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Baroness Rita Donaghy: finding the construction industry's fault lines

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It is five years to the month since the government responded to One Death is too Many, the inquiry into the underlying causes of fatalities in the construction sector by Rita Donaghy, now Baroness Donaghy. We caught up with the Labour peer to discuss the shape of the industry now, what her report achieved and what she wishes she’d included.


If Rita Donaghy sees a worker on a building site in Peckham, where she lives, without a helmet or cutting paving stones without a mask, she will brave any rude remarks and attempt to put them right. Not so strange, you might think. But not many brickies or scaffolders would expect to be upbraided by a peer – albeit without her scarlet and ermine gown – on a south London street. However, not many peers have scrambled over dangerous building sites, met bereaved families and challenged organisations throughout the construction sector in a bid to reform it, to improve its standards of health and safety.

In 2009 Baroness Donaghy released her report into the underlying causes of deaths in the construction industry, One Death is too Many. In March 2010, five years ago this month, the then Labour government released its response.

Her recommendations were wide raging – from introducing positive directors’ duties and extending the remit of the Gangmasters Licensing Authority (two issues that have never gone away), to the government taking an active role in ending what she saw as the social acceptability of deaths in the construction industry.

In turn, the Labour government’s response was muted. It accepted 23 of the 28 recommendations, but it was soon lost in the tumult of the 2010 general election, which came only two months later. The timing was, in her words, unfortunate. “Minds were elsewhere,” she says, and it would have left no time for new legislation to pass through parliament.

The coalition government entered office with a very different agenda. Common Sense, Common Safety, Lord Young’s report into the perceived burdens of health and safety and the ‘compensation culture’ was released just six months after the election. Its position was very much one of deregulation. Professor Lofstedt’s 2011 report, Reclaiming health and safety for all came just over a year later and the war of attrition against health and safety was well underway.

Baroness Donaghy has had a long career tackling workplace issues. She started as an assistant registrar at the Institute of Education, University of London and soon became active in the trade union the National and Local Government Officers’ Association (NALGO), becoming a member of its executive council by 1973. She was a member of the TUC general council from 1987 to 2000 – representing NALGO, which merged with unions NUPE and COHSE to become UNISON in 1993 – and became TUC president in 1999.

Following this post she was appointed chair of ACAS, the employment conciliation service, which she held until 2007. After spells on the Committee on Standards in Public Life (also known as the Nolan Committee), the Low Pay Commission and the Employment Tribunal Taskforce, she was invited by the Labour government to carry out an inquiry into work-related deaths in the construction sector. She was created a life peer in 2010 by the outgoing prime minister Gordon Brown.

But if you think she’d have escaped building sites in the lofty environs of the House of Lords you’d be wrong: “Even in the ceilings of this building they’re all walking past my office in their full gear because they’re removing asbestos, which I’m not terribly happy about,” she laughs.

Fault lines
One Death is too Many was her first experience of health and safety and the construction industry, of which she concedes she knew “nothing at all”. “But I knew about employer/employee relationships because of ACAS,” she adds by way of consolation. “I think what they wanted was somebody that had a reputation for dealing with both sides of industry.”

When she was asked in 2008, the industry had experienced two terrible years for work-related deaths: 79 people died in 2006/07 (a rate approaching 3.25 per 100,000) and 72 the following year. Donaghy spoke of one death being too many. But since the government response there have been at least 208 workers’ deaths in the construction sector.

“I went to all these organisations throughout the industry – employers, employers’ groups, CBI, the trade unions, the health and safety people, the specialists, the qualification people, higher education, just to get this picture of where the fault lines were, and there were so many fault lines,” she laughs. “It’s a miracle any building ever gets constructed.”

Asked what she considers her most important recommendation to be, she picks three, escribing them as a package.

“I think the three most important recommendations were: the building regs for local authorities – it was going exactly against the tide; local authorities have got a lot of power and responsibility, but no money, it’s just a joke really – I still think positive duties on directors would help to change the culture and the third one I think was the gangmasters. I still believe that they should strengthen the Gangmasters [Licensing Authority’s] remit.”

 

Government reaction
Notably two recommendations – the introduction of positive duties for directors and the extension of the role of the GLA – were not accepted, but, according to Yvette Cooper’s announcement of the government response to Donaghy’s inquiry, warranted further consideration. “Additional work is required to explore fully the relative options and understand the potential impact of introducing such measures,” Cooper told the House of Commons on 30 March 2010.

Reading the government response, it is difficult to ascertain whether Donaghy’s recommendation in building control was accepted. It is lukewarm and noncommittal: “The government fully recognises the benefits of better and closer working between HSE and building control professionals...  However, both the government and industry recognise the limits to what can be delivered.”

Just months before she released her report, Yvette Cooper, now the shadow home secretary, took over the reins at the DWP from James Purnell. “And she was very officious,” Donaghy says. “It was good in a way because she pushed me hard on the recommendations – why I was recommending it and what difference I thought it would make.

“You can’t be that scientific about long-term planning, customs, getting people used to behaving in a certain way – it’s very difficult to say, ‘this may save X lives, Y lives and Z lives’, because it’s about changing habits. So she was clearly not satisfied that I had give a proper set of recommendations.”

Recommending the introduction of positive duties on directors was a difficult decision, she confesses. Responsibility for health and safety currently sits with corporate bodies, not directors. While there are provisions that mention directors contained in section 37 of the Health and Safety at Work Act, it does not set out any specific duties.

“It was hugely difficult, with very good lawyers on both sides of the argument putting their case. One pleaded with me not to include it because it would undermine the Health and Safety at Work Act and the collectivism it provided; it’s a good point. So this is why I was careful.”

She nearly decided not to recommend it, but a determination to change cultures spurred her on. “I thought, ‘how you get people to think more carefully about health and safety?’ If you’ve not got a board, you’re just a three-man band or something like that, if they had individual responsibility for health and safety maybe it would make them stop and think about the risks before they sent people off who were under-skilled or unskilled. That was the only reason I changed my mind.”

The Labour government, however, had different ideas. “They didn’t like it,” she laughs. “They said, ‘we’ve got the Corporate Manslaughter Act’, which was quite new when I was doing the work. I didn’t think the [corporate manslaughter] legislation would make any impact whatsoever,” she says. “I thought that the legislation wasn’t worth the paper it was written on and that this might make a change things.”

Gangmasters
Donaghy’s second major recommendation has never really gone away, even though it was rejected, something she found “very disappointing”. The Gangmasters Licensing Authority was established in 2006 following the Morecambe Bay cockling disaster, in which 23 migrant workers were drowned by an incoming tide off the Lancashire/Cumbrian coast.

The authority licenses labour providers in the agriculture and horticulture sectors. Donaghy suggested its remit be extended to cover the construction industry, where large numbers of migrants work in low-paid, dangerous jobs, employed by labour providers. In something of a U-turn, it is now Labour party policy.

It’s a policy she would still like to see implemented. But with conditions. “They need to be properly resourced, because the opposition [Labour] is worried about pledging extra [money] for the public sector.”

The final recommendation in her trinity was extending the Building Regulations so health and safety processes should be included when considering building control applications or building warrants on smaller projects, an idea Donaghy says is “dear to her heart”. It was a creative recommendation, and one that went against the grain.

“I will plug away on that one,” she says. “I think local authorities are being cut back so much now it’ll take a generation to get them back, but I still believe that, with one or two person groups, if there was some consideration of how they were going to go about their work, to ensure the workers’ health and safety, ensuring there’s proper scaffolding and helmets are worn, then I think it could go quite a long way to saving lives.

“I’m still determined, because I don’t think the Health and Safety Executive will ever have enough people on the ground, so it’s about getting into good habits locally.”

That the report’s remit didn’t include occupational health is a source of regret to Donaghy, even though she bent the rules somewhat and included a recommendation on the issue. “When I tell people how many plumbers and carpenters die every week they just can’t take it in, that it’s not on the front pages of newspapers.” Would she liked to have done more on occupational health? “Oh yes,” she responds. “I would have liked to have done a whole report on occupational health because 60,000 people are due to die of mesothelioma alone, not counting all the other things.”

The Health and Safety Executive
Donaghy says she thinks HSE was relieved when she released her report that she didn’t criticise it too harshly, but she did make a recommendation that the regulator should better resource its London divisions. “I felt very passionately about that because they were just about covering the high profile stuff and it was much more difficult for them to cover the Tower Hamlets and the Hackneys and the single or three or four person companies.

“[These sites are] all around and [HSE] needs enough resources. I’m not saying that you would prevent every accident by having a 100-fold increase in health and safety inspectors, that’s not realistic.”

But HSE is changing. In January 2014 the government released Martin Temple’s triennial review of the watchdog, which while it said it was an excellent and well-respected regulator, it needed to become more commercial. Mike Penning, the then DWP minister, said he wanted to go further. HSE has since recruited a commercial director and a new chief executive, Richard Judge, to drive forward a commercialisation programme. Plans are afoot to launch a service that provides advice on a commercial basis. A consultancy-like service has been mooted.

Donaghy thinks the report was sympathetic, but that Temple felt obliged to provide some red meat to the government. “I think this was one of those reports they were hoping would be unsympathetic,” she says. “It’s a nuisance because [becoming more commercial] is counterintuitive. Firstly, they’re in competition with thousands of health and safety consultants, so where do they start, how do they go out and market and what’s the result going to be? It just can’t work, it can’t work.”

Her report, and Temple’s, praised the integrity and independence of HSE’s inspectors. Does she think a commercialisation programme might put this at risk? “Oh absolutely, though over the longer period it might not be dramatic.”

During Donaghy’s time as ACAS chair, the government told the service to raise more commercial revenue, so her insight is significant. “We had the same in ACAS; we were told by the previous government to make more money because of the depth of expertise of people in ACAS. They did start in a rather unenthusiastic way to charge a percent; they were very unenthusiastic because it was the senior conciliator who spent most of their time doing this and that would take them away from their role of conciliation and collective disputes. It didn’t go down at all well with the culture too, they didn’t want anything to do with raising money. But you had to do it, because the government insisted.”

 

Retention
The construction industry has faced a tumultuous period since the recession in 2008, though it is now faring better, at least in London and the South East. Donaghy is sober (‘realistic’ in her words) about the impact of her report, which as discussed was hamstrung by the 2010 general election. One issue she sees as a major problem, which she did not include in her report, has certainly not changed – retention.

“I don’t really think the intrinsic problems of construction have gone away,” she says. “I didn’t put this in the report because I would have been too far off my remit, but there’s the whole issue of retaining money and not paying subcontractors; using the excuse that either they haven’t finished the work, haven’t finished it satisfactorily or ‘we’re changing our accounting system, so there’s a delay’; all of these are built into the system, which creates a bullying culture.”

She continues: “Think what that does to their conformity, their obedience, their lack of willingness to come out in the open to tell people when something is not being run right. So it’s not just about workers getting blacklisted, it’s about subcontractors getting blacklisted. I’m not saying there shouldn’t be standards and subcontractors should be allowed to be paid before the work’s finished, but we’re not talking about that.”

Is there anything that can be done to change this? “If you had a system – and I gather the Cabinet Office is looking at this – where banks hold money from construction companies in an account and when the tranche is due to the subcontractor they get paid it straight away. Now if you do that on a massive scale this puts the principal contractors under huge pressure to pay up on time, and I think that might do quite a bit to change this bullying culture. Certainly it’s a small backroom thing, but you can bet your bottom dollar that the industry will be terrified because they’re under capitalised.”

CDM and the self employed
The industry is about to undergo significant change with the introduction of the new CDM regulations. Subject to parliamentary approval CDM 2015 will come into force on 6 April 2015. The CDM co-ordinator is to be replaced with a principal designer role; the ACOP is to be slimmed down into a signposting document; notification thresholds will be changed; but it is the removal of explicit competence requirements that sticks in Donaghy’s craw.

“The CDM Regulations were one of the good things that happened and they’re taking away the word competency, which if you think about it is absolutely crazy – what’s the rationale?” she asks. “Presumably they will say it’s up to the principal contractor to decide for themselves in the light of a particular project whether a company’s got the competency.”

But, she observes, “what it doesn’t do is encourage preplanning in a comprehensive way, which includes health and safety, and if you don’t have preplanning with all the right people around the table before one brick is laid, one hole is dug, then the chances are that you don’t think ahead about the possible risks.”

But the changes to the CDM Regulations are just one major reform to our health and safety framework on the table. When we met, the clause in the Deregulation Bill that will exempt self employed from health and safety law unless their undertaking is on a prescribed list was to be debated in the House of Lords during the report stage the very next day. Her opinion is clear: it’s “appalling; it will cause maximum confusion”.

Even with the exemption for construction activities? “If you exempt construction, how do you define the self-employed people who walk onto the site and do a job and then go off site again? If you’re in refurbishment, for instance, which is quite an area for unsafe practices, you could imagine the contractors saying to the self-employed people ‘this doesn’t apply to us, this exemption, because we’re not really construction’.”

“So the confusion and the signal again,” she adds. ”It’s putting out a signal that if you’re self employed you should jolly well know everything there is to know about health and safety.”

“It goes for training too,” she continues. “There’s so many under-skilled people in the industry and so many who may have some basic skill, but are doing work which is far higher than their basic skill and it’s these areas where accidents take place, people doing things for the first time without supervision, an older worker going on a new machine they’re not familiar with.

“It’s a can do industry, people like to muddle through, solve things. It’s a wonderful attitude, but that means there’s no horizon, there’s no preplanning, there’s no thinking of the consequences.”

The future
You won’t have failed to notice that there is a general election on the way. Come May 2015, we may have another party in charge of health and safety. Will – and should – Labour do anything differently if re-elected? “They can’t promise more money can they?” Donaghy remarks. The party has committed to not spending extra money on day-to-day matters, which all but rules out more money for HSE.

“It isn’t a very exciting prospect, is it?” she says. “That’s all well above my pay grade, I’m just a humble backbencher, but I do think there’s an argument for a well-resourced HSE – I’ve always said so and I’ll continue to say so; it’s been cut to the bone and I think that’s a bad thing. But whether or not that will change with a different government is another matter.

“The signals might be better [with a Labour government],” she continues, “the access to ministers might be better; even if they change something very small like the Gangmasters they would have come a long way towards showing they’re taking it seriously.”

As the interview draws to a close, it occurs to me that, with the election almost upon us, it is coming towards the end of Donaghy’s first term in parliament. How has she found it?

“Some of it’s great, some of it’s very frustrating, because if you’re in opposition all you do really is try to change the government’s mind on things. I did manage to persuade the government to change something on industrial injuries – when the new universal credit starts to come out they were going to get rid of it and I persuaded them not to. It was only a tiny, tiny achievement but I felt quite strongly about it. One or two other things; mesothelioma, I’m quite proud to have taken part in that bill.”

That bill is now the Mesothelioma Act 2014; it’s not just builders without helmets she’s trying to right, it’s the government too.

 

 

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