Health and safety in Scotland: changes to regulatory landscape

This article reviews the health and safety regulatory regime in Scotland, which has been transformed over the past year. It tracks the development of the dedicated Health and Safety Division, the move towards the pursuit of individuals for health and safety offences, and what this means for organisations and senior staff in Scotland.

Introduction: a different view up north

The approach to the prosecution of health and safety matters in Scotland is very different to that in the rest of the UK. In England and Wales the Health and Safety Executive (HSE) manages health and safety enforcement action, from investigation through to conviction. The HSE decides whether or not to prosecute and also conducts the prosecution. Scotland has a different procedure.

In Scotland the Crown Office and Procurator Fiscal Service (the Crown) steps into the shoes of the HSE just as the decision on whether or not to prosecute is being taken. In Scotland the Crown, as opposed to the HSE, decides whether or not to prosecute and the Crown conducts the prosecution.

Crown as general practitioner

To understand the significance of this difference in approach it may help to explain what the Crown does in Scotland. The answer, at least on the prosecution front, is everything. In Scotland the Crown is responsible for conducting all prosecutions before the criminal courts. This will be everything from a knife assault on a city street to pollution of a local river. It includes all health and safety prosecutions. Viewed in this way the Crown, or more precisely the Crown’s local representative the procurator fiscal, is the ultimate general practitioner. Indeed, when comparing the role of the procurator fiscal in Scotland with the prosecution role of the HSE in the rest of the UK, the Crown has never looked so general.

Comparing the wide responsibilities of the Crown for prosecution in Scotland with the specialist expertise of the HSE in prosecuting in the rest of the UK begs the question: which model is more effective at successfully prosecuting breaches of health and safety?

The HSE’s own prosecution statistics over the past three years tell their own story. The relevant conviction rates in the UK are shown in the table on p64.

In digesting these statistics, there must be a concern that the generalist prosecution regime in Scotland has not matched up to the performance of the specialist regime operated by the HSE in the rest of the UK.

Health and Safety Division

There is no doubt that this comparative exercise was a key driver in the Crown’s decision, at the start of 2009, to establish a dedicated Health and Safety Division (the Division) in Scotland, with responsibility for the instigation, preparation and prosecution of all health and safety matters north of the border. The Division is divided into three geographical areas:

  1. north;
  2. west; and
  3. east.

The main aim of the Division is to develop a group of dedicated health and safety prosecutors. In doing so, the Crown has moved towards developing the type of specialist regime that operates successfully – comparatively so – across England and Wales.

When the Crown announced this innovation, particular stress was placed on two goals:

  1. specialisation; and
  2. consistency.

For those organisations that deal with health and safety regulations on a regular basis, this move towards consistency is welcome. Indeed, even for those organisations who have little or no contact with the Scottish health and safety authorities the certainty of a consistent approach is welcome.

However, another form of certainty also arises from the creation of the Division. Specialisation will provide a more effective health and safety regulatory regime in Scotland, and the Crown will therefore undoubtedly become more effective at prosecuting breaches of health and safety law in Scotland.

As the Crown takes steps to develop health and safety specialists as prosecutors, the sensible option for organisations that face regulation in this sector is to do likewise by developing or instructing their own health and safety specialists.

Pursuit of individuals

Organisations are not the only group that should be aware of this more specialised and more focused health and safety regime in Scotland.

Most people are familiar with companies and corporate entities having their own legal personalities. In health and safety regulation, the Scottish authorities have traditionally focused on regulating that entity. This means that, in the past, where there has been a breach of health and safety law in Scotland, the Crown and the HSE have tended to focus their attention on the prosecution of the organisation, and have not pursued the directors and senior managers within an organisation to the same degree. The experience of health and safety regulation in Scotland suggests that the ‘corporate veil’ is very much alive, and is relevant to the approach of the health and safety regulators.

When things go wrong – for instance, where there is an accident or a health and safety breach – the HSE and the Crown have focused on prosecuting the company. They have not looked behind the company to prosecute company directors or senior managers.

Power to prosecute individuals

Despite the past responses of the HSE and the Crown, individuals can be pursued. The Health and Safety at Work etc Act 1974 (the 1974 Act) does not just require an employee to take care of the health and safety of others, it also places a specific duty on the employee to co-operate with their employer to enable the company to comply with its health and safety responsibilities (s7 of the 1974 Act). An employee’s failure to fulfil this duty is an offence.

At the same time, where a corporate entity has committed an offence with the consent, connivance or neglect of a director, manager, secretary or other senior officer, the individual will be liable for prosecution, together with the company (s37 of the 1974 Act). In short, when prosecuting a company, the Crown can also prosecute a director or a manager as an individual.

All health and safety practitioners will be aware of the impact of the Health and Safety (Offences) Act 2008 (the 2008 Act) on section 37 prosecutions. Since January 2009, the penalty for conviction for a consent, connivance or neglect offence has been increased to allow for up to 12 months in prison in minor cases and up to two years in more serious cases.

A change of approach?

Although the power to pursue directors and managers is readily identifiable, the prosecution practice in Scotland has tended to shy away from the conviction of individuals. To this practitioner’s mind, the Crown needed a nudge to change their approach.

This encouragement came from south of the border when the HSE signalled a UK-wide change of direction. In February 2009 the HSE issued an enforcement policy document that made the following statement under the heading ‘Prosecution of individuals’:

‘Enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance, or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.’

Crucially, the Crown approved this policy statement.

A transformed landscape

Last year witnessed two key innovations in the regulation of health and safety in Scotland. With the creation by the Crown of the dedicated Division, the new and specialised prosecution regime is more in tune with the approach in the rest of the UK. It can only be a matter of time before the prosecution performance of the Scottish Division begins to mirror the (more impressive) performance of the HSE in the rest of the UK. Companies and other organisations who operate in Scotland need to be prepared for what is to come.

At the same time, this specialist Division has signed up to a prosecution policy statement that encourages the pursuit of individuals in addition to organisations. The 2008 Act brings a custodial sentence closer for convicted individuals. Directors, managers and others within organisations must understand and respond to these changes to the regulatory landscape in Scotland.