85. Memorandum submitted by the County
Surveyor's Society
The County Surveyor's Society represents local
authority chief officers with responsibility for Strategic Planning,
Transportation, the Environment, Waste Management and Economic
Development. Whilst this response deals primarily with the impact
of the Bill on our highways and transportation work, it is relevant
to all of our activities.
The consultation document places considerable
emphasis on existing Health and Safety law in respect of Corporate
Manslaughter of employees. The area relating to Corporate Manslaughter
of the public has less emphasis. However, it is the impact of
the Bill on Corporate Manslaughter of the public that has the
greatest potential impact on our members.
The consultation document gives two examples
of prosecutions under existing law and indicates that the Bill
is designed to make prosecution easier in cases such as these.
Both these cases (Herald of Free Enterprise and Southall) involve
transport but both are forms of transport used by a relatively
small number of people and a particularly small minority in the
case of ferry transport. On the contrary, local roads and footways
transport services provided by our members are used by virtually
the entire population on almost every day of their lives.
The dangers posed to members of the public from
use of local roads and footways relate, in the main, to standards
of maintenance where there is an acknowledged backlog of funding
for local roads and footways. However, there can also be significant
issues with regard to network improvements and the management
of the highway network generally, where risk have been identified
but implementation has had to be prioritised due to limited funding.
The Government has set a target to halt the
decline in condition of local roads by 2004. Whilst there is evidence
that the decline may have indeed been halted, local roads remain
in very poor condition and non built-up unclassified roads have
continued to decline significantly in condition. Footways have
continued to decline in condition although the number of trips
has been reduced.
The reasons for the poor condition of local
roads and footways are the limitations in funding provided for
highway maintenance both by central government and locally. The
construction industry has long been used by central government
as a tool for economic adjustment and it is a regrettable fact
that the highway maintenance budget is often seen as the only
one available for local authorities to cut when there is pressure
in other service areas, such as social services and education.
The result of these pressures has been a long history of local
roads and footways receiving less investment than necessary. Indeed,
the latest National Road Maintenance Condition Survey demonstrates
that the level of defects in 2004 was considerably higher than
it was 20 years earlier in 1984. (NRMCS 2004, Fig 3.1)
You will appreciate that the combination of
a service used constantly by almost all members of the population
and a history of under funding leaves our members in a position
where the possibility of Corporate Manslaughter proceedings relating
to highway maintenance and network management generally is a major
concern. It is from this background of major concern that our
comments on the Bill are made.
We welcome the principle that decisions involving
matters of public policy are outside the scope of the new offence
since this provides some degree of safeguard against the dangers
posed by inadequate provision of funding for areas such as highway
maintenance. We consider that this principle should also be extended
to individuals such as our members since their ability to act
is constrained in exactly the same manner.
We note that the heart of the new offence lies
in the requirement for a management failure on the part of senior
managers. Given the Cabinet style of administration now adopted
by most local authorities we believe that this would inevitably
also involve local authority cabinet members with executive responsibility
for these particular areas of service. They would consequently
fall within the definition of senior managers of local authorities
as identified in this Bill. Such cabinet members do, we feel,
fall within the definition proposed in paragraph 29 of the consultation
document.
The proposed definition of gross breach relies
very heavily on health and safety legislation or guidance. Such
legislation or guidance is only of limited value in considering
Corporate Manslaughter of the public, which is the primary concern
of our members. We consider that it would be most helpful if paragraph
3 of the Bill could be widened to provide indications of what
would constitute a gross breach beyond the confines of health
and safety legislation.
We consider that a weakness of the Bill is that
it does not apply to the Police. We believe that the Police should
be covered by the Bill as it is readily possible to conceive of
circumstances where their actions (or inactions) with regard to
speed enforcement for example could lead to Corporate Manslaughter.
Of particular concern is the fact that Police investigations often
reveal information which, if shared widely, could be of benefit
in avoiding similar incidents occurring elsewhere. Provision of
such information by the Police falls properly into their primary
role of preventing crime. However, we are unaware of any systems
for the proactive dissemination of such information by the Police
in a timely manner.
The proposed sanction of an unlimited fine for
Corporate Manslaughter is of concern to us. As outlined above,
any local authority convicted of corporate manslaughter and fined
may well take that fine out of the highway maintenance budget
irrespective of whether the offence took place within the highway
service or elsewhere. Whilst the money would be recycled into
the Treasury, recent history reveals that there is scant chance
of it re-emerging into highway maintenance funds! A better sanction
might be for intervention by government in the management of the
authority or government department in a similar manner to that
undertaken by the Audit Commission in the case of local authorities
it deems to be failing.
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