Asbestos Removal

Steve Rotheram Excerpts

Tuesday 9th September 2014 Westminster Hall

[Steve Rotheram (Liverpool, Walton) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Roger, and to have secured such an important debate about the role of the Health and Safety Executive in asbestos removal. Since the debate was tabled, I have been contacted by numerous people who have informed me of unsafe asbestos-removal practices that are happening in various locations and businesses across the country. I thank each and every whistleblower for getting in touch. I regret that I cannot elaborate in great detail on many of their stories this morning because of time constraints. Instead, I intend to focus my remarks on a very specific area—the HSE’s role in the removal of asbestos from high street stores.

I shall focus on three key areas. The first is the deficiencies in the HSE when it comes to adequately assessing the scale of the asbestos problem on our high streets. Next, I shall consider the HSE’s ability to enforce regulation and how the HSE is involved in the process of asbestos removal, and suggest improvements to procedures that would provide better protection for the public. Finally, I shall examine the moral and ethical position of our high street retailers and question whether they are doing all they can to protect people or whether the financial imperative—the need to drive profits—obscures their duty of care.

I shall begin by looking at the existing legislation and regulations in this area. The Control of Asbestos Regulations 2012 place a duty to manage asbestos on duty holders in respect of non-domestic premises. The duty holder will usually be the person or organisation with responsibility for the maintenance or repair of the premises. The duty holder is required, among other things, to take reasonable steps to find out whether there are materials containing asbestos in non-domestic premises and, if so, the amount, where it is and what condition it is in; to make and keep up to date a record of the location and condition of the asbestos-containing materials or materials that are presumed to contain asbestos; to assess the risk of anyone being exposed to fibres from the materials identified; to prepare a plan that sets out in detail how the risks from those materials will be managed; to take the necessary steps to put the plan into action; periodically to review and monitor the plan and the arrangements to act on it, so that the plan remains relevant and up to date; and to provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

Further, the duty to manage asbestos is a legal requirement under regulation 4 of the Control of Asbestos Regulations 2006. That applies to the owners and occupiers of commercial premises such as shops, offices and industrial units, who have responsibility for maintenance and repair activities. In addition to those responsibilities, retailers, as duty holders, have a duty to assess the presence and condition of any asbestos-containing materials. If asbestos is present or is presumed to be present, it must be managed appropriately.

In the context of today’s debate, it is clear that the duty holder is the high street retailer that occupies a unit or building. The Health and Safety Executive has produced a step-by-step guide for duty holders in buildings built before 2000, who have more than 25 employees. In many instances, the advice is to employ a qualified asbestos removal contractor who is licensed and monitored by the HSE to remove the asbestos in a controlled and appropriate manner. However, I will detail how that process is not always as safe as some at the HSE might envisage.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this important matter to the Chamber for consideration. He has outlined the role of the HSE, but 4,000 deaths a year are still caused by asbestos poisoning. The last asbestos training pledge initiative took place from September 2011 to November 2011. Does the hon. Gentleman believe that it is time for the Government to initiate another such campaign to educate people across the whole United Kingdom of Great Britain—not only on the mainland, but in Northern Ireland, Scotland and Wales as well?

[Steve Rotheram]

That is a timely intervention. I absolutely agree that it would be appropriate to revisit that strategy at this juncture, and that is part of what I will ask the Minister to provide us today. I will also ask the Minister about updating education to ensure that people are fully aware of the dangers of exposure to asbestos.

Throughout my speech, I will refer to numerical risk ratings. For the benefit of those who are not from the construction sector, I want to clarify that the risk rating ranges from 1 to 20, with 20 representing the highest risk. Disturbed asbestos that is rated 18-plus usually refers to asbestos likely to come into direct contact with the public—for example, on the shop floor of a store through the ventilation system or in an area of a store that is easily accessible to staff and maintenance workers.

Millions of our constituents, and shoppers from across all five continents, flock to Britain’s high streets on a daily and weekly basis. Our retail industry is truly one of the great British success stories. With that success has come the need for high street retailers constantly to rebrand themselves as companies and to update and upgrade their facilities to improve the retail experience. The refurbishment of their properties usually has to be done as efficiently and as effectively as possible to ensure that it does not have a detrimental impact on profit margins.

Although asbestos was for many decades believed to be a perfectly reliable and safe material to use in construction, people are no longer in any doubt about its dangers and health risks. When the 2006 regulations were introduced, the HSE was given clear instructions on how to deal with asbestos removal in commercial units. However, retailers consistently try to minimise disruption to their stores and trading hours, with the result that asbestos—often in ceiling voids, where dust could be moved by air conditioning and ventilation units—has the potential to come into contact with staff in shops. In some cases, dangerous fibres may find their way on to the shop floor and the space used by the public.

That is not speculation or an unlikely hypothesis. In 2011 it was widely reported that high street giant Marks & Spencer was prosecuted and fined £1 million for failing to protect customers, staff and workers from potential exposure to asbestos. The court case detailed works carried out during the refurbishment of the Reading and Bournemouth stores in 2006 and 2007 in which asbestos regulations were not followed. Billy Wallace, a health and safety practitioner from Greenwich in south London, was a key witness in the case, and I have a copy of his statement to the HSE from 21 December 2006 regarding his experiences at the Reading store. I will read a passage from it, which makes scary reading:

“I was asked to work at the refurbishment of Reading Marks and Spencer...when I arrived at the job, I became concerned by my observations of many contractors working on and within ceiling voids because I suspected the ceiling tiles were asbestos insulation boards...In order for these operators to carry out their works they were rubbing and pushing against asbestos tiles, both damaged and broken asbestos fillets...I could not find any history of tool box talks, especially related to asbestos which could have been particularly pertinent to these works in areas known to contain asbestos...The impression I got was that there were severe pressure and constraints on all contractors to get the job done at any risk...In my opinion the shop floor would have been contaminated with asbestos on many occasions, thereby placing the public at risk...I strongly suspect that members of the public on many occasions would have left the M&S store having purchased contaminated goods (foods, clothing, furniture etc)...This is because the merchandise was still in the shop and vicinity of the works being carried out which on many occasions would have generated asbestos fibres”.

When I read that statement, I immediately began to wonder how widespread the practice was on our high streets. How many shops visited by our constituents contain asbestos that may have been disturbed during refurbishment or maintenance work? Could the food chains in such shops really have been contaminated, as alleged in Billy Wallace’s statement? Could clothes that people purchase contain highly dangerous asbestos fibres? In his summing up on the Reading case, Judge Clark alluded to the tension that he believed existed in Marks & Spencer between health and safety and profit:

“The response from Marks and Spencer was in effect to turn a blind eye to what was happening…it was already costing the company too much money”.

After investigation, I obtained copies of more than 30 fully intrusive asbestos surveys at Marks & Spencer stores across the UK. I will give hon. Members a flavour of the type of comments recorded. One states:

“third floor fallow area, main staircase, debris, risk rated 19 (out of 20), action: restrict access to fallow areas and bring in licensed asbestos removal contractor”.

That survey was dated 21 May 2003, and as far as I am aware, the asbestos is still there; there is no record of its ever having been removed. The argument is that as long as it is left alone and undisturbed, it poses no risk. Although the HSE currently endorses that position, it is a theoretical consideration rather than an example of best practice. That prompts a fundamental question: how can the HSE be presented with such surveys and never follow up on whether companies have removed the asbestos?

The examples I have highlighted are from high street retailers, but the same may be true of hospitals, schools—I know that the right hon. Member for Mid Dorset and North Poole (Annette Brooke) is very concerned about that—public buildings and other commercial and domestic units, in which duty holders have undertaken fully intrusive services, identified asbestos and notified the HSE, only for the process to stall. I believe that where fully intrusive surveys have disturbed asbestos products in buildings with a rating of 18 and above, those products should not be contained indefinitely in restricted areas.

I am led to believe that there are fewer than 150 HSE inspectors engaged in monitoring the removal of asbestos throughout the whole country. In reality, an inspector spends only one day a fortnight on site inspecting the licensed removal of asbestos. When the surveys were first brought to my attention by Billy Wallace, it was made clear to me that the HSE believes that any asbestos that has been disturbed and rated 18-plus must be removed, no questions asked. When pushed, however, the HSE seems content with disturbed asbestos rated 18-plus simply to be placed in restricted areas.

Marks & Spencer now has an industry-leading health and safety team that specifically looks at disturbed asbestos and its removal. The team, however, does not as a matter of course remove disturbed asbestos when it is initially identified due to the prohibitive costs. We must equip the HSE with the flexibility to undertake unannounced field visits outside normal working hours, when most asbestos removal is undertaken. As the HSE budget continues to be cut, there is increased likelihood that inspections will not take place at all in high street stores.

We could also consider introducing an annual inspection of every commercial store in Britain to analyse in detail the property’s safety and to ensure the removal of any disturbed asbestos that has been identified. That would eliminate incidents in which asbestos is left in restricted areas for decades. For some employees, customers and contractors who may have been exposed to asbestos, however, it would come as too little, too late. It is already a matter of public record that Marks & Spencer has been forced to pay out large sums of money to former employees who have contracted asbestos-related diseases following lengthy stints of service in its stores. Marks & Spencer is by no means alone in the practices that it employed, and it has agreed out-of-court settlements with a number of former employees.

Just a few months ago, the investigative journalist David Conn reported that Janice Allen, an M&S employee in the Marble Arch store in the 1970s, settled out of court with M&S for a six-figure sum after contracting mesothelioma. The dangers that M&S staff encountered were exposed due to the diligence of health and safety professionals such as William Wallace, but the truth is that nobody knows how widespread the dangers could be. We simply do not know how much disturbed asbestos identified through surveys carried out by licensed asbestos contractors is still lying in commercial units on high streets across the country; perhaps worst of all, neither does the HSE.

I am confident of five things. First, to the best of my knowledge, and barring the conviction in Reading, M&S has not broken the law as it stands. Secondly, and far more alarmingly, from the surveys that I have seen both Marks & Spencer and the HSE know that dangerous 18-plus risk rated asbestos is still on sites across the country. Thirdly, putting a restriction on disturbed asbestos and leaving it for decades is simply not good enough. Fourthly, profit should not take precedence over people in the application of enforceable safety practices. And finally, the HSE is weak.

The treatment meted out to William Wallace has been of great concern. Instead of Mr Wallace’s expertise being utilised to help improve asbestos removal practices, he has been ostracised. This is a man who, through his dogged determination to uphold the law, defend the rights of workers and see that justice is done in the courts, has undoubtedly saved lives that would otherwise have been put at risk through asbestos exposure. That has come at a tremendous personal cost. Mr Wallace believes he has been blacklisted, and he has been unable to find permanent employment for the best part of a decade. Let us be clear: he is not just a whistleblower but a trained health and safety professional who deserves the thanks and praise of Parliament.

I know my debate is specific to the high street and that the Minister may not have all the specific answers to some of the issues I have raised. I am, however, looking at pragmatic steps that he may be able to take to ensure that the risk of asbestos exposure is reduced. Will he seek assurances that all recommendations laid out in the judgment of Judge Christopher Harvey Clark, QC, particularly on toolbox talks for staff, have been implemented by the retailer in question? Does the Minister agree that such practices should be carried out by other retailers where asbestos has been identified in their stores? Is he satisfied that retailers are adequately informing and educating staff currently working in some older high street branches of the potential dangers to their health of asbestos exposure?

Does the Minister agree that the public will find it difficult to accept that Marks & Spencer can still have high-risk, previously disturbed asbestos in its stores that it has not removed despite a recorded risk rating of 18-plus? Does he believe that the inspection and enforcement of asbestos removal regulations by the HSE is being implemented as he would expect? Is he willing to accept that the HSE knows about disturbed asbestos and does not seem to be fundamentally willing to enforce removal action? Does he share my concerns about the potential exposure to asbestos, over many decades, in some of our high street stores? If he is unable to answer any of those questions fully because of time constraints or because he has only just heard some of the claims, I would appreciate it if he committed to writing to me further about the issues.

[The Minister of State, Department for Work and Pensions (Mr Mark Harper)]

It is a great pleasure to serve under your chairmanship, Sir Roger. I am grateful to the hon. Member for Liverpool, Walton (Steve Rotheram) for having secured this debate, which enables us to discuss an important subject. I can answer a number of his questions, but if he thinks that there is anything that I have not answered, I will of course be happy to write to him.

The responsibility for the management and control of health and safety risks, including from exposure to asbestos, ultimately lies with those who create the risk. As the hon. Gentleman correctly said, the duty holder will be those who either own or control buildings that contain asbestos or materials that contain asbestos, and they have a duty to manage safety. Duty holders include retail stores and other businesses used by members of the public. People need to identify where asbestos-containing materials are present, and they need to ensure that such materials are either properly maintained, enclosed and repaired, as appropriate, or removed, where necessary.

The HSE’s advice on asbestos is clear. If the material containing asbestos is in good condition and is not vulnerable to damage, it should be left in place because the risk to those who work in or use the facilities will be lower than if an attempt is made to remove the material. If the material is in good condition, removal is better done at the end of a building’s life, when the building will not be reoccupied. If the material is not in good condition, however, or if it is likely to be damaged or disturbed, leading to the release of asbestos fibres, it should be removed.

Those decisions should be taken on a case-by-base basis because they depend on the specific situation of the building, the location of the asbestos-containing materials, the likelihood of their being disturbed and, of course, the future plans for the building, such as whether it will be refurbished or whether it is coming to the end of its life. Those duties fall on the duty holder. That is the HSE’s approach, and the current regulations, which the hon. Gentleman mentioned, and the legislative framework on the risk, and on dealing with the risk proportionately, was reviewed relatively recently by the Government’s chief scientific adviser, who thought that the legislative framework is proportionate to the risks from asbestos. The framework is good.

In the case of Marks & Spencer, which was mentioned by the hon. Gentleman, there were two stores being refurbished in Reading and Bournemouth in 2006. As he said, the work required the removal of asbestos-containing ceiling tiles. Marks & Spencer took the decision to remove the asbestos and engaged licensed contractors, who were asked to work overnight in enclosed areas so that small areas could be completed, thereby enabling the shops to open the following day.

However, the way the work was planned did not allow the contractors to remove the asbestos in accordance with minimum standards. As the hon. Gentleman said, there was a prosecution for failings under the Health and Safety at Work etc. Act 1974, which led to significant fines for Marks & Spencer and for some of the other companies involved. The prosecution was brought by the HSE, and it is right that there were significant penalties because asbestos, as the hon. Member for Strangford (Jim Shannon) said in his brief intervention, causes the deaths of a significant number of people in the United Kingdom—many from exposure over a considerable period. The best estimate, which I think he suggested, is about 5,000 a year, so the issue is serious. Duty holders must take appropriate steps.

On Marks & Spencer’s continuing work on the issue, I should say that licensed contractors undertaking asbestos removal must notify the enforcing authority. Since 2011, the HSE has received 112 notifications of such work that were identifiably related to Marks & Spencer stores and has inspected on 14 occasions. In those cases, it has found that no enforcement action needed to be taken, meaning that the work was being conducted in accordance with the appropriate risk controls.

The hon. Member for Liverpool, Walton mentioned retail premises generally. It is worth saying that the retail sector takes this issue seriously. The Retail Asbestos Working Group deals with managing asbestos-containing materials in the retail sector, recognising that retail environments involve circumstances and conditions that present challenges in terms of public access and dealing with removing and managing the risk from asbestos. A range of organisations are involved in putting together guidance, and the guidance includes a foreword by the head of construction at the Health and Safety Executive, demonstrating that it sets out what steps retail premises of all sizes should take. I mention that because the hon. Gentleman specifically referred to training and the sorts of work done by retail premises.

The guidance makes it clear that there is a range of training. Some of it involves those undertaking licensed asbestos work for high-risk situations, but it also goes right down to information and training for shop assistants who put up notices and decorations, maintenance contractors who carry out daily repairs and other contractors who enter such premises to undertake work that might expose them to asbestos. The guidance is clear that training must take place across a range of staff in the retail environment. I hope that that at least gives the hon. Gentleman some confidence that retail businesses are aware of the requirements.

It is also worth saying generally, so that the hon. Gentleman and others are aware of what the regime looks like, that where it is decided that the proper management of the risk from asbestos-containing materials involves removing the asbestos, licensed contractors must be engaged and the enforcing authority must be notified 14 days before work starts. That will either be the HSE or local authorities, which can then plan visits to monitor the work done.

In the year 2013-14, the HSE received 37,553 notifications and did 1,318 inspections, meaning that 91% of all those holding a licence were visited in that year. Those reviews are taken seriously, so evidence of unsafe or poorly managed work can result in formal enforcement action, which may lead to stopping the work or, in the most serious cases, to prosecutions. Licences can also be reviewed.

It might be helpful for the House to know that there are 415 contractors licensed to remove asbestos as of April this year. Licences are for a fixed period of up to three years. To give an example of the quality assurance involved in the process, 188 licences, including renewals, were granted in 2013-14, while 25 were refused, and 91% of those licensed contractors would have been visited by the Health and Safety Executive at one or more sites where they were removing asbestos. Over the past five years, the HSE has issued 1,715 improvement notices, 552 of them under the duty to manage asbestos, and taken out 129 prosecutions, 24 of them under the duty to manage the risk from asbestos. The HSE is absolutely focused on the importance of monitoring asbestos removal, and it takes robust enforcement action.

[Steve Rotheram]

The Minister is being helpful in identifying the legislative framework in which the industry must work. Is he therefore concerned that asbestos materials with a risk rating of 18-plus have been left in what have been described as fallow areas within stores for years, even up to a decade? Surely that flouts what he said at the beginning about the HSE guidance that damaged asbestos should be removed as soon as reasonably practicable.

[Mr Harper]

Let me address that point directly, as the hon. Gentleman spent some time on it. The general principle that I set out was that the guidance is clear about when asbestos is best left in situ and when it should be removed. My sense, not being an expert, is that judgments about the condition that the asbestos is in and when it is best left there are a technical question.

The hon. Gentleman mentioned some specific surveys that had come into his possession. If it is helpful, I will ask officials to advise me on the issue of where retailers or others have identified damaged asbestos, to use his phrase, in situ and the decision is taken to leave it while containing it. I will ask for advice on that and write to him. It might be helpful if he shared some of the specific reports that he mentioned. I would be happy to ask some of the HSE’s technical experts to look at them and see whether that asbestos properly falls into the category of situations in which it is best and safest to leave it where it is, or the category in which action should be taken. It sounds more like a technical, case-specific question, but I am happy to ask the experts to look at those reports and come back to me. Then I will report back to the hon. Gentleman what their professional judgment is.

[Steve Rotheram]

That would be a partial solution. What I am trying to understand is whether the Minister thinks the situation is acceptable, given the framework that he has outlined and the fact that HSE’s guidance says to remove asbestos. I am talking about broken pieces of asbestos, not a hole in the wall. I am talking about dust being left. It is obviously dangerous; it is 18-plus risk-rated asbestos. Surely best practice would be to get rid of the asbestos as soon as reasonably practicable. Does the Minister think that a decade is a suitable time scale?

[Mr Harper]

I was clear in what I said; the HSE advice, which I think is sensible, is also clear. If the material is not in good condition—from the hon. Gentleman’s description, it sounds as though that is the case—and it is likely to be damaged or disturbed, leading to the release of asbestos fibres, it should be removed. Duty holders have a responsibility to do so, and to ensure that their workers, shoppers and others are not exposed to that risk.

On judgments in specific cases, as I said, I take the hon. Gentleman’s word for it; he has read the reports and I have not. Clearly judgment must be made on a case-by-case basis, which is why I said that it would be helpful, just to get a flavour of the issue, to have experts look at the reports that he mentioned to see whether the HSE’s guidance is being complied with and, if not, whether action can be taken.

It is a shame that the hon. Member for Strangford has left the Chamber, as I was just about to address his intervention on the campaigning idea. He and the hon. Member for Liverpool, Walton mentioned training and education. The HSE has well advanced plans to run another campaign this autumn particularly targeting at-risk tradespeople, such as plumbers, joiners, builders and electricians, who are aware that asbestos is dangerous but are often ill-informed about how to deal with the risk.

The campaign will include the distribution of 200,000 free asbestos safety kits, information and a web app to help people work more safely with asbestos, as well as a national and regional media campaign that will cover Scotland and Wales as well as England. Northern Ireland— this is particularly relevant to the hon. Member for Strangford—will make its own arrangements, but the HSE will provide advice about the campaign and share relevant information so that it can be run across the whole United Kingdom.

To return to the point made by the hon. Member for Liverpool, Walton about a toolbox, I should say that everyone involved in the sorts of trade affected, whether they are licensed contractors or tradespeople who may be exposed to risk, should be properly educated about the risk and the steps that they need to take to ensure that they do not expose themselves to the known risks from asbestos. We want to reduce the annual death toll resulting from historical exposure to asbestos. I hope that that is helpful, and I think that I have set out clearly what work we can do after this debate to take forward the hon. Gentleman’s points.