Regulating Scotland: What works and what does not in occupational and environmental health and what the future may hold

Regulating Scotland: What works and what does not in occupational and environmental health and what the future may hold
Andrew Watterson and Rory O’Neill. September 2012.

Executive summary

Regulatory approaches to protect our health at work and to prevent pollution of our environment have improved by increments over several decades. Now these approaches are being questioned. The reasons given to justify a reappraisal vary, but globalisation and recession are the principal reasons cited by business and governments for ripping up the rule book. Some argue current high standards are not affordable in a global economy; others argue there are better, less burdensome alternatives to regulation.

Assumed throughout is that the established safeguards on our lives, our environment and our welfare are costly, and it is a cost we can no longer afford to pay. But poor health too comes at a cost. Scotland has one the highest rates of workplace sickness absence in the UK, and work-related ill-health and injuries are responsible for about a quarter of this. It is a sizeable and particularly preventable slice of the total sick leave toll. The contribution of poor environmental standards is poorly quantified, but is certainly real and certainly substantial.

This is not a cost borne equally across Scottish society. A much greater burden, witnessed by greatly increased mortality and morbidity, is seen the lower you travel down the socioeconomic scale. Poverty, a poor living and working environment and job insecurity are substantial contributory factors to this health inequity. It concentrates risks in sections of the community, many of which are easily identified and could be easily targeted for preventive action. However, strategies to address health inequalities in Scotland bypass occupational and environmental health and perpetuate this disadvantage.

This report presents an economic as well as a health case for retaining and improving regulations and their enforcement. Evidence in this report challenges the view that regulation inhibits job creation, innovation and economic growth. Instead, it shows only dirty and dangerous businesses have anything to fear from the enforcement of protective safety and environmental regulation. Business, workers and their communities and the public purse can all garner substantial benefits from laws that protect the responsible from the rogues.

This substantial benefit is not reflected in current and proposed practices. The report examines the current policies and programmes that advocate and implement deregulatory and ‘better regulatory’ actions by governments and agencies dealing with occupational and environmental health and safety. It analyses the evidence or lack of evidence underpinning such policies and how, within Scotland, the deregulatory agenda has emerged to shape the thinking of the leaders of agencies dealing with these subjects. It concludes unfounded claims of burdens on business are combined with skewed cost calculations to concoct a wholly unsustainable – economically, socially and environmentally – argument for deregulation.

The regulatory agencies responsible for environmental and workplace health and safety are already hobbled by a rapid loss of staff and resources. Overall HSE staffing in Scotland has fallen by over 5 per cent since 2008; since 2010 the number of frontline field inspectors in the country has fallen by almost 7 per cent. A shift towards less regulation and enforcement is well established, and is accelerating, much of it imposed from Westminster but embraced elsewhere in the name of ‘better regulation’. This retreat from regulation is cost-cutting dressed up as a cost-benefit calculation. It transfers risks to communities and the public purse, while falsely claiming to reduce costs without adverse consequences. It is a process of cost-shifting, not cost-reduction.

The response of regulators to the pressure not to regulate businesses and the environment has not been uniform. The workplace health and safety regulator, the Westminster-controlled Health and Safety Executive (HSE), and the local authorities whose budgets are largely determined by Westminster appear to have had far less freedom to explore and determine enforcement approaches and priorities and staffing policies. Effectively they have been captured and in many respects neutralised by Westminster.

The Scottish Environment Protection Agency (SEPA) has had far more autonomy and pursued a more rigorous approach to the regulatory options open to it. This has involved substantial investigations of alternative models of regulation and some detailed analyses of the economic aspects of regulation. There has been extensive consultation on what sort of regulatory and enforcement regimes it should adopt, including sectoral unified inspections rather than fragmented uncoordinated ones.

There remain major concerns about SEPA’s proposed reforms of its regulatory and enforcement role, but the transparent process the agency engaged upon has much to commend it to HSE. The UK-controlled workplace health and safety regulator has limited the scope of its consultations to a refashioning of its role to fit the deregulatory template imposed by the UK government. The language of deregulation has become embedded, and a new pairing of functions, marrying protection of life and limb with protection of the economy, has emerged. SEPA has not been unaffected, but neither has it been entirely engulfed by an approach that splits its focus between the economy and environmental health.

A workplace case study presented in the report examines the 2004 ICL/Stockline disaster in Glasgow, which with its death toll of nine was the largest single loss of life in a UK workplace tragedy since Piper Alpha. A second case history looks at the lessons from the 2012 Legionnaires’ disease incident in Edinburgh, which killed three and affected over 100. These examples provide the means to investigate some of the regulatory and enforcement issues in greater depth. They highlight the pitfalls of a shift to a system of regulation where increasingly threadbare and constrained regulators are rarely seen and only very occasionally heard.

We conclude there is no case for deregulation or ‘better regulation’ of occupational and environmental health. Scotland needs effective regulation, with properly resourced and staffed agencies that will safeguard public health better and provide businesses and communities with an equitable base for healthy, safe, economically and physically sustainable activity.

Scotland is well placed to turn the tide on the substantial negative consequences of deregulation by protecting its necessary regulatory regimes that support responsible employers and profitable businesses. This can be done by pioneering and supporting the key principles of precaution and environmental justice linked to empowered employees and strategies such as toxics use reduction. These proposed regulatory alternatives are not a luxury, but can deliver the health and economic benefits necessary if Scotland and its people are to thrive.

Principal lessons of this report are:

Regulation is effective and not a burden

Justifications for scaling back environmental and workplace health and safety enforcement agencies, including an alleged negative impact on economic development and job creation, are not based on fact. Available evidence suggests inspection and enforcement activities can stimulate innovation, have no negative and a probable positive effect on job creation, support economic activity, and reduce costs to business though sickness absence and improved performance.

Addressing health inequalities in the workplace and environmental justice in communities will strengthen human rights in Scotland immediately, and improve public health and be cost effective in the middle and long-term. Having some form of workplace health and safety justice programme would prove beneficial along the lines of the environmental justice measures mooted for Scotland in the mid-2000s. This should be linked to improved governance and greater citizen participation in the agencies that now regulate Scotland’s environmental and occupational health.

Political changes to the functions performed by the agencies regulating occupational and environmental health and safety, often in the guise of ‘better regulation’, have been introduced despite overwhelming evidence there will be a high human and economic costs a result. Business-friendly and banker-friendly policies were public-hostile and delivered an economic crisis; it would be prudent not to flirt with similar ‘better regulation’ induced occupational and environmental catastrophes.

A failure to support responsible regulation with effective oversight and enforcement runs the risk of catastrophic failure, with the potential for massive human, environmental, business and societal costs. Buncefield, Deepwater Horizon and other recent disasters demonstrate that the costs of single incidents can run to billions.

Safety and environmental enforcement agencies are disregarding lessons learned from Piper Alpha and BP Grangemouth, by slipping back into a system without the resources to deliver proper oversight and at risk of ‘regulatory capture’ by the increasingly self-regulating companies the agencies are supposed to regulate.

The options for change considered by enforcement agencies have been limited by the politically imposed requirement to deregulate. Cost effective and proven approaches including toxics use reduction and greater worker involvement and empowerment have not been given adequate consideration. A shift from command and control enforcement regimes to partnerships and other voluntary approaches is not supported by the evidence.

Proper regulation pays

Initiatives to improve environmental and workplace health and safety typically yield savings several times the costs. Properly designed strategies to boost economic performance should be required to incorporate effective inspection and regulatory regimes as a core component of the plan.

Environmental and safety agencies are being told to have economic development as one of their objectives, diverting them from their primary purpose. While other government departments and agencies maintain a single focus on business success and economic development, the same clarity of focus should be enjoyed by the agencies charged with protecting our health and work and in the wider community.

All regulatory agencies responsible for occupational and environmental health and safety regulation, enforcement and standards in Scotland, including local authority environmental health departments, the Health and Safety Executive (HSE) and the Scottish Environment Protection Agency (SEPA), have been severely damaged by funding cuts and the loss of staff. To function properly, the agencies must be properly resourced and the current cuts programmes must be reversed.

Failing to regulate comes at a price

There is justice deficit in the area of environmental and occupational health and safety in Scotland. Only 1 per cent of the 2,500 fatal and major workplace injuries each year result in an HSE-initiated prosecution and conviction. SEPA enforcement is falling, with the agency now taking under 300 enforcement actions a year. Criminals are not being deterred, and Scottish citizens and the environment are paying the price. Responsible businesses are being undercut by the rogues.

A failure of governments to address health inequalities in occupational and environmental health means related risks are concentrated in certain sections of the population. Deaths related to hazards in the workplace and the wider environment are not a feature of the boardroom, they are just the consequence of decisions made there. A dramatic rise in job insecurity, marked by increases in unemployment, under-employment, enforced part-time time and temporary working, is making a bad situation worse and is a problem exacerbated by the progressive erosion of employment and welfare rights.

Consultative processes and opportunities for ‘stakeholder involvement’ are being devalued and eroded, as policy priorities are pre-ordained and consultations are framed within a ‘better regulation’ context, with a presumption inspection, enforcement and public engagement are at best secondary and non-inclusive activities.

Data on the harm to health caused by occupational and environmental exposures are lacking. Linkages between NHS Scotland and HSE and SEPA must be improved to aid recognition and remedial action.

Recommendations

The Scottish Government should take such measures as are necessary to introduce a fairer system of regulation of workplace and environmental hazards in Scotland, more responsive to those whose health is placed at risk.

Agencies involved in enforcing existing environmental and occupational health and safety law need adequate resources. Recent cuts should be reversed, and budgets and staffing reappraised and set at a level that allows far more frequent and probing inspections with an expectation that criminal breaches will result in enforcement action.
Policy in Scotland to address occupational and environmental risks must have a component dealing with health inequalities, with the active and public support of the Scottish Government. This should include measures to protect vulnerable groups, including temporary workers, those in rural and remote locations, communities facing multiple insults from many pollution sources and workers facing greater risks of occupationally- and environmentally-related diseases. Regulatory practices, including their development, execution and monitoring, should be informed by the active participation of all stakeholders, particularly those placed at risk by potential abuses of workplace and environmental standards and targeted in the environmental context at communities worst affected by pollution.
Novel methods of workplace and community participation should be developed, as well as new methods for assessing how communities and workers are disproportionately affected by their work and environment, to harness local skills and knowledge. These should include a consideration of options for introducing legally-empowered trade union ‘roving safety reps’ with a regional role, encouraging more workplace green reps with an expanded role and establishing environmental justice advocates located in communities to liaise with SEPA and EHOs.
Deregulatory policies and practices should be abandoned and reversed. The drift towards more voluntary measures or self-regulation should be stopped.
Best practice approaches should be investigated and employed; this could include, for example, the development of approaches based on toxics use reduction, the precautionary principle and better whistleblower and employment protection.
Workplace and environmental health and safety regulators should be required to maintain a dedicated focus on health protection, rather than the current trend towards a purpose limited by economic considerations.
Systems of justice should be reappraised. Workplace health and safety and environmental criminals should be prosecuted and penalties should be sufficiently punitive to be a deterrent. Systems of compensation for occupational and environmental diseases should be reviewed and made more equitable. Efforts should be made to establish the extent of ‘cost-shifting’ by businesses guilty of environmental and workplace safety abuses, and this information should be used to inform policies and penalties.
Data systems should be improved to provide better intelligence on the causes and extent of occupationally- and environmentally-related ill-health. This information should be used to inform improved, more responsive and more protective policy and practices. Linkages between NHS Scotland and HSE and SEPA must be improved to aid recognition and remedial action on public health threats.
Serious consideration should be given to the creation of a Scottish Occupational Health and Safety Agency, controlled from Scotland and freed from Westminster’s financial and political control.
Scotland should establish itself as a vocal defender of the environment and workplace standards and of the rights and health of its population, not an apologist for Westminster’s deregulatory obsession or an evidence-blind advocate of the skewed ‘business burdens’ argument that transfers risks and costs to the public and the public purse.