The Rail Safety and Standards Board (RSSB) welcomes the opportunity to contribute to the development of the Corporate Manslaughter Bill. The company's prime objective is to lead and facilitate the railway industry's work to achieve continuous improvement in the health and safety performance of the railways in Great Britain, and thus to facilitate the reduction of risk to passengers, employees and the affected public. Consequently we take a close interest in anything which will have an influence over the way in which health and safety issues are managed and the way in which legislation, and other external factors, might affect this.

  Effective safety management is based on the principle that prevention is better than cure and we feel instinctively uneasy about legislation that is entirely focussed on obtaining revenge after the event, rather than encouraging best practice and responsible stewardship within organisations. Furthermore, this bill contains nothing fundamental that is additional to what is already in the Health and Safety at Work etc Act 1974. Nevertheless, we recognise the demand from many stakeholders for a high profile offence for the very worst cases of safety management systems failure.

  We are pleased that the Government has not included individual criminal liability in this bill, although we note that it will still be possible to bring charges against individuals under existing legislation. We see the question of sanctions against individuals as a fundamentally different issue from corporate manslaughter, and it is therefore rightly omitted from this bill. We suspect that there will be strident demands for the bill to make individual directors criminally liable, and we very much hope that these will be resisted. Such an approach would dilute the principle of corporate responsibility, foster a blame culture and the search for scapegoats, and discourage individuals from taking senior posts within companies.

  We do, however, have concerns that the new legislation has the potential to encourage excessively risk-averse behaviour, where there is no proper analysis of risk leading to the adoption of an ALARP position, but rather activities that are perceived to entail any risk are simply abandoned. It might reasonably be argued that there is nothing in this bill that should have such an effect, given that there is no proposal to change existing safety standards. Nevertheless, the perception may be different and it is not hard to envisage this legislation being quoted in the future as a reason for cancelling many types of activity; the reported reluctance of schools to arrange educational trips is one high-profile example. This is something that legislators and the Home Office need to be conscious of and we would suggest that a carefully targeted programme of stakeholder education would be appropriate following enactment. Risk-averse behaviour does not add to, and may even detract from, overall safety. In the railway context risk-aversion leads to escalating costs, which could ultimately force passengers to use alternative, but less safe, modes of transport.

  We see the major benefit of this bill as bringing a degree of clarity to this area of legislation that has hitherto been absent—a point demonstrated by the number of prosecutions that have failed and the near impossibility of identifying a "directing mind" in a large organisation. This should make the legal process swifter. Nevertheless, it may be that, in practice, the bill will pose more questions than it answers. We set out below some of the significant problem areas that we envisage. This is not to say that there are easy solutions or that the draft bill in its current form is necessarily wrong, but we should not make the mistake of believing that this bill, assuming it becomes law in its present form, will settle all the issues permanently.

SENIOR MANAGERS

  The concept of a "senior manager" is key to this bill. We understand that this term is not used anywhere else in UK law and no doubt the meaning will become clearer as case law develops. As the consultation document reasonably points out, "senior manager" will have a different meaning in different organisations depending on their size and scope—as, indeed, the term does in everyday usage. We have tried to envisage what this might mean in the railway context. The railway industry consists of a large number of organisations that range in size from those operating throughout Great Britain and having thousands of employees, to small contracting companies with, perhaps, substantially fewer than 100 employees.

  To illustrate the effects of this, consider an accident in which gross negligence was alleged on the part of both a large company and a smaller company working together in the same environment (a situation that could potentially arise in the railway industry). We suggest that it would be easier to secure a conviction against the smaller company because its "senior managers" (as defined in the bill) would be closer to the decision-making that led to the accident. Or, put in a different way, the larger company would be able to defend itself, on the grounds that the decision makers involved were only in junior positions, in a way that the smaller company could not. We wonder whether justice would be seen to be done in such a scenario.

  In any case, the definition of "senior manager" in the bill poses a problem. The intention, we understand, is that the term "substantial" in clause 2 should be applied to a company as a whole, but we wonder whether juries might take this to mean a person with managerial responsibility for a substantial operation, even though this may only be a relatively small part of the company's total undertaking. The effect of this might be to bring relatively junior management into the scope of the bill. Neither the terms "substantial" nor "significant" are defined, and whilst the consultation document explains what they are intended to mean, this is not carried forward into the legislation. Therefore these terms, whose natural meaning and scope is broader than the Government's intended meaning, will be open to interpretation in the courts quite possibly to the advantage of the prosecution. We therefore suggest that it would be appropriate to reconsider the wording of this clause.

GROSS BREACH

  Unlike the term "senior manager", the language used here is more familiar and we are more comfortable with the concept. Nevertheless, we have concerns over how clause 3(4) might be interpreted. We do not doubt that prosecutors, in an effort to obtain a conviction, would want to present evidence to show that the defendants had failed to comply with all sorts of recommendations and suggestions that might have prevented the accident.

  The railway industry is subject to something of a barrage of legislation, guidance, recommendations and suggestions. We have no difficulty with a jury being asked to consider whether the evidence shows that the organisation failed to comply with relevant health and safety legislation or guidance (clause 3(2)), as qualified in clause 3(3). However, we would be unhappy about the principle of juries considering "any other matters" especially if this included recommendations from inquiries and other material submitted to the industry by third parties.

  To put this into context, following major accidents a duty holder can expect to receive a large number of suggestions from the public as to how to improve railway safety. Many of these could be described as fanciful. Yet we wonder if some of these ideas might be unearthed at some future trial, following a death in similar circumstances, in an attempt to prove a gross breach of the duty of care.

REMEDIAL ORDERS

  Our third area of significant concern is around the issue of a remedial order by a judge (clause 6). We do not support the proposal and suggest that the powers to require reasonably practicable improvements are already vested in the safety regulator and appropriately covered by statute. Where the state wishes to impose particular requirements that go beyond the test as to that which is reasonably practicable, the state should bring forward Regulations. This approach was adopted in respect of the requirement to fit the Train Protection and Warning System (TPWS) and to eliminate Mark One rolling stock by a defined date. This approach enables the deployment of relevant professional expertise that we do not see as being available to a judge.

  The risk to an industry such as the railway is significant. Judges do not have specialist safety knowledge, they are not engineers and it is unlikely that they have much practical knowledge of the railway. It is quite conceivable that a judge could make an order that is wholly inappropriate and totally incompatible with the principles of ALARP. Such a measure must only be taken following detailed research into the consequences and an assessment of the practicability; this is a matter for the safety regulator taking account of industry and other inputs. Yet, in the emotionally charged atmosphere following a major accident and a consequent high profile trial, it is not hard to envisage a judge, making such an order as a consequence of establishing a "gross breach".

  Even after a public inquiry, set up with the specific purpose of making recommendations, some of the recommendations are properly likely to be rejected, after careful consideration by the industry and its safety regulator, on the grounds of reasonable practicability or because technology has moved on. This is possible because inquiry recommendations are not, and should not, become legally binding. The situation would be wholly different in the case of a remedial order made at a corporate manslaughter trial, which could presumably only be challenged through the appeal courts, where the same problem would apply. Accordingly, we strongly recommend that you do not continue to develop your thinking in this area.

REGULATORY IMPACT ASSESSMENT

  We note that the regulatory impact assessment states that the proposals are expected to lead to five additional prosecutions per year (paragraph 31). We think that this is about the right figure given the high threshold at which this offence is intended to operate.

  However, we are concerned that there may well be enormous pressure to charge companies with corporate manslaughter every time a work-related death occurs, whatever the circumstances, rather than use existing health and safety legislation (or take no action at all if the test of reasonable practicability has not been satisfied). We would hope that the Crown Prosecution Service will be sufficiently robust to resist these pressures—not least because the legislation will quickly lose credibility if there is a string of failed prosecutions.

CONCLUSION

  In this response, we have tried to draw attention to the pitfalls we envisage, and we hope the Government will see this as a constructive contribution to the consultation process. We recognise that this has not been an easy bill to draft and that it is impossible to envisage every situation that might arise in the future, whilst not losing sight of the overall intent of the proposed legislation. Nevertheless, we think it is in the interests of all concerned that the greatest possible care is taken at this stage of the process to get it right.