Posted By DJ
DPK,

As a lawyer I would say it would depend on the circumstances.

It is unusual for the HSE to use its s. 20 powers to require the disclosure of documents unless it has a good reason for doing so.

It is likely therefore that there is more to this matter than you have indicated in your question and so consulting a solicitor at this stage may be a prudent thing to do.

What reason has the HSE given for requiring disclosure?

Regards.

DJ

Posted By martinw
DJ
as an aside
now you have identified yourself as a lawyer, at what stage could DPK claim legal privilege on the documents?
Martin

Posted By Liz Maw
Hi there

I would be inclined to just release documentation.

As part of a routine inspection you want to try and do your best to keep an Inspector on board and happy - so you need to not be obstructive. That way if they are not happy with what you have in place they are more likely to deal with you informally rather than slap a notice on you. If it's as a result of an accident investigation then again you need to do all you can to be helpful to try and avoid statutory action.

Posted By ITK
No need for a solicitor unil they invite you in for an interview under caution.

ITK.

Posted By Phil Rose
The question is would I employee a lawyer? The question on my mind is - to do what?

To advise you whether or not to hand them over
To photocopy the docs for you
To hand them (or I suggest copies)over
To tell the HSE 'no'
Something else

Posted By TonyB
Just to add to what Robert has said. The HSE does have the right to insist on the original documents - but only for the sole purpose of gathering evidence for a prosecution. Usually they only do this when they want the ink on the paper or the hand alteration that have been made and they believe that they may 'disappear' or be modified in some way.

However, if they wanted the originals they would pay you a visit to get them. I also think that they would never request documentation via a letter using their powers but would simply turn up and try to collect copies in person.

TonyB

Posted By hsherwoo
Any company facing possible legal action would be wise to consult a (knowledgeable) solicitor but this should not be obstructive to an HSE investigation. Solicitors who are not familiar with H&S lesgislation and HSE powers can provide very bad advice and perhaps unintentionally compromise both their client company and themselves. Any obstructive company solicitor involvement in anything s20 related (e.g. a s20 requirement to produce a document or a s20 employee interview) would be viewed very dimly by an Inspector and in the case of attendance at a s20 employee interview the Inspector would have to remind the employee that the solicitor is representing the company's interests and remind the solicitor of contravening his/her own professional code of conduct.

I would suggest that the only reason HSE has asked for documentation using s20 powers in writing as opposed to doing this in person is for one of two reasons:
1. they keenly suspect or know such documentation exists but are having 'trouble' obtaining it and therefore have a documented request for such which could be referred to in court (although they could during a visit also make a specific note in their notebook);
2. they wish to try to keep the anonymity of or protect a 'whistle blower' who would otherwise be linked with the production of damning documents.

Legal privilege applies to limited documentation or extracts thereof only and cannot be used as an excuse to avoid supplying incriminating docs.

Posted By Ken Dickson
DPK,

It would be prudent to take knowledgeable legal advise, as has been indicated, to ensure the request has been properly made, and that you are complying with the request, and that you are providing no more, and no less, than has been requested.

Ken

Posted By Ken Dickson
On the question of legal privilege, it cannot be claimed on documents that exist prior to taking proper legal advice. To claim legal privilege for documents, in general terms, the documents must be produced on the instruction of legal advice and be produced to enable the process of legal advice to be pursued. This has been established recently under a court ruling relating to the Buncefield litigation.

Ken

Posted By Ken Dickson
More detail on the question of legal privilege.

http://www.herbertsmith....F-E4A8C7D50116/0/CM6.pdf

Posted By Ken Dickson
I’m not certain what statutory powers the MAIB have.

Enforcing bodies under HASWA can request (read as “instruct”) that you produce documents as directed by them under powers granted under Section 20. As has been indicated, Sec. 20 (1)(m) provides enforcing bodies with a very full suite of powers to discharge their duties. That power will include seizure of original documents where there is no facility to take copies or where there may be reason to believe the originals need to be secured for evidential purposes. This can of course include electronic media, video and audio recordings, and documents in any other form than paper copies. If would be a brave individual that would refuse a “request” such as this.

Ken

Posted By ITK
Rob, sorry to be so long winded but this is from the horses mouth. (HSE).

Where you do not have access to copying facilities on site, you may need to remove the original for copying. In such cases, you should give a responsible person a notice on form LP24, identifying the document and stating that you have taken possession of it using your s.20 powers 19 but will return it as soon as the necessary copy has been made.

You should record in your notebook as to why you took the original for copying and also note when you returned the original.

Where you do not have access to copying facilities on site, you may need to remove an original document for copying. In such cases, the section 20(2)(k) power is likely to include the power to remove documents in order to copy them3. You may also rely on section 20(2)(m), which gives inspectors ‘any other power which is necessary’ for the purpose of carrying into effect the relevant statutory provisions. Should this be necessary, you should give a responsible person a notice on form LP24, which identifies the document, states that you have taken possession of it and confirms that you will return the document as soon as the copy has been made. You should record in your notebook your reasons for taking the original for copying and also make a note when you return it

There is also case law on this:

Cantabrica Coach Holdings Limited v Vehicle Inspectorate [2001] UKHL 60. In this case, the House of Lords considered the extent of a power given by s.99 of the Transport Act 1968 to authorised officers to inspect and copy tachograph charts and other documentation. The Court held that, whilst records should generally be inspected and copied where they are produced and handed over, the power also permits officers to remove the documentation from the operator’s premises, for such period as is reasonably required, for the purpose of inspection and copying, in circumstances where it is not reasonably practicable for them to carry this out on site.

ITK.

Posted By ITK
Bob, see you in court...

Only joking, I enjoy the debate too. I guess on this one we may just have to agree to disagree...!

For other users of this forum I wouldn't generally advise taking the stance of refusing an authorised officer (HSE or LA) in taking away documents for copying (or anything else for that matter).

As for R21 of MHASAWR 1999 I don't see a problem with it, a nice shoe in methinks....!

ITK.

Posted By Robert K Lewis
As DPK has set this out as a hypothetical case but in reality S20 is part of an ongoing investigative process and a S20 request for documents is unlikely to come out of the blue. ITK and I agree that the HSE have no right to take possession of any original document we differ only because HSE guidance has I believe extended the original intent of 20(2)k with I believe a bad use of 20(2)m. Be that as it may you should only provide copies to the HSE and should ensure you do so yourself in order to maintain control of the originals. Without strong safeguards on document return I feel the HSE may be causing a rod for their own back ultimately. Picture the case where scaffold registers are removed from site and not returned. How is one to evidence their existence at a later date?

Any S20 investigation should be referred to your legal adviser and they may then require document preparation in contemplation of legal action. These documents would be subject to privilege if legal advice is their intent.

Bob

Posted By Robert K Lewis
Jim

I personally think any waving of the S20 flag should involve the employers legal adviser as you simply do not know where it will end up!

Bob

Posted By Robert K Lewis
Jim

If it arose out of an accident I wouls have already notified my legal adviser. Most employers unfortunately leave it far too late

Bob

Posted By SBC
ITK- I agree with you.

Documents- it is my understanding that we can take originals in the circumstances you outline. I also tend to agree that people do get hung up over S20, and in my experience the need to formally invoke S20 powers is very rare. Your point about obstruction is also well-made.

As an aside, on the railways, in an incident involving a moving train you will quite likely find the RAIB involved- if so they take primacy over the ORR inspectors. Like the MAIB, they have extensive powers related to investigation- and they do use them.