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Wednesday, 27 November 2019, Toby Thorp, Chartered Environmental Health Practitioner, City of London
This article is written in personal capacity.
In an EHN article in 2013, I suggested that communication between Primary Authorities Partners (PAP) and their counterparts in Enforcing Authorities (EA) was critical to the success of the schemes. The recent CIEH report indicates that, six years on, this is still not always working, and I find myself disheartened. We’re a profession that prides itself on seeing the bigger picture, engaging with stakeholders at all levels and yet somehow, we’re not getting this right.
I am involved with a number of smaller partnerships and am ultimately a proponent, although I recognise that it has limitations and consequences. I argue that if we could ‘do it better’, then many perceived negatives could become positives.
I worry that the public benefit has simply been assumed within Primary Authority - that greater legal compliance will equal greater public good. While this is true in some cases, my experience is that PAP is generally for those who already have considerable resource at their disposal. Whilst there is a role for PAP in creating and enabling industry leaders, might there be greater public benefit were our attention focused on those where the scope for improvement was the greatest? PAPs are not typically targeted – they’ve largely come about through organic growth and circumstance. Some Authorities have a PAP strategy built around local circumstances or particular industries but perhaps there is an opportunity here for our two key national regulators in this field, the Food Standards Agency (FSA) and the Health and Safety Executive (HSE), to take a larger role and mobilise it more effectively to impact on national targets.
Another concern is the provision of ‘discretionary’ services, such as PA at a time of a stretched staffing resources. Whilst the scheme is cost recoverable, with dwindling numbers of individuals entering our profession, the experienced officers expected to operate within the scheme are likely needed elsewhere. However, cost recovery within a local authority environment permits their expertise to remain within local government and thus bolster the ranks of the regulator. Individual authorities will still need to get that balance right though.
A further issue is that of misplaced confidence – both of businesses and EAs. I have seen businesses confidently assert they have Assured Advice on areas where they do not and equally have seen colleagues propose a lighter touch approach where they know a business has a PAP. Both have potentially adverse consequences, but both reflect a misunderstanding of legislation that has been around for more than a decade. So, something isn’t quite working.
Personally, a significant benefit has been the sharing of knowledge and skills between regulators and those they regulate. For example, the realm of health and safety features the principle of ‘reasonably practicable’ and effective application often requires more than just reading an HSE guidance document. Reality is nuanced and large multi-site businesses are complex. In understanding genuine business challenges from a business’ perspective, we can become more effective regulators, providing more useful steer to a partner, but also being able to bring that knowledge into work with other organisations. We can also bring balance and act to challenge dutyholder views through providing a more dispassionate analysis of their risk profile.
In this arises a stated concern of some about the scheme: the risk of regulatory capture. However, only the very worst of regulators would refuse to listen to a business’ mitigations prior to enforcement. The weight placed upon such pleas may vary, but regulatory capture is always a risk in enforcement, and we are all responsible for guarding against it. Good PAPs are transparent and ultimately our decisions and formal advice are subject to scrutiny when examined in the context of an investigation or inspection.
I want to have open conversations with EAs and for them to play a role in providing direction and feedback to make my partnerships more effective. This doesn’t happen enough at the moment. Is it because of the inherent inconsistencies in approach across PAPs? What EA has time to familiarise itself with the workings of every individual PAP they come across? Regulators need to complement one another more for the scheme to work. From my experience, neither party is consistently committed to fostering a cooperative relationship. There are PAs who place limited information on the register and there are EAs who maintain a cynicism about PAPs and so are reluctant to engage.
We don’t do the community any favours with either approach. Despite the flaws, I do see the scheme working in ways which go beyond the obvious benefits. For example, we pushed one partner to change an approach to assessing work at height across their estate and later found this work replicated by others in the same industry. The scheme has untapped potential that a more collaborative strategy might be able to release.
The CIEH report gives us a starting point to make improvements and that starts with all Authorities engaging and undertaking strategic planning to improve the scheme now but also to look forward to how it could be better in the future.