87. Memorandum submitted by the Institute
of Electrical Engineers
The Institute of Electrical Engineers (IEE)
is made up of 120,000 members, covering a broad range of engineering
disciplines and representing a wide range of technical and business
expertise. It is expected that the majority of the membership
will be affected either directly or indirectly by this legislation.
Many of the most experienced members of the
IEE, and their sector peers, voluntarily participate in a variety
of IEE policy guidance groups. The IEE has formulated this submission
by combining contributions from the membership with the independent
expertise of the IEE's Health and Safety Policy Advisory Group.
The IEE broadly welcomes the draft bill. The
current version is a satisfactory outcome, which takes account
of many of the serious difficulties raised by earlier attempts
to address the issue. The IEE's concerns now only relate to an
important aspect of interpretation. In particular, the IEE believes
that the legislation to create an offence of Corporate Manslaughter
for cases where organisations are grossly in breach of their duty
of care should be supported, so long as clarification is given
on the way that a gross breach is to be interpreted in the context
of real working situations. This will determine whether fair and
transparent legislation can result from the current proposals.
The application to corporate bodies, rather
than individual directors, the absence of general crown immunity
and the definition of the context in which the offence would apply
in the public sector, together with the proposal that the penalty
on conviction could be an unlimited fine, are all broadly supported
by the IEE.
The IEE would like to raise the following concern
regarding the draft bill. This relates to the statutory criteria
against which conduct would be assessed. The draft Bill properly
includes such issues as the extent to which relevant health and
safety legislation has been breached, whether senior managers
were aware of the risks being run by the organisation and whether
profit had been sought. These are all proper and supportable criteria,
however we believe that interpretation in actual situations would
be extremely difficult unless further and clearer guidance is
provided. To illustrate this, consider two hypothetical situations:
I. An organisation fails to implement systematic
processes to minimise the risk of death from industrial accidents
to its workforce. Senior managers are aware that practices leading
to substantial risk are being pursued and do nothing to minimise
such risks. In our view, it would be entirely appropriate for
a charge of Corporate Manslaughter be brought against the company
should a fatality occur. However, in practice, such situations
are very rarely black or white.
II. At the other extreme we can easily envisage
a scenario in which an organisation has put in place good policies
and processes for minimising the risk of accidents and carries
out assessments and audits to scrutinise their effectiveness.
In real situations, the results of such scrutiny will inevitably
find flaws or areas for significant improvement. Indeed such learning
is strongly to be encouraged and is one of the basic requirements
for a good safety culture. However, in the real world, managers
are confronted day-to-day with the need to make decisions about
priorities and resource commitments. There is a therefore a significant
risk that post-hoc analysis of a situation leading to a fatal
accident, will be able to establish failures to take action about
which it will be much easier to establish blame with the benefit
of hindsight. The key question may then be whether the decision
maker at the time was attempting to behave responsibly, even if
subsequent events suggest that a judgement made in good faith
was, in fact, flawed.
In our view unless issues of this sort are foreseen
and guidance given at this stage, situations may arise which would
not only be potentially unjust, but could seriously limit learning
and reporting and thus actually leads to a degradation in safety.
An added regrettable consequence of a failure to provide clear
guidance on issues of this sort is that, in practice, organisations
may seek to ensure that senior managers are not in receipt of
"guilty knowledge", which may later be construed as
a gross breach of their duty of care and this would, again, not
work in the interests of improving safety.
In summary, the IEE broadly supports the proposals
but remain concerned that application in the courts may lead to
prosecution of organisations and further distress to otherwise
conscientious managers which is not based on a fair consideration
of the context in which decisions were actually taken, but from
analysis based on the benefits of hindsight. We suggest that further
discussion and guidance on these issues is sought before the act
comes into effect.
13 June 2005
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