Physicians for Human Rights (PHR) is a US-based not-for-profithuman rightsNGO
that uses medicine and science to document and advocate against mass
atrocities and severe human rights violations around the world. PHR
headquarters are in New York City, with offices in Boston and Washington, D.C.
It was established in 1986 to use the unique skills and credibility of
health professionals to advocate for persecuted health workers, prevent
torture, document mass atrocities, and hold those who violate human
rights accountable.
History
In 1981, Dr. Jonathan Fine, a primary care physician
in Boston, was asked to fly to Chile on short notice and lead a
delegation seeking the release of three prominent physicians by General Augusto Pinochet’s regime. The three Chilean doctors were released five weeks after Dr. Fine's visit.
In 1986, recognizing the impact physicians could have in the
human rights field, Dr. Fine co-founded Physicians for Human Rights with
Dr. Jane Green Schaller, Dr. Robert Lawrence, Dr. Jack Geiger, and Dr. Carola Eisenberg.
Since the organization’s founding, PHR teams have exposed the use
of chemical weapons against civilians in Iraq, exhumed mass graves in
Bosnia and Rwanda for international tribunals, and provided evidence for
criminal investigations into torture and extrajudicial executions in
countries such as Colombia, Honduras, Libya, Mexico, Peru, and Sierra
Leone. In 1997, the organization shared the Nobel Peace Prize for medically documenting landmine injuries and serving as a leader in the International Campaign to Ban Landmines.
PHR has also been at the forefront in developing standards for human rights abuse documentation: staff member Dr. Vincent Iacopino played a lead role in developing the Istanbul Protocol, the recognized international standard for documenting torture and ill treatment. Likewise, the Director of the International Forensics Program was involved in the revision process of the Minnesota Protocol, the international guidance on the investigation of potentially unlawful death. Governments, United Nations
agencies, international and national courts, and other human rights
organizations have all sought PHR’s forensic and research expertise. The
organization’s work has contributed to landmark decisions such as the
2016 conviction of Radovan Karadžić.
Programs
International Forensics Program
Health professionals in PHR’s International Forensics Program (IFP) use forensic investigations
such as autopsies and medical and psychological evaluations, to
determine the nature of abuse that victims have endured. These
evaluations can then contribute to evidence for prosecutions or be used
to bring attention to crimes. The IFP has performed forensic
investigations for bodies such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
Experts in the IFP range from forensic pathologists to forensic anthropologists,
as well as analytical scientists such as firearm examiners. They
perform forensic investigations, evaluations, monitoring, or review of
other parties’ forensic work.
Forensic Training Institute
PHR
launched the Forensic Training Institute (FTI) to strengthen local
capacities for forensic investigations and documentation. The institute
seeks to strengthen the ability of medical personnel to document
torture, mass atrocities, sexual violence, and the persecution of health
care workers. It also trains legal and law enforcement professionals
who seek redress via local, national, and international justice
mechanisms.
PHR’s
Program on Sexual Violence in Conflict Zones was launched in 2011. The
program strengthens cross-sectoral responses to sexual violence in the
Democratic Republic of Congo and Kenya through training workshops for
health care, law enforcement, and legal professionals.
While PHR itself has engaged in many forensic investigations and
advocacy efforts around rape in armed conflict, the Program on Sexual
Violence in Conflict Zones builds local capacities for the collection of
court-admissible evidence to support prosecutions for sexual violence
crimes.
The program has an office at renowned gynecological surgeon Dr. Denis Mukwege’s Panzi Hospital, in Bukavu, Democratic Republic of Congo.
The Program on Sexual Violence in Conflict Zones partners with Panzi
Hospital to train and mentor health workers, police officers, lawyers,
and judges in effective documentation and prosecution of sexual
violence.
To aid the documentation of sexual violence, PHR has developed
MediCapt, an app allowing the secure digital recording and transmission
of medical evidence.
Asylum Program
PHR’s Asylum Program advocates for improved conditions in U.S. immigration detention centers and documents abuses suffered by asylum
seekers in their home countries and in U.S. care. The network consists
of hundreds of volunteer health professionals who provide medical
evaluations to survivors of human rights violations, strengthening their
applications for asylum in the United States.
In 2010, PHR partnered with Weill Cornell Medicine to create the Weill Cornell Center for Human Rights (WCCHR), a medical student-run human rights clinic that assists survivors of torture seeking asylum in the United States.
U.S. Anti-Torture Program
PHR’s U.S. Anti-Torture Program (ATP) was launched in 2003, after reports of torture
by U.S. military personnel were first exposed. PHR published a series
of investigative reports documenting the U.S. government’s use of
torture in pursuit of national security goals. ”Break Them Down,”
published in 2005, found evidence of the systematic psychological
torture employed by the military. Additional reports documented the
severe physical and mental harm inflicted by interrogation practices and
human experimentation in Guantanamo Bay.
Research and Investigations
The
research and investigations department at PHR documents human rights
abuses around the world. Their areas of research include attacks on
health care and health personnel, mass atrocities, torture, and sexual
violence across the globe. Notable investigations include:
1988 — PHR researchers uncover evidence of the Iraqi government using chemical weapons on their Kurdish citizens.
1996 — PHR teams exhumes mass graves in the Balkans. They provided evidence of ethnic cleansing to the International Criminal Tribunal for the former Yugoslavia (ICTY). This work contributed to the ICTY’s conviction of Radovan Karadžić of war crimes, genocide, and crimes against humanity.
1996 — PHR sends a team to exhume mass graves in Rwanda and eventually provides forensic evidence to the International Criminal Tribunal for Rwanda.
2004 — PHR researchers investigate mass killings in Darfur. The organization is the first to call the events genocide.
2011 — PHR researchers begin documenting assaults on
Syrian health care workers and infrastructure, creating an interactive
map of attacks and revealing the Syrian government’s systemic targeting
of hospitals and health workers.
2015 — PHR issues a report on the state of health care in eastern Aleppo
city after almost five years of the Syrian conflict, revealing that
almost 95% of doctors had fled, been detained, or been killed.
2019 — published report, My Only Crime Was That I Was a Doctor about Assad's targeting of medical personnel and civilians in Syria.
National Student Program
PHR’s
National Student Program engages medical students and young health
professionals in health and human rights work by organizing local action
on human rights issues, raising awareness on campuses, organizing
educational events, and calling on elected officials to take action. PHR
has student chapters across the United States, and collaborates with
them through PHR’s university-affiliated asylum clinics and national
student conferences.
The program has created tools and resources for student chapters
covering topics such as medical professionalism, health and human rights
education, and the Istanbul Protocol.
Nobel Peace Prize
After their 1991 investigation of the health impact of land mines in Cambodia, PHR, in collaboration with Human Rights Watch, published the first report calling for a ban on landmines. In 1992, PHR helped form the International Campaign to Ban Landmines, participating in the talks that led to the Ottawa Treaty. For their work, PHR shared the 1997 Nobel Peace Prize “for their work for the banning and clearing of anti-personnel mines.”
An
Act to make further provision for securing the health, safety and
welfare of persons at work, for protecting others against risks to
health or safety in connection with the activities of persons at work,
for controlling the keeping and use and preventing the unlawful
acquisition, possession and use of dangerous substances, and for
controlling certain emissions into the atmosphere; to make further
provision with respect to the employment medical advisory service; to
amend the law relating to building regulations, and the Building
(Scotland) Act 1959; and for connected purposes.
The Health and Safety at Work etc. Act 1974 (c 37) (abbreviated to "HSWA 1974", "HASWA" or "HASAWA") is an Act of the Parliament of the United Kingdom that as of 2011 defines the fundamental structure and authority for the encouragement, regulation and enforcement of workplace health, safety and welfare within the United Kingdom.
The Act defines general duties on employers, employees, contractors,
suppliers of goods and substances for use at work, persons in control
of work premises, and those who manage and maintain them, and persons in
general. The Act enables a broad regime of regulation by government ministers through Statutory Instrument
which has, in the years since 1974, generated an extensive system of
specific provisions for various industries, disciplines and risks. It
established a system of public supervision through the creation of the Health and Safety Commission and Health and Safety Executive, since merged, and bestows extensive enforcement powers, ultimately backed by criminal sanctions extending to unlimited fines and imprisonment for up to two years. Further, the Act provides a critical interface with the law of the European Union on workplace health and safety.
Since the accession of the UK to the European Union (EU) in 1972, much health and safety regulation has needed to comply with the law of the European Union and Statutory Instruments under the Act have been enacted in order to implement EU directives. In particular, the Act is the principal means of complying with Directive 89/391/EEC on health and safety at work. Further important changes to section 6, duties in respect of articles and substances used at work, were made by the Consumer Protection Act 1987 in order to implement the Product Liability Directive 85/374/EEC.
Protecting persons, other than persons at work, against risks to health or safety arising out of or in connection with the activities of persons at work;
Controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing the unlawful acquisition, possession and use of such substances.
As originally enacted, there was a fourth objective:
Controlling the emission into the atmosphere of noxious or offensive substances;
but this provision was repealed when control of emissions was brought under a uniform scheme of legislation by the Environmental Protection Act 1990. In general, the other provisions about emissions in the original Act have subsequently been repealed.
General duties
Duties of employers
Section 2 states that "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his/her employees" (emphasis added), and in particular that such a duty extends to:
Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
Arrangements for ensuring, so far as is reasonably practicable,
safety and absence of risks to health in connection with the use,
handling, storage and transport of articles and substances;
Provision of such information, instruction, training and supervision
as is necessary to ensure, so far as is reasonably practicable, the
health and safety at work of his employees;
So far as is reasonably practicable as regards any place of work
under the employer's control, the maintenance of it in a condition that
is safe and without risks to health and the provision and maintenance of
means of access to and egress from it that are safe and without such
risks;
Provision and maintenance of a working environment for his employees
that is, so far as is reasonably practicable, safe, without risks to
health, and adequate as regards facilities and arrangements for their
welfare at work.
Section 3 states the duty of all employers and self-employed
persons to ensure, as far as is reasonably practicable the safety of
persons other than employees, for example, contractors, visitors, the
general public and clients.
Employers must also prepare and keep under review a safety policy and to bring it to the attention of his employees (s.2(2)). Trade unions
may appoint safety representatives and demand safety committees. The
representatives have a right to be consulted on safety issues (ss.2(4),
(6) and (7)). Since 1996 employers have had a duty to consult all
employees on safety matters. No employer may charge an employee for provision of health and safety arrangements (s.9).
Section 4 defines a duty of occupiers of premises, for example commercial landlords, managers of serviced office
accommodation, and also maintenance contractors, towards people who use
those premises for work. Those premises, and the means of entry and
exit, must be, as far as reasonably practicable, safe and without risks
to health.
Duties towards articles used at work
An "article for use at work" is any (s.53(1)):
Plant designed for use or operation, whether exclusively or not, by persons at work, and
Article designed for use as a component in any such plant.
Ensure, so far as is reasonably practicable, that the article is
so designed and constructed that it will be safe and without risks to
health at all times when it is being set, used, cleaned or maintained by
a person at work;
Perform such testing and examination as may be necessary to ensure safety;
Take such steps as are necessary to secure that persons supplied
with the article are provided with adequate information about the use
for which the article is designed, or has been tested, and about any
conditions necessary to ensure that it will be safe and without risks to
health at all times, including when it is being dismantled or disposed of; and
Take such steps as are necessary to secure, so far as is reasonably
practicable, that persons are provided with all such revisions of
information as are necessary by reason of its becoming known that
anything gives rise to a serious risk to health or safety.
A person may rely on testing done by others so long as it is reasonable for him to do so (s.6(6)). A person may rely on a written undertaking by another person to ensure the safety of an item (s.6(8)) Designers and manufacturers must carry out research to identify and eliminate risks, as far as reasonably practicable (s.6(2)). Erectors
and installers have responsibilities to ensure, as far as reasonably
practicable, that an article is so erected and installed that it will be
safe and without risks to health at all times when it is being set,
used, cleaned or maintained by a person at work (s.6(3)).
Section 6(4) defines the duty of any person who manufactures, imports or supplies any substance for use at work to:
Ensure, so far as is reasonably practicable, that the substance
will be safe and without risks to health at all times when it is being
used, handled, processed, stored or transported by a person at work or
in work premises;
Perform such testing and examination as may be necessary to ensure safety;
Take such steps as are necessary to secure that persons supplied
with the substance are provided with adequate information about any
risks to health or safety to which the inherent properties of the
substance may give rise, about the results of any relevant tests which
have been carried out on or in connection with the substance, and about
any conditions necessary to ensure that the substance will be safe and
without risks to health and when the substance is disposed of; and
Take such steps as are necessary to secure, so far as is reasonably
practicable, that persons are provided with all such revisions of
information as are necessary by reason of its becoming known that
anything gives rise to a serious risk to health or safety.
Similar to the regulations concerning articles used at work, a person
may also rely on testing or written undertaking by another person to
ensure the safety of substances used at work. The duty to identify and
eliminate risks of substances rests with manufacturers.
Exceptions for supply of articles and substances
The duties only extend to persons in business or acting by way of trade, even though not for profit,
and only to matters within their control (s.6(7)). Persons who import
into the UK are not relieved of liability for activities such as design
and manufacture that took place outside the UK and over which they had
control. Finance companies who supply articles or substances by way of hire purchase or credit agreement have no duties under section 6 (s.6(9)).
Duties of employees
Under section 7 all employees have a duty while at work to:
Take reasonable care for the health and safety of him/herself
and of other persons who may be affected by his/her acts or omissions at
work; and
Co-operate with employers or other persons so far as is necessary to
enable them to perform their duties or requirements under the Act.
Duties of persons in general
Section 8 requires that "no person shall intentionally or recklessly
interfere with or misuse anything provided in the interests of health,
safety or welfare in pursuance of any of the relevant statutory
provisions."
in every case, it is the risk that
has to be weighed against the measures necessary to eliminate the risk.
The greater the risk, no doubt, the less will be the weight to be given
to the factor of cost.
— Lord Justice Tucker
and:
Reasonably practicable is a
narrower term than 'physically possible' and seems to me to imply that a
computation must be made by the owner in which the quantum of risk is
placed on one scale and the sacrifice involved in the measures necessary
for averting the risk (whether in money, time or trouble) is placed in
the other, and that, if it be shown that there is a gross disproportion
between them – the risk being insignificant in relation to the sacrifice
– the defendants discharge the onus on them.
— Lord Justice Asquith
Where a criminal prosecution
arises from a breach of duty and the accused's defence is that it would
not have been practicable or reasonably practicable to act otherwise,
the burden of proof falls on the defendant (s.40). The prosecution have the burden of showing beyond reasonable doubt that certain acts were done or omitted to provide a prima facie
case against the accused. Only if the prosecution succeed in this does
the defendant have the burden of proving that the alternative was not
practicable or reasonable practicable, but only on the balance of probabilities. The Court of Appeal held in 2002 that this requirement was compliant with article 6(2) of the European Convention on Human Rights (ECHR) as to presumption of innocence. The Court of Appeal noted that the "reverse burden" applied to purely regulatory breaches, rather than genuine criminal offences potentially punishable by imprisonment. However, the Health and Safety (Offences) Act 2008 extended the sentences available for these offences to include imprisonment for two years. Before it was passed, the Department for Work and Pensions
expressed the opinion that this is still compliant with the ECHR as it
"strikes a fair balance between the fundamental right of the individual
and the general interests of the community".
In 2005, the European Commission challenged the defence as noncompliant with Directive 89/391/EEC, which states that (Art.5(1) and (4)):
"The employer shall have a duty to
ensure the safety and health of workers in every aspect related to the
work." but that "This Directive shall not restrict the option of Member
States to provide for the exclusion or the limitation of employers'
responsibility where occurrences are due to unusual and unforeseeable
circumstances, beyond the employers' control, or to exceptional events,
the consequences of which could not have been avoided despite the
exercise of all due care."
The Commission argued that the "reasonably practicable" defence was
much broader than allowed under the directive but in 2007 the European Court of Justice found for the UK that the defence was in fact compliant.
Development risks defence
Section 6(10) was added by the Consumer Protection Act 1987
disapplies duties as to articles and substances used at work where a
risk "is shown to be one the occurrence of which could not reasonably be foreseen". This is known as the development risks defence.
Health and Safety Executive
Section 10 created two bodies corporate, the Health and Safety Commission and Health and Safety Executive, who performed their respective functions on behalf of the Crown (section 10 and Schedule 2). The bodies had wide powers to further their objectives by all means other than borrowing money (ss.11(6), 13). On 1 April 2008, the two bodies merged, the aggregate taking the name Health and Safety Executive.
Health and Safety Commission
Before its merger with the HSE, the Commission consisted of a
chairman and between six and nine other people, appointed by the
appropriate Secretary of State, after consultation (section 10(2)-(4)).
The Commission's duties were to (section 11(2)):
assist and encourage persons concerned with matters relevant to the operation of the objectives of the Act;
make arrangements for and encourage research and publication, training and information in connection with its work;
make arrangements for securing that government departments,
employers, employees, their respective representative organisations,
and other persons are provided with an information and advisory service
and are kept informed of, and adequately advised on, such matters;
propose regulations.
The Commission further had to keep the Secretary of State informed of
its plans and ensure alignment with the policies of the Secretary of
State, giving effect to any directions given to it (section 11(3)). The
Secretary of State could give directions to the Commission (section 12).
On 1 April 2006, the Commission ceased to have responsibility for railway safety.
The Commission could delegate any of its functions to, or otherwise
direct, the Executive (section 11(4)) and could direct the Executive to
hold a public inquiry
or other investigation into any accident (section 14). However, as of 1
April 2008, all its powers and responsibilities were transferred to the
Executive.
Health and Safety Executive
The Executive consists of a chairman and between 7 and 11 other people, all appointed by the Secretary of State, as of 2008, the Secretary of State for Work and Pensions
(Schedule 2). Before the 2008 merger, the Executive had to carry out
all functions delegated to it, or otherwise directed by, the Commission
and provide the Secretary of State with information and expert
advice (section 11(5)). The Executive is responsible for enforcement of
the Act and regulations made under it though the Secretary of State may
transfer some of the duties to local government (section 18).
Health and safety regulations
The Secretary of State has broad powers to make health and safety
regulations (section 15). Breach of regulations can lead to criminal
prosecution under section 33. Further, the Health and Safety Executive
can issue codes of practice
(section 16). Though breach of a code of practice is not in itself a
criminal offence it may be evidential towards a criminal breach under
the Act (section 17)
Enforcement
Because individual litigation is unlikely, given that employees may
find the regulations complex, the Health and Safety Executive enforces
the Act. However, the HSE may also delegate its functions to local
government under section 18, which allows for a more decentralised and
targeted approach to regulation. Any enforcing authority may appoint
inspectors with a written document stating their powers. This is as
evidence of their authority (section 19). Enforcing authorities may indemnify the inspector against any civil litigation if he has acted in the honest belief that he was within his powers (section 26). Local government bodies who may be enforcing authorities are:
Local government bodies can be enforcing authorities in respect of several workplaces and activities including offices, shops, retail and wholesale distribution, hotel and catering establishments, petrol filling stations, residential care homes and the leisure industry. As of 2008, 410 such bodies have responsibility in 1.1 million workplaces.
From 1 April 2006 the Office of Rail Regulation (ORR) became the
enforcing authority for the Health and Safety at Work etc. Act 1974 and
laws made under it, for all health and safety matters relating to the
operation of a railway (or tramway).
Inspectors
Under section, inspectors have the following powers:
enter any premises which he has reason to believe it is
necessary for him to enter so enforce the Act, at any reasonable time,
or in a dangerous situation;
take with him a constable if he has reasonable cause to fear any serious obstruction in the execution of his duty;
take with him:
any other person duly authorised by the enforcing authority; and
any equipment or materials required for any purpose for which the power of entry is being exercised;
make such examination and investigation as may in any circumstances be necessary for the purpose of enforcing the Act;
direct that the premises, or any part of them, or anything therein,
shall be left undisturbed, whether generally or in particular respects,
for so long as is reasonably necessary for the purpose of any
examination or investigation;
take such measurements and photographs and make such recordings as he considers necessary for the purpose of examination or investigation;
take samples of any articles or substances found, and of the atmosphere in or in the vicinity of the premises;
cause an article or substance which appears to be a danger to health
or safety, to be dismantled or subjected to any process or test, but
not so as to damage or destroy it unless this is in the circumstances
necessary to enforce the Act;
take possession of such an article and detain it for so long as is necessary in order to:
examine it and do to it anything which he has power to do;
ensure that it is not tampered with before his examination of it is completed;
Ensure that it is available for use as evidence in any prosecution or any proceedings relating to a notice under sections 21 or 22;
require any person whom he has reasonable cause to believe to be
able to give any information relevant to any examination or
investigation to answer (in the absence of persons other than a person
nominated by him to be present and any persons whom the inspector may
allow to be present) such questions as the inspector thinks fit to ask
and to sign a declaration of the truth of his answers;
require the production of, inspect, and take copies of or of any entry in:
any books or documents which by virtue of any of the relevant statutory provisions are required to be kept; and
any other books or documents which it is necessary for him to see for the purposes of any examination or investigation;
require any person to afford him such facilities and assistance with
respect to any matters or things within that person's control or in
relation to which that person has responsibilities as are necessary to
enable the inspector to exercise any of the powers conferred on him;
any other power which is necessary to enforce the Act.
The Consumer Protection Act 1987 added the power for a customs officer to seize imported goods for up to 48 hours (section 25A). In observance of the principle of a right to silence, answers given to questions that the inspector required a person to answer cannot be used as evidence against him, nor his spouse or civil partner (section 20(7)), neither can the inspector require production of a document protected by legal professional privilege (section 20(8)).
Improvement notices
If an inspector is of the opinion that a person (section 21) is
currently contravening the Act; or has contravened the Act in the past
in circumstances that make it likely that the contravention will
continue or be repeated he may serve him with an improvement notice:
stating that he believes that the Act is being contravened or will be in the future;
specifying the relevant provisions of the Act, giving particulars of the reasons why he is of that opinion; and
requiring the person to remedy the contravention within a period, ending not earlier than the period within which an appeal can be brought under section 24, as of 2008, 21 days.
Appeal against a notice is within 21 days to an employment tribunal who may appoint one or more assessors to sit with them (s.24).
Prohibition notices
If an inspector is of the opinion that activities are being carried
on, or are likely to be carried on, involving the risk of serious personal injury, he may serve him with a prohibition notice (section 22):
stating that the inspector is of that opinion;
specifying the matters which in his opinion give, or will give rise, to that risk;
where in his opinion any of those matters involves, or will involve a contravention of the Act:
stating that he is of that opinion;
specifying the relevant statutory provisions; and
giving particulars of the reasons why he is of that opinion; and
directing that the activities shall not be carried on unless the deficiencies have been remedied.
The notice may start immediately or at the end of a specified period
(section 22(4). Appeal against a notice is within 21 days to an employment tribunal who may appoint one or more assessors to sit with them (section 24).
Prosecution
Section 33(1) creates 15 criminal offences including breach of a duty
under the Act or a regulation, contravention of a notice, or
obstructing an inspector. In England and Wales prosecution under the Act could originally only be brought by an inspector or with the permission of the Director of Public Prosecutions but the Environment Agency was also authorised on 1 April 1996 (section 38). All offences under the Act are either summary offences or offences triable either way so inspectors start prosecutions by laying an information before the Magistrates' Court. Inspectors can themselves be authorised to exercise rights of audience before the Magistrates even though not legally qualified (section 39).
If a person, by some act or omission, causes another person to commit the actus reus
of an offence under the Act then they too are guilty of an offence,
even if the other person was not prosecuted or could not be prosecuted
because they were the Crown (section 36). Where an offence is committed by a body corporate with the consent or connivance, or by the neglect, of a director, manager, secretary or a member acting in a managerial capacity, that individual too is guilty of an offence (section 37).
Where a person is convicted under the Act, the court can order that he remedy the state of affairs or can order forfeiture of an item in question (section 42).
Civil liability
There is no civil liability for breach of statutory duty
in respect of sections 2 to 8 but there is liability for breach of
health and safety regulations unless the regulations themselves provide
otherwise (section 47). However, a breach not actionable in itself may
be evidential towards a claim for common lawnegligence. In particular, a criminal conviction may be given in evidence.
Liability of the Crown
The Crown is bound by health and safety regulations and by the Act itself save for (section 48):
Notices (sections 21-25); and
Criminal offences (sections 33-42);
— though an employee of the Crown can be criminally liable (s.48(2)). The Act was extended to the police on 1 July 1998 by the Police (Health and Safety) Act 1997 (section 51A).
The Secretary of State may, "to the extent that it appears to him
requisite or expedient to do so in the interests of the safety of the
State or the safe custody of persons lawfully detained" exempt the Crown
by Order in Council (section 48(4)). In 1987, the Crown Proceedings Act 1947 was repealed to allow military personnel to sue the Ministry of Defence and bring the Armed Services into line with the Act.
Other provisions
Sections 55 to 60 provide for the continued existence of the Employment Medical Advisory Service in England and Wales. Section 68 is a Henry VIII clause enabling the Secretary of State to amend certain provisions of the Act by Statutory Instrument rather than Act of Parliament.
Sections 61 to 76 originally enabled the HSE to create and amend building regulations and gave them other powers over buildings control and approval. These sections were repealed by the Building Act 1984 which replaced them by a general scheme of building regulations.
Section 84(3) allowed the Secretary of State to extend, by Order in Council, the provisions outside England, Wales and Scotland. In 1995, the provisions were extended to offshore installations, wells and pipelines in UK territorial waters, mines extending into territorial waters and certain other engineering activities in territorial waters. Activities on a ship under the direction of its master are excluded.
Performance of the act
Reviewing performance of the act in 2008 Lord Grocott observed:
Between 1974 and 2007, the number
of fatal injuries to employees fell by 73 per cent; the number of
reported non-fatal injuries fell by 70 per cent. Between 1974 and 2007,
the rate of injuries per 100,000 employees fell by a huge 76 per cent,
and Britain had the lowest rate of fatal injuries in the European Union
in 2003, which is the most recent year for which figures are available.
The EU average was 2.5 fatalities per 100,000 workers; the figure in the
UK was 1.1.
An
Act to assure safe and healthful working conditions for working men and
women; by authorizing enforcement of the standards developed under the
Act; by assisting and encouraging the States in their efforts to assure
safe and healthful working conditions; by providing for research,
information, education, and training in the field of occupational safety
and health; and for other purposes.
Efforts
by the federal government to ensure workplace health and safety were
minimal until the passage of OSHA. The American system of mass
production encouraged the use of machinery, while the statutory regime
did nothing to protect workplace safety. For most employers, it was
cheaper to replace a dead or injured worker than it was to introduce
safety measures. Tort law provided little recourse for relief for the survivors of dead workers or for injured employees. After the Civil War,
some improvements were made through the establishment of state railroad
and factory commissions, the adoption of new technology (such as the railway air brake), and more widespread availability of life insurance. But the overall impact of these improvements was minimal.
The first federal safety legislation was enacted in the Progressive period. In 1893, Congress passed the Safety Appliance Act, the first federal statute to require safety equipment in the workplace (the law applied only to railroad equipment, however). In 1910, in response to a series of highly publicized and deadly mine explosions and collapses, Congress established the United States Bureau of Mines to conduct research into mine safety (although the Bureau had no authority to regulate mine safety). Backed by trade unions, many states also enacted workers' compensation laws which discouraged employers from permitting unsafe workplaces.
These laws, as well as the growing power of labor unions and public
anger toward poor workplace safety, led to significant reductions in
worker accidents for a time.
Industrial production increased significantly in the United States during World War II,
and industrial accidents soared. Winning the war took precedence over
safety, and most labor unions were more concerned with maintaining wages
in the face of severe inflation than with workplace health and safety.[7]
After the war ended, however, workplace accident rates remained high
and began to rise. In the two years preceding OSHA's enactment, 14,000
workers died each year from workplace hazards, and another 2 million
were disabled or harmed. Additionally, the "chemical revolution"
introduced a vast array of new chemical compounds to the manufacturing
environment. The health effects of these chemicals were poorly
understood, and workers received few protections against prolonged or
high levels of exposure.
While a few states, such as California and New York, had enacted
workplace safety as well as workplace health legislation, most states
had not changed their workplace protection laws since the turn of the
century.
Passage
In the mid-1960s, growing awareness of the environmental impact of many chemicals had led to a politically powerful environmental movement.
Some labor leaders seized on the public's growing unease over chemicals
in the environment, arguing that the effect of these compounds on
worker health was even worse than the low-level exposure plants and
animals received in the wild. On January 23, 1968, President Lyndon B. Johnson submitted a comprehensive occupational health and safety bill to Congress. Led by the United States Chamber of Commerce and the National Association of Manufacturers, the legislation was widely opposed by business. Many labor leaders, including the leadership of the AFL-CIO, supported the legislation, including testifying in support at congressional hearings. The legislation died in committee.
On April 14, 1969, President Richard Nixon introduced two bills
into Congress which would have also protected worker health and safety.
The Nixon legislation was much less prescriptive than the Johnson bill,
and workplace health and safety regulation would be advisory rather
than mandatory. However, RepresentativeJames G. O'Hara and SenatorHarrison A. Williams introduced a much stricter bill similar to the Johnson legislation of the year before.
Companion legislation introduced in the House also imposed an all-purpose "general duty" clause on the enforcing agency as well. With the stricter approach of the Democratic bill apparently favored by a majority of both chambers, and unions now strongly supporting a bill, Republicans introduced a new, competing bill.
The compromise bill established the independent research and
standard-setting board favored by Nixon, while creating a new
enforcement agency. The compromise bill also gave the Department of Labor the power to litigate on the enforcement agency's behalf (as in the Democratic bill).
In November 1970, both chambers acted: The House passed the Republican
compromise bill, while the Senate passed the stricter Democratic bill
(which now included the general duty clause).
A conference committee
considered the final bill in early December 1970. Union leaders
pressured members of the conference committee to place the
standard-setting function in the Department of Labor rather than an
independent board. In return, unions agreed to let an independent review
commission have veto power over enforcement actions.
Unions also agreed to removal of a provision in the legislation which
would have let the Secretary of Labor shut down plants or stop
manufacturing procedures which put workers in "imminent danger" of harm.
In exchange for a Republican proposal to establish an independent
occupational health and safety research agency, Democrats won inclusion
of the "general duty" clause and the right for union representatives to
accompany a federal inspector during inspections.
The conference committee bill passed both chambers on December 17,
1970, and President Nixon signed the bill on December 29, 1970. According to the New York Times, labor and environment activist Tony Mazzocchi was a "principal force behind the legislation".
The Act went into effect on April 28, 1971 (now celebrated as Workers' Memorial Day by American labor unions).
Description
In
passing the Act, Congress declared its intent "to assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources."
The Act defines an employer to be any "person engaged in a
business affecting commerce who has employees, but does not include the
United States or any state or political subdivision of a State." The Act
applies to employers as diverse as manufacturers, construction
companies, law firms, hospitals, charities, labor unions and private
schools.
Churches and other religious organizations are covered if they
employ workers for secular purposes. The Act excludes the self-employed,
family farms, workplaces covered by other federal laws (such as mining,
nuclear weapons manufacture, railroads and airlines) and state and
local governments (unless state law permits otherwise). The Act covers
federal agencies and the United States Postal Service.
Section 5 of the Act contains the "general duty clause."
The "general duty clause" requires employers to 1) Maintain conditions
or adopt practices reasonably necessary and appropriate to protect
workers on the job; 2) Be familiar with and comply with standards
applicable to their establishments; and 3) Ensure that employees have
and use personal protective equipment when required for safety and
health.[20]
OSHA has established regulations for when it may act under the "general
duty clause." The four criteria are 1) There must be a hazard; 2) The
hazard must be a recognized hazard (e.g., the employer knew or should
have known about the hazard, the hazard is obvious, or the hazard is a
recognized one within the industry); 3) The hazard could cause or is
likely to cause serious harm or death; and 4) The hazard must be correctable (OSHA recognizes not all hazards are correctable).
Although theoretically a powerful tool against workplace hazards,
it is difficult to meet all four criteria. Therefore, OSHA has engaged
in extensive regulatory rule-making to meet its obligations under the
law.
Due to the difficulty of the rule-making process (which is governed by the Administrative Procedures Act),
OSHA has focused on basic mechanical and chemical hazards rather than
procedures. Major areas which its standards currently cover are: Toxic
substances, harmful physical agents, electrical hazards, fall hazards,
hazards associated with trenches and digging, hazardous waste,
infectious disease, fire and explosion dangers, dangerous atmospheres,
machine hazards, and confined spaces.
Section 8 of the Act covers reporting requirements. All employers
must report to OSHA within eight hours if an employee dies from a
work-related incident, or three or more employees are hospitalized as a
result of a work-related incident. Additionally, all fatal on-the-job
heart attacks must also be reported. Section 8 permits OSHA inspectors
to enter, inspect and investigate, during regular working hours, any
workplace covered by the Act.
Employers must also communicate with employees about hazards in the
workplace. By regulation, OSHA requires that employers keep a record of
every non-consumer chemical product used in the workplace. Detailed
technical bulletins called material safety data sheets (MSDSs) must be posted and available for employees to read and use to avoid chemical hazards. OSHA also requires employers to report on every injury or job-related illness requiring medical treatment (other than first aid)
on OSHA Form 300, "Log of Work-Related Injuries and Illnesses" (known
as an "OSHA Log" or "Form 300"). An annual summary is also required and
must be posted for three months, and records must be kept for at least
five years.
Section 11(c) of the Act prohibits any employer from discharging, retaliating or discriminating
against any employee because the worker has exercised rights under the
Act. These rights include complaining to OSHA and seeking an OSHA
inspection, participating in an OSHA inspection, and participating or
testifying in any proceeding related to an OSHA inspection.
Section 18 of the Act permits and encourages states to adopt
their own occupational safety and health plans, so long as the state
standards and enforcement "are or will be at least as effective in
providing safe and healthful employment" as the federal OSH Act. States
that have such plans are known as "OSHA States." As of 2007, 22 states
and territories operated complete plans and four others had plans that
covered only the public sector.
.svg)
