Monthly Archives: December 2011

Lofstedt – Chapter 5, Apply Within

Professor Lofstedt now turns to the regulations themselves. The focus of attention is those regulations that everyone has already suspected are dodgy and knows shouldn’t really be there. They add little, if anything. Some of these were brought in for a particular issue that no-one can quite remember and, quite honestly, now look a little embarrassing. Well, intentioned, but lame. You know the sort, like requiring someone to tell you that they are a terrorist and if they don’t (and they are), then they’ve lied and that’s a serious offence (yeah, right, like they care). It only ever acts as an inconvenience for the law abiding and those that aren’t law-abiding, don’t often get caught.

The requirement to notify HSE if you have a Conventional Tower Crane, is one such case (not the small plastic remote control toy ones – it’s the real ones we want). I assume by painting it in psychedelic colours, you could get away with not having to register it (because it then could be argued that it is “unconventional”?). Even though they only came in around 2010 (amended in the same year) Lofty thinks that they should now go. And he’s probably right.

A similar point is made with the first aid regulations. Specifically, HSE approval of training for first aiders. I agree, this seems a little anomalous. OK, set standards and give guidance but treat it like most other safety and health training, insist that it is suitable, sufficient, appropriate and effective. Indeed, training ‘approvals’ for many qualifications are routinely and adequately controlled via awarding bodies. HSE is acting a bit like an awarding body here.

When it comes to Construction, the CDM regulations seem to have been instrumental in adding to the burden of paperwork and generating a myriad of training accreditation and competency schemes. This can be disproportionately burdensome for smaller projects. Not least the vast number of passport-type schemes that sprang up overnight. I wouldn’t mind but these passports don’t even get you into another country – well, maybe, Narnia.

Other regulations are also considered. My favourite is the portable appliance testing racket. Although there is some quite good HSE guidance on recommended testing frequencies for portable appliances, many companies still get told that they have to do everything annually. Yet another classic is the over zealous interpretation of work at height regulation – which some have interpreted as meaning that ladders are banned. Loftstedt’s answer to all of this is for the HSE to review the legislation ad guidance. Maybe, but if the guidance is already very good, it’s more the message isn’t getting through. The voice of the charlatan is louder.

On other matters, the HSE is commended for its sterling work on helping businesses understand how to interpret the law (especially ‘reasonably practicable’) but obviously more needs to be done. No doubt, this has all been added to HSE’s wish list to Father Christmas. But have they been naughty or have they been nice?

Loftstedt – Chapter 4, Everyone has a part to play

Chapter 4 of Lofty’s report takes a look at the scope of UK regulations. In particular it’s interested to see whether that proportionate, risk-based approach is applied. One might argue that bigger, riskier businesses should have to do more to satisfy the law. There are also economies of scale, whereby larger businesses are resourced to do things that smaller businesses find much more difficult (or at least proportionately more costly). But the fact is that often even small businesses do engage in high risk activities. The professor argues logically that the regulations should remain risk-based (and not company size based), but smaller businesses should be given more support and help in complying.

The point is also made that there can be disagreement over what ‘low risk’ business really means – ill health is often ignored in such an assessment of a business sector. Nonetheless, disquiet at the disproportionate effort for small, low risk businesses has resulted in the European Commission looking again at whether formal, written risk assessment is really necessary in this case. This might be a good thing, if we can decide what sort of businesses are in scope. On the other hand, the simple on-line, checklist assessment tools that HSE have now produced for small businesses might obviate the need for this exemption.

Lofty tackles the issue of the self-employed. It appears that some would have self-employed people exempted from everything. But, to my mind, that makes no sense. Instead, really, just like any other businesses, it should depend on the risk of what they do. They of course need more help with understanding their obligations and with compliance. The report recommends that the self-employed are only made exempt if they undertake low risk activities (no potential risk of harm to others). I’m not so sure that they will be so easy to decide, unless there is some specific list of prescribed activities. I wish you luck with that one, unless you happen to have a government lobbyist in your employ.

The report also discusses the application of safety legislation to schools and emergency services. Many of these issues are already being tackled as a result of recommendations from Dave Young, for example. Even though Lord Young was later sacked (or did he resign?) for inappropriate comments about the recession, he is still fondly remembered. Speaking your mind seems to carry huge risk, causing immense political fallout, personal damage and offence. I recommend it being included in the next raft of safety legislation from Brussels, regardless of whether you are self-employed or not.

Loftstedt – Chapter 3, benefits don’t come cheap

Yesterday, I happened to be in the Stoke-on-Trent area, hoping to cut across the A50 to pass by Loughborough on my way back down South. The A50 was unfortunately closed, the radio lady said, due to a diesel fuel spill. The ‘road ahead closed’ signs confirmed this but offered little advice as to an alternative. I occasionally use a Sat Nav but this insisted that I keep returning to the blocked route in some voyeuristic tendency.

The point is, accidents are costly. The costs go way beyond the immediate accident and can be difficult to predict or estimate with any certainty (yes, there are models for this sort of thing on a macroscopic scale, but the impact on each individual is more variable). In my case, it was easy to see the effects spread out like tendrils as people searched for alternative routes, causing severe delays elsewhere.

Lofty reminds us, in chapter 3 that regulations also have a cost. In negative terms, this is often referred to as a burden on business – all the time and effort spent in even trying to understand what is required, let alone misinterpreting it and even over-complying with; for example, ridiculously detailed quantified risk assessments for obvious risks with obvious, established, simple solutions. There have been attempts to estimate this financially and it is always a large figure; in boy-racer terms, it’s at least several hundred Bugatti Veyrons or several billion beer tokens. It seems too, that most of the costs are associated with a small number of demanding regulations (isn’t this always the case?); echoes of the Pareto principal. These regulations seem obsessively bureaucratic and administrative.

Overall though, the cost of accidents can dwarf the cost of compliance with related regulation. In other words, compliance with regulation avoids those accidents. Now, of course, not all regulation is effective or has a proven ‘protective link’. Indeed it is quite difficult to prove such a link categorically. Nonetheless, there is a “generally accepted” (that means no-one knows for sure) negative correlation between them i.e. that regulation reduces accidents or at least it is a significant factor. Clearly there are many factors at play, including the insurance industry and changes within our industrial profile over the years. The reduced accident rate also negatively correlates with the increased interest in bungee jumping and cosmetic surgery, demonstrating that only beautiful people should take risks.

Complying with regulations designed to avoid said accidents then means that you may not be entirely convinced that such accidents would ever have happened anyway (remember there is a certain underlying randomness about accidents – a few seconds earlier and it might have been a near miss that you might not even have noticed).

Prof Loftstedt again reminds us that one of the main problems in practice is misapplication (over-compliance). This is the ‘bonkers conkers’ movement, where over-restrictive rules have been created and health and safety blamed. The real reasons may not even be health and safety-related, but health and safety is conveniently hated and ridiculed already, so a little more will not hurt.

We’ll look at some of these in the next blog.

Lofty Chapter 2 – You can never find evidence when you need it

In Chapter 2 of the Loftstedt report (see previous blogs), Lofty sets out his guiding principles for the review. Since he’s a professor and, unlike politicians, has a reputation to think of, he’s unashamedly abandoned to an evidence-based approach. Not all decisions need to be justified by verifiable evidence – what I decide to have for lunch is based more on whim (well, actually, on what happens to be in the cupboard). Neither is evidence the whole of decision making. Some judgement, consideration of socio-economic factors as well as any number of reasonable assumptions will also be needed.

Note that in science (or even social science) open mindedness is also important. Evidence is gathered to aid decision making rather than being gathered to support a decision that has already been made. This does not preclude the adoption of hypotheses (tentative ideas of the way things appear) – but the evidence is gathered in order to illuminate (refute or confirm). This can be a stranger to politics where sweeping statements are frequently made as if they are fact. Taxation inevitably follows.

Loftstedt duly gathered written and verbal evidence from stakeholders (this has no connection with vampires or carnivores). This is always a tricky one. You are more likely to get responses from people who have strong feelings (in this case, usually against legislation) so there is always the possibility of bias and therefore an incorrect picture of what things are really like. That said, even the biased can have a point to make. Lofty was careful to get a balanced view – at least access a wide range of stakeholder types. Importantly, he also made a handful of site visits to ‘witness the impact of regulation first hand’ and made sure that his examples were real, rather than anecdotal.

Loftstedt also reinforces his ‘guiding principle’ that regulation should be risk based (i.e. proportionate to the risk) rather than hazard based. In the modern post-Robens regulatory world, this may seem strange to have to say this – much modern regulation is risk based. But, there has been debate, especially where risk cannot be well characterised or quantified, leading to a precautionary approach based more on the intrinsic hazard. Even safety people can focus obsessively on hazards instead of risks, even when they are well characterised. In reality the risk is what counts and is what makes the hazard understandable. The identification of hazards is just a stepping stone to assessment of the risk. Indeed, in describing hazards we often also describe the risk (or at least the potential consequences) to make its relevance more obvious.

An important aspect here is holistic risk – one of the eight principles in the schedule to the management of health and safety at work regs. In focussing on a specific hazard, we can end up skewing our efforts and actions around it and ignoring the bigger picture. This again, is the law of unintended consequences. Loftstedt points out there is often a trade off here – looking at the bigger picture can sometimes afford the opportunity to lower the overall risk. Looking at risks in isolation, implementing greater measures to control a specific risk without any consideration for its wider effects, may end up driving up the overall risk. Loftstedt uses the example of actions taken after a fatal train crash whereby a seemingly reasonable temporary measure of train speed restrictions caused delays which drove commuters to their cars instead (which carries a higher risk of fatal accident).

In other words, whilst Loftstedt does not exactly say it this way, this is the critical point that risks interact. You cannot just look at each risk (or even hazard) in isolation – you modify other related risks in treating it. This is especially true when it comes to human behaviour, when sometimes the choices we make are subject to many subtle factors.

I note as well that Loftstedt is not opposed to burdens on business per se. Rather he is opposed to burdens that have little or no health and safety benefit, in terms of proportionately reducing risk. Business needs regulation but it has to count – benefiting society. I have decided that I quite like that viewpoint.

Lofty ideals – Chapter 1

As promised, I will be looking at some of the Loftstedt report in more detail over a series of blogs. I write this one from Dubai (as the ‘Hood’ famously said in an episode of Thunderbirds – ‘no-one can stop me now, already I have shaken off the police’, shortly before he careered off an unfinished bridge into a lake).

History is a wonderful thing – or so the History teachers tell us. Loftstedt begins his report in Chapter 1 by reminding us all about how things used to be. Before the 1974 health and safety at work act, things were complex, prescriptive and overly fixated on the workplace fixtures and fittings. Things had moved on and there was more a need to look at systems, management and human interactions. The problem with humanity is that we never really see the whole picture. There is some value in looking back and trying to fudge what we see into categories and genres but these are artificial constructs that were certainly not apparent to the people at the time. No doubt in 40 years time, our successors will be looking back and saying ‘what were they thinking of’.

The world is complicated and there are lots of influences pulling politicians and legislators in different directions. There are also many different views of how to proceed. Loftstedt points out that events such as Piper Alpha fire/explosion in 1988 initiated additional regulatory controls that had previously not been envisaged. The need to notify HSE about tower cranes is another example – this isn’t a ‘train spotter thing’. As a result, simple frameworks rapidly become more complex and piecemeal. Hence the need for regular reviews and consolidations. Businesses have become fed up with the increased regulation which they think is getting in the way of them doing anything. I must admit, even as a health and safety person, it is difficult to keep track of everything. Sometimes, it’s not that requirements are onerous, it’s just where to find everything and especially being sure you’ve taken account of all the amendments that might be out there. Some websites take care of this for you but they are not always fully up to date.

Businesses are well aware for the need for health and safety regulation. They don’t generally want to throw it all away. Non-one wants a return to the death rates of bygone ages.

I like the fact that Lofty recognises the ‘law of unintended consequences’. This is a well known concept. When we try to change things we can introduce new risks. Some of these are opportunities but some are threats. We don’t always think things through. He therefore urges caution. Next time, we’ll light the blue touch paper….