161. Memorandum submitted by Balfour Beatty
SUMMARY OF
OUR VIEWS:
— Clarification is required in the
legislation to ensure that it is only used, as intended, when
there has been a very serious management failure giving rise to
a fatality. There is the potential for the legislation to be misused
and over used.
— In order to be effective prosecutions
for all health and safety offences, including Corporate Manslaughter,
should be brought in a timely, equitable and efficient manner.
— The definition of gross breach of
duty of care requires significant amendment in order to ensure
that the result of the legislation is as intended.
— Further clarification on the interpretation
of "Senior Manager" is required.
— Corporate Manslaughter legislation
should apply to unincorporated bodies.
— Causation is a pivotal element of
the offence and requires further clarification.
— Application of Corporate Manslaughter
legislation in Northern Ireland and Scotland is needed for consistency.
NEED FOR
REFORM
We recognise the motivation behind this proposed
new legislation. The perceived need for specific corporate accountability
is understood.
We are concerned that the legislation may not
be applied as intended. In the consultative paper accompanying
the Bill it is stated that "The new offence is targeted
at the most serious management failings that warrant the application
of a serious criminal offence" (paragraph 32). However,
it does not seem clear from the Bill itself that this is how the
legislation will be applied. There is serious potential for the
Bill to be utilised in every case where a fatality has occurred
and not in the limited circumstances described in the consultation
paper. This point is supported by our detailed comments below
relating to the offence and the definition of gross breach.
In order for this legislation to achieve its
stated objectives we believe that other issues also require attention.
For the necessary lessons to be learnt from any incident and for
the people responsible to be brought to account the prosecution
of a Corporate Manslaughter charge would need to be fair and swift.
The opportunity should be taken to ensure that all prosecutions
relating to health and safety are brought in a timely, equitable
and efficient manner.
We note that the financial penalties proposed
in the Bill mirror those penalties already available under the
existing health and safety legislation. We acknowledge that the
reputational issues arising from a conviction for Corporate Manslaughter
would be significant.
Many organisations have complex corporate structures
and we believe that specific provision should be made in the Bill
to take such structures into account. Guidance should be provided
on how prosecutions should be structured in such cases.
Further, we believe that to be effective the
Bill should specifically address multi-jurisdictional organisations
which for example conduct business in England and Wales but are
not registered in England and Wales. Practical issues regarding,
for example, service of proceedings and enforcement of judgements
should also be addressed. It would be a nonsense if overseas corporations
could avoid sanction by refusing/failing to submit to the process
of prosecution.
THE OFFENCE
We understand that this offence is intended
to be directed toward companies and other organisations where
gross failings by senior management have fatal consequences and
that the offence be reserved for the worst cases of management
failure. As stated above we are concerned that the application
of the legislation will not reflect this intention.
We seek an explanation of the status of certification
to internationally recognised quality and health and safety management
standards (for example, ISO 9001:2000 and OHSAS 18001:1999). Certification
requires implementation of formal management systems incorporating
acknowledged good practice, and is only achieved through independent
audit by an accredited certification body (for example, Det Norse
Veritas, Lloyds Register). We understand that many organisations
in our industry seek and achieve such certification. If no such
certifications are sought then an organisation would in our opinion
be at risk. We seek clarification on whether achievement of such
certifications would ordinarily provide a (partial?) defence to
a charge of Corporate Manslaughter.
SENIOR MANAGEMENT
The current drafting sets out the definition
of the term "Senior Manager". We believe that further
definition of the term "Senior Manager" is required,
particularly in the context of complex organisational structures,
and that the current drafting is unclear. The consultation paper
with the Bill gives some context to the definition but this is
not reflected in the Bill itself and would not therefore be binding.
GROSS BREACH
Together with the potential misuse of the legislation,
we believe that the current definition of "gross breach"
gives rise to issues of the greatest concern.
It appears to be difficult to set out effective
tests to establish whether a gross breach of duty has occurred.
We are not convinced that the current drafting achieves the stated
intention.
It seems to us that in other jurisdictions where
there are objective standards prescribed for health and safety,
it is easier to set out tests identifying where those standards
have not been met and where a gross breach of duty has occurred.
The nature of the law in England and Wales makes this task very
problematic.
As mentioned above it is not clear from the
Bill itself that prosecutions will arise under the legislation
only where "the most serious management failings that
warrant the application of a serious criminal offence"
have occurred. It appears that relatively minor failings or omissions
which are not symptomatic of very poor management would fall within
the current definition and would expose well managed organisations
to the risk of a prosecution.
Clarification is requested on the relationship
between the burden of proof required for a conviction under this
new legislation and the burden of proof required under the existing
health and safety legislation. The current drafting will give
rise to confusion. Is it the intention that prosecutions under
the new legislation will be heard by a judge and not a jury? We
suggest that the complex legal issues which will arise regarding
the burden of proof and the test for whether there has been a
gross breach of duty will mean that the cases should be heard
by a judge alone.
APPLICATION—CROWN
IMMUNITY
S. 7 of the Bill removes crown immunity. We
support this provision.
The consultation paper questions the logic of
fines which merely recycle public money through the Treasury.
Should this view prevail there would then be no effective sanction
against crown bodies who whilst being convicted would suffer no
sanction or fine, nor would they suffer any additional sanction
if they failed to implement the remedial measures required by
the court.
APPLICATION—UNINCORPORATED
BODIES
We support the contention that Corporate Manslaughter
legislation should apply to unincorporated bodies. Technical and
legal issues should not be allowed to present a barrier to applying
this offence to unincorporated bodies.
It seems inequitable that certain bodies should
be excluded from a Corporate Manslaughter Charge on the basis
of their constitution. In particular we are concerned that professional
partnerships (such as architects and chartered surveyors) might
be excluded.
CAUSATION
Causation seems to us to be a pivotal element
of this offence. However, the Bill does not deal with the issue
of causation. We believe that the legislation should deal with
this important matter.
SCOTLAND AND
NORTHERN IRELAND
We understand that the legislation will apply
in England and Wales only. This leads to the possibility of an
entirely different legal framework from other parts of the UK
which seems to us to be undesirable. We operate across the whole
of the UK and would want to see consistency on this important
aspect in all areas in which we operate. We believe equivalent
and consistent legislation in all parts of the UK is important.
October 2005
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