Police Reform and Social Responsibility Bill

Lord McKenzie of Luton Excerpts

Thursday 9th June 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I am relieved at the way this debate has developed because, when I first saw this amendment, knowing of the noble Lord’s seniority in his party I wondered whether this was some sort of “done deal”. Clearly, that is not the case. It sounds terribly patronising to say this, but the balanced attitude which noble Lords have displayed in their speeches is extremely welcome. The noble Lord, Lord Condon, talked about not exempting the police force en bloc, but where is the demarcation line? I think that all noble Lords have recognised that there needs to be one. Like other noble Lords, I think that health and safety, with a capital H and a capital S, is important and has had an unjustifiably bad press—not that I tend to read that press but one cannot avoid hearing about it. The law in regard to health and safety, and certainly the way in which it is applied, may have gone too far one way, but the pendulum should not swing too far in the other direction.

[Lord McKenzie of Luton]

My Lords, I thank the noble Lord, Lord Blencathra, for introducing this fascinating debate. However, I should make clear that we on this side join the Police Federation in opposing the amendment, which would remove from police officers the statutory protection afforded by the Health and Safety at Work etc. Act 1974. We believe that this would be a seriously retrograde step.

I had made a note to remind the noble Lord that a Conservative Government had brought the police service within the health and safety legislation through the 1997 Act but clearly I did not need to do so. Therefore, I congratulate him on mentioning that. Notwithstanding the debate that we have had, I believe that it was the right thing to do. I am not familiar with the detail of the prosecutions that took place, which were clearly traumatic and difficult for two very senior members of the police force. The message I take from that is that the prosecution did not succeed and that common sense prevailed. That is the real message. I am grateful that the noble Lord, Lord Condon, said that and recognised that events have moved on.

Perhaps I may pick up the issue around myths, because health and safety is beset by myths, half-truths, and sometimes downright fabrications. The police have been on the receiving end of this too often. As my noble friend Lord Hunt said, this is sometimes because people want to use health and safety as an excuse for not doing something, sometimes by overzealous application of health and safety requirements and sometimes due to ignorance of the law. The HSE, together with partners in local authorities and the wider health and safety community, has gone to great lengths to push back against these myths and to explain what is required. I shall come back specifically on that in relation to a case that the noble Lord, Lord Dear, mentioned.

My noble friends Lord Harris and Lord Hunt got it absolutely right. My noble friend Lord Harris said that it was important to inculcate health and safety into the mainstream of an organisation and to address it proportionately. Analysis shows that organisations, whichever one we are talking about, with good health and safety management invariably have other good management systems in place. My noble friend Lord Hunt referred to the positive impact of the 1974 legislation. That is right. It has stood the test of time. It is non-prescriptive and is meant to be operated proportionately. My noble friend said that sometimes it is the role of overzealous consultants to encourage people down paths that are not required under the legislation. One of the things on which I would congratulate the Government is the introduction of a register for consultants. It is work that we could claim to have started in our term of office and it will help to address this issue.

The noble Baroness, Lady Hamwee, referred to the bad press that the Health and Safety Executive and others get. Let me refer to the report of the noble Lord, Lord Young of Graffham, mentioned by the noble Lord, Lord Blencathra. In Appendix D, entitled “Behind the myth: the truth behind health and safety hysteria in the media”, he picks up one of the issues referred to by the noble Lord, Lord Dear. The appendix refers first to the “Story” and states:

“In May 2007, newspapers published a story concerning the death of a 10-year-old boy who drowned while fishing for tadpoles with his siblings in an outdoor pond. Questions were asked about the role of the emergency services and accusations were made that the policemen involved stood by and watched a boy drown because health and safety rules forbade them from entering the water to save him”.

The report goes on to record the “Reality”. It states:

“Fishermen noticed that two children had fallen into the pond and they tried to bring the children in with their fishing tackle. They managed to drag a girl out of the pond but were unable to reach her brother. One of the fishermen tried to call 999 but was unable to get through so he called his wife. She rang the police and reported the incident. There was some confusion over the location of the incident and this resulted in the police attending the incorrect location. At the same time Police Community Support Officers were undertaking a normal patrol when they came across the incident. They alerted police officers to the correct location. The boy’s step-father and friend arrived at the pond just before the police officers. They immediately dived into the water and brought the child to the surface. The police officers then arrived and one of them dived into the water and helped to bring the boy onto the bank. Unfortunately by this point he had been underwater for 20 minutes”.

That is the gap between the myth and the reality.

I am bound to say that there are responsibilities on us all not to recycle these myths. The noble Lord, Lord Young of Graffham, when addressing the IOSH conference a little while before he was formally appointed, cited an incident some 18 months before when two police community support officers had stood by and watched a 10 year-old boy, who had jumped into a pond to rescue his sister, drown. The noble Lord said that they explained afterwards that they had not had their health and safety course on rescuing people. He also said that if that was thought to be completely exceptional, there was a case only a few weeks before where a man allegedly drove his car containing his two children into the river. He and the boy escaped but his sister was trapped screaming in the car. The two policemen stood by for 92 minutes while a diving team was brought from the other end of the county and said later that they were not allowed to rescue the girl themselves on health and safety grounds, and she died the following day. We all need to be mindful not to recirculate these myths.

[Lord Dear]

Perhaps the noble Lord will accept that my point was not on the facts, which I know; it was on the public perception of inactivity by the police. Criticism followed because there was an expectation that the police would act bravely and positively rather than negatively. I was making that narrow point.

[Lord McKenzie of Luton]

No, indeed, I very much agree with the noble Lord. I was not suggesting that he, by raising the point, was helping to recirculate the myth; I was just indicating how it can unwittingly be recycled, creating the concern that he identified.

The HSE issued guidance in 2009 in a document entitled Striking the Balance between Operational and Health and Safety Duties in the Police Service. That was in response to concern and misunderstanding about how police services can comply with health and safety legislation in their operational work, given the often testing and difficult circumstances in which they are called to act. I understand that work is now under way to draft an explanatory note to the guidance which will help further to clarify how effective and efficient policing can be delivered.

That document, which was jointly produced, illustrates that these are issues of balance. In the principles that the document enunciates, it states that there are particular challenges for the police:

“they have to send officers and staff into dangerous situations in circumstances when anyone else would be seeking to get away from the danger … in fighting crime, the Police Service is, in effect, reducing the overall risk to the public— police officers may need to take actions which put the public and themselves at risk. This is appropriate when the benefits from taking these risks outweigh the sum of all other risks; however, in doing so, police activities may create other risks”.

The guidance sets out why the application of health and safety law is challenging for the police service, but it also makes clear that health and safety duties are not absolute and are generally qualified by the test of what is reasonably practical. It points out that the Health and Safety at Work Act places duties on employers, but also on employees to take reasonable care of themselves and others and to co-operate with their employer, but it does not require all risks to be eliminated. The Health and Safety Executive recognises that even when all reasonably practical precautions have been taken to deal with foreseeable risks, injuries and deaths will still occur.

Let us not forget, as was raised by several speakers in the debate, that dozens of police officers have lost their lives or been injured by putting themselves in harm’s way on our behalf. The guidance also sets out what officers and staff should expect of the police service in terms of good health and safety management systems and how the HSE will approach any investigation of individual police forces.

Following the report of the noble Lord, Lord Young of Graffham, commissioned by the Prime Minister and debated in your Lordships' House in November last year, renewed guidance was issued by the Crown Prosecution Service concerning circumstances where police officers may, in performing an heroic act, have breached Section 7 of the Health and Safety at Work Act in failing to take reasonable care of their own safety. It states:

“In those circumstances, and where the safety of others is not put at risk, public interest would not be served by taking forward a prosecution under section 7”.

The document and the other guidance seems to do just what noble Lords have asked, which is that we need to address this in a sensible, proportionate way and there needs to be co-operation in how these measures are applied.

Although not without challenge, the current system is not broken. As my noble friend Lord Hunt said, the HSE gets challenged as many times for not prosecuting people as for prosecuting people. The briefing we received from IOSH includes a quotation from the chairman of the Police Federation of England and Wales. It reads:

“All the major police officer representative bodies; the Association of Chief Police Officers, the Police Superintendents’ Association and the Police Federation agree the position that the Police (Health and Safety) Act in its current form has resulted in significant improvements in the health, safety and welfare of police officers whilst still allowing effective policing to be achieved”.

The law as it stands serves both the public and police effectively. It is certain interpretations of the law that have produced isolated anomalies. Therefore, clarity of interpretation is needed rather than the unnecessary changes to health and safety law that could turn the clock back decades on the protection afforded to society.

The briefing paper that we have received is clear that, as deliverers of front-line policing, they know that health and safety legislation does not prevent them carry out their duties for their communities. They are clear that since the 1997 Act there has been a real and beneficial reduction in sickness and injury to police officers while on duty. The noble Lord, Lord Condon, made that point. There has been improvement in equipment, technology and training given to officers.

The impact of the amendment would be to remove the statutory protection afforded by the Health and Safety at Work Act from police officers—I think that that was the point made by the noble Lord. It would do that not only when officers were involved in front-line and, particularly, dangerous operations but when they might be involved in more routine duties, if such exist for the police service, and training. The provisions of proposed subsections (3) and (4) would seem to undermine the chain of command and create a possible free-for-all in situations of operational delicacy. Perhaps, in responding, the noble Lord could clarify the definition of,

“public official, of whatever rank”,

and whether that would include a police officer of more senior rank to the individual involved. If that is right, that is an encouragement to ignore the chain of command. That may not be what the noble Lord intended so perhaps he would take the opportunity to clarify that.

It seems to me that if there are issues and problems to address, the solution is not to discard the statutory protection—the Health and Safety at Work Act—but to address issues of training and management systems and not to throw away any engagement with legislation that has served this country well for nearly 40 years, which is why we are unable to support the amendment.

[Lord Wallace of Saltaire]

My Lords, I thank all noble Lords who have taken part in a very useful, serious and worthwhile debate. It is appropriate to say from the government Front Bench that we will take away the points made and consider whether we have got the balance right. On that basis, I will ask the noble Lord to withdraw his amendment. I note that prolonged service as Chief Whip does not adversely affect one's rhetorical skills.

The noble Lord, Lord Condon, talked about the need for a sensible balance, and that is what we all want to achieve. The noble Lord, Lord Stevens, rightly said that policing is all about taking risks. My wife and I were invited to attend the Leeds police awards dinner some months ago and the award for bravery was given to a constable from Northumbria who had been blinded when stopping an offender in his car. It was quite an emotional experience.

My only close experience with the Health and Safety Executive was when the parliamentary choir was due to perform in Westminster Hall in 2003. On taking the portable organ into Westminster Hall and playing the 16-foot stop, bits of wood began to fall off the roof. Our first response was to say, “The Minister responsible for the HSE is a contralto in the choir, surely we can override the rules”, but the HSE pointed out that in addition to parliamentarians, there would be senior civil servants in the audience, so it would clearly be dangerous to go ahead with the concert and we had to make do with performing in Westminster Abbey instead.

We all recognise the culture of health and safety that has evolved through the media. I regularly read the Daily Mail, which demands that there should be nil risk to the public in anything that is undertaken in a public place. It then sets out to attack the regulations that were drawn up in response to those demands. That is how we have got to where we are now.

The proposal to repeal this clause would have to go significantly further than the noble Lord, Lord Young, recommended in his independent review of health and safety last year. He did not call for the duty to be removed as it serves both to,

“protect employees and ensure that activities carried out do not adversely affect the health and safety of other people”.

Of course the Government recognise the need to strike a balance between protecting the police and the public while acknowledging that it is in the nature of police duty that officers take risks and should not be at risk of prosecution under health and safety legislation when engaged in their duties.

Following the report of my noble friend Lord Young, the Crown Prosecution Service issued guidance in March—which the noble Lord, Lord McKenzie, quoted—under the title, Heroic Acts by Police Officers and Firefighters, which clarifies the legal situation and highlights the fact that the public interest would not be served by taking forward the prosecution of police officers who act in heroic ways when decisions are likely to be taken in fast-moving and dynamic situations. The Government will carefully consider the extent to which the recommendations of my noble friend Lord Young's report have been adequately met through the CPS guidance. We will institute a dialogue, if it is needed, between the police, the Home Office, the DWP and the HSE, as suggested. We recognise that this has to be a question of balance and we will assess whether the balance has now been struck in the most sensible place.