Concordat between the Health and Safety Executive and the National Assembly of Wales

Contents

Concordat annex

Introduction

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1. This concordat is an agreement between the Cabinet of the National Assembly for Wales ("the Assembly ") and the Health and Safety Executive (HSE). It is intended to provide the framework to guide the future working relationship between HSE and the Assembly. The objective of the concordat is to ensure that the roles and responsibilities of HSE and the Assembly in the new constitutional structure are effectively translated into practical working arrangements between the two organisations. The aim is to promote the establishment of close and harmonious working relationships and good communications at all levels between HSE and the Assembly, and in particular to foster constructive co-operation. References in this Concordat to the Assembly include Assembly officials unless specifically stated to the contrary.

Nature of concordat

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2. This concordat has been drawn up in accordance with the principles outlined in the Memorandum of Understanding which sets out the understanding of the UK Government and the administrations of Scotland, Wales and Northern Ireland of the principles and practices that will underlie relations between them. There are also overarching concordats setting out the framework for co-operation on policy issues, international matters, statistics and assistance to industry which are relevant to this agreement. Where Assembly matters are concerned, reference should first be made to the overarching concordats.

3. This concordat is a voluntary arrangement between HSE and the Assembly. It is not a binding agreement or contract and so does not create any legally enforceable rights, obligations, or restrictions. It is intended to be binding in honour only. The Health and Safety at Work etc. Act 1974 (HSWA) provides for statutory consultation in connection with proposals for regulatory change; this concordat does not create any other right to be consulted or prevent consultation beyond that required by statute. Any failure to follow the terms of the concordat is not to be taken as invalidating decisions taken by HSE or the Assembly.

Interpretation

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4. As this concordat indicates, HSE and the Assembly will exchange information and inform or consult each other about a wide range of issues in a wide range of situations. The concordat is not, however, intended to be an exhaustive description of every aspect of the relationship between the organisations, or to preclude communication between them about other issues or in other situations.

5. It is not generally either possible or desirable for the concordat to prescribe in detail the precise circumstances which will trigger a need to invoke the arrangements set out in this concordat, or the exact form of communication or the timescale involved. Where specific arrangements are necessary on particular topics they are outlined in this concordat and its annexes. Otherwise, HSE and the Assembly will use their judgement, taking into account the terms of this concordat, in determining the procedures (including the level of detail and, where necessary, the period of notice) that appear reasonable and appropriate in any given circumstance, in accordance with the principle that if either is planning action which impinges on the responsibilities of the other, it should give adequate forewarning.

6. This concordat is framed in terms of the interface between HSE and the Assembly; it is not intended to imply that communications on issues covered by the concordat should not, where appropriate, also involve UK Departments, particularly DETR, or other devolved administrations; indeed that may be the most effective way of conducting some business.

7. The Health and Safety Commission and Executive (HSC/E) are statutory non-departmental public bodies established under HSWA. HSC/E are sponsored by the Department of the Environment, Transport and the Regions (DETR) whose Secretary of State appoints the members of HSC. The subject matter of HSWA continues to be conducted at the GB level and is not transferred to the Assembly.

8. Under Section 13 of HSWA and Section 41 of the Government of Wales Act 1998 HSC/E may by agreement with the National Assembly for Wales carry out functions in Wales on its behalf, and vice versa.

Confidentiality

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9. HSE and the Assembly wish to ensure that the information each supplies to the other is subject to appropriate safeguards, in accordance with the principles set out in the Memorandum of Understanding. These arrangements rely for their effectiveness on mutual respect for the confidentiality and sensitivity of information exchanged. Therefore HSE and the Assembly will not disclose unpublished information to third parties without the permission of the administration which provided the information, subject to the requirements of the law and other obligations.

10 In considering the case for disclosure, the requirements of freedom of information legislation, or before that comes into operation, the guidelines for disclosure of information in the UK Government's and Assembly's codes of practice on access to Government information will be taken into account, subject to any requirements imposed by Data Protection Act 1998, the Official Secrets Act, and the Environmental Information Regulations (1992), as amended, or duties placed on HSE by section 28 of HSWA.

Consultation

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11. There are a significant number of areas where HSE and the Assembly share or have closely related interests, as set out in the Annex. HSE and the Assembly recognise that the extent of these areas makes good communications essential in order to assist the process of policy formation and decision-making in each administration and to meet any consultation or other requirements connected with the exercise of a function. They also recognise that there will be mutual benefit from the exchange of information on scientific, technical and, where appropriate, policy matters.

12. The HSE 1 and the Assembly will:

  • share relevant information, analysis and research;
  • inform each other of any relevant information which comes to their attention which may require action or have resource consequences for the other party;
  • seek to involve each other, as and when appropriate, in policy formation on all topics where there is a reasonable expectation that a policy initiative might affect the other's responsibilities;
  • inform each other at the earliest practicable stage of any proposal to change primary or secondary legislation which might have an impact upon the other's responsibilities;
  • inform each other at the earliest practicable stage of substantive new policy announcements which may be relevant to the other's responsibilities; and
  • co-ordinate activities where appropriate

Major Incidents and Public Inquiries

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13. In this section of the concordat, a 'major incident' means a significant event which demands a response by the HSE beyond the routine. Significance is determined by the severity of the incident, the degree of public concern and the nature and extent of HSE's previous involvement with the duty holder(s); though the nature of previous involvement would not alone trigger a major incident investigation. 'Work-related incident' means any incident where a work activity is involved and so it will include incidents in any place where people are employed. It will also include incidents where members of the public are exposed to serious harm by the work activities of others eg because of a train crash or a fairground accident.

14. Under Section 14 of HSWA, the HSC has powers to direct investigations and inquiries in relation to any accident, occurrence, situation or other matter which the Commission thinks it is necessary or expedient to investigate for the general purposes of Part 1 of the Act or with a view to making regulations for those purposes. Under Section 14(2)(a) the HSC may direct HSE or authorise any other person to investigate and make a special report. Under Section 14(2)(b) the Commission may with the consent of the Secretary of State direct an inquiry. Such an inquiry would be held in accordance with the Health and Safety Inquiries (Procedures) Regulations 1975.

15. The purpose of such an investigation or inquiry should be to reveal the underlying causes and to learn lessons for the future. It should be conducted in as efficient and effective manner as possible. HSC and the Assembly may both have interests in the event or matter concerned. It is therefore very important that there should be the closest co-operation possible between HSE and the Assembly. The following arrangements will apply:

  • HSE Secretariat will inform the Assembly when it becomes aware of a major incident that has taken place in Wales. To ensure the effectiveness of this arrangement the Assembly will advise HSE Secretariat of the necessary contact details and ensure that these are kept up to date. Similarly the Assembly will inform HSE Secretariat of incidents which appear to have work-related aspects;
  • where the Commission directs or authorises an investigation under Section 14(2)(a) of the 1974 Act relating to an accident, occurrence or situation in Wales, HSE will inform the Assembly. HSE will, wherever possible, consult the Assembly before advising the HSC about the setting up of an investigation where it appears that the Assembly may have areas of common and closely related interest;
  • where the Commission directs an inquiry under Section 14(2)(b) relating to an accident, occurrence or situation in Wales, the HSE will consult the Assembly; and
  • the Assembly will consult HSE where the instigation by it of an investigation or inquiry is being considered into any accident, occurrence, situation or other matter in which the HSC may have an interest

Local Authorities

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16. The constitution, funding and activities of Welsh local authorities (except for the functions of police authorities, fire authorities and trading standards departments) is a matter for the Assembly. The HSC has an interest in the functions of local authorities under health and safety legislation, and under Section 18(4) of HSWA, the Commission may issue guidance to local authorities, as enforcing authorities, which they must follow. The HSE will consult the Assembly in advance where proposed changes in health and safety legislation, or directions under Section 18(4) might result in new burdens being imposed upon Welsh local authorities.

Publicity and publications

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17. The Assembly will inform HSE, in advance, of public statements which can be prepared well in advance (eg consultation documents, Press Notices, publication of research findings and reports) which impact on the functions and activities of HSC\E. And HSE will give advanced notification to the Assembly of public statements which can be prepared well in advance on matters within HSC/E responsibilities which impact on matters within the responsibility of the Assembly. In preparing publicity campaigns, HSE and the Assembly will consider in advance whether co-ordinated campaigns would be mutually beneficial; and co-operate on delivery where appropriate.

Dispute Resolution Mechanisms

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18. The vast majority of matters should be capable of being handled bilaterally between HSE and Assembly officials. If further discussion is needed on any issue DETR and Welsh Ministers, the Secretary of State for Wales and/or the Joint Ministerial Council will mediate. While such discussions are under way, HSE and the Assembly will continue to act in areas within their respective competence.

19. Other than in exceptional cases, formal legal procedures will only be exhausted when the above dispute resolution mechanisms have proved unable to resolve an issue.

Correspondence and Assembly Business.

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20. The Assembly and HSE will consult each other where appropriate on correspondence, Parliamentary and Assembly business, involving DETR or other Government departments as necessary in the Memorandum of Understanding between the UK Government and the devolved administrations.

Joint Working, Secondments and Cross Postings

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21. HSE and Assembly may set up joint working groups or committees where appropriate.

22. HSE and Assembly recognise the value of cross-postings, shadowing, joint training arrangements and other kinds of collaborative activities in developing mutual understanding and facilitating the sharing of expertise and good practice, and will consider the scope for supporting such activities.

Analysis, Statistics and Research

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23. HSE and the Assembly will consult each other regularly about matters of mutual interest on analysis, statistics and research, including proposals for and results of research programmes. HSE and the Assembly will, as and where appropriate, co-operate with each other, to the extent that available resources permit, in the provision of data and information needed to fulfil their respective responsibilities. The overarching concordat on statistics provides general guidance on that issue, and should be read in conjunction with this paragraph.

EU and International Matters

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24. The overarching concordats on and international matters provide general guidance on how these issues should be handled.

Review and renewal of concordat

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25. It will be open to HSC/E or the Assembly to propose alterations to this concordat at any time to reflect changes in policy or to reflect the evolution of administrative conventions of co-operation and joint working between the UK Government and the Assembly. In any event, this concordat will be reviewed one year after its agreement and thereafter at three yearly intervals.

Annex

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Areas of Common and closely related interest

This annex lists subjects in which the Assembly and the HSC/E share an interest and other areas where there may be a particular need for consultation.

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Building control

The Assembly has some functions in this area (under the Building Act 1984) and HSC/E have an interest in the related matter of construction safety.

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Dangerous substances.

The HSC/E have an interest under the Health and Safety at Work etc. Act 1974 and the European Communities Act 1972 in the control of the keeping, notification, supply and use of explosive or highly flammable or otherwise dangerous substances which have the potential to create a major accident and in the prevention of the unlawful acquisition, possession and use of such substances. HSE also has an interest in the carriage by road and rail of dangerous and environmentally hazardous goods. The Assembly, however, has an interest in such matters for the purposes of protection of the environment and the planning system (by virtue of the Planning (Hazardous Substances) Act 1990). HSE will continue to advise what hazardous substances and in what quantities have significant risk off site. HSE involvement in individual hazardous substances consent/planning applications which are before the Assembly for a decision will be on the basis of established planning and related public inquiry procedures.

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Educational facilities; adventure activity centres.

The safety of these premises is generally a matter for the Assembly. However, the HSC/E have interests in the health and safety of students, pupils and others in education; and in the safety of adventure activity centres because of their responsibilities by virtue of the Activity Centres (Young Persons Safety) Act 1995 and subordinate legislation made under that Act. They also have an interest in the health and safety of workers and those affected by the activities of workers in these premises.

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Food safety

This is generally a matter for the Assembly on the advice of the Food Standards Agency as appropriate. However the HSC/E have an interest in the safety of workers in the food processing, manufacturing, cooking and food distribution industries and in related risks to the public.

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Genetically modified organisms.

The Assembly's interest is in the protection of the environment, public health, animal health, plant health and food safety. The HSC/E's interest is in the protection of workers and those affected by the activities of workers. HSC/E takes the lead responsibility for the regulation of contained use of GMOs, but the effect of such use upon the environment is a matter for the Assembly, in some cases acting jointly with others. HSE enforces the regulations on deliberate release and contained use of GMOs, the former under an Agency Agreement with the Secretary of State for the Environment, Transport and the Regions.

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Local authorities

The constitution, funding and activities of Welsh local authorities (except for the functions of police authorities, fire authorities and trading standards departments) is a matter for the Assembly. The HSC has an interest in the functions and performance of local authorities in relation to the enforcement of health and safety legislation.

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Planning

Land-use planning is a matter for the Assembly. HSE involvement in individual hazardous substances consent/planning applications which are before the Assembly for a decision will be on the basis of established planning and related public inquiry procedures.

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Pesticides (including biocides and plant protection products)

The Assembly's interest is in the protection of the environment, public health, animal and plant health and food safety. HSE's interest is in the protection of workers and those affected by the activities of workers, protection of the environment, and product approvals .

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Places of entertainment (cinemas, theatres, casinos, dance-halls etc), sports facilities, sports events and zoos.

The Assembly's interest is in public safety, fire safety, structural building standards, sanitation, food standards, pest control, security, etc. The HSE have an interest in the safety of workers and the safety of members of the public and others affected by work activity.

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Ports and harbours

The Assembly's interest is in the regulation of the fishing industry and fishery harbours in Wales. Responsibility for safety enforcement for the ships and their crews rests with the Maritime and Coastguard Agency. The HSE has an interest in the safety aspects of new harbour bye-laws and the health and safety of workers whether loading or unloading from berthed ships or the dock side.

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Protection of the environment

This is generally a matter for the Assembly. However, HSC/E have enforcement responsibilities for certain environmental legislation under agency agreements under section 13 of HSWA

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Public Health/Occupational Health /Health Promotion

Public Health is generally a matter for the Assembly: occupational health is a matter for HSE. General health promotion in Wales is a matter for the Assembly but HSE has an interest in "lifestyle" issues such as misuse of drugs, alcohol and smoking, when these impinge on the workplace.

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Nuclear safety

Nuclear safety is a matter for HSC/E but the Assembly has an interest because of the part it would play in a nuclear incident and because of the connection between nuclear safety and the protection of the environment, which is a matter for the Assembly.

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Rail safety

The Assembly is responsible for decisions in respect of applications for Orders under the Transport and Works Act 1992 containing provisions relating wholly to Wales. HSE has an interest in any matter which could have an impact on its responsibility for the approval of new and altered works on railways and tramways.

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Safety of clinical and medical procedures

The Assembly is responsible for the NHS in Wales including oversight of clinical and medical procedures. The HSE have an interest in the safety of the working environment in which such activities take place, matters relating to the clinical care of patients where they arise from issues connected to systems of work or the adequacy of plant and equipment, and the design of medical devices.

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Water and sewerage

This is generally a matter for the Assembly. Water and sewerage services in Wales are mostly provided by 3 private-sector statutory undertakers (Dwr Cymru, Dee Valley and Severn Trent) - the Assembly has responsibility for the first two. HSE's interest is in matters relating to the safety of workers and those affected by the activities of workers.

Footnote

  1. HSC/E cannot release to the Assembly information obtained using statutory powers, except for the purposes of HSE's functions. Back

Published on HSE website 23 September 2000

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2022-05-23