19. Memorandum submitted by the Association
of Council Secretaries and Solicitors
It is quite evident that the current legal position
on establishing corporate responsibility for death is unsatisfactory
and needs revision and the Government is right that it is not
straightforward to frame an appropriate offence. However, there
must be some clarity in what behaviour would risk criminal penalty
so that legal advisors to organisations can provide clear guidance
as to what should be done to avoid those organisations causing
death. A lack of clarity could well result in an overly-cautious
approach which could unnecessarily restrict innovation and progress
in developing products and services. Equally, a lack of clarity
could amount to an invitation for speculative claims for compensation
where there had been no negligence in the operation of a public
function but where it could be argued that had the function been
organised or managed differently then an unfortunate death would
have been avoided.
AREAS FOR
CLARIFICATION
1. If it is the case that the Home Office
intends that local authorities should be subject to the provisions
of the Bill then this should be made clear. Local authorities
are declared to be "bodies corporate" by operation of
statute but the definition section in the draft Bill does not
use that wording in respect of the bodies to which the proposed
legislation applies.
2. Secondly, the proposed offence is specified
in terms which do not readily identify what behaviour would be
regarded as criminal. The proposed offence would be committed
if "the way in which the organisation's activities are managed
or organised" causes death (so there has to be a causative
link between the death and the way in which the organisation is
managed or organised, not how it is "conducted"!) which
amounts to a "gross breach" of a relevant duty of care
owed to the deceased: clause 3 suggests that a gross breach would
be conduct which is "far below" what can "reasonably
be expected of the organisation in the circumstances". Will
there be a different standard for "weak" authorities
like Hackney than for "excellent" authorities, like
Kensington and Chelsea?
3. But this is only where the cause of death
is a result of management or organisation by "senior managers".
The definition (clause 2) requires someone to have a "significant
role" in making decisions about management or organisation
or in actually managing the activity. It seems that any managers
may fall within the definition of "senior manager" for
this purpose! It certainly seems that executive councillors could
well be "senior managers" for these purposes as they
may have significant roles in making decisions about how services
are organised or managed.
4. The "Public Authority" exemption.
Local Authorities have a mixed role in that they are often responsible
for establishing both the local public policy and then delivering
that policy (either directly or through commissioning)—in
education, for instance, it could be responsible for local policy
on Outdoor Activity Centres or School Trips Abroad and also could
be the employer of the staff supervising the activity and the
occupier of the premises at which those activities take place.
Should an unfortunate death occur, it might be far from clear
cut as to whether causation stems from a policy decision as to
what, say, safety precautions ought to be in place or, in the
alternative, that the death arose from the manner in which the
delivery of that policy was organised.
The Association of Council Secretaries and Solicitors
is the professional body for the most senior advisors to local
government in England and Wales on matters of corporate governance,
law and propriety. Its members will be those who are advising
local councillors and appointed managers how best to deal with
the risk of a charge of corporate manslaughter. Uncertainty in
legislation will lead to cautious advice and a dampening effect
on innovation and enterprise in the delivery of public services.
The Association would urge that further thought is given to clarifying
the proposed offence.
2 June 2005
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