In the wake of the recent reports of ‘divorce shopping’ across Scotland and England, are we about to see personal injury shopping? Or, in the well worn phrase of many a politician, when it comes to Health & Safety legislation, is there more that unites us than divides us?

The report of the Calman Commission last month which examined Scottish devolution and the relationship between Scotland and Westminster, called for co-operation to be strengthened between the two parliaments. While no explicit recommendation was made to devolve authority for Health & Safety to Scotland’s parliament, the door for further debate has been left open. The question is whether such changes would be good or bad.

While there are some significant differences between the operation of the systems north and south of the border, it is probably true to say that the similarities far out-weigh the differences. There are a number of factors which support maintaining the current status quo:-

First, the current regulatory system, including the “six pack” regulations governing Health & Safety in the UK, is the product of European directives and legislation. Since there is a common wellspring for most of the provisions, why have two separate authorities in the UK responsible for implementation?  

Second, the Health & Safety Executive (HSE) has been developing an integrated system of management across the UK over many years. This system now includes centralised legal support with a UK-wide bank of knowledge and expertise. With less than one eleventh of the UK’s population in Scotland, why fragment and dilute the service?  

Third, Health & Safety compliance is expensive. A new system could increase uncertainty and cost. One of the biggest costs is claims insurance. The principal insurance companies regard the UK as one market and consequently achieve an economy of scale resulting in lesser premiums. Is it sensible to create a different framework in relation to a small part of the overall population?  

Fourth, HSE has, within its Inspectorate, specialist divisions dealing with areas such as the oil industry, radiation, industrial diseases, construction and building and so forth. Could it be the case that evolving functions onto a smaller level is likely to result in a loss of overall expertise and specialisation?  

There is, of course, another side to the argument. Enforcement of Health & Safety legislation differs significantly north and south of the border. Whereas in England HSE plays a large part in prosecutions; in Scotland, responsibility lies with the Crown Office and Procurator Fiscal Service (COPFS).

This can result in recommendations and charges put forward by HSE being rejected in whole or part by COPFS. The Fiscal can also accept “not guilty” pleas or adjust “guilty” pleas to charges which may or may not accord with the view of the Inspector on the ground. However, COPFS and the HSE in Scotland have been actively forging a close working relationship, so is there any advantage to be gained in this area by devolution?  

Further, some advocates of devolution for Health & Safety point to the differences in business north and south of the border, using the oil industry based in and around Aberdeen as an example. This may be seen as an exception, albeit an important one, to the general rule that the similarities greatly out weigh the differences. In an economy where there are increasing redundancies, businesses are finding it more difficult to buy-in the expertise and introduce the training and instruction necessary to achieve compliance with current Health & Safety legislation. Employers require to carry out stress audits and identify individuals who may be vulnerable to psychological injury. Employers must identify employees amongst an increasingly aging population who may have back problems and ensure that manual handling or lifting by these employees is avoided.  

The “thin skulled man” principle means that a firm at fault must take its victim as it find him, even though it has no idea he has a hidden weakness. Some well-intentioned employers now find it impossible to achieve the level of compliance required by existing rules, so is it a good idea to introduce a new system?  

The recent report following the Stockline disaster has criticized the adequacy of the safety regime in place for LPG (liquid petroleum gas) use in industry. The High Court has allowed the cases by children against Corby Borough Council to proceed where the children allege that birth defects were caused by their pregnant mother’s exposure to toxic waste removal during land regeneration. Would new legislation from the Scottish Parliament help or worsen the problem? The debate continues.