32. Memorandum submitted by the Local
Authorities Coordinators of Regulatory Services
INTRODUCTION
1. This document is a coordinated response
from the Local Authorities Coordinators of Regulatory Services
(LACORS), the local government central body charged—on behalf
of the local authority (LA) Associations of Great Britain—to
support and coordinate LA health and safety enforcement. Our response
encompasses comments and views reflecting the diversity of LAs'
interests in England and Wales—health and safety enforcement
officers and managers, senior officers representing the LA Associations,
as well as views from LACORS' secretariat.
2. On behalf of local government, LACORS
welcomes the opportunity to comment on this important Bill. The
Bill should have a significant beneficial impact on companies'
management of health and safety and ultimately on the well-being
of employees and the public more generally, whilst ensuring that
the regulatory burdens on companies is not increased.
COMMENTS ON
THE DRAFT
BILL
3. Overall, local government supports and
welcomes the proposals. The Bill should act as an effective driver
to ensure that companies properly protect the welfare of their
employees and members of the public.
The offence
4. At present, action is sometimes less
likely to be taken by LAs against culpable larger companies, because
of the significant resources they have at their disposal. This
proposal should ensure that there is a level playing field for
both large and small companies, which would be fairer. The new
offence will apply to senior managers whose management responsibilities
bear on the whole organisation or a "substantial" part
of it. A key aspect of ensuring the level playing field will be
to define what is meant by "substantial" and carefully
thought-through guidance will be required. The examples given
in the Home Office's introduction to the draft Bill would seem
to be appropriate. However, there needs to be clarity to ensure
that it is equally easy to bring a prosecution against the very
largest national organisations as it is against smaller organisations
under the new offence.
5. The statutory criteria for assessing
an organisation's culpability under the new offence include whether
senior managers of the organisation: (i) knew, or ought to have
known, that the organisation was failing to comply with relevant
health and safety legislation or guidance; (ii) were aware, or
ought to have been aware of the risk of death or serious harm
posed by the failure to comply; and (iii) sought to cause the
organisation to profit from that failure. Whilst (i) and (ii)
are entirely appropriate criteria, the issue of whether an organisation
sought to profit seems much less appropriate and might preclude
some valid prosecutions from reaching court if too great an emphasis
is placed on this criterion. The implications of including criterion
(iii) need to be thought through carefully and consideration given
to whether it is necessary or appropriate to include it.
Application
6. LACORS welcomes the fact that a servant
or agent of the Crown—such as Government Departments—are
not immune from prosecution under the proposals. Again this is
positive in creating a fair system. There would not seem to be
a reason to exclude executive agencies and other bodies that come
under the scope of Departments although they are not included
in the draft schedule of the Bill. Their inclusion within the
Bill would seem to be appropriate to create a situation of greater
equality in terms of duty of care.
7. The new proposals do not include new
sanctions for individuals. In cases of manslaughter, individuals
that have suffered the loss of a loved one often seek more than
simply financial punishment of an organisation. If justice is
seen to be done, it is necessary for those bereaved to see the
responsible individual or group of individuals held accountable.
Furthermore, it may be difficult to secure a prosecution of a
culpable senior manager under other legislation and, as the new
proposals do not tackle this issue, senior managers responsible
for manslaughter may escape prosecution. Those lower in the organisational
hierarchy may be held responsible in their place because it is
easier to prove a link with those closer to the event and less
easy to prove a link with management decisions that significantly
contributed to the death. The difficulty of proving a "controlling
mind" has been a barrier to bringing prosecutions against
senior managers under existing laws relating to gross negligence
manslaughter. The new proposals do not tackle the issue and therefore
are unlikely to bring satisfactory redress in the eyes of the
bereaved.
Regulatory impact
8. The conclusion of the Regulatory Impact
Assessment (RIA) is that there are no new regulatory burdens or
costs to enforcers. This is positive because it will be easier
for companies to understand and for enforcement officers to gain
compliance. However, it would have been helpful if the RIA had
included consideration of the costs to LAs under the section on
public sector costs as LAs and the Health and Safety Executive
(HSE) are co-enforcers of the Health and Safety at Work Act. This
is appropriate even if the conclusion is that the proposals are
cost neutral for LAs. The protocol for liaison on work-related
deaths that is mentioned in the RIA is between the police, the
Crown Prosecution Service, HSE and local government. The absence
of any mention of LAs under the costs section is puzzling.
9. There is a training implication for LA
officers in dealing with possible cases under the proposed Bill.
Training could be given to LAs in partnership with the HSE, perhaps
with the purpose of creating regional LA specialists who could
assist other LAs in their region where necessary.
10. Though the proposed offence is unlikely
to increase the number of new cases brought by LAs in any significant
way, there will be implications for LA H&S enforcement officers
in terms of liaison work with the police and gathering evidence
for investigations. Currently, a protocol for liaison exists between
the CPS, the police and either the Health and Safety Executive
or LAs (depending on the enforcement sector) for investigating
work-related deaths. As the new offence is linked to existing
health and safety legislation, following a death, the police will
need to consult LAs (if they are the enforcing authority for health
and safety) when health and safety failings are suspected in a
company. Liaison will be crucial and LAs may need to collect more
evidence to support the prosecution. This is perhaps an area that
will need to be addressed through training as discussed above.
11. The work-related deaths protocol may
need to be reviewed in the light of any new legislation.
Other issues
12. Powers for a court to order remedial
action to remedy the gross breach of a relevant duty of care,
or to remedy any matter that has resulted from the breach and
has been a cause of death, is also welcomed.
13. The HSE's current review of the Reporting
of Injuries, Diseases and Dangerous Occurrences Regulations 1995
(RIDDOR) will need to ensure that any recategorisation of injuries
that are required to be reported under the Regulations does not
compromise the collection of any evidence that may need to be
gathered for a corporate manslaughter case. If an accident does
not need to be reported under RIDDOR but subsequently leads to
a death, valuable evidence may be lost because an investigation
may not take place until much later.
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