Mr Podger the Chief Executive of HSE has responded to requests for them to prosecute Scottish Water: 

“Your e-mails refer to an unpleasant and potentially unhealthy situation, but it is one which HSE is not best placed to resolve. Section 3 of the Health and Safety at Work Act has a very broad scope, which can cut across the responsibilities of other regulators with more specific responsibilities, and where this is the case HSE does not seek to intervene.  The Scottish Environment Protection Agency (SEPA) is the regulator with primary responsibility in these circumstances, and I gather that SEPA is actively involved in investigating the problem. I would suggest that you concentrate your efforts on establishing an effective relationship with SEPA, so that your concerns and expectations are made clear and you understand how effective actions can best be progressed.”  

HALL says: 

This is a reply straight out of “Yes Minister”. 

It is pleasing to see that he acknowledges that the overflow amounts to a potential health risk - certainly nine local GP's think so.  Nobody would disagree with him – it is unpleasant to say the least. 

There is a distinction in that HSE's powers cover the actions of the company whereas SEPA's powers cover the results.  HSE have successfully prosecuted utility companies before under Section 3 - it has as "a very broad scope".   And, Mr Podger obviously agrees that it can apply in this case.

 Mr Podger should be assured that SEPA are taking an interest in this matter.  HALL would like to say that Robert Kerr of SEPA could not be more courteous and helpful.  But, we are not convinced that this is sufficient reason for HSE not to take an interest in how Scottish Water have arrived at this position of creating potential harm to public health.   

Who else is going to make them accountable for how they manage health and safety if it’s not HSE?  

It is obviously a matter for Mr. Podger to decide how best HSE can serve the public.  But the public will decide how well HSE serve them.