156. Memorandum submitted by the University
of Leeds
ENFORCEMENT AGAINST
SENIOR MANAGERS
1. Section 1 removes individual culpability
entirely (compared with previous draft papers and Law Commission
report) and mentions no sanctions against the individual eg debarring
as a director. This is a retrograde step and possibly reflects
to `politicking' by various employers' organisations.
2. If there is to be accompanying guidance
to the bill to make it clear that although the individual prosecution
is not an option that consideration will still be given to prosecution
under Section 37 of the Health and Safety at Work Act.
Would this action be excluded under clause 1
(5) re secondary or treated as a distinct separate offence.
Could a section be added to clause 1 (5) "but
that doesn't affect an individual's potential liability in relation
to any other health and safety offences"
APPLICABILITY
3. In the explanatory notes there is reference
to the status of different public bodies which to an "outsider"
is unfathomable.
I would appreciate clarification that:
(a) Where a Department is listed this also
encompasses ancillary posts of that department for whom it has
responsibility—for instance NHS encompassed within reference
to Department of Health, Health ans Safety Executive within Department
of Work and Pensions.
(b) Charities/Charitable Institutions also
covered by scope of Act eg University Sector.
SENIOR MANAGERS
4. The definition of this term is incorrectly
presented in Section 29 in that the first threshold is that Senior
Managers play a significant role . . . in managing or making management
decisions.
5. While the explanatory roles trying to
explain the differential here appear reasonable, the reality may
be somewhat different. What one may find is that large organisations
may attempt to shift the balance of decision making from a central
to a local level and imply that local management acted under their
own initiative without the authority of the central organisation.
One sees that in prosecutions and there is no
reason to anticipate any difference here.
GROSS BREACH
6. Could the first criteria be teased out
to consider some of the issues raised by R v Howe Engineering?
7. With regard to the explanatory notes
on page 14 second point, awareness might also arise from internal
advice or safety professionals or from external health and safety
consultants.
APPLICATION
8. Agree with points in Section 34 on Page
14.
DUTY OF
CARE
9. Would the term occupier also encompass
owner . . . as one could own land but not actually occupy it eg
parks, public spaces.
10. Section 4 (i) (i) (ii) to be modified
so that does not solely refer to activities carried on commercial
basis . . . activities carried out by the NHS or Government departments.
Need to ensure that their activity not excluded because not commercial
. . . which Section 23 on page 37 makes clear.
SANCTIONS
11. Crown to be subject to same sanctions
irrespective of recycling argument at Section 55 on page 18 otherwise
legislation is footless and Crown bodies might learn nothing from
their failures due to the absence of sanctions.
INVESTIGATION AND
PROSECUTION
12. The exact roles of the various regulatory
bodies needs to be resolved so that it is clear who has a lead
role—who has a supportive role (Section 58, page 11 refers).
9 June 2005
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