We would not support mandatory directions because in our experience, important as they are, inquiries do not always cover all the issues, nor do they always call the right witnesses. The sheriff could be left in a position where they are putting mandatory decisions on regulators, such as the HSE, when there may be more risks that have not emerged or been debated at the FAI.
If the HSE were giving evidence, we would put forward our view in order to prevent such a situation from arising, but ultimately it can happen. I know that it is dangerous to use one example and suggest that it proves the case, but the best example that I have relates to the Rosepark care home fire. I submitted pages of written evidence to the inquiry, but for various reasons the HSE was not called to give oral evidence. That meant that our evidence was never tested in the public domain.
We see the sheriff’s determination as important and we always try to act on it; we do our utmost to comply and promulgate information to other Government departments as relevant. In the Rosepark case, the sheriff put a recommendation on not just ourselves but the Scottish Fire and Rescue Service and the Scottish Government. We had meetings with all those parties to try to do what the sheriff wanted, but we could not do exactly what the sheriff recommended.
That issue was never explored at the FAI and it gave the HSE quite a few problems, because the assumption was that in the future the HSE would inspect the electrics in cupboards in care homes. However, that is not a priority area for us to inspect. Statistically, one major incident, terrible as it is, does not necessarily mean that we need to inspect the cupboards in every single care home. The idea was never explored. The issue for me is a pragmatic one, and that is why we would prefer to be left with a strong steer rather than a mandatory direction.
In the example that was raised about the family that was killed by a crane, the HSE was involved and had legal representation at the FAI. That was because there was a complex interaction between road traffic legislation and the Health and Safety at Work etc Act 1974. The HSE took forward the sheriff’s recommendations, even though we were not the main authority—that was the Department for Transport, which did not give evidence. We took forward the sheriff’s view that such cranes should have MOTs. We took it on ourselves to go beyond what was said in the FAI and what the sheriff recommended: we approached the DFT and the relevant mobile crane association directly. We did everything that we possibly could, but it was not within our gift to make it happen.
I understand that MOTs for road-going cranes are being considered in the UK, but there is a cost to creating facilities that can test them. There are many issues in the crane incident that were not explored at the FAI and which would have made it impossible to meet a mandatory direction. However, it is very possible for the HSE to do something under the current arrangements or under the proposal to give a strong steer and to ask bodies such as the HSE to report back to the court on what they have done. If we could not do something, we would be more than happy to give an explanation as to why there were constraints on what we could achieve.