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Health And Safety At Work (Offences) Bill

These notes refer to the Health And Safety at Work (Offences) Bill as introduced in the House of Commons on 15th December 1999 [Bill 26] Health And Safety At Work (Offences) Bill EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Health and Safety at Work (Offences) Bill, as introduced in the House of Commons on 15 December 1999. They have been provided by the Department of the Environment, Transport and the Regions (DETR), with the consent of Mr Malcolm Savidge, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY AND BACKGROUND 3. The main purpose of the Bill is to raise the maximum penalties available to the courts in respect of certain health and safety offences. The Bill amends the penalty framework set out in section 33 of the Health and Safety at Work etc. Act 1974. 4. The Bill's subsidiary purpose is to amend the penalty for the main offence under the Employers' Liability (Compulsory Insurance) Act 1969 - failure by an employer to insure in respect of liabilities to employees for injury or disease sustained in the workplace. It also extends the time limit on the bringing of related prosecutions. Health and Safety at Work etc. Act 1974 (the 1974 Act) 5. The Bill makes the following amendments to the 1974 Act : It raises the maximum fine which may be imposed in the lower courts to £20,000 for most health and safety offences; It makes imprisonment an option for more health and safety offences in both the lower and higher courts; It makes certain offences which are currently triable only in the lower courts, triable in either the lower or higher courts. 6. These proposals follow a joint review of the current penalty maxima, which was carried out by the Home Office, DETR, and the Health and Safety Executive between February and September 1999. The consultation document issued by DETR on 1 July 1999 and entitled "Revitalising Health and Safety" gave indications of the possible changes which the Government was considering. 7. The power to impose a fine of up to £20,000 is already available in respect of some offences under the 1974 Act, such as breaches of the general duties arising under sections 2-6. The Bill extends this power to other comparable offences (for example, a breach of regulations made under the 1974 Act). 8. At present, imprisonment is an option only in certain cases. The Bill will make imprisonment available for most health and safety offences. 9. Under the 1974 Act, it is an offence under section 33(1)(e) to contravene any requirement imposed by an inspector under section 20 (for example, a requirement to give information for an investigation or to leave premises undisturbed after an incident). It is also an offence to prevent another person from appearing before an inspector or from answering an inspector's questions (section 33(1)(f)). Both offences are currently triable only in the lower courts. The Bill makes them triable in the lower or higher courts. 10. For further details, see the Annex to these notes. Employers' Liability (Compulsory Insurance) Act 1969 (the 1969 Act) 11. The Bill amends section 5 of the 1969 Act, to implement proposals included in a consultation paper issued on 25 September 1997 by the Parliamentary Under Secretary of State for DETR. Where an uninsured employer is unable to pay compensation for an industrial injury or disease, the loss to the employee can be substantial. 12. The Bill amends the 1969 Act in the following ways : It replaces the current maximum fine of £2,500 for each day prosecuted, with a maximum fine for the period in respect of which the charge is brought, of £20,000. The Bill gives the Secretary of State the power to increase the fine by subordinate legislation. It extends the time limit for bringing prosecutions under section 5 of the Act. The current time limit is six months from the time when the offence was committed. The new time limit will be six months from the date on which the prosecutor considers that he has sufficient evidence to justify the proceedings. The Bill also provides that no prosecution can be brought more than five years after the commission of the offence. COMMENTARY ON CLAUSES Clause 1 : Health and safety offences 13. This clause replaces the penalty provisions of section 33 ((1A) to (4)) of the 1974 Act by inserting a new Schedule 6A. This Schedule sets out the mode of trial and maximum penalties for the health and safety offences set out in section 33(1)(a) to (o) and the "existing statutory provisions" where no other penalty is specified. The "existing statutory provisions" are defined in section 53(1) of the 1974 Act. The Annex to these notes shows briefly what each offence deals with; whether it is to be triable either way or summary only; and the present and intended maximum penalties. 14. New section 33(3) repeats existing provision of the 1974 Act (section 15(6)(c) and (d)). 15. New section 33(4) overcomes for health and safety purposes a limitation on penalties imposed by the European Communities Act 1972 (ECA). Paragraph 1(1)(d) of Schedule 2 to that Act limits the maximum lower court penalty which can be imposed by regulations made under section 2(2) of that Act to three months imprisonment, or a £5,000 fine, or both. New section 33(4) and clause 4(3) are designed to ensure that, where existing regulations made under section 2(2) of the ECA have applied section 33 of the 1974 Act, the new framework of penalties introduced by the Bill may apply despite the limitation in Schedule 2 to the ECA. The provisions of the Bill also ensure that future regulations under section 2(2) may apply the new framework of penalties. EXTENT 16. The Bill extends to England, Wales and Scotland. Both health and safety, and employers' liability compulsory insurance, are matters which are outside the legislative competence of the devolved administrations. The devolved administrations have been consulted on the proposals. FINANCIAL EFFECTS OF THE BILL 17. There are no significant PES implications. Making imprisonment available for more health and safety offences is expected to lead to a minimal increase in the prison population. Making two offences which are triable only in the lower courts into "either way" offences (triable in the lower or the higher courts), could lead to a few additional cases being heard in the higher courts. Any additional costs to the Health and Safety Executive or the criminal justice system, should be insignificant. The public sector is generally exempt from the 1969 Act. EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER 18. The Bill will have no significant manpower implications for the Health and Safety Executive, or the criminal justice system. REGULATORY APPRAISAL 19. The Bill will not impose new requirements on business. A Regulatory Impact Assessment is not, therefore, required. COMMENCEMENT 20. The Bill will come into force two months after Royal Assent. Clauses 1 to 3 of the Bill do not have effect in relation to offences committed before the Bill comes into force.     PRESENT AND PROPOSED NEW MAXIMUM PENALTIES FOR OFFENCES SPECIFIED IN THE HEALTH AND SAFETY AT WORK etc ACT 1974, SECTION 33 (HSWA) HSWA SECTION HSW(O)B, Schedule 6A, Item PRESENT MAXIMA PROPOSED NEW MAXIMA 33(1)(a) Sections 2, 3, 4 and 6 - the general duties on employers and others 1 Summary - a fine not exceeding £20,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both. 33(1)(a) Section 7 - duty on employees 2 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding the statutory maximum (£5,000), or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(b) Section 8 - duty not to interfere with or misuse things provided for health and safety. 3 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(b) Section 9 - duty not to charge employees for things done to meet requirements of relevant statutory provisions 4 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - a fine not exceeding £20,000 Indictment - an unlimited fine 33(1)(c) Contravening requirements of health and safety regulations, licences or authorisations. 5 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(d) Contravening requirements imposed specifically in relation to public inquiries or special investigations. 6 Summary only - a fine not exceeding £5000 Summary only - fine not exceeding level 5 on the Standard Scale (£5,000) 33(1)(e) Contravening any requirement imposed by an inspector under section 20 (eg. to give information for an investigation, or to leave premises undisturbed after an incident) or under section 25. 7 Summary - a fine not exceeding £5,000 Indictment (section 25 breaches only) - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment (section 20 and 25) - 2 years imprisonment or an unlimited fine or both 33(1)(f) Preventing another person from appearing before an inspector, or from answering an inspector's question. 7 (continued) Summary only - a fine not exceeding £5,000 Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(g) Contravening an improvement or prohibition notice. 7 (continued) Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(h) Obstructing an inspector. 8 Summary only - a fine not exceeding £5,000 Summary only - 6 months imprisonment, or a fine not exceeding Level 5 on the Standard Scale (£5,000), or both 33(1)(i) Contravening any notice issued under section 27(1) (general powers of HSC/E to obtain information). 9 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - a fine not exceeding the statutory maximum (£5,000) Indictment - an unlimited fine 33(1)(j) Disclosing information in breach of HSWA section 27(4) or 28. 10 Summary - a fine not exceeding £5,000 Indictment - 2 years imprisonment, an unlimited fine, or both Summary - 6 months imprisonment, or a fine not exceeding the statutory maximum (£5,000), or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(k)(l) and (m) Offences relating to deception. 11 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(1)(n) Falsely to pretend to be an inspector. 12 Summary only - a fine not exceeding £5,000 Summary only - fine not exceeding level 5 on the Standard Scale (£5,000) 33(1)(o) Failure to comply with a court remedy order (section 42). 13 Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(3) (in so far as no other penalty is specified) Penalties for health and safety offences arising from 'existing statutory provisions' (pre-1974 enactments) set out in HSWA Schedule 1 14 Summary - a fine not exceeding £5,000 Indictment - an unlimited fine Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both Indictment - 2 years imprisonment or an unlimited fine or both 33(4)(a) (b) and (c) Offences of breaching licensing or explosives requirements. Covered under Bill items above Summary - a fine not exceeding £5,000 Indictment - 2 years imprisonment or an unlimited fine or both Summary - 6 months imprisonment, or a fine not exceeding £20,000, or both (Covered under Bill items above). Indictment - 2 years imprisonment or an unlimited fine or both (Covered under Bill items above).