Kevin Myers and Matt Wrack gave evidence.

Q 2323

We will now hear oral evidence from Kevin Myers, acting chief executive at the Health and Safety Executive, and Matt Wrack, general secretary of the Fire Brigades Union. Before calling the first Member to ask a question, I should like to remind all Members that questions should be limited to matters within the scope of the Bill and we must stick to the timings in the programme motion that the Committee has agreed. For this sitting we have until 2.45. Will the witnesses please introduce themselves for the record?

Matt Wrack: I am Matt Wrack, general secretary of the Fire Brigades Union.

Kevin Myers: Kevin Myers, acting chief executive of the Health and Safety Executive.

Q 24

In this morning’s session we heard from two witnesses who took different views as to whether the Bill was good or bad—if I can paraphrase them—but they agreed on one thing: the Bill addresses a perception rather than a reality. It is a perception that people may be subject to litigation if they volunteer or act heroically. What are your views on the problem that the Bill seeks to address, and does the Bill address it?

Matt Wrack: I am not sure what the problem is that the Bill seeks to address. It is somewhat unclear. The issue of heroism, for example, is something that we have to discuss in detail in the fire and rescue service. We have had discussions with other stakeholders in the service—with the Health and Safety Executive, for example—and it takes considerable effort to reach a conclusion as to what heroism actually is. To be honest, we find the Bill unnecessary and unclear in its intent.

Kevin Myers: It is not for me to comment on the first part of your question, because this is not a policy matter for HSE. We do not deal with civil matters. The Ministry of Justice deals with those. On the second point, I am not sure a debate about whether the Bill addresses a perception or a reality sheds much light on the matter. I have been in the Health and Safety Executive since the mid-70s, just after the Health and Safety at Work etc Act 1974 was enacted. There has been a growing awareness and a break in the apathy in respect of health and safety issues, but it would be delusional for me to say that there is not an issue about approaches to health and safety within our society. We will all  experience it as individual citizens, let alone what our job is. It is very important that we try and debunk some of the myths that have built up about health and safety. Unfortunately, the sources of the myths are from various locations and stakeholders. We are doing our bit in relation to that. Certainly some of the myths arise out of misperceptions in respect of civil matters, so I think there is an issue to be addressed, and the Ministry of Justice has obviously decided that the Bill is one way of trying to do so.

Q 25

Do I gather you are not keen on commenting on whether it is a good or a bad way to address the issue?

Kevin Myers: I am not keen on commenting. The Ministry of Justice has asked us whether we have a problem with the Bill. We do not think it impacts on our criminal enforcement responsibilities. In some respects it articulates some of the considerations we take into account in our enforcement role in terms of considering what is reasonable and practicable in given circumstances.

Q 26

Do you think it changes the substantive law on negligence?

Kevin Myers: I am not competent to talk about the substantive law on negligence, but my understanding—with that caveat—is that it does not seek to do that.

Q 27

Yes. What is your experience of section 1 of the Compensation Act? How is that different from what is here?

Kevin Myers: As I have said, we have limited experience. We do not deal with compensation matters.

Q 28

On Mr Wrack’s point about heroism, do you understand what is meant by heroism in the context of the Bill and how it is to be interpreted?

Matt Wrack: I have an understanding of what is meant. One of the strengths of the health and safety system and the Health and Safety at Work etc Act is that it is goal setting and risk based, so it covers lots of scenarios, as opposed to having prescriptive rules about what to do in certain situations. For some parts of society, that is straightforward. For other parts, such as the fire services and the police, their assessment of their risks needs to be dynamic. They need to take decisions in changing circumstances, and they might take decisions to do something to save somebody’s life that you would not take if you were doing that in a workshop or somewhere like that. I think that is the area that the Bill looks at in terms of heroism.

Q 29

Will the Bill make any difference to the way in which the HSE operates?

Kevin Myers: It does not bear on what we do, because it deals with civil rather than criminal matters. The activities of the fire brigades and the police are an issue. We have worked with them to develop guidance and understanding as to how we should interpret the Health and Safety at Work etc Act in the context of their business and what they do dynamically. There is broad stakeholder support for the guidance that we have developed in partnership with them to clarify those issues. So I do not see the Bill, which deals with civil matters, bearing on that at all.

Q 30

Mr Wrack, how do you see the Bill affecting your members? Clause 3 states:

“The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

I am not entirely sure what that means. However, it seems to mean that in the case of health and safety at work, say, the court would be invited to look at the overall conduct of the employer, rather than the conduct in relation to the specific acts.

Matt Wrack: I think that is an important point. These are matters that are not abstract newspaper issues. These are real live issues that we deal with every week. We have cases currently where we are dealing with the fatalities of firefighters, and the matter of the behaviour of the employer is extremely important to the outcome of those cases. For us, the question of how an employer deals with those situations is not a matter of the general perception of their responsibility. For example, have they properly taken into account all the risks and conditions when they send firefighters to deal with situations? And have they planned properly for that? Firefighters are used to attending hazardous situations, whether it is fires or other incidents. They are happy to do that—that is their profession—but to do so requires planning, training, equipment and resources. As long as sufficiently trained firefighters attend an incident, we believe that we should be able to make proper decisions based on experience, technical expertise and so on, and that should minimise the risks. The question of the employer’s general responsibility therefore comes down to the specifics of how they have planned, prepared and resourced the particular incident.

Q 31

Does that mean that you think that the legislation will dilute, enhance or make no difference to the employer’s responsibilities?

Matt Wrack: We fear that it will dilute the protections that are available to firefighters.

Q 32

Do you have any other concerns about the Bill? We were discussing Clause 3 specifically; I think that the intention of clause 4 is to give additional protection to persons—I assume that that includes the emergency services—acting heroically, and your members act heroically every day. Do you think that that clause is necessary? What effect do you think it will have?

Matt Wrack: I think it is potentially a very dangerous clause. Throughout my career in it, the fire service has had a simple message for people. There is the question of what firefighters do in these situations and the question of what other people do in these situations. The fire and rescue service—or the fire brigade, as we used to call it—has for the past 20 or 30 years given very simple advice to people in the event of fire: get out, stay out and dial 999. That message is based on the best technical evidence and professional expertise available. We would not want to give to the public mixed messages about how they should respond in those sorts of situations. That is the experience of the fire service and it is a clear message. I would hope that central Government, for example, do not contradict that central message that firefighters have been giving for a long time.

The question of individuals acting heroically has been discussed quite a lot, both within the service generally and, for example, with the Health and Safety Executive. What one person might perceive as acting heroically can also be, in certain situations, reckless. Someone who acts in a certain way at a fire or other emergency might not only place themselves at risk, but because of their actions require other participants to take actions that put them at risk as well. For us it comes back to the question of professionalism, planning and properly resourcing incidents.

In terms of people outside the fire service, take the idea that someone walks past a fire, pushes the door open and goes in to try to save people from a fire. Firefighters are trained in how to deal with such situations and that there are specific risks related to that scenario. We can give examples of firefighters who have been killed in such circumstances because of the reaction of fire in certain situations when oxygen is introduced. For example, in 1996 two firefighters were killed in Blaenau in south Wales. The fire service had to take a whole series of steps as a result of that and we learned lessons from it. I must say that we would not necessarily expect the public to have learned the same lessons that we have.

Q 33

You anticipated my next question. This morning, we were hearing about volunteering. Voluntary organisations were saying that they hope that the Bill will encourage more people to get involved or stay involved in volunteering because they would be less worried about the consequences. By analogy, in your situation that would mean that members of the public might be more likely to get involved in a dangerous situation, and you think that that could place your members at risk.

Matt Wrack: Each case is clearly different. Very recently we had a case in Essex where two workmen intervened in a fire and had subsequently to be rescued by firefighters. They put themselves at further risk and potentially put firefighters at risk. It is complex. From our perspective there are differences between people who may wish to volunteer in other walks of life and the idea that that same approach could apply to the fire and rescue service. It is unique. Apart from some small parts of Scotland, we do no have volunteer firefighters in the UK. So it is recognised as a professional role. It takes a great deal of training and expertise to deal with fires and other emergencies safely and effectively.

I had better stop there. I will come back if there is time at the end.

Q 34

I want to pick up on a couple of points. Realistically the last thing on the mind of anyone acting in a heroic way by rushing in to save people trapped by a fire will be the contents of the Bill. So to conflate the two issues of whether someone will act heroically and the contents of the Bill is slightly misleading. However, it sends a signal that we touched on right at the beginning with you, Mr Myers, when you talked about the myth that has grown up around how health and safety works. The National Council for Voluntary Organisations told us earlier that people cite the consequences of things going wrong as a reason for not volunteering. The contents of the Bill remind them that  there are protections for those who put themselves forward by volunteering and also for the organisations. Bringing all these things together must be a good thing and must aid you in debunking some of the myths that have grown up around health and safety. Would you agree?

Kevin Myers: In terms of law, I am not sure, but anything that tries to add to the debunking, having conversations about this sort of issue is good. We set up a myth-busters challenge panel to try to get on the front foot in dealing with this. We invite people to write in to the myth-busters challenge panel to tell us about situations where they have been told that they must do something for health and safety reasons or they must not do it for health and safety reasons. More than 300 cases have been submitted to us. Very few have anything to do with health and safety. They are often excuses for poor customer service or anything like that. There are misapplications and misunderstandings, which are sometimes disingenuous and sometimes over-egged by the media. They know that they can get easy copy with another bonkers health and safety story. People are told that they cannot have a custard pie competition because of insurance reasons, they cannot take pets to a pet show and their children cannot use the toilet in a shoe shop. If they buy shoes in a shoe shop they are told they have to take the box away for health and safety reasons. You could not make them up. We are trying to do something about it. This issue is multifactorial. As I understand it, the Bill is designed to help to reinforce that message.

Q 35

Mr Wrack, in one of your earlier answers you talked about your fear that this Bill would dilute protection for firefighters. Can you expand a little on why you think it would do that?

Matt Wrack: Clause 2 says that the courts should have regard to whether the person was

“acting for the benefit of society or any of its members.”

I used the example of a fire service where firefighters have been killed. Tomorrow, for example, is the 15th anniversary of another death of one of members, Paul Metcalfe, who died in Bury in Greater Manchester attempting to rescue someone from open water. He had not been trained to do that. He did not have adequate equipment to do that. He did it, you might say heroically, and the fire and rescue service has had to learn many lessons from that.

It raises questions about how the employer should deal with situations like that. Should the employer put an individual into those circumstances and ask someone to effectively perform an impossible task for which they were not trained, resourced or equipped? Our concern is what is meant by

“acting for the benefit of society”,

and how clearly Mr Metcalfe was acting in such a way. Nobody is suggesting that he should have been criticised in any way, but criticisms could be levelled at the employer in such situations. If that becomes muddied in any way, the fire service will not improve. Unfortunately, the general way in which we have improved is by learning from tragedies over many years.

Q 36

Without going into the specifics of what sounds like a very sad case—I do not know whether he was instructed or took it upon himself to do  what he did—do you think that those three lines in the Bill would actually undermine that principle? Does it not just remind people that there is a common-sense aspect to this and that if someone acted responsibly for whatever reason—let us say that he had had the right training—and had tried to rescue him when he got into trouble, he would not have been prosecuted? We are just reminding people that some common sense can apply in these particular cases.

Matt Wrack: For us, addressing those pretty deep questions would need a great deal of thought. I am unsure whether that can be done by means of this Bill. As I said, we had dialogue with Lord Young at the time of his review of health and safety, and it was certainly reported that Lord Young had said that health and safety was so out of control that firefighters might refuse to respond to calls because they were concerned about their safety. By the way, there is no evidence that that has ever happened, and when we met Lord Young the picture that emerged was quite different. Part of the result of that was precisely the sort of discussion that various stakeholders within the fire and rescue service have had around such issues, including with the Health and Safety Executive. Our concern is that we do not see what is added by the Bill that is in front of us.

Q 37

It is instructive to give some practical examples. I have been following the case surrounding the deaths of the two firefighters from the East Sussex fire and rescue brigade at Marlie farm and the compensation that has been denied to relatives of the firefighters who sadly lost their lives. Does the advice that the union has received from solicitors suggest that the Bill would improve that situation or make it worse?

Matt Wrack: I do not think that we have had any advice specifically on the question of the Bill in relation to that case, but our point is that it does nothing to improve that situation. We have a case in which two employees of the fire service were killed in a fireworks explosion and something like 18 other firefighters were seriously injured. Seven or eight years down the line, liability is being denied, despite an initial ruling in court that the employer was liable. That is pretty appalling. We would be interested in a dialogue with the Ministry of Justice or Ministers or whatever about how to avoid such horrific treatment of fire service employees, which is being fought tooth and nail by that employer. I do not see that the Bill does anything to improve the situation for those people. That is one of the frustrations.

Mr Myers referred to debunking some of the risks about health and safety and so on, and it was suggested that this might be one of the purposes of the Bill. For us, health and safety is a life and death matter, and we object strongly to people trivialising it and turning it into a joke or headline-grabbing stories. We deal with such matters every day of our working lives. We deal with the aftermaths of deaths and serious injuries, some of which go on for years and years. We would like a strengthening of protection for workers put into those positions by society, rather than anything that might possibly weaken it.

I think we have exhausted the questions and that brings to an end this session. Thank you very much, gentlemen, for your evidence.