In response to the consultation document on Corporate Manslaughter and our recent meeting at the Home Office we would make the following comments:

  We welcome and support the principle of the draft Bill being aimed at corporations and not individuals; we believe that existing health and safety laws already adequately address the responsibilities for Directors and individuals within businesses.

  We also welcome the intention that cases only be brought by the Crown Prosecution Service with the consent of the Director of Public Prosecutions as this should ensure that inappropriate cases are not brought under the legislation.

  We do understand the perceived need in society to provide effective legal sanctions to deal with serious management failures in corporations that constitute gross negligence and cause death; but care should be taken to ensure that the bill does not result in burdens that stifle business development and forces businesses to be more risk averse. We agree with the principle that organisations who take their hEalth and safety obligations seriously ought to have nothing to fear.

  In this respect, we welcome the Home Office assurances that the legislation is intended simply to complement the existing extensive protection provided by the Health & Safety at Work Act and other legislation and as such would only be used in relation to a gross breach of duty; and in such circumstances should only be used in exceptional cases on a small number of occasions. This being the case, it is extremely important to ensure that this sentiment is effectively transposed into law.

  In the main the retail sector is a relatively safe environment and one in which retailers take their responsibilities under the Health & Safety at Work Act extremely seriously. However, we do have real concerns that the need to respond to public pressure will undoubtedly lead enforcement agencies to take more cases under the legislation even when there are adequate powers and penalties (unlimited fines) under existing legislation. Even where cases do not proceed to prosecution, the publicity and uncertainty associated with such investigations can seriously harm business reputations. It is against this backdrop that retailers are keen to ensure that any new legislation is framed in a way that does not create an increased burden for business.

  In relation to the specific wording of the draft Bill we would make the following comments:

1.  GROSS BREACH

  It is important that legislation is restricted to a gross breach and in this respect, the wording of "conduct falling far below what can reasonably be expected of the organisation in these circumstances" is a good starting point. We believe that this could be clarified further by describing the failure as "grossly negligent, disregarding foreseeable risks and constituting a continuing and systematic failure".

  Whilst Clause 3 (2) is intended to provide guidance for the jury, we have concerns that it would be simply used as a checklist and is likely to bring more incidents in scope than is intended. We would therefore urge caution against this approach.

  We are extremely uncomfortable with linking the definition to "guidance" as this could be widely misconstrued. In our experience local authorities regularly issue informal guidance eg in the form of a letter, which may be inappropriate or not relevant to the business in question. It is conceivable that a tragic fatality may subsequently arise, which in reality may have little to do with the failure to follow this specific guidance, or the business may have applied other equally effective measures of controls to address the risk, and yet the guidance could be taken out of context. This would force businesses to have greater regard to every piece of informal guidance, irrespective of risk and the relevance.

  In addition, we do not think that it is appropriate to specifically direct the jury to consider "profit from that failure". This judgement may be inappropriately applied to broader commercial activity and business profitability, even where the breach was not directly related to any corner cutting on cost grounds.

2.  DUE DILIGENCE DEFENCE

  Over a whole range of legislation, due diligence has proved to be a powerful incentive and driver for organisations to change behaviours and proactively manage risk better and, in doing so, genuinely improve compliance and standards.

  We would ask the Home Office to reconsider the scope for introducing a defence of due diligence in the legislation for an organisation where it can show that it has taken all reasonable steps to avoid the contravention in question. The legal formula on this is well tried and tested in the courts over many years and surrounded by a cohesive body of decided cases. We appreciate that if this defence were feasible, a prosecution under the new legislation could not be undertaken, as the concept of due diligence is not compatible with gross breach. Perhaps there might be scope for including due diligence as a test, which if passed could imply that an offence of gross breach of duty of care could not be proven and therefore would not be pursued.

  Above all business requires certainty in its operations—hence its preference for the due diligence defence.

3.  SENIOR MANAGER

  We agree that it is important to focus on the way that a business manages/organises its health and safety responsibilities when assessing liability for death associated with work activities. However, we have concerns that the definition of a Senior Manager is too wide in that it includes not only those people who make the decisions but also encompasses those who manage those activities.

  A corporation should not be exposed to this charge where they have properly organised their policies and systems to comply and yet there has been a failure to effectively carry out those company policies, albeit by a "senior manager" who manages or organises a substantial part of those activities.

  The corporation's culpability may be properly assessed by the adequacy of its systems to identify the significant non-compliance, and this is fair, but to be liable simply as a consequence of the action of an individual in the first instance, should not constitute a gross failure by the organisation. The systemic failure should only arise in these circumstances where the company either knowingly allowed such behaviours to continue or had completely inadequate systems to identify the problem, which would bring the management responsibility back to a level based on a definition suggested below.

  This cannot be right and it is important that the focus should be on the decision making process and it would be better if the definition was based on "director, secretary of person appearing to act in such a capacity", as this would provide a formulation that is already well established in other areas of law. In any case, the definition of a senior manager will vary dramatically in different organisations and the use of such a description does not provide clarity for business.

4.  REMEDIAL ORDERS

  In relation to remedial orders, it would be helpful if the legislation clarified whether a remedial Order could be suspended pending the outcome of an appeal. We do not believe that the Criminal Court is the best place to impose standards of safety in the industry or to regulate the management of safety. This is the role of the HSE and we believe that the existing powers that enforcement authorities have are already adequate to deal with any remediation that is considered appropriate.

5.  APPLICATION TO OTHER BODIES

  We are pleased that the draft Bill does not seem to take advantage of Crown immunity, with some notable exceptions, such as the armed forces, which are perfectly justifiable. However, we have concerns that agencies such as the Food Standards Agency and HSE, which do make significant decisions which impact on safety, are considered to be outside the scope of the legislation. This matter should be reconsidered. At the very least, retailers that follow advice given by these agencies should be able to use this as a defence, or as evidence that there is no gross breach.

6.  UNINCORPORATED BODIES

  We remain of the view that the offence should still apply to unincorporated bodies and partnerships, particularly as these companies may be competing in similar markets to larger corporate bodies.

16 June 2005