE RR957; HSE (2013), The pesticide users health study - an analysis of mortality (1987-2005), HSE RR958; HSE (2013), Grain dust, EH66 (3rd edn); HSE (2013), Using nanomaterials at work, HSG272; HSE (2103), CHIP for everyone, HSG228 (2nd edn).

GMOs

Consultation was due to start in October 2013 on the consolidation of the Genetically Modified Organisms (Contained Use) Regulations 2000 and its 2002, 2005 and 2009 amendments. The HSE Board agreed to the consultation package at its meeting on 25 September 2013, having approved the scope and timetable for the consolidation on 24 April 2013. The consolidation will help implement a recommendation of the 2011 Löfstedt report that the HSE consolidate legislation in five sectors, one of which was the contained use of GMOs. Work with GMOs involving human or animal pathogens must also comply with the Control of Substances Hazardous to Health Regulations 2002 (COSHH) and the Specified Animal Pathogens Order (SAPO - one each in England, Wales and Scotland). The HSE Board had been due to approve the consolidation package on 14 August 2013, but the paper was delayed; as a result, consultation will last eight rather than the normal 12 months, which will allow the board to consider the post-consultation consolidation Regulations in April 2014, which would then, subject to ministerial approval, come into force on 1 October 2014. In addition to the consolidation, the HSE advises that it has also taken the opportunity to make the Regulations more risk-based and proportionate, as well as reflective of the experience of dutyholders since 2000. It insists, however, that the proposals do not "rewrite the substance of the Regulations", which will also "remove potential hurdles that may impede the longer-term goal of producing a single regulatory framework for human and animal pathogens and GMOs"; many of these changes relate to class 1 activities, which are of negligible risk. In approving the consultation package, the HSE Board made the proviso that the document should state the percentage of activities that fall into each of the four classifications in order to put its proposals into context (the majority of activities in the UK fall within class 1).

• HSE (2013), Proposed GMOs (Contained Use) Regulations 2014: Consultation package, HSE Board paper HSE/13/90.

COSHH

The HSE Board was due to consider at its meeting on 30 October 2013 the responses to its consultation on revisions to the Approved Code of Practice (ACoP) (L5) on the Control of Substances Hazardous to Health Regulations 2002 (COSHH) as well as a final version of the revised ACoP. The HSE hopes to publish the revised ACoP in early December 2013. Consultation ran between 3 June and 23 August 2013 on changes that would: make it easier for dutyholders to understand and comply with their legal duties; take account of the introduction of two EU Regulations, on REACH (see Asbestos) and the classification, labelling and packaging of chemical substances and mixtures (CLP); move information on the principles of good control practice from an annex to the guidance on reg. 7; and clarify the requirements of reg. 9, on thorough examination and test of control measures.

The HSE included the COSHH ACoP in the first group of ACoPs - those that would undergo significant revisions - in its 2012 consultative document on the future of 30 ACoPs as part of its programme of work to implement a recommendation of the 2011 Löfstedt Review (see Regulation). Consultation on the 30 ACoPs ran between 3 July and 14 September 2012; of the 151 responses that expressed a view on the COSHH ACoP, 135 (89%) supported the revisions, and the HSE approved the changes at its meeting on 5 December 2012. The revisions will bring an end to a process that has taken considerably longer than the HSE had initially anticipated: before the HSE decided to incorporate COSHH within its wider ACoP review, it had planned to issue a consultation document before September 2010 but was held up by potential developments around biological agents and the contained use of genetically modified agents (see above).

• HSE (2013), Consultation on COSHH Regulations (2002) as amended, CD 259; HSE (2013), Consultation on draft revised ACoP COSHH 2002 (as amended), HSE Board paper HSE/13/50; HSE (2010), Update on the COSHH ACoP, SMT/10/65.

Strict liability

The Enterprise and Regulatory Reform Act 2013 received royal assent on 25 April 2013. Part 5 (s.69) of the Act reversed the previous position on strict and civil liabilities, requiring that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove the employer has been negligent. Although the House of Lords rejected the government's change on 6 March 2013, it subsequently accepted the move during "ping pong" (in which a Bill travels back and forth between the Commons and Lords in an attempt to secure agreement on issues where the two Houses disagreed).

The Government also introduced two consequential pieces of legislation. The HSW Act 1974 (Civil Liability) (Exemptions) Regulations were laid before parliament on 4 July 2013 and came into force on 1 October 2013 (SI 2013 No.1667). The Regulations make an exception to the Enterprise and Regulatory Reform Act 2013 in order to maintain the right - that would otherwise have been repealed by the 2013 Act - to allow workers who are pregnant, have recently given birth or are breastfeeding to bring claims for breach of statutory duty in respect of breach of UK legislation implementing the pregnant workers Directive. Second, the Enterprise and Regulatory Reform Act 2013 (Health and Safety) (Consequential Amendments) Order 2013 was laid before parliament on 10 July 2013 and came into force on 1 October 2013 (SI 2013 No.1666). The Order is a tidying-up measure that deletes references in legislation that were rendered redundant by the 2013 Act. It therefore has no practical effect. The legislation affected covers the railways, genetically modified organisms, construction and chemicals.

The changes introduced by the 2013 Act go well beyond a recommendation in the 2011 Löfstedt Review, which found issue with the imposition by some health and safety regulations of strict liability on employers, because this makes them legally responsible for the damage and loss caused by their acts and omissions regardless of their culpability and whether or not they have done all that is reasonably practicable. Löfstedt acknowledged that strict liability could sometimes be necessary, but believed that "awarding compensation on the basis of a technical breach where there is no opportunity for the defendant to be aware of the danger, and no actions could have been taken to prevent the accident, clearly has the potential to stop employers taking a common-sense approach to health and safety."

He therefore recommended regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with "reasonably practicable" where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions. In his one-year report on the implementation of his recommendations, Löfstedt acknowledged that the government's approach "is more far-reaching" than he had anticipated and "had proved to be highly controversial and … provoked much debate, including amongst the members of [his] advisory panel". He added that he hoped the government would "carefully monitor the impact [of the Act] to ensure that there are no unforeseen consequences".

The DWP's 2013 report on the implementation of the Löfstedt Review explained its rationale: "An approach to targeting each strict liability duty would be much more complex to achieve, requiring a large number of changes to many sets of regulations. A single change to the HSW Act achieves the same overall policy objective and will be significantly easier for employers and other stakeholders to understand. It also provides a consistent approach to civil litigation across health and safety legislation. It is therefore likely to have more impact in changing perceptions of the 'compensation culture'."

Refurbishment

The HSE carried out a month of unannounced visits in September 2013 to construction sites to check on refurbishment projects and repair works. Inspectors focused on the management of high-risk issues such as working at height and exposure to harmful dusts, as well as the correct installation and maintenance of equipment, site organisation, and the provision of basic welfare facilities such as toilets and handwashing facilities. The HSE had not analysed the overall results of the initiative as HSB went to press but a halfway snapshot indicated that one in two sites visited had received at least one notice of contravention.

CDM

Although the HSE had hoped to consult from late summer 2013 on a new version of the Construction (Design and Management) Regulations 2007 (CDM), it had not published a consultation document by 15 October 2013. An HSE spokesperson told HSB on 2 October 2013 that the HSE was "aiming to launch the consultation as soon as possible. The package is going through the several stages of government clearance required prior to opening the public consultation. We are on target to complete the consultation in time for the new Regulations coming into force in October 2014." (The HSE had hoped to have the new Regulations and Approved Code of Practice (ACoP) in force on 6 April 2014, which is the first of two annual common commencement dates for domestically initiated legislation.)

A paper on different construction issues considered by the HSE Board on 25 September 2013 referred to the CDM package, noting that the HSE proposes: "structural simplification of the Regulations to make them easier to understand and navigate (particularly for SMEs); and removal of the Approved Code of Practice, the CDM coordinator role and explicit competence requirements". An HSE spokesperson told HSB it was important to "stress" that the HSE is "proposing to consult on" the three removals, which constitutes "a difference to suggesting it is a fait accompli". The spokesperson elaborated that the HSE was looking at replacing the CDM coordinator with "a coordination function that is better integrated in the project procurement team, rather than removing the function itself". A further key element in the September 2013 board paper is a proposal to remove the domestic client exemption, but create a default position whereby duties that would have fallen on a domestic client would instead fall to the designer or contractor.

The September 2013 HSE Board paper also noted that the "revised CDM regulatory package was presented to the board in May 2013. Subject to consideration of a detailed communications strategy, the board agreed to consider approval of a proposed 12-week consultation period commencing late summer 2013." There is, however, no record on the May 2013 or subsequent agendas or minutes, or the list of papers on the HSE Board's microsite, of this discussion or of any related documentation. Nor did the HSE chair or chief executive report back to the open session of the May meeting that there had even been a discussion. The HSE told HSB that the meeting was held in closed session because it involved advice to ministers and that it would not release the papers; it did accept, however, that it had erred in not mentioning the discussion at the start of the open session. The "advice to ministers" excuse is similar to that given to HSB about other key decisions taken in secret at a closed January 2013 board meeting, although the HSE did publish the documentation some weeks later after HSB complained. HSB is now pursing a Freedom of Information request in respect of the May 2013 meeting.

• HSE (2013), HSE's regulation of the construction industry, HSE/13/87.

Some further light on the package is shed by a paper from HSE officials to a meeting of the Construction Industry Advisory Committee (CONIAC) on 17 July 2013. The paper noted that the "HSE now has a well-developed draft Statutory Instrument, supporting impact assessment and draft consultative document … Prior to consultation, approval must be gained from the HSE Board and ministers. HSE must also seek an opinion on the validity of the impact assessment from the independent Regulatory Policy Committee" (which was subsequently sent). The paper confirms that the HSE Board's May 2013 meeting "requested sight of a communications handling plan which sets out the narrative for continuing discussions with stakeholders as the planned consultation approaches".

The CONIAC paper also noted that the HSE was developing plans for the best delivery of HSE-produced and industry guidance, which must be in place 12 weeks before the Regulations come into force. The CONIAC paper notes that although the guidance plans are not yet finalised, the "current thinking" is that the HSE "will deliver a core guidance document which will provide clear legal interpretation of the revised Regulations. This will be supported by a practical guide to managing health and safety on small construction projects, and a suite of sector-specific guidance aimed at typical small construction projects, supplemented by 'example' health and safety plans." In addition: "It is foreseen that HSE will be involved in coordinating an industry approach to producing its own guidance aimed at individual dutyholder groups, and that HSE will seek to endorse this guidance through 'joint badging'."

• HSE (2013), Amendment of the CDM Regulations 2007: Update on current position, CONIAC paper M2/2013/1.

The HSE started its evaluation of CDM 2007 and its ACoP in 2009. The evaluation comprised external research carried out by Frontline Consultants and work done by the HSE's CONIAC. The HSE claimed to have completed the process in May 2011 but delayed its consideration until the outcome of the 2011 Löfstedt Review and the government's Red Tape Challenge, which elicited 80 comments on CDM. Löfstedt reported in November 2011 and recommended the HSE expedite and complete its CDM review by April 2012 to ensure the duties were expressed clearly, bureaucracy was reduced and there was guidance for small projects. The HSE insisted the publication earlier in 2012 of a final report from Frontline to have met that deadline. HSE (2012), Evaluation of the Construction (Design and Management) Regulations 2007. Part 1. Main report, HSE RR920. Frontline concluded that the CDM Regulations had largely achieved their overall objective of improving risk management in the construction sector, but that concerns remained, particularly around the ACoP. In his one-year report on the implementation of his recommendations, Löfstedt noted the HSE published the evaluation on time and had "gone further" than his recommendation, "with work already under way to consider how these Regulations could be simplified and rationalised without reducing standards". The HSE Board had been due to consider a draft consultation package at its December 2012 meeting, but this was delayed to "late spring" 2013, at which point, as noted above, it discussed the issue in secret.

• HSE CONIAC (2012), Update on the Construction (Design and Management) Regulations 2007, CONIAC paper M2/2012/2.

Published

HSE (2012), Preconditioning for success: Characteristics and factors ensuring a safe build for the Olympic Park, HSE RR955; HSE (2013), Access equipment for construction work at height in residential properties, HSE RR978; HSE (2013), Construction dust, CIS36(rev2).

Explosives consolidation

Two separate consultations ran between 30 July and 24 September 2013 on proposals that will modernise and consolidate more than 20 pieces of legislation and exemption certificates covering explosives and acetylene into two sets of Regulations. HSE officials are currently analysing the responses and will present the HSE Board with a paper in early 2014. The HSE advises that the Regulations are on course to come into force on 1 October 2014. The initiative will implement a recommendation of the 2011 Löfstedt report, although the HSE had started its Explosives Legislative Review in 2010 and insists that, following Löfstedt, the "general strategic direction remained the same". The HSE blames the historical and often reactive nature of the legislation, which has resulted in "regulatory complexity" and "isolated and topic-based Regulations". The HSE Board approved both consultation exercises on 26 June 2013. The proposed Explosives Regulations 2014 will regulate all "traditional" explosives, except acetylene, and will bring together provisions from the Explosives Act 1875, 10 pieces of secondary legislation and 15 exemption certificates.

The HSE is also proposing to remove the ACoP to the Manufacture and Storage of Explosives Regulations 2005 and consolidate the supporting explosives guidance into a single "principles" document, supported by the development of industry-led sub-sector guidance. The Explosives Regulations 2014 will be modular, which should allow them to accommodate anticipated changes to the EU framework, and will be structured around the permissions and precautions that are required currently.

The HSE will also retain "key existing domestic provisions relating to the permissioning of the manufacturing, storage and acquisition of explosive", even though some of the provisions exceed the minimum requirements of EU Directives. This is because stakeholders have shown no desire to remove the provisions and because there is a risk the HSE would "lose support from the security community" if it did not retain the measures. Although acetylene is not classified as an explosive, it can detonate under certain conditions, but the HSE believes the ease with which it can be controlled means it is not proportionate to include it within the proposed Explosives Regulations 2014. Acetylene is currently governed by the Explosives Act 1875, four Orders, one set of Regulations and seven certificates of exemption issued under the 1875 Act. The proposed Acetylene Safety Regulations 2014, which are also due to come into force on 1 October 2014, would cover the safety of workers and the public during the production, storage and use of acetylene.

• HSE (2013), Consultation on proposal to consolidate and modernise explosives legislation, CD 256; HSE (2013), Consultation on proposals to consolidate and modernise the legislative controls for acetylene, CD 257; HSE (2013), Proposed Explosives Regulations 2014: Consultation package, HSE Board paper HSE/13/63; HSE (2013), Proposed Control of Acetylene Regulations 2014: Consultation package, HSE Board paper HSE/13/64.

ACoPs consolidation

The HSE Board was due to consider at its meeting on 30 October 2013 the results of a consultation on the consolidation into a single ACoP of five codes related to the Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEA). The meeting was also expected to approve the final text of the ACoP, which the HSE hopes to publish in early December 2013. The new ACoP will be a revised and updated version of the main ACoP to the Regulations, L138. The other four ACoPs cover: the design of plant, equipment and workplaces; storage; control and mitigation measures; and maintenance, repair and cleaning. The HSE initially proposed the consolidation in its 2012 consultation on 30 ACoPs in response to a recommendation made in the 2011 Löfstedt Review that it review all its ACoPs. Of the 137 responses to the 2012 consultation that had a view on the DSEA ACoPs, 123 (90%) supported the proposal, and the HSE Board's December 2012 meeting agreed the HSE should proceed with consulting specifically on the reform. On 22 May 2013, the board approved a draft consultative document and text of the new DSEA publication; the consultation ran between 3 June and 23 August 2013.

Aside from the consolidation, the most significant changes in the 2013 consultation on draft L138 will: reduce the total number of pages of the five ACoPs from 171 to 139 (although it should be noted that the current version of L138 is 92 pages); assign ACoP status to some of the former guidance and switch some other text the opposite way; move the schedules from the end of the document to the individual Regulations to which they relate; simplify "obscure and specialist terminology"; update references to aspects of general (non-DSEA) fire legislation; use more lists and bullet points; add annexes on self-employment and on the EU Regulation on the classification, labelling and packaging of chemical substances and mixtures (CLP); reduce the number of references to guidance published by trade organisations and similar bodies; and emphasise "the need for proportionality and avoiding proliferation of overlapping risk assessments". The HSE notes the general 2012 ACoP "review included identification of any ACoP text that might require more than the Regulations require. No significant instances [for the DSEA ACoPs] were identified."

• HSE (2013), Consultation on DSEA Regulations 2002, CD 254; HSE (2013), Consultation on draft revised ACoP DSEA Regulations 2002, HSE Board paper HSE/13/51.

Prison

The period covered by this table saw three immediate and 10 suspended prison sentences for health and safety offences (of which gas safety and landlords accounted for nine of the sentences). The non-gas-related sentences were: Kenneth Miller, 24 weeks suspended for two years; James Carlton, eight months suspended for two years; Derek Barnes, eight months suspended for two years; Mikael Lustig, six months suspended for 18 months (currently under appeal). The immediate gas-related sentences were: Patrick Regan, 12 months; Chris Johnson, concurrently nine, eight, six and six months; and Steven Carter, 16 weeks. The suspended gas-related sentences were: Daniel Hickling, 11 months, suspended for 24 months; Duncan Johnstone, six months; Mark Bond, six months, suspended for 12 months; Christopher Morton, six months, suspended for two years; Luke Potts, 20 weeks, suspended for 18 months; and Adrian Hunt, 120 days, suspended for 18 months.

The sentences mean that 89 individuals have now received immediate or suspended prison sentences for offences related to health and safety at work (in addition to 46 for manslaughter).

Exceptional fines

The period covered by this table saw courts impose 31 fines of £100,000 or more for health and safety offences: Sellafield, £700,000 (includes environmental offences); Network Rail, £500,000; Network Rail, £450,000; Larkins Logistics, £350,000; European Metal Recycling, £300,000; Adis Scaffolding, £300,000; ATEC, £300,000; St George South London, £300,000; Allied Domecq Spirits and Wines, £266,677; BAE Systems (Operations), £250,000; Nolan Recycling, £250,000; Bison Manufacturing, £233,000; Atomic Weapons Establishment, £200,000; Basildon and Thurrock University Hospitals NHS Foundation Trust, £175,000; Greater Manchester Police, £166,666; Kidde Fire Protection Services, £165,000; Kidde Products, £165,000; General Motors UK, £150,000; UK Coal Mining, £125,000; Network Rail, £125,000; SAFC Hitech, £120,000; Special Metals Wiggin, £120,000; Crown House Technologies, £117,000; Personnel Hygiene Services, £105,000; Tata Chemicals Europe, £100,750; London Underground, £100,000; Tube Lines, £100,000; Schweerbau GmbH, £100,000; Direct Plant Services, £100,000; ThyssenKrupp Elevator UK, £100,000; Aesica Pharmaceuticals, £100,000. The previous period covered by the table saw 29 fines of £100,000 and above for health and safety at work-related offences. There have now been 318 fines of £100,000 and above in the past seven years.

Fee for Intervention

The HSE's Fee for Intervention (FfI) scheme, which requires the HSE to recover its enforcement costs from dutyholders that have materially breached the law, started on 1 October 2012. The revenue yielded by the first six months of the scheme fell significantly short of the amount the HSE had hoped to generate, although a June 2013 HSE Board paper emphasises it is too early to present the "business as usual FfI environment" because the figures are affected by "legacy work", ie continuing action that started before FfI came into operation and therefore does not attract cost recovery. The HSE believes a "fuller picture" will emerge in a one-year report that it will publish. The June board paper shows the HSE charged for £2,673,733 in 5,766 invoices in the first six months of FfI.

A material breach arises when an HSE inspector believes there has been a contravention of health and safety law that is serious enough to require an enforcement letter or notice. (The HSE can already recoup its prosecution costs.) The scheme covers nearly all sectors enforced by the HSE, including lower-tier major hazards sites, other than those where a charging scheme already exists. The scheme does not apply to the 1.5 million organisations enforced by local authorities. The HSE's £124 hourly charge is £9 lower than the rate suggested in the consultative document. As rough indications, the HSE estimates the fee will range from approximately £750 for an inspection that results in a letter, to £1,500 where an enforcement notice is served, and thousands of pounds for an investigation.

The HSE's June 2013 paper splits the returns into three groups of two months. These show increases in: the numbers of invoices generated (1,418 in October and November 2012, 1,807 in December 2012 and January 2013, and 2,541 in February and March 2013); and the amounts generated (£727,645, £857,254 and £1,088,874 respectively). These increases would be expected as legacy work tails off. The average invoice has decreased over each of the two-month periods (£513, £474 and £428, with a six-month average of £464), and between 70% and 80% of invoices are for less than £500, although the HSE adds a caveat that there may be "ongoing complex cases with individual businesses which span billing periods. Therefore, the figures do not represent the final average sum received by all businesses." This is evidenced by the fact that approximately 70% of the second batch of invoices, and 80% of the first batch, related to interventions that were ongoing beyond the invoicing period. Unsurprisingly, most of the invoices are served in the HSE's priority areas for proactive inspections, with manufacturing accounting for 40%-44% of invoices in each of the two-month periods, and construction (27%-31%) and services (20-24%). There have been few queries and disputes, with just 145 "queries raised" by 10 June 2013 (covering 2.5% of all invoices); of these, 67 were resolved without altering the invoice and 38 with a change, with the remainder outstanding. Just two invoices reached a "level 1 dispute" stage and none so far has reached level 2, in which adjudication involves an outside party.

The paper also refers to an increase in the number of incidents in which HSE staff felt threatened (but did not necessarily suffer physical violence). In the six months before FfI, there were seven reported incidents; the first eight months of FfI saw 25 incidents, of which five involved FfI as a factor. The HSE cautions, however, that "the numbers are small and make it difficult to draw firm conclusions." HSE (2013), The first six months of FfI, HSE Board paper HSE/13/62.

The FfI revenue in 2012/13 (the six months to 1 April 2013) of £2,673,733 is markedly short of the revised £31 million total the HSE had estimated (of which the Treasury will allow the HSE to retain the first £10 million) and will compound the problems it faces as a result of the reduction of the Comprehensive Spending Review 2010, under which the HSE suffers cuts of 35% in government funding over four years, so that it will receive £80-£85 million less in 2014/15 than it did in 2010/11. The HSE told HSB earlier this year it was "seeking to manage the FfI income shortfall in 2012/13 from within its overall budget without impacting on frontline activity". The HSE had initially hoped the scheme would start in April 2012 and generate an estimated £43.6 million in 2012/13. The HSE's revised projections are £37 million in 2013/14 and £39 million in 2014/15, of which it will be allowed to retain £17 million and £23 million respectively.

Consultation on the proposed FfI scheme ended on 14 October 2011, eliciting 295 responses, but made no fundamental difference to the regime the HSE proposed, although it did result in the inclusion of a non-HSE member of the appeal panel. On 6 February 2013, the HSE offered panel appointments to 98 individuals. HSE officials claimed the responses to the consultation document overall were "consistent" in that, regardless of whether or not they supported or opposed the principle, respondents "had the same concerns about its operation. The differences in the responses often boiled down to those who thought the risks could be managed and those who thought that they would inevitably materialise." The HSE Board agreed on 7 December 2011 to recommend the FfI scheme to ministers.

• Health and Safety (Fees) Regulations 2012; HSE (2012), Guidance on the application of FfI; HSE (2011), Outcome of the consultation on the FfI scheme, HSE Board paper HSE/11/79; HSE (2011), HSE proposal for extending cost recovery.

Prosecution timescales

Work is still ongoing to implement a recommendation of the 2011 Löfstedt Review that all agencies involved in health and safety prosecutions work together with the aim of commencing prosecutions within three years of an incident. The HSE's then chief executive, Geoffrey Podger, told the HSE Board on 24 April 2013 that the HSE has "driven improvements in the investigation of fatal incidents through the National Liaison Committee for the Work-related Deaths Protocol (NLC) and instigated changes to internal systems for managing all its investigations", which would help address the recommendation. HSE (2013), Chief executive's report to the board, HSE Board paper HSE/13/28. The protocol was amended before the publication of the Löfstedt report to allow, but not require, the HSE to bring prosecutions before a coroner's inquest, which should reduce the timescale in some cases. With prosecutions involving the HSE, police, Crown Prosecution Service (CPS), local authorities and coroners, the government made the NLC the lead body for taking the work forward, with completion targeted for April 2013. The timetable slipped, with the committee agreeing an evidence-based review of the efficacy of the protocol be carried out and reported back to its May 2013 meeting. This did not happen and the NLC will now consider the efficacy review at a meeting on 21 November 2013, when it will also make any proposals for action. The 2013 report of the Department for Work and Pensions (DWP) 2013 on the implementation of the Löfstedt Review explained that a subgroup of the NLC organisations, sponsored by the Director of Public Prosecutions, "is closely examining in detail how the main organisations involved in work-related deaths can better work together to speed up investigations and prosecution decisions. All organisations are mindful of working together to aim to achieve a three-year target for all health and safety prosecution cases." The HSE advises that the subgroup is being led by the CPS under the banner of Negligent Homicide Forum, which is chaired by the CPS's chief operating officer. The DWP added that an HSE "snapshot" of the three years to April 2012 shows "100% of non-fatal prosecutions were approved for prosecution within three years of the incident date (where the approval date is held on our systems). Work is currently ongoing to establish the figure for fatal accidents."

Inspections and investigations

There were deteriorations in nearly all HSE inspection and investigation categories in 2012/13 compared with the two previous years: 10,000 complaints from workers and the public were "followed-up" in 2012/13 compared with 10,420 in 2011/12 and 11,975 in 2010/11; 3,201 RIDDOR incidents were investigated (4,267 and 3,812 in the two preceding years), of which the number of accidents investigated was 2,003 (2,767 and 2,477 in the two preceding years). The HSE also undertook 22,240 proactive inspections in high-risk sectors in 2012/13, including visits to 2,360 construction refurbishment sites in a four-week period. The overall total is similar to that in 2011/12 and meets the government's demand that the HSE reduce its proactive inspection total by 11,000 from a 2010/11 baseline of 33,000. It should be noted, however, that the HSE has, for the past two years, measured inspections differently to earlier years, so strict comparisons before 2011/12 are difficult.

• HSE (2013), The HSE annual report and accounts 2012/13, HC187.

Strategy

The European Commission ran a public consultation between 31 May and 26 August 2013 to help inform the development of its new strategy for health and safety. The previous strategy ran from 2007 to 2012, and the commission had hoped the new strategy would cover the period 2013-2020. After extensive delays, however, the consultation did not set out a new draft strategy; instead, it decided to ask representatives of public authorities, employers and employees, and safety and health stakeholders and experts to "help identify current and future challenges in the occupational safety and health area, and identify solutions to address these challenges". To help inform the consultation, the commission published two evaluations of the 2007-2012 strategy: a 237-page report that it commissioned from three organisations from Belgium, Denmark and, from the UK, the Institute of Occupational Medicine, as well a working document from its own staff.

The evaluations, argues the commission, confirm the "importance of the European dimension of occupational safety and health policy, in particular as regards the positive trend in work accident reduction and the role of the EU strategy in coordinating efforts and providing a common framework for action". The commission adds that "more still needs to be done, in particular to: improve the implementation of occupational safety and health provisions in SMEs and micro-enterprises; develop more accurate monitoring and evidence-gathering tools; better focus on emerging risks and occupational illness; and effectively tackle the occupational safety and health problems linked to the ageing of the working population."

The TUC's head of safety, Hugh Robertson, criticised the delays in developing the strategy and the nature of the consultation, noting: "There is an urgent need for a new European strategy, and this consultation, rather than bringing one forward, actually delays it. Had the commission worked with the European employers and unions in 2011 to develop a strategy as was recommended, it could be agreed by now." He added that the TUC would nonetheless "be contributing and asking for a strong regulatory approach to the problems of work organisation, stress, working time, carcinogens and other causes of the high level of occupational disease that we find in the EU at present".

The European Trade Union Confederation (ETUC) had previously criticised the commission for its failure to adopt a new strategy, adopting a resolution on 5-6 March 2013, noting: "The attitude taken by the [commission] is not up to the challenges being faced, for it has issued mixed and muddled messages … No strategy has been adopted and no clear calendar announced for its adoption during 2013." The HSE had expected in September 2012 that the commission would consult on a draft strategy in spring 2013 for adoption around mid-2013, believing it was "likely" to include proposals for action: on occupational health, especially musculoskeletal disorders, psychosocial risks and risks from new technologies; to ensure the better implementation of legislation, particularly among smaller and micro-firms; and to ensure more sustainable working lives for Europe's workers, reflecting the demographic changes of recent years.

• European Commission (2013), Evaluation of the European strategy on safety and health at work 2007-2012; European Commission (2013), Commission staff working document, "Evaluation of the European Strategy 2007-2012 on health and safety at work"; ETUC (2013), ETUC resolution on the EU health and safety strategy 2013-2020; HSE (2012), Chief executive's report to the board, 26 September 2012, HSE/12/75.

Working time

There has been no progress in attempts to reform the working time Directives. Negotiations between the European social partners (the representatives of employers and employees) are still at what the HSE describes as an "impasse". After a first round of negotiations ran aground in April 2009, the social partners agreed on 14 November 2011 to restart negotiations but, again, these have foundered. The problems - as with the European Commission's earlier fruitless review - centre on the phasing out of the opt-out from the 48-hour maximum working week, which the UK made use of, and the role of "on-call" time, which is pertinent to the health sector, particularly so in the UK. The European Commission is still considering what to do next.

Posted workers

The HSE believes that the European Commission's proposed Directive on the enforcement of the rights of "posted workers" is likely to be "broad though probably fairly shallow". Posted workers are those who are employed in one EU member state but sent by their employer to carry out their work in another one on a temporary basis; the HSE estimates there are 37,000 in the UK. The definition excludes migrant workers who go to another member state to seek work and are subsequently employed there. The commission believes the Directive is necessary to increase protection against "social dumping" whereby foreign service providers can undercut local service providers because their own labour standards are lower. The proposal would therefore strengthen the enforcement of compliance with the Directive, and improve the sharing of information and administrative cooperation among member states. The HSE advises: "There are possible impacts [of the proposal] in relation to resources and targeting, publications, data handling and disclosure of information, and complaints handling. HSE continues to advise the Department for Business, Innovation & Skills, which leads on the proposal for the UK. Recent advice has focused on mechanisms whereby the Competent Authority may prioritise other member states' requests for inspection of the activities of employers of posted workers."

• European Commission (2012), Proposal for a Directive of the European Parliament and of the Council on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, OJ COM(2012) 131 final, 21 March 2012.

Pregnant workers

There have been no developments since HSB's last table relating to a draft Directive initiated by the European Parliament that would amend the pregnant workers Directive (92/85/EC). The Employment, Social Policy, Health and Consumer Affairs Council is still "considering" the proposal, having failed to make progress at its meeting on 17 June 2011; there have been no subsequent developments. The draft text proposed on 20 October 2010 followed suggestions from the Parliament's women's rights committee. The amendments cover issues such as maternity and paternity pay, breastfeeding and unfair dismissal. In terms of health and safety, an amendment stipulated women should not be required to work overtime or nights within 10 weeks of a baby's due date, for the duration of breastfeeding and wherever it is necessary to protect the health of the mother or foetus. The UK Government, with the Department for Business, Innovation & Skills leading the negotiations, opposes the proposal, advising it has "identified a number of issues that need further work".

Social partner agreements

The 2011 Löfstedt Review recommended the UK government should work with the European Commission to introduce greater clarity to, and raise awareness of, social partner agreements, and also to ensure impact assessments are produced for agreements before they are adopted. (Social partner agreements involve representatives of employers and employees reaching an agreement through social dialogue and then requesting it becomes a Directive. The Council of Ministers may only agree or refuse to implement the agreement; it cannot amend it. Once approved, member states must then implement the requirements as they would any other Directive.)

At the time of his 2011 report, there had been just one instance of a health and safety agreement turning into a Directive - the prevention of sharp injuries in the healthcare sector, which was implemented in the UK on 6 April 2013. On 26 April 2012, however, the partners adopted a second social partner agreement: the European Framework Agreement on the protection of occupational health and safety in the hairdressing sector.

The agreement included a request to the commission that it send the agreement to the Council of Ministers for adoption as a Directive. The commission has ordered an external study on the costs and benefits across all member states of the provisions in the agreement, and will not make a decision until the report is completed. The UK has submitted information on the potential impact of the provisions in the UK. Löfstedt noted that nine member states (including the UK) and Croatia had written to the European Commission suggesting that the agreement should be implemented as a non-binding Autonomous Agreement rather than a Directive, though employee representatives are concerned about this approach and instead favour a legally binding Directive. This, Löfstedt claimed, was "a good example of where preparing an impact assessment would have helped inform the discussions and ensure that an agreement was based on the evidence and an assessment of the risks as well as the costs to business" (see immediately below).

Impact assessments

There has been no tangible progress within the EU to address the conclusion of the 2011 Löfstedt Review that the impact assessments (IAs) accompanying proposed EU legislation were in need of improvement. In particular, Löfstedt believed IAs: should have a "strict scientific peer review"; could consider in greater detail the impact on individual member states; and should not be compiled by the drafters of the Directive. The 2011 response of the Department for Work and Pensions (DWP) agreed there should be IAs for all social partner agreements and pointed out that all legislative proposals with clearly identifiable economic impacts were already required to have IAs.

In terms of the independence of the IA, the DWP believed there are "advantages and disadvantages to having [the] IA carried out by those who drafted the regulation". In practice, the experts who lead on a particular policy "are the only ones with the in-depth knowledge of the issues to be able to properly assess the full range of implications. Carrying out the IA should also act as a useful discipline in policy making, helping to embed the sort of culture change where policy-makers properly consider the evidence and the impacts of the regulatory change they propose."

At the same time, the DWP accepted a need for an independent check, as there now is in the UK through the Regulatory Policy Committee. Although the European Commission's IA Board "goes some way" towards this, its members are drawn from the commission and the system "would undoubtedly benefit from a stronger and more independent board and this is something we have lobbied for in the past".

Smoking

Once again, there has been no progress in the European Commission's considerations as to whether or not there is a need for an EU initiative to protect workers from environmental tobacco smoke. The commission first consulted the social partners in 2008 and adopted a Recommendation on 30 November 2009 that member states and the commission take action on smoke-free environments, including at the workplace, within three years of adoption of the Recommendation. The UK already has a ban on smoking in indoor public places, and the HSE is unsure about the impact of any further commission decision. Any initiative could comprise legislative or non-legislative measures, or a combination; a contractor is still assessing the potential actions for the commission.

• European Commission (2009), Council Recommendation of 30 November 2009 on smoke-free environments, OJ C296/5.12.2009.

Policy making

The 2011 Löfstedt Review recommended the Government works "more closely" with the European Commission and others, particularly during the planned review in 2013, to ensure that both new and existing EU health and safety legislation "is risk-based and evidence-based". The response of the Department for Work and Pensions (DWP) confirmed it would continue to work closely with the other member states and the EU commission "to deliver a more proportionate, risk-based approach to health and safety, for example through the proposed 2013 review". In his one-year report on the implementation of his review, Löfstedt acknowledged the actions of the UK in the EU but again cautioned: "Significant work remains to be done to ensure that the regulations and directives coming out of Europe are both risk and evidence based". The UK government, he added, "needs to do more in its dealings with European policy-makers in promoting risk-informed policy making. The UK should not be on the sidelines but actively attempting to set evidence-based regulation into the heart of Europe. I hope that the UK will play an active role in the forthcoming European Commission review on health and safety regulation." The DWP's 2013 progress report on the Löfstedt Review noted the HSE is in the process of preparing a report on the UK's practical implementation of EU health and safety Directives between 2007 and 2012. The report must reach the commission by 31 December 2013 and will feed into its comprehensive review.

In September 2012, in response to the Löfstedt report, Julie Girling MEP established an "informal working group on risk-based policy making in the European Parliament. The committee now has half a dozen MEPs and has held two meetings in 2013 on risk versus hazard and substitution, with a third on the precautionary principle to come. Girling also gave the keynote address on the parliament's work and the group to the European Risk Summit, which ran on 11-12 June 2013 in Dublin and was chaired by Löfstedt.

Training

From 1 October 2013, the HSE can no longer approve first-aid training and qualifications (even though it had not in practice done so for several months). The Health and Safety (Miscellaneous Revocations and Amendments) Regulations 2013 (SI 2013 No.1512) were laid before Parliament on 27 June 2013. They amend the Health and Safety (First Aid) Regulations 1981 by substituting a new reg. 3(2), which relates to an employer's duty to make first-aid provision. The new reg. 3(2) requires employers to provide, or ensure the provision of, a number of suitable persons that is adequate and appropriate in the circumstances for rendering first aid to its employees, and adds that such persons are not suitable unless they have undergone training and possess qualifications that are appropriate in the circumstances. The old reg. 3(2) set out a similar duty but also required the training and qualification to be HSE-approved. The 2013 Regulations also revoke regs. 18 and Schedule 14 to the Health and Safety (Fees) Regulations 2012, which cover fees for applications for approvals under the Health and Safety (First Aid) Regulations 1981. The 2013 Regulations implement a recommendation of the 2011 Löfstedt Review that employers be given the flexibility to select the first-aid provision that is appropriate to their workplace, and possibly reduce costs. Löfstedt also called on the HSE to change its guidance to facilitate this process, which it has done through a revised L74 publication as well as new shorter guidance to help employers identify and select a competent training provider to deliver training indicated by their first-aid needs assessment. HSE (2013), The Health and Safety (First-Aid) Regulations 1981 (as amended). Guidance on Regulations, L74 (3rd edn); and HSE (2013), Selecting a first-aid training provider, GEIS3.

Consultation on the revocation ran between 23 October and 3 December 2012. The HSE Board agreed on 27 February 2013 to remove the requirement despite opposition from a majority (63%) of respondents. In a paper to the February 2013 board meeting, HSE officials explained their rationale for ignoring the majority of respondents: "Many of these respondents [to the consultation exercise] were training providers who have an understandable interest in maintaining HSE's formal approval 'support' for their commercial activities … Further analysis suggests that, although against the removal of 'HSE approval' in principle, respondents were mostly concerned about reducing the standards of workplace first-aid training and therefore provision (although they did not provide evidence to support their arguments). HSE's revised guidance seeks to address these concerns by identifying … how existing first-aid standards will be maintained."

The board also agreed to a recommendation from the officials to undertake a further six-week public consultation on removal of the Approved Code of Practice (ACoP) to the Regulations. Although a "clear majority of respondents agreed that the ACoP was 'useful' in its current form (69%)", HSE officials reaffirmed their support for removing the ACoP, but believed further consultation was necessary because the initial "relevant consultation question was not explicit about the intention to remove the ACoP", which meant there was a "risk of external challenge". The HSE launched the six-week consultation exercise on 25 March 2013, which also sought views on the content of the revised guidance, and has now repealed the ACoP.

• HSE (2013), Outcome of the consultation on the proposed guidance on the Health and Safety (First-Aid) Regulations 1981, HSE Board paper HSE/13/46; HSE (2013), A consultation on proposed new guidance on the Health and Safety (First-Aid) Regulations 1981 (as amended), CD251; HSE (2013), Outcome of the consultation on proposals to amend the Health and Safety (First-Aid) Regulations 1981, HSE Board paper HSE/13/25; HSE (2012), Proposals to revise the Health and Safety (First-Aid) Regulations 1981 (as amended), CD248.

ACoP

On 25 September 2013, the HSE Board recommended proceeding, with one important exception, with its proposed revisions to the ACoP on Safety in the installation and use of gas systems and appliances, L56. The changes will see the HSE retain and revise L56, but withdraw another code, Standards of training in safe gas installation (COP20), and incorporate material that was still relevant in the revised L56. The initiative arose from a recommendation of the 2011 Löfstedt Review that the HSE review all its ACoPs. Following an initial review, the HSE issued a 2012 consultative document that proposed, in principle but not in detail, reforms to 30 ACoPs, including to the gas ACoPs. The 2012 consultation elicited 114 responses on the two gas ACoPs, of which 94 supported, nine opposed, and 11 had no clear view on, the proposals. The HSE Board agreed in December 2012 to proceed with a full consultation on the proposals and, on 24 April 2013, approved the details of the consultative document, with consultation running between 7 May and 30 July 2013. The significant revisions to L56 include: the introduction of ACoP material and guidance on the requirement for all those carrying out gas work to be adequately trained; the removal of the majority of landlords' guidance and its replacement with a small amount of ACoP text (detailed guidance will be updated on the HSE's website).

The 2013 consultation elicited 56 responses, the majority of which supported the proposals, and these are being implemented. There is one reversal, however, which was not included in the 2012 consultation but was added to the 2013 consultation. This concerns the proposed removal from the ACoP of the technical Appendix 1 material, which provided the details of testing to be carried out in respect of flues and appliances. The HSE believed this information was better provided as industry-led guidance but, despite 60% of respondents favouring the removal of Appendix 1, the minority included "organisations representing a large part of the gas industry". The HSE will therefore now include Appendix 1 as guidance within the ACoP, which will facilitate updating. The HSE has also added a reference to asbestos exposure when fitting smart meters during the proposed national roll-out scheme. The HSE notes that this change "will add further pressure to an already tight schedule", but still intends introducing the revised ACoP by the end of 2013 and hopes to simultaneously withdraw COP20, although a spokesperson told HSB that the precise timing of the withdrawal is still to be confirmed because it needs "to ensure there is no gap in the information/guidance available to dutyholders".

• HSE (2013), Analysis of the response to the consultation on the revised ACoP L56 - "Safety in the installation and use of gas systems and appliances", HSE/13/89; HSE (2013), Consultation on proposals for a revised ACoP on safe installation and use of gas systems and appliances (L56), CD252; HSE (2013), HSE review of gas ACoPs L56 (Safety in the installation and use of gas systems and appliances) and COP20 (Standards of training in safe gas installation), HSE Board paper HSE/13/34.

Health and Work Assessment and Advisory Service

The Government's Health and Work Assessment and Advisory Service will start in 2014, offering help to employees who have been on sick leave for four weeks by providing what the Department for Work and Pensions (DWP) calls a "return-to-work plan". The move will implement a recommendation - which was accepted by the Government in January 2013 - made by Carol Black and David Frost in their November 2011 sickness absence review. The call centre-based service is likely to comprise: a state-funded assessment by occupational health professionals; signposting to interventions such as Universal Jobmatch (an online job search service for employees able to work but unlikely to return to their current employer); and case management for employees with complex needs who require ongoing return-to-work support. The DWP adds that advice for GPs, employers and employees will be available throughout the absence. The DWP, which in autumn 2013 will invite tenders to run the service, expects about 560,000 absentees will use the service annually at a cost of between £25 and £50 million, with follow-up interventions and case management totalling between £20 and £85 million.

The 2013 Budget announced employers would be able to receive tax relief on expenditure up to £500 on health-related interventions recommended by the service. The Treasury consulted on the proposals between 21 June and 16 August 2013 and is analysing the responses. The cap will apply per employee over a tax year and cover interventions up to a total of £500. The relief will be limited to treatment and therapies and will not apply to expenditure on specialist equipment, workplace adjustments, travel expenses, or interventions that do not rank as medical treatment or therapy.

• HM Treasury (2013), Implementation of a tax exemption for employer expenditure on health-related interventions recommended by the new Health and Work Assessment and Advisory Service; Black C and Frost D (2011), Health at work - an independent review of sickness absence; DWP (2013), Fitness for work: The government response to "Health at work - an independent review of sickness absence".

Diseases strategy

The HSE's analysis of its major conference on occupational ill health concluded "no significant new ideas and solutions emerged". The conference, "Tackling occupational disease - developing new approaches", took place on 14 March 2013. The officials drew "some reassurance … from the fact that HSE has already considered many of the suggestions that were put forward and that there are no obvious gaps/areas that have been missed". Although the HSE acknowledged participants offered some "interesting ideas", it noted these were "predominantly not about what others could do for/with HSE, but rather what additional activities HSE should take on".

Contributions during the day revealed "no widely divergent views" and "a consensus that occupational disease is a difficult topic to address and, that occupational cancer is particularly difficult requiring a long-term sustained effort by a mix of different people. Overall, the feedback from the event supports HSE's current approach to occupational disease and particularly occupational cancer." The HSE identified a dozen "themes", including: the need for a long-term strategic commitment to tackle diseases; education and training of young people; strengthening of links with the NHS and GPs; and that the Hidden Killer asbestos campaign was "an exemplar of activity in the campaigning/communications area and should be revisited".

Demonstrators outside of the event - at which HSB and other media were refused a place on the grounds that it was fully subscribed, despite participants stating later that the day was anything but - accused the HSE of "dithering, denying and delaying over occupational cancer".

HSE (2013), Occupational disease event 2013 - analysis of the day and presentation of an overview of the outcomes, HSE Board paper HSE/13/55.

Mid Staffs

The HSE's then chief executive, Geoffrey Podger, told the HSE Board on 14 August 2013 that the HSE continues "to work closely with both the Department of Health (DH) and Care Quality Commission (CQC) to help implement the changes identified in the Government's initial response to the" report of the public inquiry into the care provided by the Mid Staffordshire NHS Foundation Trust. In particular, added Podger, "we have been reviewing our respective roles in investigation and enforcement in the health and social care sectors. Our aim is to ensure that the approach taken is workable, clear to all and effectively addresses the concerns raised in the inquiry report and by the Government." The inquiry, which was chaired by Robert Francis QC, followed concerns raised in previous reports on patient mortality and the standard of care at the trust. The DH published the inquiry report on 6 February 2013. The government's initial response, which it published on 27 March 2013, rejected some of the core HSE-related recommendations made by the inquiry. A paper from HSE officials to the HSE Board's meeting on 27 February 2013 noted that of the report's 290 recommendations, four related directly to the HSE and a further 10 "impinge to some extent".

The Francis report accepted the HSE's "method of working [had] much to commend it" but found an "enforcement gap" between the HSE and other regulators "through which serious cases of safety breaches in a healthcare setting are likely to fall". The report described six HSE-related "themes": although the HSE was the only regulator with powers to prosecute, it was unable or unwilling to do so; there is a need to define properly the responsibilities and management of the various healthcare system regulators; there should be communication between agencies to avoid duplication of work and to avoid any gaps in the system; there was a lack of investigation by the HSE into individual cases raising health and safety issues in clinical contexts; there was a lack of systematic audit or analysis of incidents reported to the HSE from the trust or other institutions; and the HSE, the Healthcare Commission (HCC), the CQC and the DH have failed to address the regulatory gap between themselves and the HSE. Concluding the HSE was "clearly not the right organisation to be focusing on healthcare", it recommended either the CQC be given power to prosecute offences under the HSW Act or a new comparable offence be created under which the CQC has power to prosecute (which was consistent with the HSE's evidence to the inquiry).

The other recommendations concerned: reporting under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995; notifying the HSE of serious or fatal incidents involving patients; and the need for the HSE to seek expert advice. In the February 2013 board paper, HSE officials variously accepted, refuted and justified the themes and recommendations, while pointing out that the HSE had already raised and acted on some of the issues. An HSE spokesperson told HSB the February 2013 meeting of the board "welcomed the recommendations … around enhancing the powers of the CQC so it can regulate more effectively in the healthcare sector. The board noted that implementation of the report's recommendations would take time and that, in the meantime, the HSE must continue to ensure it fulfils its duties and exercises its powers as necessary." The Government's initial response stated the DH and Department for Work and Pensions would ensure the HSE had sufficient resources to carry out its functions in hospitals and that the CQC would appoint a chief inspector of hospitals (ie it implicitly rejected some of the key recommendations).

• HSE (2013), Chief executive's report to the board, HSE Board paper HSE/13/70; Department of Health (2013), Patients first and foremost: The initial government response to the report of the Mid Staffordshire NHS Foundation Trust public inquiry; HSE (2013), Report of the public inquiry into the Mid Staffordshire NHS Foundation Trust, HSE Board paper HSE/13/21; Mid Staffordshire NHS Foundation Trust Inquiry (2013), Report of the Mid Staffordshire NHS Foundation Trust public inquiry.

Mid Staffordshire NHS Foundation Trust pleaded guilty to failures related to the death of an in-patient at Stafford Hospital. At Stafford Magistrates' Court on 9 October 2013, the trust admitted a breach of s.3(1) of the HSW Act in that it exposed a member of the public to a risk from its undertaking. The magistrates referred the case to Stafford Crown Court at a future date. Gillian Astbury died on 11 April 2007 of diabetic ketoacidosis; the immediate cause of death was the failure to administer insulin to a known diabetic patient. The HSE's investigation found the trust failed to devise, implement or properly manage structured and effective systems of communication for sharing patient information, including in relation to shift handovers and record-keeping.

Guidance

Consultation closed on 5 July 2013 on the HSE's proposed revisions to its 2001 guidance, Health and safety in care homes (HSG220). The new document places much greater emphasis on balancing sensible risk management with the dignity and freedom of residents. The HSE believes the new 54-page document will act as an "essential one-stop shop" where it provides "key messages on high-risk activities" within the sector. The proposals were part of the HSE's plan to review all 880 pieces of its guidance by April 2013 (aside from those related to major hazards and Approved Codes of Practice). An HSE spokesperson told HSB that the current target for publication of the final guidance is early spring 2004, although the HSE "will have a better idea once the current review of the hundreds of comments has been completed". The HSE has, in the meantime, been updating the webpages, for example creating new pages on sensible risk assessments in care settings.

• HSE (2013), Health and safety in care homes, HSG220 revision.

The Chartered Institute of Environmental Health (CIEH) voiced serious concerns about the number of preventable accidents in care homes.

Published

HSE (2013), How the Lifting Operations and Lifting Equipment Regulations apply to health and social care, HSIS4(rev1); HSE (2013), Health and Safety (Sharp Instruments in Healthcare) Regulations 2013: Guidance for employers and employees, HSIS7.

Triennial review

On 25 April 2013, the Department for Work and Pensions (DWP) announced the HSE would undergo a triennial review. The review implements an announcement in April 2011 by the Cabinet Office that all non-departmental public bodies (of which the HSE is one) should undergo a substantive review at least every three years. The review is led by Martin Temple, the chair of the EEF, a manufacturers' organisation, and supported by a "challenge panel". The first stage identified and examined the key functions of the HSE, "assess[ed] how the functions contribute to the core business of HSE and DWP, and whether these functions are still needed". A call for evidence ran from 14 June to 26 July 2013.

Should the HSE pass the first stage, the second stage would consider whether or not the HSE is operating in line with the recognised principles of good corporate governance and, according to the DWP, "examine whether or not the HSE "as currently constituted remains the best way to perform those functions, or if another delivery method might be more appropriate". Parties to the review have been remarkably reticent to comment on the progress of the review: the DWP would not answer HSB's question on whether the HSE had passed stage one of the review, advising only that the "DWP's triennial review team [is] currently working with Martin Temple to analyse the responses and draft the report". Nor would the HSE tell HSB whether or not it had been informed if it had passed stage 1; in fact, the HSE would not even tell HSB what its contribution to the review had been.

The HSE's then chief executive, Geoffrey Podger, told the HSE Board's August 2013 meeting that the DWP review team had been meeting with stakeholders to gather evidence and that the "HSE continues to provide the review team with factual information". The team had aimed to publish the outcome of the review in autumn 2013, but this is now scheduled for late 2013. The DWP advises its review team is currently working with Temple to analyse the responses and draft the report. The HSE will only remain a non-departmental public body if it satisfies at least one of the Government's three tests: "does it perform a technical function which needs external expertise; do its activities require political impartiality; and does it need to act independently to establish facts?".

Funding

The HSE's net operating cost fell by 9% to £159,218,000 in 2012/13, from £174,912,000 one year earlier. The funding that the HSE received from the Department for Work and Pensions dropped over the same period to £161,239,000 from £169,981,000, part of a four-year 35% reduction in government grant-in-aid that started on 1 April 2011, following the chancellor's Comprehensive Spending Review 2010 (CSR 2010). Under the CSR 2010, the cash the HSE receives from the government - £230 million in 2010/11 - will be between £80 and £85 million less in 2014/15. The HSE's annual report nevertheless claims it "continues to make good progress in delivering the efficiencies and economies required to live within its challenging CSR 2010 settlement".

• HSE (2013), The HSE annual report and accounts 2012/13, HC187.

Chief executive

The HSE's chief executive, Geoffrey Podger, left the HSE on 31 August 2013; the post is being filled on an acting basis by the deputy chief executive, Kevin Myers. Gordon MacDonald, who was the director of hazardous installations and the man who oversaw the introduction of Fee for Intervention (see Enforcement), has become acting deputy chief executive. The HSE attributes the interim appointments to the need to take account of the triennial review process (see above). The closing date for applications for the £140,000-£160,000 pa job was 11 October 2013, with first interviews scheduled for completion by 11 November 2013 and a final panel on 9 December 2013.

Contact

The HSE updated its contact arrangements for reporting an injury at work, notifying the HSE of a workplace concern, making gas safety enquiries and notifications, and obtaining advice on technical issues or interpretation of guidance. The HSE is asking all businesses and the public, in the first instance, to go to www.hse.gov.uk/contact. The HSE has introduced new forms to facilitate the submission of enquiries. In addition, a small HSE team will be available in office hours to deal with calls from those who are unable to use the website or require further technical clarification.

ACoP

The HSE consulted between 3 June and 23 August 2013 on a proposal to split its L8 ACoP on Legionella into a revised ACoP and technical guidance. HSE officials were due to present an analysis of responses and a final draft of L8 to the HSE Board's meeting on 30 October 2013. The HSE hopes to publish the revised ACoP in early December 2013. Under the proposals, part 2 of the current ACoP would become three-part technical guidance covering evaporative cooling systems, hot and cold water systems, and other risk systems. ACoP L8 is relevant to employers and those in control of premises (ie landlords) where there is a risk of exposure to Legionella bacteria. The ACoP also sets out the responsibilities of suppliers of services such as water treatment and maintenance companies, and of manufacturers, importers, suppliers and installers of such systems. The HSE outlined its proposals in its 2012 consultation on 30 ACoPs, which it carried out in response to a recommendation of the 2011 Löfstedt Review. Of the 191 responses to the 2012 consultation that provided a view on ACoP L8, 135 (71%) supported the proposal. The new version of draft L8 also: provides proportionate advice for low-risk scenarios; moves some former guidance into the ACoP in order to clarify legal requirements where there is an accepted industry method of compliance; switches some ACoP text into guidance (the review, notes the HSE, "included identification of any ACoP text that might have required more than the Regulations required"); simplifies the terminology; contains limited references to guidance published by external organisations; and runs to just 27 pages.

• HSE (2013), Consultation on legionnaires' disease: The control of Legionella bacteria in water systems (L8), HSE CD 258; HSE (2013), Consultation on draft revised ACoP "Legionnaires' disease: The control of Legionella bacteria in water systems", HSE Board paper HSE/13/52.

Copper

The UK is awaiting confirmation that it has been successful in its application to the European Commission to be allowed to use copper in Legionella control systems. It has been illegal since 1 February 2013 to sell or use water treatment systems that use elemental copper in order to add copper ions to water as a biocide (and also to supply the copper for such use). The HSE emphasises the action was taken by the European Commission under the biocidal products Directive and, as a result, the national Biocidal Products Regulations 2001, which implement the Directive in Great Britain, no longer allowed the marketing and use of elemental copper as a biocide. The commission took its decision because no manufacturer took sufficient action to support the biocidal use of elemental copper during a review period that ended in September 2011. The UK therefore applied to the commission for an "essential use derogation" for use of copper in Legionella control systems that would allow the continued use of elemental copper as long as industry provided the data required under the Directive. The closing date for comments to the European Commission was 20 April 2013. The European Biocides Competent Authorities discussed the application at its meeting on 11 July 2013 and indicated it proposed granting an essential use derogation for the UK for copper in product types 2 and 5 for the purposes of Legionella control. The timetable and format of the final decision is now under discussion in the context of similar applications from other member states. The HSE will update its website.

The HSE advises: "Until formal publication of the decision, HSE's primary concern remains to control the risk of exposure to Legionella. Whilst the formal decision is awaited, HSE and LA inspectors will continue to take a sensible and proportionate approach to enforcement if they come across these systems. Any enforcement activity will focus on the failure to control the risk of exposure to Legionella bacteria and the likelihood of legionnaires' disease developing in a given situation, rather than on the means of control."

Removal

The HSE has recommended to ministers the repeal of the Offices, Shops and Railway Premises Act 1963 (OSRP), most remaining parts of the Factories Act 1961 and nine sets of Regulations related to the two Acts that it believes are redundant. The legislation is scheduled for repeal on 6 April 2014; an HSE spokesperson told HSB in October 2013 that "the draft statutory instrument itself may evolve further over the coming months as it undergoes further legal scrutiny."

The HSE ran a short consultation between 17 June and 12 July 2013 on the removal of both Acts in their entirety and 10 pieces of related legislation. The HSE identified the dozen legislative items during research to inform its contribution to the government's Red Tape Challenge, ie they are not part of the repeals recommended by the Löfstedt Review. Although nine in 10 of the responses agreed with each of the proposals, internal consultation led the HSE to decide that it needed to preserve some provisions, in particular to "enable the proper functioning of the Employment Medical Advisory Service (EMAS)". The HSE Board approved at its meeting on 25 September 2013 a paper from officials that recommended retaining the provisions of the Factories Act that: provide EMAS with a power to require medical examinations of persons employed in factories; define the application of the Act to specific premises; support legislation relating to the employment of children; and provide the fundamental definition of a factory under the Act. The most effective method of retaining these "essential provisions", it adds, is to keep the Factories Act 1961 etc (Repeals and Modifications) Regulations 1974 and "repeal redundant sections of the Factories Act only, so as to leave the Act on the statute books but with only these essential sections extant".

The draft Regulations will therefore repeal the remaining provisions of the Factories Act 1961 aside from those retained above, and the Offices, Shops and Railway Premises Act 1963 (OSRP), as well as the: Factories Act (Docks, Building and Engineering Construction, etc) Modification Regulations 1938; Factories Act 1937 (Extension of Section 46) Regulations 1948; Factories Act 1961 and OSRP Act 1963 (Repeals and Modifications) Regulations 2009; Factories Act 1961 (Repeals) Regulations 1975; Factories Act 1961 etc (Metrication) Regulations 1983; Factories Act 1961 etc (Repeals) Regulations 1976; OSRP Act 1963 (Repeals and Modifications) Regulations 1974; OSRP Act 1963 (Repeals) Regulations 1975; and OSRP Act 1963 etc (Repeals) Regulations 1976. HSE (2013), 2+10 miscellaneous repeals and revocations - outcome of consultation, HSE Board paper HSE/13/792.

The consultative document also proposed revoking the Health and Safety (Repeals and Revocations) Regulations 1995 and 1996, even though it did not actually consult on their removal because the sole purpose of both was to revoke earlier Regulations, and their removal would therefore merely amount to a "tidying-up measure". An HSE spokesperson told HSB, however, that both sets of Regulations are to be retained because "as they are themselves revocations that impose no burden on business, they were not considered a priority for action." Given that the HSE recommended repealing the two sets of Regulations precisely because they did nothing, its change of mind is a surprise.

The initiative will bring, by 6 April 2014, the repeals of items of legislation that the HSE considers to be redundant or superseded to 31 since it issued the first of its three consultative documents in January 2012: 13 measures were repealed on 6 April 2013 by the Health and Safety (Miscellaneous Repeals, Revocations and Amendment) Regulations 2013 (SI 2013 No.448); seven measures were repealed on 1 October 2012 by the Health and Safety (Miscellaneous Revocations) Regulations 2012; and the Docks Regulations 1988, which were initially included as a 14th measure for repeal on 6 April 2013 but were stayed by the HSE Board, will now be repealed on 6 April 2014.

• HSE (2013), Consultation on proposals to remove twelve legislative measures, CD260.

Sunset clauses

The Enterprise and Regulatory Reform Act 2013 received royal assent on 25 April 2013. Part 5 of the Act amended the Interpretation Act 1978 to help give effect to the Government's March 2011 policy on the use of "sunset" and review provisions (respectively, the legislation ceases to have effect on a particular date, or contains a provision for reviewing the effectiveness of the legislation within, or at the end of, a specified period). The amendment ensures that ministers making "subordinate" legislation (for example, Regulations under the HSW Act) can apply either of these provisions to all or part of the legislation or to its application in particular circumstances.

Sector-specific consolidation

The Löfstedt Review recommended the removal by April 2015 of 35% of health and safety legislation through a sector-specific consolidation of 76 measures covering five sectors: mines (40 pieces); explosives (21); petroleum (six); biocidal products (five); and genetically modified organisms (GMOs) (four). The Department for Work and Pensions (DWP) accepted the recommendation but anticipated an overall 50% reduction if other ongoing HSE work was taken into account.

In terms of the five sectors, there has been significant progress with the explosives, GMOs and biocidal products consolidations (see Chemicals and hazardous substances and Dangerous substances), and internal developments on mines (see Mining). An HSE spokesperson told HSB in March 2013 that: "Following an initial review of eight pieces of petroleum legislation [which is two more than the total identified by Löfstedt], we are currently developing a revised legislation package. A working group with representatives from the petrol retailers and relevant enforcement authorities has been involved to help shape and develop the revised regulatory framework, which will be open to consultation later this year." On 9 October 2013, a spokesperson advised "the aim is to seek board and ministerial approval to publish the consultation document by the end of November" 2013. In his one-year-progress report, Löfstedt "recognise[d] the major consolidation exercises [would] take time to deliver" and cautioned the work "should not be rushed. It is important that the proposals are developed and scrutinised carefully to ensure that there are no unintended consequences which could result in a lowering of health and safety protections."

Docks Regulations

The Health and Safety (Miscellaneous Revocations and Amendments) Regulations 2013 (SI 2013 No.1512) were laid before parliament on 27 June 2013. The Regulations contain a clauses that will repeal the Docks Regulations 1998 on 1 April 2014, which is six months later than the HSE had targeted; on the same date, they amend the Work at Height Regulations 2005 to require employers to comply with a schedule of requirements where persons are working at height as part of docks operations. The need for the latter amendment arises from the repeal of the 1998 Regulations. In 2012, the HSE Board twice delayed its decision on whether or not to recommend revocation of the Regulations and their Approved Code of Practice (ACoP) (see immediately below).

The HSE initially proposed revocation of the Docks Regulations in an April 2012 consultative document as one of 14 legislative revocations; following consultation, officials recommended repeal of the measures but, on 22 August 2012, the Board said it was concerned about the proposed timetable. In order to be satisfied that health and safety standards would not be prejudiced, it asked for reassurance on how the material in the docks ACoP would be covered in more general ACoPs, for more information on the new guidance and for statistical information. HSE officials presented a paper to the board's next meeting on 26 September 2012, but the board again requested further work be carried out. The resulting paper contained more information - for example on work at height - on how the provisions would be covered elsewhere.

• HSE (2012), Proposed revocation of the Docks Regulations 1988 and future of the ACoP on safety in docks: Outcome of stakeholder meetings and proposed next steps, HSE Board paper HSE/12/96; HSE (2012), Proposed revocation of Docks Regulations 1988 - additional information, HSE/12/74.

Repeal of the 1998 Regulations also brings to a formal end the long-running fiasco of the "docks form", which the HSE mooted for removal in its 2008 simplification plan. Consultation on the proposed repeal ended on 15 January 2010, eliciting seven responses. All broadly agreed with the proposal to remove the requirement in the Regulations to complete a "certificate of thorough examination of certain vessels used for transporting persons by water". Removal had been due to take place on 1 October 2010; ironically, the Government's various initiatives to reduce "red tape" then thwarted the removal of a form that everyone appeared to agree was unnecessary.

• HSE (2009), Removing the requirement for a docks form, CD 226.

Docks ACoP

The HSE did not include the docks Approved Code of Practice (ACoP) in its 2012 consultation on 30 ACoPs because it was part of a wider sector review. The HSE Board's December 2012 meeting discussed whether or not the code - COP25 - should be replaced with a new ACoP or guidance. The board insisted it needed more time to consider which, if any, elements of the ACoP should be retained. Following further consideration during a closed board session on 30 January 2013, Judith Hackitt, the HSC chair, reported back to the open meeting: "The board ... made a clear decision to retain a short, simplified ACoP and all parties engaged in delivering this were urged to progress with agreeing the key items which [need] to be included so that the current timetable [can] be met." Consultation ran between 9 April and 22 May 2013 on replacing COP25 with a new ACoP on ports. The HSE believes the Regulations and most of the current ACoP are either outmoded or superseded by more modern legislation. The consultative document contained a draft version of the 36-page ACoP, although only about six pages are ACoP material, with the remainder being guidance. The draft ACoP provisions mainly concern workplace transport, work at height, lifting operations and rescue and life saving. The replacement is dependent on the repeal of the Docks Regulations 1988, which has now been fixed for 6 April 2014 (see above).

• HSE (2013), Consultation on proposals for an ACoP on safety in ports, CD250.

The report of the then HSE chief executive, Geoffrey Podger, to the HSE Board's August 2013 meeting noted the HSE held a second round of bilateral meetings with Port Skills and Safety (PSS) (the industry's organisation for health, safety, skills and standards) and the Unite union on 24 and 25 July 2013 respectively to discuss the first three sections of the revised ACoP: "Discussions at both meetings were positive and productive, with slow but steady progress on resolving issues and agreeing guidance text. All parties are keen to develop an ACoP document that helps the ports industry and its workers. PSS and Unite have also helpfully agreed that it would be beneficial to meet jointly with HSE; this is a welcome move and discussions are in hand to arrange this. Further planned meetings will sequentially discuss and work towards agreement [on] the remaining sections of the ACoP."

Primary Authority

The primary authority (PA) scheme allows businesses that operate in more than one local authority (LA) area to deal with a single lead LA on regulatory issues, including those arising from health and safety. Other LAs must follow the compliance advice that the PA has given the business. The scheme was established by the Regulatory Enforcement andGSanctions Act 2008. As at 30 September 2013, there were 2,256 partnerships - not all of which include health and safety - covering 879 businesses, 112 LAs, 70,000 premises and 1.6 million employees. Although successful, the PA scheme has been targeted for improvement by both Lord Young and Professor Löfstedt in their respective 2010 and 2011 health and safety reviews, with the former recommending the HSE be given an enhanced role in the PA scheme, and the latter recommending the HSE should be the PA for multi-site national organisations. Although the government claimed it "accepted" the Young recommendation, it did not in practice, and the DWP responded to Löfstedt by sidestepping the recommendation and added it would "welcome" the HSE working closely with the Local Better Regulation Office (LBRO), which operated the PA scheme at the time and was subsequently replaced by the Better Regulation Delivery Office (BRDO) on 1 April 2012.

Part 5 of the Enterprise and Regulatory Reform Act 2013, which received royal assent on 25 April 2013, changed the PA scheme with effect from 1 October 2013. The 2013 Act amended the 2008 Act in two ways that stop well short of the Young and Löfstedt recommendations. First, the 2013 Act extends the PA scheme to businesses that share an approach to regulatory compliance even where not all of them operate under more than one LA. As an example, the Government advises that where members of a trade association are small businesses operating from single stores, they could all be eligible for the PA scheme if the effect of their arrangements with their trade association means that they share an approach to compliance in relation to the same activity with other members operating in different LA areas. Those arrangements might be, for example, that the trade association provides its members with regulatory guidance. Second, the 2008 Act also provided for PAs to draw up inspection plans for the business that would act as a guide for other LAs that also inspect the business (essentially, they had to "have regard to" the plan). The 2013 Act strengthens the plans and increases their use by providing that: a plan may require an LA to provide the PA with a report on its inspection activities in respect of the business; other LAs may not deviate from an inspection plan unless they have notified the PA in writing of the deviation and the PA has consented; and a PA can revoke an inspection plan and require that such revocation be brought to the attention of LAs that may wish to carry out inspections. The BRDO has produced an explanation of the changes: BRDO (2013), Enterprise and Regulatory Reform Act - Primary Authority sections, update May 2013.

• Consultation on revisions to the guidance to reflect the changes introduced by the Act ended on 16 August 2013; the Department for Business Innovation & Skills (BIS) published the final version of the guidance in September 2013: BIS (2013), Primary Authority statutory guidance; BIS (2013), Consultation paper: Primary Authority - statutory guidance.

Estates Excellence

The HSE has again delayed taking a decision on the long-term future of the Estates Excellence (EE) initiative, which provides health and safety assistance to companies with fewer than 80 employees on business estates. EE involves the HSE, local and fire authorities, large businesses, insurers, health professionals and industry groups visiting SMEs on the estates, offering benchmarking, tailored advice, support and training to managers and workers. In addition, medical staff carry out basic occupational health (OH) testing. The service is free of charge and participation is voluntary. The interventions are delivered over six weeks, after which SME participants are invited into an EE "community".

A pilot project ran between November 2009 and March 2011 on six business estates in South-East England. Following positive feedback, the HSE decided to expand the project in late 2011 to see if it could be replicated beyond South-East England; nine roll-outs took place during 2012/13 in England, Scotland and Wales, and a further nine are scheduled for 2013/14, with the aim of reaching between 3,000 and 4,500 SMEs by April 2014. A paper to the HSE Board in August 2013 noted that, so far in 2013/14, EE had engaged 1,950 businesses, of which 600 had then participated in benchmarking visits or training (which had been received by 1,350 employees, managers and owners). In addition, 30 SMEs and 110 individuals had received OH support. An evaluation of the 2012/13 roll-out - which included qualitative interviews and a quantitative survey - developed by the HSE's statistics and epidemiology unit confirmed face-to-face contact "tends to be the most effective and memorable way to engage small businesses". It found free training was the main reason why SMEs participated and that the training and the benchmarking visits were very helpful. A majority of SMEs said they were more confident in managing health and safety, having participated in EE; a majority of those interviewed reported practical changes that resulted from EE participation.

Furthermore, 98% of those surveyed said they had, or were proposing to, take action to reduce risks. Overall, 93% of the 2012/13 EE participants would recommend participation to other businesses. The August 2013 board paper concluded, however, that "it is too early to make a meaningful assessment of the full costs and benefits of the current roll-out in monetary terms" and that there should be a further evaluation "in due course". The HSE is developing a communications strategy to persuade, at local levels, SMEs to participate in EE. An earlier interim report on the southeast England pilot was similarly positive and concluded the pilot could be successfully rolled out elsewhere in Britain. Following the interim evaluation, HSE officials stated that "the principle of pump priming by the HSE and then handing over the reins to a third party(ies) is likely to be achievable."

• HSE (2013), Estates Excellence national roll-out 2012-14 - year 1 evaluation, HSE Board paper HSE/13/77; HSE (2013), Estates Excellence national roll-out 2012-14 - update and interim findings, HSE Board paper HSE/13/23.

Enforcement code

The HSE introduced a national health and safety enforcement code for local authorities (LAs) on 28 May 2013, eight weeks after the 1 April target. The code sets out what the HSE means by "adequate arrangements for enforcement" by LAs and should result in businesses benefiting from a more consistent and proportionate approach by LAs. An annex to the code lists the 10 areas or sectors to which LA proactive inspection will be restricted. The HSE consulted on the code between 31 December 2012 and 1 March 2013, and the final text is almost identical to the draft.

Consultation elicited 337 online responses, of which more than two in three were from LAs and their representative bodies. Of the responses, 80% agreed the code would stop LAs from proactively inspecting lower-risk premises, with a majority of LA respondents agreeing the measures would be helpful, although the HSE also notes: "Some identified that the reduction in LA resourcing was also influencing this change." Publication of the code implements the government's response to a recommendation of the 2011 Löfstedt Review (but not the recommendation itself, which called on the HSE to direct all LA enforcement activity). Löfstedt hoped his recommendation would address in part the historical split between LA and HSE enforcement and avoid the problem whereby some of the "highest risk" premises inspected by LAs are lower risk than many premises not inspected by the HSE - the so-called "twin peaks" problem.

The Department for Work and Pensions (DWP), however, claimed it wanted to maintain the "local" elements of LA enforcement and although it insisted it "fully support[ed] the overall objectives of the recommendation", it advised the HSE would instead develop a code. In his one-year-on report on the implementation of his recommendations, Löfstedt noted: "While it is unfortunate that the code does not go as far as my recommendation … it is certainly a step in the right direction and, if adhered to, should ensure a more proportionate, risk-based approach to LA enforcement."

• HSE (2013), National LA enforcement code. Health and safety at work. England, Scotland and Wales; HSE (2013), HSE response to the public consultation on proposals for a national LA enforcement code; HSE (2012), Consultation on proposals for a national local authority enforcement code - health and safety at work, England, Scotland and Wales, CD 247; HSE (2013), Progress with the consultation on the LA national code, HSE Board paper HSE/13/18; HSE (2012), HSE/LA enforcement liaison committee. Inspection/visit data collection from local authorities, H13/02; HSE (2012), Delivering the recommendations in the Löfstedt report and the government response, HELA, 30 January 2012, H12/02.

Seveso review

On 26 June 2012, the EU adopted a new Seveso Directive. Seveso III will replace Seveso II, which is implemented in the UK by the Control of Major Hazards Regulations 1999. Member states have until 31 May 2015 to comply with Seveso III's provisions, with the exception of heavy fuel oil, for which compliance is required by 14 February 2014 (see below). The HSE advises that planning for the transposition of the Directive is in progress, alongside informal consultation with industry and discussions with the Scottish government. In addition, discussions are continuing at a European level on "issues that need clarification to assist with transposition of the Directive".

The main changes introduced by the Directive are the alignment of the list of applicable dangerous substances with the EU Regulation on classification, labelling and packaging of chemical substances and mixtures (CLP), which implemented the UN Globally Harmonised System; and strengthening of the provision of information to, and consultation with, the public, including bringing the requirements into line with the Aarhus Convention on public information, public participation and access to justice for environmental matters. The Directive's requirements, advises the HSE, "will inevitably lead to changes in scope of Seveso, particularly evident for acute toxic health hazards". The commission proposed the Directive on 21 December 2010 in an attempt to address the findings of its review of the effectiveness of Seveso II, as well as the implications for the Directive of the CLP Regulation.

The commission's review included two reports on Seveso II that concluded the fundamental legislative approach was correct and not in need of significant changes. The HSE explains the new Seveso III Directive is "needed because the hazard-based classification system for chemicals, upon which the scope of Seveso is determined, is being replaced, and Seveso II will no longer function unless there is a link with the new classification system. The old system was based on the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (CHIP). The new system is based on the CLP."

• Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC; HSE (2011), Seveso III Directive - update, HSE/11/37.

Classification

Consultation ran between 5 September and 18 October 2013 on proposals to change the classification of "heavy fuel oil" (HFO) from its current status of "dangerous for the environment" to "petroleum products". The change in HFO classification is required by article 30 of Council Directive 2012/18/EU (Seveso III) and will be implemented by an amendment to the Control of Major Accident Hazards Regulations 1999 (COMAH) (see above). The change will increase significantly the qualifying threshold inventories before the requirements of COMAH become applicable. The inventories for lower-tier and top-tier sites will increase from 100 to 2,500 tonnes and from 200 to 25,000 tonnes respectively. The HSE advises the amendment amounts to "effectively an interim measure until the changed requirements of HFO are captured in COMAH 2015, which will be introduced on 1 June 2015 to implement Seveso III in full". The HSE will also make a consequential amendment to the Planning (Hazardous Substances) Regulations 1992, by increasing the controlled quantity of HFO for which the planning requirements become applicable from 100 to 2,500 tonnes.

• HSE (2013), Consultation on draft Regulations to implement article 30 of Council Directive 2012/18/EU on the control of major accident hazards involving dangerous substances, amending Council Directive 96/82/EC, CD262.

Pipelines

The HSE has recommended asking ministers to agree to the withdrawal of the Approved Code of Practice (ACoP) on gas service pipes (L81). The HSE proposed withdrawal of L81 in its 2012 consultation on the future of 30 ACoPs. The provisions of the ACoP, argued the HSE, went beyond the legal requirements of the Pipelines Safety Regulations 1996; of consultation respondents who commented on L81, 79% supported its withdrawal (35 of 44). A paper presented to the August 2013 meeting of the HSE Board noted that, following consultation, the proposal to proceed with withdrawal had "taken into account how the control of the industries that design, construct and install gas service pipes has improved following the setup of Utility Infrastructure Providers (UIPs) and along with their subcontractors their placement within the Gas Industry Registration Scheme. Under this scheme, UIPs elect to be assessed for accreditation for work associated with the design and construction of new gas infrastructure. This accreditation is recognised by all UK gas transporters." The HSE adds that its proposals ensure the industry still has access to guidance "that is specific to the design, construction and installation of gas service pipes, which highlights their duties in order to comply with" the 1996 Regulations. This is because it is working with the Institute of Gas Engineers and Managers to update the technical standard to incorporate information from the ACoP. The HSE anticipates the work will be completed by November 2013, at which point it will remove the ACoP.

• HSE (2013), Reviews of the "Design, construction and installations of gas services pipes - ACoP", HSE Board paper HSE/13/78.

MHSW ACoP

The HSE withdrew at the end of July 2013 the Approved Code of Practice (ACoP) to the Management of Health and Safety at Work Regulations 1999 (MHSW). The HSE Board controversially agreed to the withdrawal at its meeting on 30 January 2013. At its previous meeting, on 5 December 2012, the board delayed a decision until the publication of the revised version of the HSE's core HSG65 guidance. Officials presented two papers to the January 2013 board meeting, one of which included a draft version of the revised HSG65, the online version of which went live in August 2013 (see below).

The other paper looked once more at the arguments for and against withdrawal of the MHSW ACoP, confirming HSE officials' original views. The paper included an annex that attempted to allay the concerns that had been raised about specific issues around withdrawal, including incident investigation, competent advice, cooperation and coordination between employers that share a workplace, "suitable and sufficient" risk assessments, and involvement of workers and safety representatives in risk assessments. The HSE insists these and other provisions in the ACoP are covered by a "full suite of guidance", particularly the existing Health and safety made simple, Health and safety toolbox and the revised HSG65, alongside hazard-based leaflets, industry and topic-based guidance, other ACoPs and legislation. The HSE proposed scrapping the code in a 2012 consultation document on 30 ACoPs and, despite a divided response from consultees, HSE officials nevertheless recommended in late 2012 its removal. Of the 214 consultees who "expressed a view" on the MHSW ACoP, 48% favoured withdrawal and 52% were opposed. The HSE effectively ignored that within this "head count", most of the significant health and safety representative stakeholders were opposed to withdrawal. Although the HSE acknowledged their concerns were "important", it insisted they did not "present sufficient argument" for retention - "in particular, they do not address the fundamental point that an ACoP is not the most appropriate approach for providing guidance" on the Regulations.

• HSE (2013), Proposal to withdraw the MHSW Regulations ACoP, HSE Board paper HSE/13/12.

The withdrawal of the MHSW ACoP is the consequence of a recommendation in the 2011 Löfstedt Review that the MHSW ACoP would "particularly benefit" from a comprehensive review, with attention paid to what information is included and how it is presented (with an SME audience in mind). Löfstedt also mentioned that some respondents to his call for evidence believed more could be done to emphasise that only significant findings of a risk assessment need be recorded and that the detail should be proportionate to the risk. These observations indicate that Löfstedt envisaged the HSE would improve the MHSW ACoP, not scrap it. He did not, however, use his one-year implementation review to question the HSE's actions. The Institution of Occupational Safety and Health launched a petition calling on the HSE to retain the MHSW ACoP; if it attracts 100,000 signatures before 25 February 2014, it triggers consideration and a possible debate in parliament. As at 9 October 2014, it had 9,407 signatures.

HSG65

The HSE launched online on 1 August 2013 what it describes as a "completely refreshed and enhanced" version of its core guidance, Successful health and safety management (HSG65). The new publication, Managing for health and safety, is also significant because the HSE had delayed withdrawing the management ACoP until the new guidance was available (see above). The new publication is currently available in an online version only, but the HSE has confirmed that it will issue a printed book in January 2014, which will continue to be known as HSG65 (a downloadable version of the book will be available by the end of 2013).

The HSE reported 38,500 visits to the updated microsite in August 2013, which puts it in the "top 20" HSE microsites. A draft 54-page version of the publication was attached to a January 2013 HSE Board paper. The microsite covers: core elements of managing for health and safety; "Are you doing what you need to do?"; Delivering effective arrangements; and Resources. The HSE advises that the section on delivering effective arrangements is the "newest and most significant element", introducing the "Plan, Do, Check, Act" approach in a move away from HSG65's POPMAR model (Policy, Organising, Planning, Measuring performance, Auditing and Review). The new approach, according to the HSE, focuses on "identifying the key actions needed in each part of that cycle and relating them back, where appropriate, to leadership, management, worker involvement and competence". The new model, adds the HSE, "achieves a better balance between the systems and behavioural aspects of management. It also treats health and safety management as an integral part of good management generally, rather than as a standalone system." The website is most relevant to larger organisations and complements "Health and safety made simple" and "Health and safety toolbox", which are primarily aimed at supporting SMEs. The HSE advises that dutyholders that follow "Managing for health and safety" will normally be doing enough to comply with the law, and that health and safety inspectors may also refer to the guidance when seeking to ensure compliance.

• HSE (2013), Managing for health and safety; HSE (2013), "Managing for health and safety" (HSG65 refreshed), HSE Board paper HSE/13/13.

Corporate manslaughter

Since our last tables, the Crown Prosecution Service (CPS) has announced the eighth and ninth prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007. Three companies have already been convicted and a further four trials are at preliminary stages. The eighth case relates to Cavendish Masonry, following the death of David Evans. The company is also charged with a breach of s.2(1) of the HSW Act. A plea and case management hearing was scheduled for 15 October 2013 at Oxford Crown Court. The ninth case, which was announced on 1 October 2013, concerns Sterecycle (Rotherham), with the first hearing having taken place at Rotherham Magistrates' Court on 14 October 2013. The incident occurred on 11 January 2011 at a recycling plant at Templeborough, Rotherham when the door to an autoclave blew out under pressure. The explosion killed Michael Whinfrey, who was working on the autoclave, and seriously injured another operator. The autoclave was one of two large vessels at the site that used heat and pressure to process household waste into material for recycling. The incident was investigated by South Yorkshire Police and the HSE. The CPS has also charged three individuals with failing, as employees, to take reasonable care for the safety of persons who may be affected by their acts or omissions at work (s.7 of the HSW Act): the maintenance manager, Kevin Goss; the operations manager, Steven Weaver; and the operations director, Paul Greenwell. Goss also faces a charge of perverting the course of justice.

In late 2012 and early 2013, the CPS announced charges of corporate manslaughter against four companies: the trial of Prince's Sporting Club is currently scheduled for 14 January 2014, with a plea and case management hearing on 18 October 2013, both at Southwark Crown Court; the trial of PS & JE Ward is due to start at Norwich Crown Court on 31 March 2014; the next hearing date for Mobile Sweepers (Reading) was 15 October 2013 at Winchester Crown Court; and a plea and case management hearing for MNS Mining (four counts) is scheduled for 16 December 2013, with the trial set to start on 24 March 2014 at Swansea Crown Court. None of the companies is large.

There have been three convictions to date for corporate manslaughter, resulting in fines of: £385,000 for Cotswold Geotechnical Holdings (CGH) in February 2011 (115% its annual turnover); £187,500 for JMW Farms in May 2012 (13.6% of its most recent annual profits); and £480,000 for Lion Steel Equipment in 20 July 2012 (150%-260% of recent annual profits). The Court of Appeal held that the CGH fine was justifiable even though it would probably put the company out of business. None of the cases resulted in the minimum £500,000 fine anticipated by the Sentencing Council's guideline or a publicity or remedial order. There has been no proper test of the offence against a large organisation.

Individual offence

Four individuals have been imprisoned in the period covered by this table for the common law offence of manslaughter (in relation to a workplace death), bringing the total to 46: Allan Turnbull, three years; Paul Napier, one year; Adrian John McMurray, four years; Adrian Paul McMurray, two-and-a-half years.

Appeal

A Merseyrail train guard lost his appeal against the length of his five-year prison sentence for the common law offence of manslaughter of a passenger who fell underneath his train. On 6 June 2013, the Court of Appeal unanimously rejected Christopher McGee's appeal. Announcing the judgment, Lord Justice Pitchford said McGee's decision to signal to the train driver to move off was "inexplicable" given he knew there was a gross risk of death to a drunken teenager. "This was," said Pitchford LJ, "gross negligence of a very high order in the performance of his responsibility, both to the public and to this individual over which the appellant had complete personal control."

Legislation

The HSE Board agreed at its meeting on 24 April 2013 to a request from officials to seek a two-month delay to the date on which new consolidated mining Regulations will come into force. The HSE is reviewing 48 pieces of mines health and safety legislation with a view to replacing them with a single measure, provisionally known as the Mines Regulations 2014. The consolidated Regulations, HSE officials believe, should contain "only those current provisions that stakeholders (and HSE) believe are essential and well-established safety controls, whilst ensuring continuing implementation of the extractive industries Directive". The move would help implement a recommendation of the 2011 Löfstedt Review that the HSE carry out legislative consolidations in five sectors, including mining. Löfstedt had recommended completion by April 2015, but the Government brought the date forward to the end of 2014, meaning the latest date for the introduction of new Regulations would be 1 October 2014 (all domestically initiated legislation should normally be introduced on either 6 April or 1 October each year).

The HSE Board had been expected to consider a draft consultation document on the consolidation at its April 2013 meeting, but HSE officials instead put forward a paper that described the timescale as "challenging", noting: "Legislative reform on this scale is unprecedented in HSE. Aside from the large amount of detailed extant legislation, there is a general lack of understanding within the sector of the modern, more goal-setting approach to safety legislation." Officials acknowledged that reaching the statute book on 1 October 2014 would give "very little contingency time for any unforeseen difficulties and crucially it depends on industry encouragement, which is fragile". Instead, the Board agreed to the officials' request that it ask the employment minister to seek a waiver from the Reducing Regulation subcommittee from the October common commencement date so that the Regulations could be introduced in December 2014, which would still meet the Government's deadline. If approval is secured, consultation will take place around the turn of 2013/14. An HSE spokesperson told HSB on 9 October 2013: "The HSE is continuing to develop, in consultation with industry and other stakeholders, the new mining Regulations with a view to their introduction by the end of 2014. A final decision on their commencement date has not yet been made but we expect to reach this point in the next few weeks. Until then we cannot confirm the actual date of the board's consideration of the consultation nor the timing of the formal consultation exercise."

• HSE (2013), Mines legislative review progress report, HSE Board paper HSE/13/31; and HSE (2012), The GB mining industry: Revision of health and safety legislation, HSE Board paper HSE/12/50.

Quarries ACoP

Minor changes to the quarries Approved Code of Practice (ACoP) are due to come into force before the end of 2013. The HSE Board approved the changes on 14 August 2013, which: clarify the role and responsibilities of competent individuals; align the guidance with the Work at Height Regulations 2005; and replace the minimum standards for barriers with a risk-based approach to determining the barriers that are needed to prevent inadvertent access to dangerous areas. The HSE Board had agreed to consult on the changes as far back as January 2010, but put the consultation on hold because of the Government's Red Tape Challenge and the subsequent Löfstedt Review. It then included five questions on the quarries code in its 2012 consultation on the future of 30 ACoPs. The HSE included the quarries ACoP in the consultative document's second group of ACoPs requiring minor changes, which means that implementation is not required until the end of 2014, although it will have met this target by at least a year.

• HSE (2013), Minor revisions to the Quarries Regulations 1999 ACoP, HSE Board paper HSE/13/80.

Directive

There has been no progress since HSB's last table on the European Commission's proposal to merge the 1989 display screen equipment and manual handling Directives into a new ergonomics Directive covering all musculoskeletal disorders. The position remains that the commission, rather than pursuing its original intention of a new Directive, is now looking at a less significant Council Recommendation. UK officials have lobbied the commission and member states to raise awareness of the impact of a Directive, especially on small businesses. Speculation about the imminence of a proposal has been circulating within the EU since 2008, with the new version combining the Directives' provisions while allowing for a "flexible approach" to risk assessment. The commission had been expected to publish the proposal in spring 2010 but instead it undertook a further impact assessment and said it would publish a proposal in late 2011. In late 2012, the commission announced it was considering options for taking the work forward, with the HSE noting: "It appears that the commission is actively considering producing a Council Recommendation rather than a new Directive. A Recommendation would have no binding effect on member states, although there would be an expectation that member states would take action to apply the principles/content of the Recommendation." The HSE had expected the commission to consult on its draft text in spring 2013 - with the aim of the council adopting the final Recommendation in November 2013, but neither development has taken place. The HSE had hoped the proposal for a Directive would "fill in the gaps" between the two existing Directives, which it believes have "not provided the improvements that were needed", failed to take a holistic approach to the management of MSD risks and are based on an "old-fashioned" approach that is reliant on training. Although it welcomes the commission's consideration of alternatives to a Directive, the HSE cautions it "has not seen the draft text and is unable to provide any comments at this time". Previous attempts to "simplify" the Directives have failed to advance beyond "social dialogue" (ie the earliest explorative stages).

• Background details: HSE (2009), HSE Board minutes, 18 December 2008, HSE Board paper HSE/08/M8.

Published

Managing upper-limb disorders in your business. A brief guide for employers, INDG171(rev2).

ONR

The Energy Bill, which will establish the Office for Nuclear Regulation (ONR) as a statutory nuclear regulator, completed its House of Commons stages on 4 June 2013 and its committee stage in the House of Lords on 30 July 2013. The report stage in the Lords will start on 28 October 2013. The section of the Bill that upgrades the status of the ONR from being an agency of the HSE (part 3) was considered in the Commons on 31 January 2013 and was not contested. The HSE established the ONR on 1 April 2011 as an agency, pending planned legislation to make it a statutory body. The ONR brought together: the HSE's nuclear directorate (the Nuclear Installations Inspectorate, the Office for Civil Nuclear Security and the UK Nuclear Safeguards Office); the HSE's regulation of conventional health and safety at nuclear sites; and the regulation of the transport of radioactive materials by road, rail and inland waterway. The ONR recoups 98% of its costs from charges to the nuclear industry.

• Energy Bill, Bill 135.

Basic Safety Standards

The European Commission published its proposal on 29 September 2011 for a revised Basic Safety Standards (BSS) for radiological protection Directive, after which the Cypriot Presidency of the EU Council of Ministers circulated a revised proposal on 20 December 2012. The Irish Presidency concluded negotiations on 29 May 2013, with member states agreeing with the proposed text, which is now awaiting the view of the European Parliament (whose role is advisory only). The proposal represents the European Commission's attempt to combine the BSS, four other radiation protection Directives and the Commission Recommendation on Radon (90/143/Euratom) into a single, consolidated Directive. The commission asked its scientific experts group (known as the Article 31 group) for proposals to deliver this. The commission initially hoped to conclude negotiations by the end of 2012, with a further two years to be allowed for implementation. The UK's implementing legislation includes the Ionising Radiation Regulations 1999 and the Radiation (Emergency Preparedness and Public Information) Regulations 2001.

• HSE Board paper HSE/09/05.

Hydrocarbon releases

The number of offshore hydrocarbon releases fell from 133 in 2011/12 to a record low of 94 in 2012/13. The number of significant releases fell from 54 to 35 over the same period - again the lowest on record - but the number of major releases trebled from three to nine, which is the highest since a dozen were reported in 1999/2000. Minor releases also dropped to their lowest point at 50. The overall total is exactly half the 188 recorded in 2009/10 and continues a long-term downward trend from a peak of 270 in 2000/01. The 48% reduction in the past three years is, adds the HSE, "just short of the target the industry set itself in 2010 to halve releases".

• HSE (2013), Offshore hydrocarbon releases.

Directive

On 12 June 2013, the EU adopted a Directive on offshore oil and gas safety that must be implemented in member states by 19 July 2015. The HSE has prepared a delivery plan and reports it is working with the Department for Energy and Climate Change (DECC) on the transposition of the Directive. An oversight board comprising the HSE, DECC and the Maritime and Coastguard Agency was due to review progress in October 2013.

The 41-page Directive takes eight pages and 65 paragraphs of "preambles" before it even reaches the requirements that are contained in 44 articles and two annexes. The Directive introduces a new regulatory framework to reduce the incidence of, and limit the consequences of, major accidents related to offshore oil and gas operations, and thereby increase the protection of the marine environment and coastal economies against pollution. The Directive establishes minimum conditions for safe offshore exploration and exploitation and improves the major accident response mechanisms. Offshore oil and gas operations may only be conducted by operators appointed by licensees or licensing authorities. The European Commission emphasises: "To prevent conflicts of interest, member states should ensure a clear separation between regulatory functions relating to offshore safety and environment and regulatory functions relating to economic development, including licensing and revenues management." The Directive also covers appointing a competent authority, transparency and sharing of information, cooperation between member states, internal and external emergency response plans, transboundary emergency preparedness and response, ensuring the licensee is financially liable for the prevention and remediation of environmental damage, the preparation and carrying out of offshore operations, and major hazards reports for offshore installations.

The Directive originated in a proposal on 27 October 2011 from the European Commission for a Regulation that would, it claimed, "ensure that European offshore oil and gas production will respect the world's highest safety, health and environmental standards everywhere in the EU. The new draft Regulation sets clear rules that cover the whole lifecycle of all exploration and production activities from design to the final removal of an oil or gas installation." As a Regulation, the requirements would have applied directly in member states without implementing legislation. Discussions under the Cypriot Presidency of the EU Council in the second half of 2012, according to the HSE, "led to agreement that the proposal should take the form of a Directive instead". The industry committee of the European Parliament voted in favour of a Directive on 9 October 2012.

• Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC, OJ L178/28.6.2013; European Commission (2011), Proposal for a Regulation of the European Parliament and of the Council on safety of offshore oil and gas prospection, exploration and production activities, COM/2011/688; HSE (2013), Chief executive's report to the board, HSE/13/1937.

EMFs

On 29 June 2013, the EU finally adopted the much delayed proposal to replace the 2004 electromagnetic fields (EMFs) Directive. Implementation is required by 1 July 2016. Implementation of the 2004 Directive had been due on 30 April 2008, but was delayed for four years by an amending Directive (2008/46/EC) to allow further research into areas such as the effect of the exposure levels on the use of technologies, for example magnetic resonance imaging. The commission adopted a second amending Directive (2012/11/EU) to delay the April 2012 deadline for a further 18 months, in order to allow sufficient time to reach agreement on the proposal for what would become the 2013 replacement Directive. The proposal for this Directive was published on 14 June 2011, and was followed by two years of negotiations. The HSE advises that the changes to the text "have generally been positive". The 21-page 2013 EMF Directive: clarifies the definitions of adverse effects on health; introduces an updated exposure limits system (frequencies that are recognised as having harmful effects on the human cardiovascular system or the central nervous system); introduces provisions to make it easier for employers to carry out risk assessments; introduces detailed provisions to ensure a proportionate approach as well as to ensure adequate preventive measures to reduce the exposure of workers to EMFs; and requires employers to give exposed workers and their representatives the necessary information and training, particularly relating to the outcome of the risk assessment, the measures taken by the employer, safe working practices, the detection of adverse effects and the circumstances in which workers are entitled to health checks. There are also special provisions for workers maintaining high tension lines, the medical magnetic resonance imaging sector (including radiographers, doctors and nurses), the armed forces, workers who wear an Active Implantable Medical Device (AIMD), and pregnant women.

• Directive 2013/35/EU of the European Parliament and of the Council of 26 June 2013 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of article 16(1) of Directive 89/391/EEC) and repealing Directive 2004/40/EC, OJ L179/29.6.2013.

Published

HSE (2012), Survey of noise emission and risk information supplied with a range of work machinery, HSE RR962; HSE (2013), Current practice in health surveillance for noise, HSE RR966.

Myths panel

The HSE launched the Myth Busters Challenge Panel on 11 April 2012 to look into complaints regarding the advice given by non-regulators such as insurance companies, health and safety consultants and employers. Nearly all of the 214 cases that the HSE has judged in the panel's first 18 months have involved trivial issues; marking the first year of the Myth Busters Challenge Panel, the HSE issued a statement of incredulity about the nature of the cases it adjudges. The "independent" panel is chaired by the HSE's chair, Judith Hackitt, and, according to the HSE, draws on members from small businesses, public safety, trade unions, the insurance industry and "many outside interests where day-to-day common-sense decisions on risk management are made". The panel, adds the HSE, "will quickly assess if the advice or requirement is sensible and proportionate or indeed a genuine health and safety issue, and publish its findings on the website".

Approved Codes of Practice (ACoPs)

The HSE made significant progress during 2013 in overhauling its Approved Codes of Practice (ACoPs), with significant changes affecting a first group of 15 ACoPs on course to be in place by the HSE's 31 December 2013 target. Minor changes to a second group of 14 remain on track to be in place by the end of 2014, although some, for example the quarries ACoP, may be implemented earlier. The overhaul implements a recommendation of the 2011 Löfstedt Review that the HSE review all of its 52 ACoPs. Löfstedt noted that despite "overall" support for the principles of ACoPs as "a vital part of the system", there was also the "potential for confusion between the elements that are regulation, those that have ACoP status, and what is guidance". Following an initial review, the HSE consulted between 3 July and 14 September 2012 on 30 ACoPs, splitting them into the two groups of 15 and 14, with no changes to the 30th code, on worker involvement. The HSE did not consult on 20 ACoPs that are part of wider legislative reviews in construction, mining (10 codes), flammable substances (three), offshore (two), docks, explosives, radiation and first aid. The HSE has made progress on some of these ACoPs too, which is reported elsewhere in the table. Nor did the HSE consult on two further ACoPs because a revised code on lift truck operator training was already due to come into force (and subsequently did so in March 2013) and the ACoP on safety data sheet compilation was being withdrawn because the Regulations to which it applied had been revoked.

At its meeting on 5 December 2012 to consider the outcome of the initial consultation on the 30 ACoPs, the HSE Board agreed to proceed with consultation on each of the 12 ACoPs in the first group where it was proposing major changes, but asked for further information on the three ACoPs that it was proposing to withdraw (which it subsequently received). It also agreed to proceed with all the proposals in the second group. Additionally, the board dropped a proposal to limit ACoPs to 32 pages and noted, but did nothing about, concerns that the timescale for the reforms was too short.

Details on the first group of 15 ACoPs are given throughout this table. In short, the HSE has withdrawn the ACoP on the Management of Health and Safety at Work Regulations 1999 (MHSW), and recommended to ministers the withdrawal by the end of 2013 of the two other ACoPs that it proposed for removal, on pipelines and on agriculture and children. Of the remaining dozen ACoPs, the HSE will, by the end of 2013, and in some cases slightly earlier: revise the Workplace (Health, Safety and Welfare) Regulations 1992 and the general ACoP on the Control of Substances Hazardous to Health Regulations 2002; consolidate into single ACoPs those on dangerous substances and explosive atmospheres (currently five), asbestos (two) and gas safety (two); and split the two parts of the Legionella text into an ACoP and guidance. The net effect of the group one changes is that, by the end of 2013, the HSE will have published six revised ACoPs, removed six by consolidation and withdrawn three outright.

The second group comprises ACoPs on: diving (five); work equipment (three); and lifting equipment, confined spaces, pressure systems, pottery, lead and quarries (one each). HSE (2012), Outcome of the consultation on proposals to review HSE's ACoPs, HSE Board paper HSE/12/94; HSE (2012), Preliminary analysis of responses to the consultation on proposals to review HSE's ACoPs (CD241), HSE/12/77; HSE (2012), Consultation on proposals to review HSE's Approved Codes of Practice, CD 241.

Appeals panel

Twenty-one months after its inception on 5 January 2012, the Independent Regulatory Challenge Panel has still considered just one case. Nor were there any cases under consideration as at 9 October 2013, according to an HSE spokesperson. The panel allows businesses to challenge advice from HSE or local authority (LA) inspectors that they believe is either incorrect or goes beyond the legal requirement. "Advice," states the HSE, "means anything that the regulator suggests that a business needs to do that is not a formal enforcement notice." The panel can consider only decisions taken on or after 30 June 2011. The Government asked for the panel in its response to the Löfstedt Review (see Regulation); Löfstedt had raised the issue but not made a formal recommendation. The HSE advises that although the role of the panel is advisory, it "will respect the independence of the panel and its advice and where appropriate take it on board". The panel is chaired by Tricia Henton, formerly of the Environment Agency, and comprises "independent members who have the competence and experience to assess advice that has been given on regulatory matters". The HSE has been recruiting a pool of panel members that will, according to an HSE spokesperson, comprise "ex-HSE and LA regulators and ultimately business representatives" from a "wide spectrum".

Initially, the reasons that the HSE gave for the low number of cases were the 30 June 2011 cut-off date and the need to exhaust other appeal mechanisms. These reasons are decreasingly valid over time, and HSB therefore asked the HSE whether or not it had considered scrapping the panel. An HSE spokesperson told HSB that the HSE had discussed the value and future of the panel and decided to retain it. The scope of the panel has also been extended with the introduction of the National Local Authority Enforcement Code (see Local authorities) so that the panel can now consider complaints where companies or individuals believe that visits were not justified as being in accordance with a risk-based approach to targeting proactive inspections. "Anecdotal evidence," added the spokesperson, "suggests that the existence of the panel positively influences behaviour as the prospect of a matter being raised with it usually encourages a resolution. We believe it is important to retain the panel as a means by which both HSE and LA health and safety inspectors are reminded of the need to provide dutyholders with sensible and proportionate advice." In the absence of appropriate referrals, the HSE continues to publicise the panel and its remit through three main channels: in discussions with stakeholders, for example during the HSE's Small Business Trade Association Forum meetings; raising awareness through presentations and speeches, for example the keynote address by the HSE's chair at the Safety and Health EXPO in May 2013; and discussing the panel at meetings where the HSE is asked to provide representation, for example at a meeting of the British Retail Consortium Risk and Safety Group.

Löfstedt Review

Implementation of the recommendations of Professor Ragnar Löfstedt's 2011 report on health and safety legislation has continued apace over the past six months. The Government announced the Löfstedt Review on 21 March 2011 and published the report of his review on 28 November 2011. Löfstedt made 26 recommendations, all of which he wanted implemented by 1 April 2015, with many sooner. Löfstedt's 2011 review found: no evidence to support "radically altering or stripping back current health and safety regulation"; the regulations were "broadly fit for purpose"; the concept of reasonable practicability was appropriate to the legislation; and risk assessments were "fundamental" to a business's management of risk. Most of the problems, he concluded, lay less with the regulations and more with the way they were applied. Although the Department for Work and Pensions (DWP) insisted it accepted all 26 recommendations, this was not the case in terms of the details of some of the recommendations, particularly around local authority enforcement. Progress on the implementation of the recommendations is covered throughout the table by subject: Compensation; Construction; EU; HSE; Legislation; Local authorities; Mines; RIDDOR; Self-employed; Work at height. Recommendations that were fully implemented by the time of previous HSB state-of-play tables are not included here, for example on portable appliance testing.

In early February 2013, the DWP published Löfstedt's one-year review of the implementation of the recommendations in his 2011 report. Löfstedt concluded that, "overall", good progress had been made. The then minister for employment, Chris Grayling, had asked Löfstedt to report to him by the end of January 2013 on "how well" the recommendations had been implemented, although he was not allowed to "revisit" the issues nor make recommendations for new areas of work. One year on, Löfstedt claimed: "All the recommendations in my report have either been delivered already or are on track to be completed by the agreed date, although in some cases the government has gone further than I proposed. In any case, the HSE should be commended for meeting the targets on time, especially at a time of austerity and severe budget cuts."

Alongside Löfstedt's one-year review, the DWP published its own progress report on the implementation of both the Löfstedt Review and an earlier report by Lord Young, Common sense. Common safety. Löfstedt's one-year review also looked briefly at the implementation of the Young report, noting 23 of Young's 35 recommendations had been implemented in full and that "the majority of the remaining recommendations are moving towards delivery or are awaiting space in the legislative timetable or a suitable legislative vehicle for implementation." (He was too polite to note that the more outlandish recommendations had been long forgotten.) Ongoing Young recommendations are covered in this table; earlier implementations were reviewed in previous state-of-play tables.

• Löfstedt R (2013), Reclaiming health and safety for all: A review of progress one year on; DWP (2013), A progress report in implementation of health and safety reforms; Löfstedt R (2011), Reclaiming health and safety for all: An independent review of health and safety legislation, Cm 8219; DWP (2011), The government response to the Löfstedt report.

Guidance review

The HSE hopes to complete the review of its guidance portfolio by April 2014. Although the HSE had hoped to complete the review by April 2013, an HSE spokesperson told HSB on 9 October 2013 that "the scale and complexity of the work [meant] the challenging target … was not quite met." Nevertheless, the HSE had reviewed 740 of the 880 publications by the end of March 2013, and those that required changes "have either already been republished or are scheduled in for publication at a future date". The spokesperson would not state, however, how many publications had been revised or scrapped, advising instead: "Whilst some publications are scheduled to be withdrawn entirely following review because they are no longer needed or duplicate other guidance, others will be replaced by web-only guidance, transferred to industry or merged with other revised guidance. The review will deliver a much improved range of guidance as a result, and we do expect to have reduced HSE's portfolio once it is concluded." The review excludes guidance for the major hazard industries and all ACoPs.

• HSE (2012), Update on review of health and safety guidance, HSE/12/26; HSE (2011), Review of health and safety guidance, HSE/11/31.

The guidance review also helps address a recommendation of the 2011 Löfstedt Review that the HSE "continue to help businesses understand what is reasonably practicable for specific activities where the evidence demonstrates that they need further advice to comply with the law in a proportionate way". Although Löfstedt supported the use of "reasonable practicability" in health and safety legislation, he also found "general confusion over what it means in many quarters" - particularly among small businesses that do not have in-house expertise. In his one-year progress report on the implementation of his recommendations, Löfstedt described the HSE's September 2012 publication of Health and safety toolbox guidance as "a major step in helping businesses to understand what is meant by 'reasonably practicable'". The Department for Work and Pensions' February 2013 report on the implementation of the Löfstedt recommendations notes that the HSE's ongoing review of guidance will help small businesses understand what is meant by reasonably practicable for specific activities.

New regime

There were 148 workers killed at work in 2012/13, which is 24 fewer than in 2011/12. The fatal injury rate in 2012/13 was 0.5 per 100,000 workers, compared with a 2011/12 rate and five-year average of 0.6. The HSE cautions, however, that fatal injuries are subject to chance fluctuation and that: "When the 2012/13 data [are] added to the time series, the latest five years indicate a levelling off, with no overall trend." Between 2011/12 and 2012/13, the number of deaths: fell in construction from 48 to 39, against a five-year average of 53; fell in agriculture from 35 to 29 (average 36); fell in manufacturing from 31 to 20 (average 28); fell in mining and quarrying from 10 to two (average six); doubled in waste and recycling from five to 10 (average six); and rose in services from 42 to 46 (average 50).

• HSE (2013), Statistics on fatal injuries in the workplace 2012/13.

New regime

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR 2013) were laid before parliament on 20 June 2013 and came into force on 1 October 2013 (SI 2013 No.1471). The Regulations revoked RIDDOR 1995 and: replace the list of 10 reportable "major injuries" to workers with a shorter and revised list of eight "specified injuries"; replace the existing schedule of 47 categories of reportable work-related diseases and illnesses with eight categories (six specific conditions that account for 90% of diseases currently reported, as well as cancers and diseases linked to biological agents); and simplify the types of "dangerous occurrence" that are reportable. (Even though the HSE claims that RIDDOR 2013 means "fewer types of dangerous occurrence" will require reporting, the number of dangerous occurrences that are reportable has in fact risen from 83 to 87.) There are no changes, however, to the reporting requirements for accidents that: involve a fatality; injure the public; or incapacitate a worker for more than seven days. The changes follow: a 2005 HSE fundamental review of RIDDOR, Lord Young's 2010 review and the 2011 Löfstedt Review, which asked the HSE to complete the fundamental review called for by Lord Young and recommended the HSE amend RIDDOR and its guidance to provide clarity on compliance for businesses by reducing ambiguity over reporting requirements, particularly in relation to members of the public. The Government accepted the recommendation; the HSE duly consulted on proposed changes between 2 August and 28 October 2012. Consultation elicited 450 responses, on the basis of which HSE officials recommended to the HSE Board several important changes to those proposed in the consultation document. The HSE Board agreed the final package in a closed meeting on 30 January 2013. The HSE has also produced a brief guide to the new Regulations and more detailed online guidance.

• HSE (2103), Reporting accidents and incidents at work: A brief guide to RIDDOR 2013, INDG453 (rev); HSE (2013), RIDDOR 2013: Draft guidance for review; HSE (2013), RIDDOR changes for October 2013; HSE (2013), Summary of responses to the proposals to revise RIDDOR 1995 (as amended); HSE (2013), Outcome of the consultation on proposals to revise RIDDOR 1995, HSE Board paper HSE/13/04; HSE (2012), Proposals to revise RIDDOR 1995 (as amended), CD 243; HSE (2010), Implementing Lord Young's recommendation to amend RIDDOR, HSE Board paper HSE/10/95.

Legal exemption

On 1 July 2013, the Government published draft legislation that would exempt about 800,000 self-employed workers from health and safety legislation where their activities do not risk the safety of others. Section 1 of the draft Deregulation Bill would amend s.3(2) of the HSW Act, which requires self-employed persons to conduct their undertakings in such a way as to ensure, so far as is reasonably practicable, that themselves and other persons (not being their employees) are not exposed to risks to their health or safety. The amendment would limit the duty to "relevant" undertakings, ie those that are prescribed (for example, construction) or if "persons who may be affected by the way in which it is conducted, other than the person conducting it (or his employees), could thereby be exposed to risks to their health and safety". The Government admits the change will save businesses just £300,000 a year. A parliamentary committee is conducting pre-legislative scrutiny of the Bill; the deadline for written submissions was 16 September 2013, and the committee will also be taking oral evidence. The committee must report, with recommendations, by 16 December 2013, after which the Bill will be introduced when parliamentary time allows. The HSE Board approved the controversial change, which implements a recommendation of the 2011 Löfstedt Review, at a closed meeting on 30 January 2013. Löfstedt's recommendation also took implicit account of Lord Young's recommendation that self-employed workers in low-hazard business be exempted from risk assessments. The HSE emphasises that 2.3 million self-employed workers will still be covered by health and safety legislation. The HSE finally published on 6 March 2013 the officials' paper that informed the board's discussion, albeit with the deletion of some of the detail that was seen by the board, notably around legal issues. The paper showed there was "no clear consensus of opinion" among the respondents to the consultation, with 43% agreeing, and 52% disagreeing, that the HSE's preferred option was the best way of implementing Löfstedt's recommendation. Only 40 of the replies were from self-employed people, and many of these were health and safety consultants, leading the HSE to acknowledge the consultative document "did not elicit the volume of replies desired from the self-employed cohort that this recommendation would be aimed at, ie those self-employed whose work activities do not pose potential risk of harm to others". This led the HSE to ask the Health and Safety Laboratory (HSL) to carry out supplementary targeted consultation: of 60 self-employed persons who expressed a view to the HSL, 55 thought they had no safety obligations.

• Draft Deregulation Bill, Cm 8642; HSE (2013), Outcome of the consultation on proposals to exempt from health and safety law those self-employed whose work activities pose no potential risk of harm to others, HSE Board paper HSE/13/03; HSE (2012), Public consultation on proposals to exempt some self-employed people from health and safety legislation, CD 242.

Löfstedt Review

The HSE met the 2011 Löfstedt Review recommendation that it should review the Work at Height Regulations 2005 and guidance by April 2013 "to ensure that they do not lead to people going beyond what is either proportionate or beyond what the legislation was originally intended to cover". Although Löfstedt accepted the Regulations offered a risk-based approach that had resulted in improvements in the management of work at height, the evidence suggested "only a small number of managers were able to correctly define working at height and very few actually understood the regulatory requirements. The blanket requirement has also led to some employers complaining that the requirements are onerous and unrealistic." On 26 September 2012, however, the HSE Board concluded there was no need to change the Regulations because "where problems remain, these are associated with the misinterpretation of the requirements of the Regulations rather than the Regulations themselves". An HSE spokesperson told HSB on 9 October 2013 that the HSE is "currently undertaking a final round of user testing with businesses on our revised, and much simplified and clearer, suite of guidance. This will help people understand what the law requires and debunks some of the common myths about working at height. Business and other stakeholders will be informed once the testing has concluded and the new guidance becomes available."

ACoP

On 25 September 2013, the HSE Board approved a revised version of the workplace ACoP ( L24). The HSE hopes to publish the revised ACoP in November 2013 along with a summary of the responses to the consultation exercise, which ran between 7 May and 30 July 2013. The initiative will help implement a recommendation of the 2011 Löfstedt Review that the HSE review all its ACoPs. Following an initial review, the HSE issued a 2012 consultative document that proposed, in principle but not in detail, reforms to 30 ACoPs, including that on the workplace. Of the 185 responses that addressed the workplace ACoP, 167 (93%) supported the HSE's proposed reforms; the HSE noted "there was no significant evidence to suggest the need for a wholesale revision", and that what was needed was updating, simplification and modernisation.

The HSE set out its detailed proposals in the 2013 consultation document, eliciting 134 responses, of which 88 (69%) supported the proposal. The HSE advises that the responses came mainly from trade union representatives and health and safety professionals, which "may indicate that [business groups] do not have any issues or concerns with the proposals". The main areas of updating cover: building stability; workplace insulation, and excessive sunlight and temperature; accommodating for disability; falls from height; traffic signs; smoking; the Construction (Design and Management) Regulations 2007; and the Quarry Regulations 1999. Although the HSE excluded maximum workplace temperatures from the consultation because it believed there was insufficient evidence to support the introduction of such a measure, 35 respondents nevertheless raised the issue. The HSE advises it "anticipated" the issue would be raised, and had undertaken, as part of the consultation, to produce improved information and advice alongside the revised ACoP, which will also include short additional guidance. The HSE also convened a stakeholder meeting on 17 September 2013 to discuss the issue, although it subsequently told HSB the meeting "was not specifically about workplace temperatures; it covered all additional guidance and information supporting the workplace ACoP. Those that attended the meeting were generally supportive of the HSE's approach to this guidance and some helpful suggestions for further improvements were also made and are now being considered by the HSE."

The final version of the ACoP will also reinstate to ACoP status the provision on "protective clothing, rest facilities and exposure", to which the consultation document had "mistakenly" allocated guidance status. Consultation has also resulted in additional guidance on the "equality of toilet provision between men and women"; and an HSE commitment to consider the viability of new guidance on the provision of sanitary conveniences and drinking water for peripatetic workers within the ACoP section on remote and temporary workplaces.

• HSE (2013), Publication of revised ACoP Workplace (Health, Safety and Welfare) Regulations 1992 (L24), HSE Board paper HSE/13/88; HSE (2013), Consultation on draft revised ACoP Workplace (Health, Safety and Welfare) Regulations 1992, CD253; HSE (2013), Consultation on draft revised ACoP Workplace (Health, Safety and Welfare) Regulations 1992, HSE Board paper HSE/13/35.

Work experience

June 2013 witnessed the Government's attacks on health and safety reach a new low when the Department for Work and Pensions (DWP) announced "the latest stage of the government's commitment to debunking health and safety myths and slashing burdensome rules". The announcement was greeted with disbelief and dismay by groups such as Families Against Corporate Killers (FACK). The "stage" comprised a ministerial statement and revised HSE guidance on young persons on work experience, and new Association of British Insurers (ABI) guidance. Employers, claimed the DWP, "have been hampered in the past by thinking that they have to do special risk assessments for young people …" Mystifyingly, the DWP failed to mention reg. 3(4) of the MHSW Regulations 1999, which states: "An employer shall not employ a young person unless he has, in relation to risks to the health and safety of young persons, made or reviewed" a risk assessment. Regulation 3(5) adds that in "making or reviewing the assessment, an employer who employs or is to employ a young person shall take particular account" of seven specified criteria relating to young people. Furthermore, reg. 19 is dedicated to the protection of young workers. The DWP referred only to revised HSE guidance, which runs to six pages, "making it clear that if workplace risk has already been assessed with young people in mind, a business does not need to repeat this for each new student". The report of the HSE's then chief executive, Geoffrey Podger, to the June 2013 meeting of the HSE Board claimed "the simplified guidance provides clarity, particularly in the areas of risk assessment, and clearly sets out what employers and work experience organisers do and do not need to do." Podger added that the HSE had "worked closely" with the Department for Education (DfE) and its education stakeholders, tested the guidance at DfE/Association of College events, and consulted with business representatives. Through the ABI guidance, adds the DWP, "the insurance industry has committed to treat work experience students as employees for the purposes of insurance against bodily injury, and confirmed that simply giving work experience opportunities to students will not in itself impact on insurance premiums."

• HSE (2013), Young people and work experience: A brief guide to health and safety for employers, INDG364(rev1).