Fawcett, R (on the application of) v Health Safety Executive

A regulatory safety communication must be interpreted in its proper context, including its intended audience and purpose. Guidance which steers users towards a particular inspection scheme does not necessarily restrict access to competing service providers where equivalent alternatives remain legally available. However, regulatory bodies must communicate even-handedly, particularly where an industry scheme is dominant and may inhibit competition. A safety alert was not misleading on the narrowly defined facts because it had been circulated only to an audience understood to be familiar with the relevant alternative arrangements.

The claimant sought judicial review of a Safety Alert Action Note issued by the Health and Safety Executive after an accident involving a Crazy Frog fairground ride. The Note advised ride controllers to consult inspection bodies registered under the ADIPS scheme for design reviews and non-destructive testing.

Permission was granted on the single ground that the Note breached the Provision of Services Regulations 2009 by restricting access to inspection services. The central issue was whether the Note required controllers to use ADIPS-registered bodies, or merely recommended that course while permitting the use of other competent bodies.

1. The application was dismissed. The Safety Alert Action Note did not, in the narrowly defined context in which it was issued, breach the Provision of Services Regulations 2009.
2. Inspection bodies were service providers and the Health and Safety Executive was a competent authority for the purposes of the Regulations. The relevant provisions prohibited restrictions reserving access to a service activity to particular providers and restrictions involving competing operators.
3. In interpreting a working document of this kind, the court was entitled to consider its context, purpose, intended audience and the circumstances of its publication, rather than examining the words in isolation. The Note was directed to a specific industry audience, not the public generally.
4. The Health and Safety Executive supported ADIPS, but the evidence and associated guidance established that controllers could use another competent inspection body if they could demonstrate that the alternative system was equally effective. The word “should” could therefore convey advice rather than an absolute legal requirement.
5. Nevertheless, the Note was unfortunately worded. Its language appeared to steer operators towards ADIPS and could bear down on competitors outside the scheme. Regulatory authorities in a dominant industry must act, and be seen to act, even-handedly. The Note was saved from being misleading only by its restricted circulation to an audience familiar with the relevant arrangements.
6. No order as to costs was made.

Permission to apply for judicial review was granted on 5 July 2011 on the single ground concerning the Safety Alert Action Note. The High Court (Administrative Court) dismissed the claim.