6. Memorandum submitted by the British
Vehicle Rental and Leasing Association
EXECUTIVE SUMMARY
The British Vehicle Rental and Leasing Association
(BVRLA) and its members share a wealth of experience to recognise
the importance of ensuring that the UK continues to maintain its
good record on health and safety within Europe. It is on this
basis that we welcome the opportunity to offer our support for
the introduction of clear and effective corporate manslaughter
legislation. We also take this opportunity to make specific references,
which we believe go someway to help compliment and strengthen
employers' role in promoting occupational road risk measures,
which will contribute positively to address and improve the "at
work" road safety issues.
The BVRLA shares the common objective of investigating
ways to improve and help bring about a safer working environment
for employees and the community. Our members' through their end
user customers seek to ensure that their employees driving at
work adopt a responsible attitude towards safety on our roads.
The BVRLA continues to work tirelessly to help raise awareness
on this subject amongst a wide spectrum of employers, which included
the launch of our "Driving at Work" guide with the sole
aim of supporting the key recommendations made by the Work Related
Road Safety Task Group (WRRSTG).
As road safety is constantly under public scrutiny,
and in recognition of this fact, we believe that there should
be a high level of clarity for businesses outlining the importance
for them being held accountable for their actions which have an
impact on society. It would only seem a prudent measure for businesses
to be able to demonstrate that they have system and measures in
place which recognise such responsibilities.
We remain confident that the Home Office will
seek to ensure that the proposed draft Bill contributes positively
towards improving public safety and that UK plc does not become
wholly risk averse in outlook thereby stifling enterprise, and
welcome measures to ensure that the approach adopted towards enforcement
does not hinder these aims.
We feel it is sensible to ensure that the draft
Bill is targeted at corporations and not individuals, especially
as both directors and individuals are subject to existing company
and health and safety laws, the potential for being charged with
an offence under existing law of gross negligence manslaughter.
It is on this basis that we seek assurance that this draft Bill
will not lead to duplicity and would encourage the department
to secure consistency and coherence in its implementation.
To ensure the offence of corporate manslaughter
is clear, effective and fair, it should:
— apply to all activities applied to
all UK undertakings, and that Crown Immunity is strictly limited
to matters of national security;
— apply to behaviour that grossly or
negligently disregards foreseeable risks to employees and the
general public;
— related to a duty holder's obligations
for the reasonably foreseeable identification and evaluation of
risks and the reasonably practicable control of risks;
— related to a continuing and systematic
failure to assess and control risks rather than an isolated lapse
within a well-established system, not be founded on aggregation
of many unlinked faults, that had been appropriately managed,
to paint a picture of systemic failures; and
— consistently applied across the UK.
Clarification is required on the following:
— the potential lowering of the status
of person who might be classified as a senior manager compared
to the type of person who might represent a directing mind;
— the increased level of responsibility
for the acts of contractors.
Given our specific interests with these proposals,
we are only too happy to be able to assist the Home Office in
ensuring that this highly important and complex area of the law
is made more effective so as to ensure that businesses can be
held accountable for its gross failings.
GENERAL COMMENTS
We note that the primary stimulus to introduce
a new offence of corporate manslaughter, whereby an organisation
would be prosecuted for if a "gross failing by its senior
managers to take reasonable care for the safety of their workers
or members of the public caused a person's death" is driven
by the number of unsuccessful prosecutions over the years.
We agree that it is both right and proper that
companies and other organsiations must be held properly to account
for gross failings by their senior management which results in
fatal consequences. Equally, we remain encouraged that this proposed
offence will be applied carefully and reserved for the very worst
cases of management failure.
Indeed, with the Chancellor's statement on a
modernised approach towards better enforcement and implementation
across government departments, we hope the Home Office will help
to ensure that this offence does not act as a substitute to existing
redress under health and safety laws, but should instead help
to complement any future prosecutions.
On this related point, we note that the Secretary
of State is commitment to ensure that this offence does not increase
regulatory burden or create a risk averse culture and that businesses
that already take their obligations seriously under Health and
Safety law should have nothing to fear. It is therefore critical
that a joined up approach is delivered to the existing and future
steps being taken to improve at work related road safety concerns.
Moreover, companies that already manage health and safety to achieve
exemplary performance should be acknowledged and should not have
to do more.
We believe that the proposed offence should
not be clouded by the public appetite for someone to be held accountable
and blamed for accidents involving fatalities. Ultimately, the
courts are enshrined with powers to help deliver justice and the
existing and future prosecutions should ensure that prerequisite
evidence is obtained to help prove and enforce this area of the
law, irrespective of what the offence is classified as.
Through improved dialogue and communication,
business leaders fully recognise the importance of meeting the
expectations from society. That said, business should not be expected
to provide or be accountable for a risk-free environment, but
instead be held responsible for systematic failures.
In today's modern and global world businesses
are motivated with securing compliance and embracing a high standard
of health and safety performance. The laws aimed at promoting
and improving health and safety law should ensure not only that
the punishment fits the crime, but that lessons can be learned
to help general improvement, but that it acts as a key deterrent.
As we indicated above, those directors that
are grossly negligent in their own right, of causing the death
of a person to whom they owe a duty of care, can be prosecuted
under the common law offence of manslaughter. It would be wholly
inappropriate for the burden of proof or standard to be lowered
simply to satisfy calls for a corporate scapegoat or because it
may be challenging to prosecute the individual for his own actions
or inaction. As the department is aware the Health and Safety
at Work Act 1974 (HSWA) already acknowledges the principle of
custodial sentences for individuals held responsible for the most
serious omissions or acts. The legal tests of failure to take
reasonable care and consent, connivance or neglect are similar
to those proposed for gross negligence. Individuals culpable of
such failures leading to work-related fatal accidents should properly
be dealt with under existing health and safety legislation.
Moreover, employees are generally expected to
take reasonable care for their own health and safety and that
of others to contribute to the organisations efforts. There is
a danger that this law may concentrate on the responsibility of
the individuals or level of management which could lead to an
abdication of responsibilities, therefore eroding the principle
of team work and stifle motivation.
SPECIFIC COMMENTS
We make the following comments to the proposed
draft bill, which we hope can work to help minimise risk of increasing
regulatory burdens, stifling entrepreneurial activity or creating
a risk averse culture.
The Legal Framework
We recognise the importance of understanding
the legal complexities under existing laws, which includes the
need to review the guilty mind or identification principle and
instead work towards improved focus on management failures at
senior level within an organisation. Whilst we understand the
need to move towards a structure that better reflects the complexities
of decision making and management processes within large corporate
structures, we feel the proposed wording may not necessarily prove
to be helpful for a vast range of corporate structures, together
with it not being aligned with existing legal regimes, including
company and health and safety legislative frameworks.
This may be of particular relevance where large
organisations have a high degree of internal specialism and where
it is difficult to identify the individual that may have played
a significant role in the management decision or activity. This
may lead to the historical difficulties under the identification
principle being repeated here, which may be contrary to the aims
of the new proposed offence being more targeted to corporate bodies.
To help address this difficulty from arising, we recommend a much
wider definition be adopted to help reflect the Home Office's
stated aims.
We note that the proposed offence contained
in Section 1 deals with the way in which organisation's activities
are managed or organised by its senior managers, with the notes
clarifying that this should not be deemed to be replacing the
requirement to identify a single directing mind to that of several
minds, or involving aggregating individuals' conduct. Instead,
it states that it involves a different basis of liability that
focuses on the way the activities of an organisation were in practice
organised or managed. However, it remains unclear to us how in
practice the courts will interpret this, especially as in its
current format it remains unclear. Further clarity is required
on how the acts or omissions of more than one senior manager in
any incident is to be examined and how liability will be imposed
other than on the basis of some form of aggregation.
We note construction of the proposal requires
the breach to be gross, and gross is defined as a failure, which
constitutes conduct "falling far below what can reasonably
be expected in the circumstances". The draft Bill indicates
that what is "gross" is a matter for the jury in line
with existing common law, where the jury has to judge whether
the evidence shows that the organisation failed to comply with
any health and safety legislation or guidance and if so:
— How serious was the failure to comply.
— Whether or not senior managers:
— knew, or ought to have known, that the
organisation was failing to comply with that legislation or guidance;
— were aware, or ought to have been aware,
of the risk of death or serious harm posed by the failure to comply;
— sought to cause the organisation to profit
from that failure.
We remain concerned with the difficulty businesses
will incur as they work towards attempting to implement risk and
compliance processes. Indeed, we remain concerned how jurors will
place emphasis on the various matters, with the possibility of
ignoring areas entirely. It would be far more appropriate to link
the interpretation of gross breach to reasonable forseeability
as it would help establish that there was knowledge of a risk
and the company deliberately continued to run it.
There also seems to be in parts some confusing
and inappropriate references to the existing health & safety
law and guidance. For consistency and clarity we recommend that
this is removed entirely as these references could not only remove
the enforcement focus, but do not help to add any quality and
relevance of the legislation.
The section 1 offence stipulates the manner
in which companies should arrange their activities. However, it
remains unclear whether this changes the position on causation
from the current common law situation. As the Home Office is aware,
there is already the difficulty of proving the legal concept of
causation in any incident, this will continue under the proposed
offence. Accident investigations to date have demonstrated that
the causes are often not straightforward, and are shrouded by
a multiplicity of linked events, which are reflected within the
labyrinth of corporate structures. The proposals do not seem to
address this problem or simplify future investigations.
On a more general point, the proposed duties
do not appear to impose any additional duty of care than under
existing health and safety legislation or the common law offence
of manslaughter, yet it somehow becomes significant when considering
corporate structures and levels of senior management.
We agree that the proposed offence should only
be brought in serious cases and that the appropriate fine should
be calculated by the Court consistently as stipulated in existing
case law. It also is logical to empower the courts to make remedial
orders within a specified time, as this already existing in health
and safety legislation, but these should be linked with a strategy
of improving safety across a whole industry.
We are pleased that the draft Bill does not
introduce a new liability on individuals. That said, where an
individual's act or omission is judged to be serious and a direct
causal link to the cause of death, the existing law of gross negligence
manslaughter should be pursued. There is also the ability to pursue
a similar duty in the case of employees to other employees and
others affected.
As part of establishing evidential proof for
corporate liability, the prosecution will be tasked with having
to identify the senior managers whose acts or omissions caused
the death. This will also require the need to examine whether
or not a manager played a significant role in the decision making
process relating to the organisation of the companies activities
and whether these acts or omissions formed part of a gross breach
of what could reasonably have been expected by the organisation
as a whole. As a direct consequence, we believe individuals, whilst
directly not culpable for this offence, will be examined as if
they themselves were on trial. We assume the prosecution would
reserve the right to pursue the lesser charge of manslaughter
or under the HSWA as individuals and if so, how they would be
expected to defend the parallel investigations.
We feel it is right for the police to investigate
and the CPS to prosecute. We endorse the need for close co-operation
between the police, the CPS, and HSE or other relevant enforcing
authorities. It is imperative that the information is freely shared
and exchanged amongst the bodies, as lessons can be learnt from
such investigations.
We note that the bill does not include the general
exclusion of Crown immunity, except insofar as those activities
is directly relation to public interest. This remains somewhat
wholly and is open for potentially varying interpretation. We
feel that specific and clear exclusion is required.
CLOSING COMMENTS
The BVRLA remains a keen supporter of bringing
in clear and effective corporate manslaughter legislation which
we believe will help to promote a safe working environment. The
proposal from our perspective should be introduced, especially
as it is both a natural and logical step towards reducing at work
road related incidents.
Annex
The BVRLA is the representative trade body for
the companies engaged in the operating leasing of cars and commercial
vehicles. Its members provide short-term self-drive rental, contract
hire and fleet management services to corporate users and consumers.
BVRLA Members operate a combined fleet of 2.3 million cars, vans
and trucks of widely differing sizes from 3,300 locations throughout
the UK.
BVRLA members provide a vital service to UK
industry and commerce, facilitating the movement of goods and
people for essential business purposes. Members buy around one
million new vehicles every year, at a cost of nearly £14
billion, representing the biggest volume of purchases by any fleet
sector. In making these purchases, members are a major support
to the UK automotive industry. In addition, by way of ancillary
services, our members spend an additional £2 billion.
Together the Rental, Leasing and Commercial
Vehicle Membership provide the significant voice of an industry
which purchases almost half the personal and company transportation
in the United Kingdom. This is combined with the diversity of
BVRLA members to create a unique organisation where one Association
represents three combined sectors allowing members to share representation
on committees and in the activities of the BVRLA
BVRLA members subscribe to a Code of Conduct
which sets out stringent standards in terms of the operation and
quality of vehicles and the commercial propriety of members. The
BVRLA adopts a strict process of vetting applications for membership.
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