The statement below was issued by the University of Stirling’s Occupational and Environmental Health Research Group (OEHRG)
University of Stirling OEHRG news release on Gill report 16 July 2009 from the ICL Independent Study Group based at Stirling and Strathclyde Universities
All gas and a lot of whitewash
We note the publication of the Gill report and welcome several of the recommendations in that Report relating to LPG, employer responsibility for their worker safety and health and the failings of the HSE in terms of regulation and enforcement on LPG matters.
However, the Gill report is very narrow and its recommendations very restricted. It fails to address a number of remedies available for the root and systemic failures that led up to the ICL disaster. These failures related to the general health and safety culture of the plant. The issues surrounding LPG cannot be separated from these wider influences - although many of these elements were valuably explored in the first stage of the public enquiry. The failures that still require urgent action relate to those of ICL and companies like them at board and senior level. Changes are required in the HSE at policy level relating to failures to ensure good governance and the lack of effective top level management of the HSE.
Action is also needed by government in terms of its pursuit of a soft regulation and the so called ‘better regulation’ strategy on health and safety at work. This has impacted directly and indirectly on HSE in terms of its declining prosecution, conviction and enforcement record in the 21st Century and in its underfunding and understaffing.
It is ironic that the Gill report follows two other reports in the last fortnight from the House of Commons Work and Pensions Committee on occupational health and safety and the Dinghy report on construction health and safety. These reports noted declining enforcement and prosecution action by HSE – and a drop of 40% in HSE prosecutions in 4 years between 2003/4 and 2007/8, the lack of resources and the lack of positive duties for directors on health and safety at work. The Gill report has usefully served to document the decline of enforcement activity within the HSE but makes no recommendations about these failures.
The report has either not addressed at all or failed to address adequately several other aspects surrounding the disaster essential to avoidance of similar events in the future. Occupational health and safety standards, policies, practices and enforcement in the UK still leave much to be desired as the continued toll of death, injury and disease– year on year –demonstrates. We hope that ministers in the UK and Scotland will give urgent consideration to the matters raised
In particular, we are concerned that the report fails to recommend:-
Accountability of employers and effective legal redress
The legal case against the ICL owners, when compared with the information elicited by the Gill Inquiry and the independent ICL report, reveals serious shortcomings. This is especially the case in terms of the readiness of the courts rapidly to ‘take for granted’ information provided by employers and others about their health and safety management of workplaces and their financial resources. Far more thorough investigation of both these areas is needed by the courts before judges and juries can make informed decisions in cases.
A Scottish Corporate Killing Act is needed with individual director, senior manager accountability. This Act should also ensure that assets reclamation is both possible and fully enforced for those employers, who kill, injure and make their workers ill. The latter has been applied in England with regard to employers creating asbestos hazards and should be fully operationalised in Scotland. Justice needs to be seen to be done in these cases.
Opacity in the accountability processes with regard to financial information needed to assess fines in such cases can be addressed through small company audits and changes in Company legislation regarding the provision of useful information to al stakeholder groups. Consideration of insurance payments and for instance land sales in such cases is necessary to ensure meaningful fines occur and not pecuniary benefit to those employers responsible for deaths and diseases in their workforces.
Major changes in the enforcement agencies involved in inspections of plants like ICL
The role of agencies such as the HSE in inspecting, regulating and enforcing health and safety laws has proved limited and inadequate over many years as demonstrated by their work in ICL. This has reflected light touch and deregulatory UK government policies so well demonstrated by the euphemistically called better regulation units which protect business from the ‘burdens’ of regulation but fail to protect employees, their families and the public from the burdens of death and illness in the workplace.
The agency has lacked high level leadership, staff and resources as well as powers to do their job. The role of the HSE in inspecting all aspects of the plant that merited attention and effectively enforcing the legislation, on the basis of the employees’ accounts, was highly problematic.
The statements contained on the ICL Inquiry website clearly show that despite numerous visits by HSE Inspectors over a period of some thirty years or more, several specifically dealing with the Gas Tank, nothing was done to enforce the law against this company. Indeed there is a specific recommendation that the company be prosecuted
- Inspectors in the field lack the leadership that they deserve and employees lack the vital protection that they need. HSE should be funded to a level sufficient to ensure that each workplace employing 10 people or more can expect regular and effective inspections. There may be a powerful argument for the HSE field inspectorate to be devolved rather than reserved in Scotland to ensure full national accountability and scrutiny.
- Statutory requirements for information on workplaces where problems have been identified to be shared across agencies, particularly Local Authority Building and Planning departments, the Fire Brigade, the Police and SEPA
Worker rights in unionised and non-unionised workplaces
In plants such as ICL, workers are exceptionally well informed about the work they do and can identify both hazards and solutions to those hazards yet they often remain powerless. With no rights for trade union roving safety representatives to check on such plants and no effective means to ensure proper consultation between employers and non-unionised employees on health and safety matters, the ICL workforce were effectively cut adrift.
It is clear that there has been little if any enforcement Health and Safety Consultation with Employee Regulations (HSCER 1996). This legislation, if implemented could have afforded the employees of ICL the opportunity to engage with management on Health and Safety matters.
Roving trade union safety representatives would ensure greater monitoring of SMEs. Small and medium sized firms (SMEs) have been recognised by HSE itself in various reports as a sector where implementation of laws and codes has been poor.
Extended rights for safety reps, in line with the Hazards Charter, on stopping hazardous work processes are needed too including the right of such reps to issue provisional improvement notices. Improved and effective consultation rights on occupational health and safety – and related protection - for employees in non-unionised workplaces are also critical. Employment Tribunals should extend Interim Relief measures to workers dismissed for Health and Safety matters.
An independent, securely funded and properly resourced Scottish Hazards Advice Centre should now be set up, along the lines of the Greater Manchester Hazards Centre, to offer advice and information and advocacy to workers in all workplaces, whether unionised or not. Development of a proper, effective multi-disciplinary Scottish occupational health services that cover all employees in the country is vital with prevention as its core principle. There should be an end to dissipation of funds in wider workplace health promotion initiatives and re-orientation of such bodies to focus on major occupational disease and occupational injury activity in conjunction with a strengthened HSE. Data indicate a long history of injury and worker ill-health. Mechanisms to put in place to ensure such data and reports are picked up and acted upon, as a matter of course, by regulators and health bodies. This goes beyond acting on sentinel events as the scale of problems at ICL/Stockline indicated extensive problems.
We recorded and continue to have serious concerns about the exclusion of potentially key witnesses to the public enquiry - amongst them Whistleblower Laurence Connolly and key members of the ICL Workforce. The Inquiry also failed to call Stewart Campbell of HSE Scotland HSE Director in Scotland at the time of the Disaster.
Jim McCourt, Christine Cooper and Andrew Watterson
on behalf of the ICL ‘Stockline’ study group
Jim McCourt . Mobile: 07903-744819
Andrew Watterson. Mobile: 07531-496942
ICL ‘Stockline’ Study Group
Professor Matthias Beck (University of York. Management and Risk Expert)
Professor Christine Cooper (University of Strathclyde. Accounting Expert)
Dr Andrea Coulson (University of Strathclyde. Accounting Expert)
Tommy Gorman (University of Stirling/Welfare Rights & Health and Safety Expert)
Dr Stirling Howieson (University of Strathclyde. Architectural Expert)
Jim McCourt (University of Stirling/Employment Rights and Health and Safety Expert)
Professor Phil Taylor (University of Strathclyde. Employment Relations Expert)
Professor Andrew Watterson (University of Stirling. Health and Safety Expert)
Dr Dave Whyte (University of Liverpool. Corporate Crime Expert)