Fee for Intervention or fining for HSE income?27 February 2014

Police, prosecutor, judge and jury.

That's how Martin Temple, chair of the EEF (the manufacturers' organisation) describes the HSE's approach to its controversial Fee for Intervention (FFI – where firms deemed to be in breach have, since October 2012, been required to pay for HSE's time in putting things right).

It's not all wrong. Temple broadly praises the Health and Safety Executive in his triennial review, published last month, for its impartiality and independence, as well as for its delivery of essential services – despite funding being slashed by 33% in 10 years. But he is concerned.

Indeed, he suggests that FFI alone risks compromising much of what has been achieved in the nearly 40 years since HSE's establishment, following Lord Robens' vision of a goal-setting, risk-based and proportionate framework, which led to the Health and Safety at Work Act 1974. Not least its reputation and integrity.

That's a strong accusation. But he's reflecting strong feelings. It's not that respondents to Temple's month-long consultation last year disagreed with the principle of charging. There is, after all, some merit in the claim that fines should encourage companies to comply or put failings right fast, rather than cut corners and so put lives at risk – although the threat of court proceedings did that well enough before FFI.

No, it's the way FFI is administered that has aroused stakeholders' ire. Why? First, because HSE is seen as issuing fines but "without any of the usual safeguards for such statutory schemes", as Temple puts it. But secondly, and every bit as worrying, it creates at least an impression that the agency has income targets to achieve – so inspectors may fine accordingly.

Further, given that British health and safety law is not black and white, but instead goal-setting, there's plainly an element of judgement over some failings that goes way beyond conventional legal interpretation. And who makes those judgements? Yes, HSE inspectors.

For plant and factory managers – and indeed HSE inspectors, workers and industry in general – perhaps the biggest concern is that engineers may stop seeking advice, believing they risk landing an FFI charge. As a result, previously constructive relationships that have seen serious improvements in plant safety could unravel.

It is to be hoped that HSE accepts Temple's recommendations for its FFI review. In particular, HSE needs to establish: that the first year of its operation demonstrated improved compliance; and that HSE inspectors and/or those inspected have not adversely changed their behaviours.

If these cannot be proven beyond reasonable doubt and HSE cannot come up with ways to mitigate the obvious problems, then, as Temple suggests, FFI should be phased out. And the sooner, the better.

Brian Tinham BSc CEng MInstMC FSOE FIPlantE FIRTE, Editor

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