Welcome to the Health and Safety Newsletter, which contains updates on the latest Health & Safety cases and their implications for directors and businesses.

This edition covers:

  • Update:  Potters Bar Rail Accident Prosecution
  • HSE publishes Delivery Plan for 2011/2012
  • Crown Censure for MOD
  • HSE publishes Impact Evaluation on CDM Regulations
  • Greenpeace Challenges Oil and Gas Licenses
  • Government cuts HSE inspections
  • Fukushima disaster prompts UK review and creation of new regulator
  • Shale gas hits the headlines
  • Inquiry into effectiveness of Health and Safety Regulation in Scotland
  • Decision on the damages (asbestos-related conditions) (Scotland) Act 2009
  • Focus on: Corporate Manslaughter
  • Case Law
  • Health and Safety - What we do

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Full Article

Update: Potters Bar Rail Accident Prosecution

In our last Newsletter, we reported that the Office of Rail Regulation (ORR) was prosecuting Network Rail and Jarvis Rail Limited under the Health and Safety at Work etc Act 1974 for the Potters Bar derailment in 2002, which resulted in seven fatalities and many more injuries. The ORR reopened their investigation following a 2010 Inquest in which it was found that poor maintenance and inadequate inspections to a set of points were causes. At the time of the incident, overall responsibility for the track lay with Railtrack plc. Network Rail subsequently acquired Railtrack, including its liability for the incident. The prosecution of both Network Rail and Jarvis began on 21 February 2011 in Watford Magistrates Court, where Network Rail submitted a guilty plea to the charges against it under the 1974 Act. A spokeswoman for Network Rail stated "we have indicated a guilty plea today as Network Rail took on all of Railtrack's obligations, responsibilities and liabilities when it took over the company".

Following Network Rail's guilty plea, the ORR announced that it would not proceed to trial against Jarvis alone. While the ORR considered there to be a realistic prospect of convicting Jarvis, they stated that it was not in the public interest to do so. In particular the ORR cited Jarvis' insolvency, Network Rail's guilty plea and the views expressed by victims' families. Sentencing Network Rail to a fine of £3 million on 12 May 2011, Judge Bright remarked that Railtrack's procedures and standards were "seriously inadequate" and that "overall responsibility for the breach of duty lay with Railtrack at senior management level and their failures were significant and extensive".

HSE Publishes Delivery Plan for 2011/2012

The Health and Safety Executive recently published its Delivery Plan for the period 1 April 2011 to 31 March 2012. The 2011/2012 Plan follows the strategic framework laid out in the 2009 HSE strategy Be Part of the Solution and acknowledges the work that has been and needs to be done to implement Lord Young's 2010 review of health and safety at work. A particular feature of the Plan is its consideration of adjustments that will need to be made to accommodate the 35% reduction in HSE's budget following the 2010 Comprehensive Spending Review.

In the Plan, the HSE recognise that it must transform its approach in response to the budget cuts. In particular, it introduces the prospect of costs penalties where HSE intervene after having identified a material breach of the law requiring remedial action. It also suggests that the current charges levied on high hazard industries be extended to other hazardous industries that currently do not pay regulatory costs. Perhaps most worryingly, the HSE will consider "initiatives to seek more value from providing HSE's expertise and involvement for those who wish to use it". That suggests the introduction of charges for advice. The Health and Safety Laboratory may also be allowed to provide services to non-HSE customers.

Dealing with specific sectors, the HSE plan to conduct a review, jointly with DECC and the Maritime and Coastguard Agency, of the UK offshore oil and gas regulatory regime against issues emerging form the investigation into the Deepwater Horizon incident. More specific regulatory duties may also be introduced for higher hazard emerging energy technologies, such as Carbon Capture and Storage (CCS), offshore wind and waste to energy. The Delivery Plan makes provision for a number of HSE performance indicators, measured in terms of value for money, work outcome and Great Britain's efficiency relative to other EU member states. The HSE seeks to maintain the UK's position as one of the leading health and safety performers.

To view the HSE's 2011/2012 Delivery Plan, please go to: www.hse.gov.uk/aboutus/ strategiesandplans/delivery-plans/plan1112.pdf

Crown Censure for MOD

An agency of the Ministry of Defence was given a formal Crown Censure by the HSE on 21 February 2011 in relation to the death of Terry Jupp in 2002. The censure followed an inquest carried out in 2010 – eight years after Mr Jupp's death.

Terry Jupp was part of a British-American team experimenting with homemade bombs that might be used by terrorists. He was employed by the Defence Science and Technology Laboratory (Dstl) and on 14 August 2002 was conducting classified tests at a site in Shoeburyness, operated by the MOD and QinetiQ Ltd.

During the tests, a compound that Mr Jupp had been experimenting on ignited, injuring Mr Jupp and causing him to suffer 85% burns from which he later died.

By accepting the censure, the MOD agency accepted that there had been health and safety failings. Risk assessments had not adequately addressed the risk of ignition or explosion, despite the risks of explosive compounds being clearly foreseeable. In addition, Mr Jupp and his colleague were not wearing adequate personal protective equipment and the inquest in 2010 heard that authorisation had not been given to mix the substances which caused the explosion.

In 2005, two of Mr Jupp's managers were charged with manslaughter in relation to the incident and brought before the Old Bailey. The charge against one man was thrown out due to insufficient evidence. The second man denied the charge against him and the case dragged on for years before being abandoned by the Crown following a review of the case by the Attorney General. In a statement, the HSE highlighted that Dstl had adequate safety procedures but that the procedures were simply not followed at the time of the incident. While the nature of the case contributed to the delay of the inquest and censure, this case – and the recent prosecution of Network Rail for the Potter Bar derailment – both serve as a reminder that regulatory action may be taken many years after the event.

HSE publishes Impact Evaluation on CDM Regulations

The Construction (Design and Management) Regulations 2007 (CDM Regulations) apply to all construction work carried out in the UK and areas to which the 1974 Act extends, such as offshore wind farms in the Renewable Energy Zones. Because of its broad applicability, it impacts a wide range of projects, from small-scale building extensions to huge capital projects, such as the London Olympics.

The CDM regulations have been criticised by some on the basis that a 'one-size-fits-all' approach is inadequate. The pressure has been such that the government committed to review the regulations in 2010. To that end, the HSE commissioned an external consultancy in 2010 to carry out an initial impaevaluation of the CDM regulations and on 4 April 2011, published a 158 page report on its findings. The rationale of the CDM regulations was, amongst other things, to introduce simplicity, shift the focus away from plans towards planning and management and strengthen the co-operation and co-ordination between designers and contractors.

The 4 April report suggests that the CDM regulations are largely meeting their intended objectives. However, nearly half of respondents complained that the CDM regulations did not minimise bureaucracy, as intended. Similarly, the report suggests that opinion is divided as to whether the regime has introduced greater integration between designers and contractors. A cost-benefit analysis by respondents indicated that on average the benefits of the regulations were moderate and the costs were viewed as moderate or lower.

The pilot study does not identify any serious failings with the CDM regulations. However, it does indicate areas where the regulations do not currently meet their intended objective. Those areas are likely to be the focus of any future review.

To view the HSE's Pilot Study, please go to: www.hse.gov.uk/research/rrpdf/rr845.pdf

Greenpeace Challenges Oil and Gas Licenses

In February 2011, Greenpeace was successful in obtaining permission from the High Court to bring an application for judicial review of DECC's decision to grant exploration and production licences for deepwater areas. The latest round of licence offers (26th Round) involve a further 144 licences, although these have yet to be formally granted. While only around 40 licences relate to deepwater areas, Greenpeace are challenging the entire award.

The application seeks to quash the licences and/or obtain a declaration that the granting of such licences would be unlawful. The High Court has ruled that there is sufficient argument in Greenpeace's written application to warrant a full hearing.

Greenpeace argues that no deepwater licences should be issued pending completion and assessment of the ongoing investigation into the causes and implications of the Gulf of Mexico incident. It claims that in light of that incident, a DECC decision of 22 October 2010 that there is no need for an environmental assessment under Article 6 of the Habitats Directive for the licences offered in October is unlawful and that it is also unlawful for DECC to continue to rely on the conclusions reached in the Strategic Environmental Assessment of June 2009 – at least insofar as these relate to exploiting deepwater oil reserves.

One argument which DECC may raise in these proceedings is that the licence process is not the process under which the implications of the incident would be addressed and that refusal to grant any licences at all in deepwater areas would (given the UK's history of successful offshore drilling) be a disproportionate response.

In particular, DECC may argue that licensees are subject to controls by other bodies, such as the Health and Safety Executive, which controls are better suited to addressing any concerns arising from the incident.

Given the potential impact on oil and gas licenses, Operators are likely to monitor the case closely. We shall continue to report as the case develops Government cuts HSE inspections

The Government has announced a package of changes to the UK's health and safety system, including a large cut in the number of at-work inspections.

The Chancellor, George Osborne, confirmed in his latest budget that the recommendations in Lord Young's report Common Sense, Common Safety would be implemented in full. In terms of Lord Young's recommendations, employers will no longer face automatic health and safety inspections. Instead, health and safety inspectors will be instructed to focus on high risk locations and industries, such as major energy facilities and 'rogue' employers. Such an approach will cut the number of inspections carried out in the UK by at least a third. The inspection cuts coincide with a sharp reduction in the HSE's budget (approximately 35% over five years) under the Comprehensive Spending Review. Rogue employers who endanger public and employee safety will also have to pay for the costs of investigations into their activities.

Work and Pensions Minister, Chris Grayling MP, stated that "Of course it is right to protect employees in the workplace, but Britain's health and safety culture is also stifling business and holding back economic growth. The purpose of health and safety regulation is to protect people at work and rightly so. But we need common sense at the heart of the system, and these measures will help root out the needless burden of bureaucracy".

The Government is also launching a review of all existing health and safety laws, with a view to scrapping regulations perceived to be unnecessary and burdensome on businesses. Professor Ragnar E Lofstedt of King's College London will chair the review and publish findings this autumn. Judith Hackitt, the HSE Chair, commented that "The HSE remains focused on preventing death, serious injury and ill health to those at work and those affected by work activities. With even better targeting of our activities we will further help small businesses to understand what they need to do. This will enable us to give the highest level of attention to those areas with the potential to cause most harm and where we can have the greatest impact."

Fukushima disaster prompts UK review and creation of new regulator

The Health and Safety Executive has announced that it will provide a report on the implications and lessons to be learned for the UK nuclear industry arising out of the events in Japan following the earthquake, and resulting tsunami, of 11 March 2011.

The decision to write the report was prompted by a request from Chris Huhne, the Secretary of State for Energy and Climate Change, in a letter to Dr Mike Weightman, Chief Nuclear Inspector of the Health and Safety Executive's Nuclear Directorate. The interim report is due to be published by mid-May 2011 and followed by a final report within six months. Dr Weightman has indicated that the report will be wide in scope, but will not address nuclear or energy policy issues. It will address design provision relating to natural hazards, the natural hazards that threaten UK nuclear installations and the lessons that ought to be learnt from events in Japan.

Dr Weightman commented that "The nuclear regulatory standards in the UK ensure our nuclear power reactors are robust against all the external hazards that may be reasonably foreseen in the UK and I agree with advice that seismic and tsunami events of such extreme magnitude as seen in Japan are not foreseeable for the UK. However, it is important that we consider the implications and learn any lessons to ensure we continue to secure the protection of people and society". Separately, a new Office for Nuclear Regulation (ONR) was created in March 2011 following worldwide and domestic concern with nuclear power generation. Former chief executive of Powergen, Nick Baldwin, was confirmed on 01 April 2011 as the interim Chair of the ONR which is intended to become a separate statutory body. Until suitable legislation is passed, the ONR will operate as an agency of the Health and Safety Executive.

Shale gas hits the headlines

The debate surrounding the impact of unconventional gas production (including shale gas) in the UK is gaining strength as DECC's 14th Landward Licensing Round approaches. There has been significant parliamentary and press interest in shale gas drilling in the UK.

Shale gas production is a means of liberating gas from underground rock formations using 'hydrofracturing' which involves fracturing gas-containing rock by the injection of water at high pressure along with a proppant (e.g. sand) to sustain fissures and permit the flow of gas. Two wells have already been drilled in the UK – Grange Hill and Preese Hall, near Blackpool, Lancashire, by Cuadrilla Resources. The shale gas pioneer completed its first phase of exploration in December 2010, which involved the opening of a 9,000ft vertical exploratory well at Preese Hall. Hydrofracturing is expected to commence in the first three months of 2011 and last three to six months. Natural gas quantities and the commercial viability of the site will then be evaluated. As a UK shale sector begins to emerge, so too has public opposition. Researchers from the Tyndall Centre at the University of Manchester published a report in January 2011 calling for a moratorium on shale gas development until there is a more thorough understanding of the extraction process and its impact.

The Health and Safety Executive's (HSE) Offshore Division Wells Group has been in discussions with Cuadrilla since May 2010. This has been done with a view to ensuring compliance with the Offshore Installations and Wells (Design and Construction, etc) Regulations 1996 as amended, although this regulation is not specific to shale gas production in the UK. Indeed there is no specific regulatory regime for shale gas production and the 'tried and tested' formula applicable to any other oil and gas venture will apply. In this context, the power to grant licences to search, bore for and retrieve unconventional gas (including shale) is vested in the Crown. Attached to the licence are the terms and conditions that must be met by the licensee. DECC regulates compliance with those terms and conditions while the risks to health and safety from licensed activities are overseen by the HSE.

Furthermore, shale gas operators will need to obtain a permit for activities associated with the surface works if these involve emissions to surface or groundwater. The permit will set limits on the activity, requirements for monitoring; and require the operator to operate a management system that identifies and minimises risks of pollution. More importantly, if the regulator considers that the operation of a regulated facility under an environmental permit involves a risk of serious pollution, it may serve a notice requiring that the operator cease that activity. Shale gas has the potential to be an important part of the UK energy mix going forward. While the debate will no doubt continue, it is up to the regulators and industry to ensure that the risks are assessed and managed, in order to maintain public confidence in the sector

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This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 26/05/2011.