8. Memorandum submitted by South East
Employers
South East Employers is the employers' organisation
for local government in the south and south-east of England, a
voluntary association of 72 local authorities—County, Unitary,
Borough and District Councils. Together our members employ over
280,000 people. In addition, our membership includes 120 smaller
employers in the public service, education, and the charitable
sector. The comments set out below were framed in consultation
with personnel practitioners from across our membership, and with
other expert advisers.
In the recent past, deaths have occurred to
local government's staff and its customers. Fortunately, these
have been few. Each has been a personal tragedy. Each of them
has been followed by considerable self-examination by both the
corporate bodies concerned, and by individuals—Managers
and Elected Members. That has been accompanied by unease from
the uncertainty of the law, and the possibility of a prosecution.
A feeling of vulnerability has not been allayed, and talk of "corporate
manslaughter"—ill-defined and misunderstood—has
caused alarm. This has been a particular issue in smaller authorities:
the six convictions under the current law have all been noted
to be in smaller organisations.
However, the proposals which have now been made
have our support, since they focus upon the necessity to have
in place required protective mechanisms to prevent any tragedy.
By their focus on a failure to have these mechanisms in place,
and by requiring that the failure must be "gross", we
believe that these proposals will correctly reward or penalise.
We welcome the conclusion that it is not appropriate
that there should be any new liability for "unpredictable,
maverick acts of an employee", nor for "immediate, operational
negligence". We note that individuals could still face prosecution
for the "old" common law offence, or for a breach of
the Health and Safety at Work Act, but we support the idea that
"it would not be appropriate for an offence that deliberately
stressed the liability of the corporation itself to involve punitive
sanctions for individuals".
We would ask in this connection that thought
is given by yourselves to the position of local government. The
corporate body is "the Council", Elected Members meeting
together to manage the Council's affairs. Elected Members give
their time and work to a local authority voluntarily, save only
an allowance designed to cover their costs. In the modern local
authority political direction is through individual Elected Members
with responsibility for a particular portfolio, for example "Leisure".
Collectively, those Elected Members with portfolios function together
in "Cabinet", and it is from the Cabinet that the modern
local authority receives political direction. In other local authorities
"Leisure" would be amongst the responsibilities of a
Committee. Every local authority also, by law, is required to
employ a "Head of Paid Service" who has the responsibility
for managing service delivery. This role is most often labelled
"Chief Executive". He or she exercises corporate management
through a team of employed "Chief Officers". Those Chief
Officers may have the day-to-day management of a service, or that
task may be delegated to other employees. The person with day-to-day
managerial responsibility has a close working relationship to
the Elected Member with the portfolio that covers their service,
or with the Chairman of the responsible Committee. Elected Members'
roles in management, particularly of the Council's human resources,
are circumscribed by Regulation. We could therefore have a Council,
a Cabinet, the Member with the portfolio or Committee Chairman,
the Chief Executive and line management, all with a greater or
lesser responsibility for (as an example) the management of the
municipal swimming pool, in which tragically a customer has drowned.
We would be pleased to hear that legislators have taken the unique
position of a local authority into account when drafting this
legislation. It would be unfortunate if an effect of this legislation
was that good people giving their time as Elected Members were
in any way penalised—or, indeed dissuaded by its threat
from standing for election.
We also think that in assessing whether the
corporate body had done all that it could, one factor must be
the resources available to it.
We think it right that there must be a demonstrable
chain of events leading from the failure to the death, causing
the death; which was not because of some intervening act. The
focus is therefore not on the more immediate operational cause
of the fatality.
We think it right that private prosecutions
should require CPS support.
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