144. Memorandum submitted by the Employer's
Organisation for Local Government
1. BACKGROUND
1.1 The Employers' Organisation for Local
Government (EO) is the national body providing support and guidance
to local government in England and Wales on human resources issues.
We also host Dialog, the team responsible for helping authorities
to mainstream diversity issues into all local government activities,
including service delivery, and a health and safety function,
responsible for supporting local authorities to meet government
health and safety at work targets as duty holders.
1.2 There are 410 local authorities in England,
and Wales. They employ approximately 2.2 million people. Local
authorities provide services to many millions of people to whom
they owe a duty of care. The proposals for the new offence of
corporate manslaughter clearly could have significant implications
for local authorities as employers and suppliers of services.
1.3 Despite the large number of employees,
service users, clients and members of the public who could be
affected by local authority activities the number of fatal accidents
is small. Having said that one is too many and authorities are
not complacent and take their health and safety responsibilities
very seriously.
1.4 In terms of where a local authority
may attract a charge of corporate manslaughter, below are some
examples.
— Death of an employee eg a person
is killed at work
— Death of service user eg a person
receiving care in a council run home for the elderly
— Death of a member of the public eg
run down by a reversing council vehicle.
2. CONSULTATION
2.1 The EO has brought the Government consultation
to the attention of local authority health and safety practitioners.
We have sought Regional Employers' views to inform our response
and asked chief executives, leaders and members with a HR portfolio
for their input too.
3. THE EO VIEW
ON THE
PROPOSALS
3.1 The EO notes the proposals contained
in the draft Bill.
3.2 The EO welcomes the opportunity to contribute
to the debate as the proposals impact upon local authorities (LAs)
as employers and service providers.
4. IMPACT OF
PROPOSALS UPON
LOCAL AUTHORITIES
(LAS)
4.1 The EO notes that this is an offence
committed by the organisation and that individual gross negligence
manslaughter remains unchanged.
4.2 The EO notes and welcomes that these
proposals do not impose additional legislative burdens upon local
authorities.
4.3 The EO recognises and accepts that local
authorities as public bodies will be subject to the provisions
of the new offence as proposed, if and when it comes into force.
We believe that local authorities should be subject to this proposed
provision as they employ a huge number of people and deliver services
to millions more. LAs clearly owe a duty of care to these people
in terms of both the common and statute law.
4.4 The EO notes that there are certain
exemptions within the draft bill relating to public policy issues.
Clearly local authorities are involved in making public policy
decisions, as authorities are multi focus organisations with competing
priorities in terms of service delivery. Clarity is therefore
required to differentiate those matters, which would be subject
to the new offence and those which fall within the public policy
arena and are therefore exempt.
4.5 The EO recognises that under the new
test more cases of corporate manslaughter may be brought. Those,
which are brought, are more likely to succeed as the "identification
principle" (which requires the identification of the directing
mind of the organisation) has been replaced. It is more likely
therefore that authorities will have to spend time and money defending
themselves against a charge of corporate manslaughter.
4.6 The EO supports and recognises the concept
of the proposed offence of corporate manslaughter as an "extremely
grave offence" which should be punished severely by a significant
fine. As a grave offence it should and must be reserved for the
most serious of breaches of the duty of care. It should also be
noted that current health and safety legislation already allows
for unlimited fines in the Crown Court and for prosecution of
individuals.
4.7 The EO supports the high threshold of
"gross failure that causes death" as other existing
common law and statutory duties deal with failures of a lesser
nature.
4.8 It should be noted that in terms of
local authorities, any fine imposed as a result of a conviction
for corporate manslaughter would be paid from public funds. Council
taxpayers may see it as though they are being punished for failures
of the authority. There may be an impact in terms of service delivery
as a result of large fines. Therefore, any argument which applies
to the Crown in relation the recycling of public money could apply
to local authorities.
4.9 A local authority found guilty of the
new offence of corporate manslaughter could have significant fall
out in both political and reputation terms.
4.10 The EO notes and is reassured that
those authorities, which comply with their common law and statutory
duties under the Health and Safety at Work etc. Act 1974 have
little to fear from this proposed new offence. We would wish therefore
to encourage all authorities to ensure that they fulfil their
statutory duties under the Health and Safety at Work etc Act 1974
and are not deflected from that aim by unnecessary concern over
these new proposals for reform.
4.11 Local authorities are challenged to
be exemplars of health and safety management practice by the Government's
Revitalising Health and Safety strategy. Authorities take this
challenge seriously and we would hope that most authorities are
broadly compliant. Therefore those minority of authorities, which
do not manage their responsibilities to others effectively and
cause someone's death, should be subject to severe sanction in
the courts.
4.12 Local authorities may wish to take
the opportunity to review their arrangements for the strategic
management of health and safety to ensure that they are effective
in discharging their statutory duties. There will be little cost
for those authorities that are in compliance and manage health
and safety effectively. There may be significant cost to authorities
that fall short of compliance. When seen in these terms the proposed
new offence can be a driver to secure improvements in health and
safety standards.
4.13 The EO supports the new concept of
management failures by senior managers. This focuses on the strategic
management of the organisation's activities and not failures by
those at a junior level or "unpredictable, or maverick acts
of its employees". The definition of senior managers requires
clarity around where that level might be in local authorities.
Those familiar with good practice health and safety management
will be comfortable with these concepts.
4.14 The EO supports the link between Health
and Safety legislation and guidance and the question of a "gross"
breach of the duty of care. This link makes the standard to be
achieved clear.
4.15 The EO notes that one of the criteria
to be considered by the jury is whether the organisation sought
to profit from the failure. More clarity is required in respect
of this sub clause and its application to local authorities, which
are non-profit making organisations.
4.16 The EO notes that elected members are
not excluded from the definition of senior managers. Therefore,
if in an investigation into the death of a person to whom the
authority owes a duty of care, the evidence suggests an elected
member exerts a sufficient level of control then it may be possible
for them to be considered part of the authority's senior management.
Local authorities may need therefore to review the role and activities
of their elected members.
4.17 Local authorities deliver services
in different ways. Services may be contracted out, or delivered
in partnership with the private, public or voluntary sector. Whilst
the common law duty of care may not extend to those receiving
services provided by contractors, in the Health and Safety at
Work etc Act 1974 responsibilities in contract letting and monitoring
must be complied with as LAs may be liable for corporate manslaughter
if they do not and someone dies.
4.18 The EO notes but remains to be convinced
of the need for the proposed power of the court to make orders
to rectify the deficiencies, which led to the breach. In practice
this power may be rarely exercised as significant delays may occur
in bringing the case to court and to leave unchanged the circumstances,
which led to a death until the organisation is convicted, appears
worrying. It would seem necessary that action to remedy the breach
should be taken much earlier to prevent a reoccurrence of the
incident and a further possible death. A notice (which can have
immediate effect) issued by a health and safety inspector under
the Health and Safety at Work etc Act 1974 appears to provide
the answer and at a much earlier stage in proceedings. Non-compliance
with a notice is a significant offence in its own right.
4.19 Some local authorities are also health
and safety regulators and therefore their officers may be involved
with the Police in the investigation of fatal accidents, which
occur in the LA enforced sector. LAs who are enforcing authorities
will need to ensure that adequate resources are allocated to health
and safety enforcement activities. Authorities will also need
to ensure appropriate and adequate local liaison arrangements
exist with the Police. We have discussed this with our colleagues
in LACORS.
16 June 2005
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