Sorry about how this looks on screen but the app messed up my formatting!

An offshoot from a "drunk driving"  thread as it has veered off course.

This is one for the legal eagles, and perhaps those working towards their OSH qualifications and arguably might have been better posted on the Study Support Forum, though given that appears to now be restricted to IOSH Members, it seems more sensible to make it more widely available.

Section 14(1) of the Factories Act 1961 said:

Every dangerous part of machinery shall be securely fenced....

....though with some exceptions written into the Act + a few more in the Operations and Unfenced Machinery Regulations (whose date does not immediately come to mind).

However, Section 14 was one of the parts of the Factories Act 1961 (and other H&S legislation) that set "strict liability" duties sometimes errroneously called "absolute duties".

That they were not "absolute" is illustrated by the volume of case law on various aspects of Section 14.

Then we got the Health and Safety at Work etc Act 1974 and an extension of duties qualified by the words "so far as reasonably practicable" - not entirely new as some duties in the 1961 Act had such a qualification.

However HSWA did have a safety valve in the form of Section 1(2):

(2) The provisions of this Part relating to the making of health and safety regulations as.......... to be progressively replaced by a system of regulations and approved codes of practice operating in combination with the other provisionsof this Part and designed to maintain or improve the standards of health, safety and welfare established by or under those enactments.

So, saying NO to dilution of requirements, right?

But then PUWER comes along and Section 14 of FA 1961 was, in effect, replaced by Regulation 11:

Regulation 11 Dangerous parts of machinery
(1) Every employer shall ensure that measures are taken in accordance with
paragraph (2) which are effective—      

     (a) to prevent access to any dangerous part of machinery or to any rotating
            stock-bar; or
      (b) to stop the movement of any dangerous part of machinery or rotating             stock-bar before any part of a person enters a danger zone.

(2) The measures required by paragraph (1) shall consist of—

      (a) the provision of fixed guards enclosing every dangerous part or rotating            stock-bar where and to the extent that it is practicable to do so, but
           where or to the extent that it is not, then
      (b) the provision of other guards or protection devices where and to the             extent that it is practicable to do so, but where or to the extent that it is
            not, then
      (c) the provision of jigs, holders, push-sticks or similar protection appliances
           used in conjunction with the machinery where and to the extent that it is            practicable to do so,

and the provision of such information, instruction, training and supervision as is necessary.

So, NOT a "strict liability" duty though subject to a more stringent qualification than "reasonably practicable" as the "reasonably" is not included.

How is it that this dilution of legal requirements doesn't seem to have been challenged e.g. on the basis that the Minister making the Regulations was "ultra vires", i.e. going beyond their powers by making regulations which appear to fail the constraints set in Section 1(2) of HSWA?

Edited by user 19 June 2024 15:54:24(UTC)  | Reason: Formatting and some extra text at the top

Also, had I done my due diligence before sending by reading the legislation, I would have noted that many sections of the Factories Act had been revoked many years ago.

However, in principle it does not change my response.

Originally Posted by: peter gotch

As an HSE Inspector, there were literally 1000s of internal instructions to tell us what to enforcce INSTEAD of the law - I doubt many of us were fully conversant with each and every one of these instructions!

the argument here was that underreporting of reportable accidents was so prevalent that HSE doesn't even use RIDDOR as its primary source of intelligence to estimate the number of reportable and/or recordable accidents (and other RIDDOR events).

Flipping heck Peter which side of the bed did you get out of? Missed this when you first posted it. Dont think you would have used it as you left the enforcement game before i did, but now we have the EMM (enforcement management model) to tell inspectors how bad a breach of the law is and what the anticipated response should be.

Had not relised it was HSE that wanted to changed RIDDOR thort it was the government as accident numbers were not coming down fast enough.

Peter,

My assumption would be that consolidating PUWER, LOWER etc. into one single piece of H&S legislation would be too much of a burden. It is not a simple process to introduce legislation, and there is likely other areas which the government have decided to concentrate their efforts on, and hence why they provided the power for ministers to create secondary legislation.

Secondary legislation i.e., PUWER, LOLER has the advantage that it can be quickly introduced, and amended easily however does not have the legislative powers contained within the HSWA. And for this reason we have judicial review, to ensure that secondary legislation is not ultra vires. However, as companies and directors are generally charged with breaching the HSWA and not secondary legislation, you will not find many (if any) cases being brought for judicial review.

Cheers,

Craig

Hi Craig

What goes around comes around.

So this from the new Conservativish Government in NZ.

New Zealand looks beyond road cones in safety reformation (shponline.co.uk)

I am tempted to point out to the Minister that what she is asking is almost exactly what the UK Coalition Govt asked Loftstedt to do, and considering that NZ H&S legislation is largely a cut and paste from that in the UK, the answer would probably be the same if put to someone independent - the legislation is generally "fit for purpose" and doesn't impose an unreasonable burden.

Loftstedt (and others) did conclude that much of the "Red Tape" is a myth and actually the "Blue Tape" that some choose to interpret the legislation as requiring. 

You do give a clue as to why the Coalition Government probably avoided any consideration of attempting to consolidate everything under the banner of HSWA.

Firstly, as you point out the result would be extremely cumbersome.

Then, as you note it is MUCH easier for the Minister to make Regulations than it would be to do a major amendment of HSWA as that would require the proposals to go through the entire Parliamentary process. 

What does surprise me a little is that we have yet to see any proposal to reduce some duplicated requirements, e.g. as an attempt to show some "benefit" from Brexit. 

As example, there is no real reason for having more than one legal requirement for an employer to do risk assessments and to back up Reg 3 of the Management Regs with guidance on what to do when there are e.g. noise, and/or manual handling, and/or hazardous substances risks rather than to have specific additional requirements for each class of some but not all types of risk might result in less unnecessary effort, sometimes distracting from an integrated approach to managing ALL the risks as a package.

The only real reason why this happened in the first place is that successive Governments from different political parties chose to "transpose" a series of EC Directives via a cut and paste approach in an effort to avoid "Gold Plating", with the result that we got some duplication which might well be seen as Gold Plating.

I don’t wish to get into a debate on ‘absolute duties’ versus ‘reasonably practicable’ or the legal argument regarding strict liability. However, ‘the law is an ass’.

The absolute duty in the Factories Act 1961, “Every dangerous part of machinery shall be securely fenced...” was not always feasible to comply with. For instance, to use a pedestal-mounted abrasive wheel, you would need to come into contact with the dangerous part of the machinery (the rotating wheel), and a guard would render it useless. This historical context led to the introduction of the Abrasive Wheels Regulations of 1970 (now mostly repealed) a few years later.

Furthermore, many pieces of equipment could not be securely fenced at that time, and although the spirit of the Factories Act was commendable, it was often impractical or unreasonable.  There is no doubt the exposed chain on a chainsaw is the dangerous part of the machine, but how could you possibly securely fence it? This is a clear example of the law being 'an ass ', meaning it can be impractical in certain situations.

Section 11 of PUWER is designed to address the practicalities of a hierarchy of guarding control. While the legal requirements from previous legislation are diluted, it's crucial for ministers to make these regulations. In some cases, such as with a circular bench saw, it's not possible to fit a guard, making the use of push sticks a practical and necessary control measure.

Please accept my apology if I have picked up the nature of the post incorrectly.