117. Memorandum submitted by British Energy
British Energy (BE) is pleased to have to opportunity
to make this consultation response and our comments are as follows:
1. BE recognises the helpful clarification
by the Home Secretary in his Forword to the Consultation that
corporate manslaughter charges must be reserved for the very worst
cases of management failure where there has been a flagrant disregard
for health and safety leading to death. Additionally, the Home
Secretary makes clear that it is not his intention to propose
legislation that would increase regulatory burdens, stifle entrepreneurial
activity or create a risk adverse culture and he confirms he is
satisfied that the Draft Bill does not do so.
2. The current proposal removes a key problem
with the common law offence of corporate manslaughter, being the
need to prove that an individual who can be properly characterised
as the "directing mind" of the company in question is
personally guilty of manslaughter. This development is constructive
as it removes the threat of senior individuals being aggressively
investigated and prosecuted inappropriately for manslaughter in
order to try and secure a conviction against an organisation.
3. The consultation is also of assistance
in making clear that, whilst the offence builds on the current
law relating to gross negligence manslaughter, "the management
failure must amount to a gross breach of the duty to take reasonable
care; the sort of high threshold that currently applies and which
remains appropriate for an offence of this gravity". It is
not intended that the offence will apply in wider circumstances
than the current offence of gross negligence manslaughter. The
Draft Bill introduces no new liability for organisations. Nor
does it introduce any new or secondary liability for individuals.
This approach is welcomed and supported by BE.
4. One area which gives BE concern is the
description of a senior manager. This is linked in the Draft Bill
to management responsibility—the taking of decisions about
how activities are managed, organised and actually managing those
activities. The proposal notes that "This is intended to
capture those managers who have responsibility for the overall
way in which an organisation manages or organises any particular
activity". Also that "This ensures that managers who
set and monitor workplace practices as well as those providing
operational management are covered".
5. It appears to BE that in using and particularly
explaining the senior manager description in that way the proposal
could identify individuals at a lower level in an organisation
than those who under the current common law could be identified
as the "directing mind". This is not what the proposal
intends, as there is to be no new liability on organisations.
Who is a senior manager should be decided on a case by case basis
and it seems sensible to let a jury to decide, but leaving it
open to a Judge on an application to dismiss a case that persons
identified are not senior managers.
6. The power in the Draft Bill for a Court
to fine an organisation is supplemented by an ability to impose
an order for remedial action. British Energy believes there are
sufficient tried, tested and robust powers under the Health and
Safety at Work Act 1974 ("HASWA") to deal properly and
appropriately with the need for remedial action. Significant problems
could arise as a Court could be unaware of the overall impact
of any remedial order on the activities of an organisation. British
Energy believes that a financial penalty should be the only penalty
and suggests that it is not the role of a criminal court to regulate
the management of safety nor to decide what is the relevant standard
of safety in any industry.
7. The current proposal confirms that one
of the factors to be taken into account when assessing whether
the breach of duty, where one is established, involved in the
senior management failure was gross is the extent to which the
organisation failed to comply with any relevant health and safety
legislation or guidance. The Draft Bill confirms that this is
not only includes HASWA guidance, but also all other legislation
and guidance on health and safety. This is a very important, persuasive
factor and British Energy believes that the definition of guidance
is much too wide. Guidance should be expressed in the Draft Bill
as limited to legislation and approved codes of practice publicly
issued by the industry safety regulator.
8. In light of what is required in the Draft
Bill to successfully prosecute a corporate body for manslaughter,
the proposal does not to BE's view seek to go against organisations
which make a proper effort to comply with health and safety legislation
or who make a proper effort to operate in a safe and responsible
fashion and learn from operational feedback, but who might not
have complied with the required standard in a particular circumstance,
which approach is supported by BE.
9. The Draft Bill specifically requires
the consent of the DPP before proceedings can be instituted. BE
approves this requirement in order to avoid insufficiently well-founded
prosecutions, which would ultimately fail, and would place an
unfair burden on the organisation involved with possible irreparable
damage and personal harm.
17 June 2005
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