Explanatory Notes to Heath and Safety (Offences) Act 2008

1.These explanatory notes relate to the Health and Safety (Offences) Act 2008 which received Royal Assent on 16 October 2008. They have been prepared by the Department for Work and Pensions, with the consent of the Rt. Hon Keith Hill MP and the Rt Hon Lord Bruce Grocott, in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.The purpose of the Act is to raise the maximum penalties available to the courts in respect of certain health and safety offences by altering the penalty framework set out in section 33 of the Health and Safety at Work etc. Act 1974 (“the 1974 Act”). The Act also makes similar changes to the Health and Safety at Work (Northern Ireland) Order 1978 (“the 1978 Order”). In what follows, references to provisions of the 1974 Act should (where necessary) be read as including references to the corresponding provisions of the 1978 Order.

4.The changes made by the Act were first proposed following a joint review of the current maximum penalties for health and safety offences, which was carried out between February and September 1999 by the Home Office, the then Department of the Environment, Transport and the Regions, and the Health and Safety Executive.

5.The objective behind the changes is that sentences for health and safety offences be sufficient to deter those tempted to break the law, and sufficient to deal appropriately with those who do commit offences, in accordance with the Hampton and Macrory Reports.

6.The effect of the Act is to:

1. raise the maximum fine which may be imposed in the lower courts to £20,000 for most health and safety offences;

2. make imprisonment an option for more health and safety offences in both the lower and higher courts;

3. make certain offences, which are currently triable only in the lower courts, triable in either the lower or higher courts.

7.The power to impose a fine of up to £20,000 is already available in respect of some offences under the 1974 Act, such as breaches of the general duties arising under sections 2 to 6. The Act extends this power to other offences that are considered to be comparable (for example, a breach of regulations made under the 1974 Act).

8.At present, imprisonment is an option only in certain cases. The Act will make imprisonment available for most health and safety offences.

9.Under the 1974 Act, it is an offence under section 33(1)(e) to contravene any requirement imposed by an inspector under section 20 (for example, a requirement to give information relevant to an investigation or to leave premises undisturbed after an incident). It is also an offence to prevent another person from appearing before an inspector or from answering an inspector’s questions (section 33(1)(f)). Both offences are currently triable only in the lower courts. The Act makes them triable in the lower or higher courts.

10.For further details, see the Annexes to these notes.

11.This section replaces the penalty provisions of section 33(1A) to (4) of the 1974 Act by inserting a new Schedule 3A to the 1974 Act. This Schedule sets out the mode of trial and maximum penalties for the health and safety offences set out in section 33(1)(a) to (o) and for offences under the “existing statutory provisions” where no other penalty is specified. (The meaning of the term “existing statutory provisions” is given in section 53(1) of the 1974 Act: essentially the term refers to certain health and safety related statutory provisions pre-dating the 1974 Act.) Annex 1 to these notes gives brief details of each offence listed in the new Schedule 3A, stating the current penalty and mode of trial applicable to it, and setting out the penalty and mode of trial provided for in the new Schedule 3A. The section also makes corresponding changes to the 1978 Order, details of which are given in Annex 2 to these notes.

12.Subsection (1) introduces Schedules 2 (consequential amendments) and 3 (repeals) to the Act.  Subsections (2) and (4) confer power on the Secretary of State, or the appropriate Department in Northern Ireland, to make consequential amendments to existing regulations.  This power reflects the fact that existing regulations made under section 15 of the 1974 Act and/or under section 2(2) of the European Communities Act 1972, apply section 33 of the 1974 Act with modifications.  These modifications will need to be revised to reflect the amendments made by the Act to the 1974 Act.  The purpose of including the power at subsections (2) and (4) is to enable the necessary changes to existing regulations to be made by statutory instrument subject to the negative resolution procedure.

13.The Act extends to the whole of the United Kingdom. So far as the Scottish Parliament is concerned, it is considered that the Act is essentially about health and safety, which is not a matter within the legislative competence of that Parliament. As regards the Northern Ireland Assembly, the subject matter of the Act is considered to be criminal penalties and prosecutions, a matter that is within the legislative competence of that Assembly. But it is a reserved matter (as opposed to an excepted or transferred one). This means that any legislation in the Assembly on the subject would require the consent of the Secretary of State. It also means that a legislative consent motion would not be appropriate since those deal only with transferred matters. Neither health and safety nor criminal penalties and prosecutions are areas where the National Assembly for Wales has legislative competence or the Welsh Ministers have functions.

14.This Act does not have any special effect on Wales and does not affect the National Assembly for Wales.

15.The Act will have effect in relation to offences committed after the end of the period of three months beginning with the day on which the Act receives Royal Assent.

16.The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament.