The activities that the criteria apply are set out below.

It should be noted that HSE is not suggesting that its new policy would apply to all public safety issues. So, for example, where there is a work-activity that not only impacts upon workers but also members of the public, then the HSE would continue to enforce section 3 of the HASAW Act in the same way at it enforces worker safety issues

What this policy effects are, principally, those activities that do not impose any risks upon workers but solely upon members of the public.

In its new policy document, the HSE have set out those areas where its new criteria apply - and in relation to each of them clarifies HSE's position:

Doctors, Hospitals etc.
The new policy states the following:

The Department of Health, and bodies such as the Commission for Health Improvement (CHI) and equivalent bodies in Scotland and Wales, regulates standards of clinical governance, including systems of work, in healthcare. For example, issues such as healthcare associated infection are addressed by CHI and other agencies during visits to healthcare establishments. Similarly, doctors, dentists etc are regulated by other bodies e.g. General Medical Council (GMC) and other legislation applies to cases of clinical misconduct including manslaughter/culpable homicide or offences under the Medical (Professional Performance) Act 1995, under which the GMC operates.
However, it is intended that HSE will continue to deal with the major non-clinical risks to patients such as trips and falls, scalding, electrical safety etc; and with some aspects of risks that apply to both staff and patients alike, such as some healthcare associated infection precautions. Such incidents are normally reported to HSE under RIDDOR. HSE will also continue to work with other enforcement agencies in areas where the boundary between "clinical risk management" and "health and safety management" may not always be clear.

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Road Traffic Incidents
The new Policy states the following:

Road traffic law is enforced by the police and others, e.g. the highways authorities and traffic commissioners. The police will, in most cases take the lead in the investigation of road traffic incidents on the public highway.
There are a small number of road incidents where HSE will lead, for example where work vehicles are engaged in specific work activities on the public highway, and these are detailed in a HSE Operational Minute OM 2003/103.
HSE is currently working with the Police to identify and develop criteria that will allow police officers with responsibility for road traffic incidents to better identify where serious safety management failures have been a significant contributory factor so that HSE's resource can be properly targeted.

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Deaths in Custody
The new policy states that:

In England and Wales inquests are held into all deaths in custody. In Scotland, the Procurator Fiscal leads the investigation and this may result in a fatal accident inquiry. Article 2 of the ECHR (set out in Schedule 1 to the Human Rights Act) is considered to require a proper inquiry into every death in custody. In England and Wales, HSE is seeking to clarify who carries out this proper inquiry with the Home Office and Lord Chancellor's Department.

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Passenger aviation health issues
The new policy states that:

The Department for Transport has recently announced the establishment of an Aviation Health Unit to be established within the auspices of the Civil Aviation Authority (CAA) to deal with aviation health issues affecting both passengers and crew.

HSC also believes that the CAA has the greatest technical and practical expertise and is best placed to effectively regulate occupational health and safety issues affecting both flight and cabin crew, including, if necessary, to enforce any relevant European Directives on HSC/E's behalf. Where necessary, HSE will provide training, advice and support to establish the necessary expertise within CAA.

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Inland waterways
The new policy states that:

There is a range of other bodies that inspect e.g. Maritime and Coastguard Agency, Environment Agency/Scottish Environment Protection Agency, British Waterways, local authorities, etc. The roles and responsibilities of the various organisations with responsibility for safety issues are set out in a Department for Transport report "Inland Water Safety - Final report of scoping study"1.

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Large reservoirs
The new policy states that:

Where reservoirs fall within the definition of "large raised reservoir", HSE accepts that the integrity of the reservoir structure is assured through the provisions of the Reservoirs Act 1975.

The Reservoirs Act 1975 places a duty on local authorities to maintain a register of large raised reservoirs which can contain more than 25 000m3 of water above the natural level of any part of the land adjoining the reservoir. The Secretary of State appoints specialist engineers to panels set up under the Act. Panel Engineers are required to advise the undertakers on any aspect of the behaviour of the reservoir that might affect safety.

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Planning matters
The new policy states that:

Proposals for the development of airports and other civic amenities that may impact on people living in the surrounding areas. HSE will continue to enforce in respect of any construction or civil engineering works taking place and in respect of any major hazard sites subject to planning controls, but will not involve itself in matters subject to local planning authorities or public inquiries

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Fencing of quarries
The new policy states that:

The Mines and Quarries Act 1954 (MQA) s.151 concerns the fencing of all quarries whether in the course of being worked or not. Section 151(2)(c) deems a quarry to be a statutory nuisance under the Environmental Protection Act 1990 if: (1) it is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent any person from accidentally falling into the quarry; and (2) by reason of its accessibility from a highway or place of public resort constitutes a danger to members of the public. MQA s.151 is not a relevant statutory provision under HSWA. However, HSE will continue to enforce Regulation 16 of the Quarries Regulations 1999, concerning the provision and maintenance of barriers, at active quarries.

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Failure of Local Authority Decision making
Local Authorities have many obligations that if not properly performed can result in risks. These include, for example, road gritting, management of social services child protection measures, maintenance of roads/signage, effective policing etc.

The new policy states

Other specific legislation sets out the requirements on Councils etc as to the performance of their statutory duties including the remedies and penalties (if any) for failure to perform that duty.
We do not think that those responsible for the legislation governing the performance of Councils will have envisaged that HSE might become involved in its subject matter. And nor are they matters in which HSE has any particular expertise.

Any intervention by HSE would be to interfere in matters that fall within the province of another Secretary of State or another devolved administration and those affected by that legislation. Examples include, road gritting, management of social services child protection measures, failure to maintain roads/signage, effective policing, which are the subject of other regulatory regimes.

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Buildings and other structures
The new policy states:

In addition to the duty on an employer in respect of their employees, section 4 of the HSWA, and certain health and safety regulations, impose duties for the protection of certain classes of persons in relation to the condition of premises. Where persons outside that protection are exposed to risks arising out of the condition of buildings or other structures, HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor. In many cases, local authorities are particularly well placed to act because of their specific powers under the Building Act etc and equivalent devolved legislation to deal with defective premises, buildings and structures.

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Consumer safety issues
The new policy states

HSE will not ordinarily investigate cases relating to the safety of consumer goods in cases where Part II of the Consumer Protection Act 1987 provides an adequate penalty.

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Risks from Natural Features
This relates to risks arises from natural features e.g. cliff edge, lake, river, stream, falling trees, falling rocks (e.g. Cheddar Gorge).

The new policy states:

When people enjoy the countryside or other open spaces they owe a duty to themselves and their dependents to take proper care. Save in special circumstances eg managed landscapes such as parks, it is not desirable that access be restricted or that other measures be taken that diminishes the amenity from fear that an accident may result in prosecution.

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Hazardous leisure pursuits e.g. Bungee jumping, water sports, etc.
The new policy states

Responsible risk-taking should be regarded as normal, and we should not discourage members of the public from undertaking certain activities solely on the grounds that there is an element of risk. Excessive paternalism and concern with safety may lead to infringements of personal rights. Those who are competent to judge the risk to themselves should be free to make their own decisions so long as they do not threaten the safety of others. The nature of these pursuits is such that, where there is an accident, a fault on the part of an employer cannot be presumed.

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