OCCASIONAL LECTURE 8
REDUCING RISKS,
PROTECTING PEOPLE
DECISION-MAKING ON THE
BASIS OF RISK
Timothy Walker
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REDUCING RISKS,
PROTECTING PEOPLE –
DECISION-MAKING ON THE
BASIS OF RISK
Timothy Walker
Director General
Health and Safety Executive
A CRI occasional lecture
held on 28th January 2003 at
University College London
Chaired by Professor Ralph Turvey
Desktop published by
Jan Marchant
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ISBN
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PREFACE
The CRI is pleased to publish Reducing Risks, Protecting People –
Decision-making on the basis of risk as CRI Occasional Lecture 8.
The lecture was given by Dr Timothy Walker, Director General of the
Health and Safety Executive, on January 28th 2003 at University
College London. Regulation for health and safety has widespread
implications for business, consumers and the public, and decisions
face increasing scrutiny, given the principles of good regulation set
out by the Better Regulation Task Force, and the government’s
requirements for ‘regulatory impact assessments’ to accompany
regulatory decisions. The CRI is therefore grateful to Dr Timothy
Walker for coming to explain HSE’s thinking and approach.
His lecture has provided a firm foundation for further debate. As an
illustration, I select one issue, the cost-benefit test; a test which gives
practical meaning to the idea of the ‘tolerability of risk’. One
principle of good regulation is proportionality, but the Director
General reminds us that the current legal framework for the HSE is
that the costs imposed should not be ‘grossly disproportionate’ to the
risks avoided (ie, the benefits). Is the line which would be drawn for
a ‘proportionate’ decision the same one as would be drawn for a ‘not
disproportionate’ or ‘not grossly disproportionate’ decision? If not,
why not, and is the rationale to be found in the Director’s references
to “societal concerns”? This issue has resonances with other
regulatory debates, such as the judicial review test of reasonableness;
a test which appears to be moving from the extreme position of
having to show that the decision was so unreasonable that it was, in
effect, irrational towards a test based on decisions having to fall
within a ‘zone of reasonableness’.
To promote further debate in this area of regulatory practice, the CRI
would welcome enquiries or manuscripts to be considered for
publication.
Peter Vass,
Director (CRI), February 2003
iii
iv
REDUCING RISKS, PROTECTING
PEOPLE: DECISION-MAKING ON
THE BASIS OF RISK
Timothy Walker1
Introduction
In partnership with its stakeholders, the Health and Safety Executive
(HSE) has the task of ensuring that risks to people’s health and safety
from work activities are properly controlled. However, resources are
not unlimited; they need to be used where they will do most good. We
seek control regimes, therefore, that are proportionate to the risk, not
‘hammers to crack nuts’. In consequence, there are decisions to be
made about the deployment of resources which involve the trading-off
of the costs of control against the reduction in harm it achieves.
In the context of occupational health and safety, three categories of
risk-based decision-making can be identified:
First, the regulator has to decide on the degree and form of
regulatory control for a hazardous activity (the regulator is the Health
and Safety Commission (HSC) and HSE but, ultimately, ministers and
parliament). This might, at one extreme, involve doing no more than
relying on the general duties under existing occupational health and
safety legislation, the Health and Safety at Work Act (HSW), and at
1
Acknowledgement
This occasional lecture has been based on a chapter prepared for the CRI
Regulatory Review 2002/2003 in conjunction with Laurence Golob of the Risk
Policy Unit at the Health and Safety Executive. I am pleased to acknowledge
his contribution.
Dr Timothy Walker, Director General,
Health and Safety Executive
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DECISION-MAKING ON THE BASIS OF RISK
the other extreme, instituting a strict permissioning regime. Providing
guidance or an approved code of practice falls somewhere in between.
Second, the duty-holder has to decide how to meet the requirements
imposed by the regulator, in their own particular circumstances (the
duty-holders are mainly employers and the self-employed).
Thirdly, the enforcer has to decide whether the duty-holder has done
enough to meet those regulatory requirements (the enforcers are HSE
and the local authorities and, ultimately, the courts).
In December 2001, in order to promote awareness of its approach to
decision-making, and help duty-holders with theirs, HSE published
the following:
Reducing Risks, Protecting People - widely known as R2P2.2 In
this document HSE addresses its stakeholders and sets out how, in
consultation with them, it decides to regulate.
The ALARP suite of guidance - here HSE addresses its own staff
about what they should expect to see in duty-holders’ demonstrations
that risk has been reduced to ‘as low as reasonably practicable’
(ALARP). 3, 4 , 5 The test of ‘reasonable practicability’ is the one most
frequently encountered in HSW regulatory requirements.
R2P2 – Reducing Risks, Protecting People
R2P2 is an important document because it makes transparent the
protocols and procedures we follow to ensure that the process of
decision-making, including risk assessment and risk management, is
perceived as valid.
2
http://www.hse.gov.uk/dst/r2p2.pdf
http://www.hse.gov.uk/dst/alarp1.htm
4
http://www.hse.gov.uk/dst/alarp2.htm
5
http://www.hse.gov.uk/dst/alarp3.htm
3
2
TIMOTHY WALKER
For example, HSE tells its stakeholders that:
• it seeks to engage them, its stakeholders, at all stages of the
decision-making process, with the aim of reaching a wider
consensus wherever possible;
• it considers both individual risk and societal concerns in the
assessment of risk from a hazard. ‘Individual risk’ concerns the
potential, tangible harm to individuals. ‘Societal concerns’ arise
with those hazards which impact on society at large and which
harm the social fabric if the risk were to be realised;
• in addressing hazards, HSE sees good practice as a minimum
requirement. Established good practice is an important concept for
both duty-holders and regulators because, if properly formulated, it
represents a consensus between stakeholders on, in the first
instance, an adequate response to a hazard. Good practice should
evolve to reflect changes in technological feasibility and public
expectations;
• R2P2 describes the tolerability of risk (TOR) framework (see
Figure 1) which provides criteria for HSE to apply to its
assessments of risk so as to reach a decision on regulatory control.
The framework is constructed to reflect how people in general
approach risk, that is, some risks are so high that they would be
viewed as intolerable whatever the benefits that might be gained by
taking the risk. Other risks are seen as too small to be of any
further concern. In between are risks at a level where they are of
concern but can be tolerated, provided that they are reduced to
ALARP.
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DECISION-MAKING ON THE BASIS OF RISK
Increasing Individual risks and societal concerns
Figure 1: Tolerability of risk (TOR) framework
Risk cannot be justified
save in extraordinary
circumstances
Unacceptable
region
Control measures must be
introduced in this region to
reduce risks ALARP
Tolerable
Region
Risks regarded as
insignificant - further effort to
reduce risks likely to be
grossly
disproportionate
to risk reduction achieved
Broadly
acceptable
region
Negligible risk
Societal concerns
For most of the myriad hazards that the Health and Safety
Commission and Executive regulates, we have to consider only the
individual risk. However, there are a few hazards for which societal
concerns are also important. An example is the genetic modification
of organisms (GMOs). This gives rise to societal concerns because of
public perceptions that, for example:
• there is a potential for irreversible, long-term damage to the
environment;
• public exposure to risk is involuntary and control entrusted to
others;
• scientists are ‘playing with nature’.
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TIMOTHY WALKER
We have reflected these societal concerns in the high standard of
regulatory control imposed, for example, by the GMO (Contained
Use) Regulations, a higher standard than would have been imposed if
individual risk was the only consideration. Furthermore, the
regulations go on to require the application of the general principles
of good micro-biological practice and of good occupational safety and
hygiene (and lists a number of well-accepted principles).
Other examples of activities where societal concerns are important
include the railways and the major hazard industries, such as the
nuclear industry and the chemical industry, where the permissioning
regimes under which these industries operate reflect the societal
concerns that they engender.
But are we correct in taking societal concerns into account in our
decision-making? Critics of this approach to decision-making will
often contrast societal concerns with ‘expert’ judgement and dismiss
them as irrational prejudice. The ‘expert’, rational view concentrates
on the individual risk and says that, for example, the number of deaths
involving the travelling public pales into insignificance when
compared to the 3000 plus deaths that occur on the roads every year and so societal concerns over railways should be put to one side.
However, whilst accepting the importance of ‘expert’ judgement, we
are strongly of the view that we must reflect public opinion in our
decision-making. The most obvious answer to the question ‘why?’ is
that we live in a democracy, and that this is what is due to the
democratic process. While we have a clear role in educating the
public, we cannot, and should not, ignore their views entirely.
Leadership does require a degree of contact with, and understanding
of, those whom one aspires to lead.
There are also good, practical reasons for taking societal concerns into
account. First, ignoring societal concerns would undermine public
trust in the HSC and HSE. That we are trusted is a matter of
importance not only for ourselves - clearly our job becomes easier the
more we are trusted - but also for those we regulate, the duty-holders.
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DECISION-MAKING ON THE BASIS OF RISK
Public trust in us strengthens public confidence in the regulatory
system we formulate and administer. Without such confidence, there
may be some areas of work - those which engender societal concerns which would find it difficult to proceed, and might even be prevented
from proceeding by adverse public and political opinion.
This is particularly important where health and safety regulation is
needed to allow an activity to take place at all. For example,
establishing a high standard of control enables research and
development of GM technology to proceed with the confidence of the
public and politicians. Without such public and political confidence,
it is doubtful that work involving GM would be allowed to proceed at
all. Though the GM Regulations may seem onerous to practitioners,
they are very much to the practitioners’ long term advantage.
Recently, the Better Regulation Task Force has recommended that an
appropriate regulatory framework should be established to ensure
public confidence in nanotechnology projects.
Secondly, we need to import society’s values as regards the
tolerability of risk into our decision-making. HSE, with its wealth of
knowledge and experience of occupational health and safety issues,
can, with justifiable authority, say what the risk ‘is’, and also how it
might be controlled effectively. However, what HSE cannot do with
the same authority is to say what the risk ‘ought’ to be; what level of
risk is tolerable. The ‘is’ cannot not lead directly to the ‘ought’.
For example, the TOR framework (Figure 1) combines a number of
‘pure’ decision criteria:
equity-based criteria which start with the premise that all individuals
have unconditional rights to certain levels of protection;
utility-based criteria which look at the relative costs and benefits of
control measures;
technology-based criteria which look to the ‘state of the art’ to
control risk.
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TIMOTHY WALKER
Achieving the right balance between these criteria in any given case
cannot be something left solely to the regulator - society’s values
must be imported into the decision.
ALARP suite
Turning to the ALARP suite of guidance, unlike R2P2, this is
intended primarily for HSE inspectors to help them judge whether
duty-holders have satisfactorily demonstrated that they have reduced
risks to ALARP, that is, whether the decisions the duty-holders made
about reducing risks to ALARP were correct. The suite consists of
three documents covering:
The basic principles and guidelines to be applied - based on what
the courts have said by way of interpreting the concept of ‘reasonable
practicability’, that is, that it must involve weighing the cost to the
duty-holder of instituting a control measure against the risk to be
controlled, and ruling out the measure only if the cost is ‘grossly
disproportionate’ to the risk.6 The document provides detailed
guidance on issues such as what risks and costs should be taken into
account in the trade-off and how should the trade-off be made.
The role of ‘good practice’ in meeting ALARP - we expect it to be
in place as a minimum requirement but it will often prove, in practice,
to be sufficient in itself.
ALARP in design - considering ALARP at the design stage provides
an opportunity to meet the very high potential for reducing risks
throughout the life cycle of a hazard by designing in health and safety
from the start, and allows consideration of any trade-off between the
risk reductions to be achieved at different stages, in order to obtain the
safest solution overall.
6
Principally, Edwards v The National Coal Board [1949] 1 KB 704; [1949] 1
All ER 743.
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DECISION-MAKING ON THE BASIS OF RISK
Contrasting HSE’s decision-making with that of
the duty-holders
Duty-holders making decisions in the ALARP context are meeting a
legal requirement and so we believe this should confine them to:
• matters within the scope of the legislation;
• foreseeable risks within their own control (including those risks
from external events which the duty-holder cannot control but
whose consequences the duty-holder could take steps to mitigate);
• to considering only their own costs in the risk/cost trade-off - not
costs to other duty-holders or society more widely.
In contrast, HSE, in making its decisions in the context of R2P2, can,
and does, take a wider viewpoint than the duty-holder. This
incorporates wide social, political and economic considerations.
Some duty-holders find the restriction of their viewpoint irksome.
Rail companies, for example, sometimes argue with us that, as well as
their own costs, they should be able to take the wider social costs of
introducing risk control measures (for example, the cost of delay
incurred by passengers), or be able to consider in their risk
assessments any increased road risks which might arise if passengers
were to start using their cars instead of taking the train because of
additional railway safety measures being introduced.
But these are examples of matters outside the duty-holder’s purview.
Rail companies, for example, do not have direct control over road
hazards and are not in a position to influence road users’ risk-taking
behaviour or mitigate the consequences if the risk were to be realised.
Indeed, we believe that such restrictions in ALARP decision-making
protect duty-holders from what would otherwise be a heavy burden of
having to make far-reaching and difficult decisions that trade-off risks
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TIMOTHY WALKER
from one hazard against another. It would, for example, bring into the
realm of occupational health and safety any decision by rail
companies which raised fares, something which would be likely to
cause some passengers to switch from road to rail.
HSE is able to relieve the duty-holder of that burden. With its wider
viewpoint, HSE can provide duty-holders with a regulatory
framework which already takes account of wider social concerns.
Once the appropriate regulatory regime devised by HSE is in place
(remembering that HSE will already have engaged duty-holders and
other stakeholders to achieve this by means of consultation), it leaves
duty-holders to concern themselves only with matters within their
own control, and with the relatively less onerous task of being able to
demonstrate they have reduced risks to ALARP.
As far as HSE is concerned, as our ALARP guidance makes clear, this
often involves the duty-holder in no more than demonstrating that the
controls they have in place meet established good practice. This
might mean, for example, meeting the established railway safety
standards, or the principles of good practice in the GMO regulations,
or following the guidance in HSE’s publication on complying with
the display screen equipment regulations.
Limitations of HSE’s approach
The decision-making system set out in R2P2 and the ALARP suite
works to help ensure that the right controls, from the perspective of
the regulator, duty-holder and society at large, are put in place.
However, there will be times when the help it provides is limited.
Foreseeability
R2P2 and the ALARP guidance is concerned with reasonably
foreseeable risks, that is, HSE would not look to impose duties on
duty-holders which require them to consider risks which were other
than those which arise out of reasonably foreseeable events and
9
DECISION-MAKING ON THE BASIS OF RISK
behaviour. To do otherwise would present duty-holders with a neverending, and nigh on impossible, task.
But suppose a risk considered not reasonably foreseeable is shown by
subsequent events to have been so, and it is a risk which engenders
societal concerns. In this case, because it had not been viewed
previously as reasonably foreseeable, there will no regulatory regime
reflecting societal concerns in place, and there will be no established
good practice for the duty-holders to adopt.
For example, the events in New York of 11 September 2001, and their
aftermath, transformed the risk posed by anthrax to all aspects of the
postal system from a ‘possibility’ into a ‘reasonably foreseeable’ one.
Duty-holders needed to decide what to do about it. In practice, the
risk to an individual business would normally be so low that, using
the ALARP test, remedial action would not be required. However,
such inaction would not have satisfied wider societal concerns about
the security of the postal system.
In the event, HSE was able to apply its expertise in dealing with toxic
substances to provide duty-holders faced with the anthrax problem
with a series of precautionary actions that they could take to minimise
the risk. However, this told duty-holders what they could do, not
what they had to do, nor what goal the law insists they must reach in
any event. While this left the ball in the duty-holders’ court as to
what action to take in practice, and some duty-holders feeling a little
uncomfortable, it did allow them to balance the costs of taking
particular action against the benefits of mitigating any potential
problems for their own activity.
Uncertainty
Problems arising with foreseeability of risks is one aspect of
uncertainty which, generally, can make things difficult for decisionmakers. For example, after the derailment at Hatfield, caused by the
fracture and fragmentation of a rail, Railtrack decided to impose
speed restrictions to ensure that in the event of another derailment,
10
TIMOTHY WALKER
trains stayed upright. Railtrack’s decision was accepted by HSE, but
in fact Railtrack had no real ‘handle’ on how quickly existing cracks
would grow, which could lead to another track failure under a highspeed train. The decision was rightly precautionary, but was it overprecautionary? And to what extent was Railtrack’s decision
influenced by the feeling, immediately post-Hatfield, that no-one
would ‘forgive or forget’ another incident, or by a wish to restore
public confidence in the railway infrastructure, or even by a wish to
protect itself against civil liability?
HSE recognises that it has a role in reducing uncertainty and, for
example, has an extensive programme of research aimed at doing just
that. It also recognises that part of its role must involve a certain
amount of ‘horizon-scanning’, trying to anticipate the development of
current ‘possible’ risks into the ‘reasonably foreseeable’ risks of the
future, and to which the R2P2 framework should be applied. We are,
at the moment, examining how within HSE, we might improve our
arrangements for horizon-scanning in order to bring it more
effectively into our regulatory decision-making.
Conclusion
However, whilst acknowledging these limitations of the approach to
decision-making provided by R2P2 and the ALARP guidance, we are
confident that it has provided, and will continue to provide, a highly
effective tool for both HSE and duty-holders in deciding what to do
about managing risk.
We hope that the publication of R2P2 and the ALARP suite will help
decision-makers reach decisions about managing risk in their own
workplaces. The better they understand HSE’s expectations, the
more likely we are to both agree as to what needs to be done.
But with our own decision-making, we also need to understand the
concerns of our stakeholders and society at large, and the values
people employ when they consider matters of risk. We need to raise
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DECISION-MAKING ON THE BASIS OF RISK
the public understanding of the issues involved. Prompting a more
informed public debate on how to handle risk is an essential part of all
this and we hope that publishing these documents will have helped to
stimulate it.
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TIMOTHY WALKER
13
CRI ADVISORY COMMITTEE
Chairman: Professor Ralph Turvey
Members
John Ashcroft, Director, Regulation Value for Money, National Audit Office
Frank Attwood, Partner, RSM Robson Rhodes
Professor Brian Bayliss, Director, University of Bath School of Management
Jim Boudier, Finance and Regulation Director, Thames Water Utilities
Rodney Brooke CBE
Stuart Condie, Chief Economist, BAA plc
Clive Elphick, Group Strategic Planning Director, United Utilities plc
Adrian Gault, Director, Energy Economics, DTI
Professor Stephen Glaister, Dept of Civil Engineering, Imperial College London
Professor Cosmo Graham, Faculty of Law, University of Leicester
Professor Leigh Hancher, Allen & Overy, Amsterdam
Julia Havard, Head of External Relations, OFWAT
Ian Jones, Director, National Economic Research Associates
Ronan Palmer, Chief Economist, Environment Agency
Professor David Parker, Aston Business School, Aston University
Paul Plummer, Director of Corporate Planning & Regulatory Affairs, Network Rail
Professor Judith Rees, Pro-Director, London School of Economics
Frank Rodriguez, Head of Economics, Royal Mail Group plc
Colin Skellett, Chairman, Wessex Water
Vernon Soare, Director, Policy and Technical, CIPFA
Roger Tabor, Strategic Information Director, Royal Mail Group plc
Tim Tutton, Director of Regulation, National Grid Transco
Peter Vass, Director, CRI, University of Bath School of Management
Professor Richard Whish, King’s College London
Professor Stephen Wilks, Department of Politics, University of Exeter