1.  We represent the interests of some 1,400 contracting companies and firms within the heating, ventilating, air conditioning and refrigeration contracting industry in the United Kingdom. Our members are involved in the provision of these services to the industrial, commercial and public sectors. A proportion of members provide domestic heating and ventilation (including gas installation) services directly to the private consumer.

  2.  The opportunity to respond to the consultation paper on the draft Bill is greatly welcomed. We have considered the paper very carefully bearing in mind that its proposals, if taken forward, may touch and concern the activities of our members.

  3.  On safety, and other matters, the Association has close working relationships with other trade bodies in the building services sector, including the Electrical Contractors' Association with whom we undertake joint initiatives on safety matters. We are also members of the Specialist Engineering Contractors' Group and the Confederation of British Industry. We support the submissions that they—and our other fellow industry trade associations—have made to the Home Office on this matter.

THE NEED FOR REFORM

  4.  The Association welcomes the proposed legislation. We feel that the new draft Bill is a significant improvement to the Home Office's previously published proposals. It provides clarity on the law relating to the common law offence of gross manslaughter which, at best, has been opaque to the public, the Courts, enforcing authorities and businesses.

  5.  We therefore agree with the Government's view that reform is necessary and, so far as the construction industry is concerned, we feel that the new measures contained in the Bill will reinforce many of the safety initiatives currently underway.

  6.  We believe that an offence of corporate manslaughter should be related to a major or continual and systematic failure to assess and control risks to safety, rather than a temporary gap in an established management system. Businesses that already engage effectively with the requirements of UK safety law will not be unfairly prejudiced by the proposed offence in the event of a death linked to their activities.

  7.  As a trade association representing a wide range of organisations in the construction industry we believe recent years have seen substantial improvements to the safety record within our sector. This has been enhanced by the introduction of inspection and assessment requirements, such as our own, which seek to verify the technical competence (including health and safety systems) of all members. Such arrangements can only be strengthened by the framework of proper corporate responsibility and accountability as proposed by the Home Office.

  8.  We acknowledge, however, that difficulties remain with a small, but potent "rogue trader" element, that continues to flaunt current safety procedures. The additional statutory framework will be welcomed by all legitimate trading concerns in the industry as a further measure towards the re-education of those operating on its fringes.

THE OFFENCE

  9.  We recognise the difficulties that the courts experience over the application of the "identification principle", and we believe that the proposal to introduce a new test related to "management failure" is the correct approach. We feel that the introduction of the test will encourage all businesses (even those where safety is accorded a low priority) to focus on the need for senior management to ensure that there is an endemic culture and practice of safety throughout their organisations.

  10.  We believe that the scope of the definition is correct. The consultation document identifies that there may be concerns about the relationship between the proposed new offence and existing health and safety legislation. It seems sensible to us that the new offence should be firmly based on the current offence of manslaughter by gross negligence.

  11.  We welcome and support the proposal that the draft Bill is aimed at corporations and not individuals. We agree therefore with there should be no offence of "aiding and abetting".

Management failure by senior managers

  12.  We agree that there is a need to link accountability of the company with the actions or failures of "senior management" within the organisation. However, the UK construction industry is extremely diverse and it is not always easy to identify those whose roles at any particular time will bring them within the ambit of the definition of "senior manager"; this is particularly the case with SMEs. We would urge that upon enactment the Home Office issues appropriate guidance on this matter.

Gross breach and statutory criteria

  13.  Section 3 of the draft Bill seems to us to be unclear. Subsection (2) in particular will give rise to considerable difficulty in determining what factors need to be taken into account by juries when reaching their verdict. The phrase "whether or not" seems to us to be particularly open to wide interpretation. It is also not clear whether a jury must take into account all or only some of the factors relative to the senior manager's knowledge, or imputed knowledge, of the failure to comply. It is unclear whether an objective or subjective test is to be applied in such cases.

APPLICATION

Corporations, Unincorporated Bodies and Individuals

  14.  We support the proposal that the new offence will apply to all corporate bodies. The difficulties of identifying the legal personality of unincorporated bodies are acknowledged, and we feel that the Home Office has adopted a sensible approach to this matter.

The Crown

  15.  The difficulties over the scope of the offence relative to the Crown are also acknowledged although we should prefer a more consistent approach to both the public and private sectors. Inevitably, there will always be conflicting views over where to draw the line; however, it seems to us that Crown Immunity should not provide a technical loophole that can be used to avoid liability in circumstances where other organisations would be found culpable. We support the view taken by the Confederation of British Industry that the draft law has gone too far in this respect and that it should be limited to matters of national security.

OTHER ISSUES

Causation

  16.  We support the Home Office conclusions that the ordinary rules of causation should apply.

Sanctions

  17.  We have some concern about the proposals in relation to sanctions. We agree that the courts should have the power to impose a financial penalty on companies found guilty of the offence; allowing the power to impose unlimited fines in the most serious of cases is also sensible, and is consistent with other safety legislation. However, we feel that there may be a lack of clarity over the issues surrounding remedial powers. We believe that the Health and Safety Executive is best placed to make such orders and that the courts may duplicate this role or impose inappropriate penalties.

Extent

  18.  Although there are practical limits to the scope of the Bill, the international nature of employment should also be actively considered. This is a growing issue for the construction service industries industry, with the many foreign-based contractors now working in the UK. Joint ventures (sometimes with no direct employees) or other arrangements are set up in organisations that are not UK-based. In addition to developing this Bill, we believe that the Government should work within the European Commission to ensure that foreign-based companies can also be properly held to account.

Investigation and prosecution

  19.  While we accept the general tenor of the proposals for the enforcement provisions we feel that in practice there is scope for confusion over the roles of the various enforcing agencies, particularly in relation to the investigation of an alleged offence. While this may not be a matter for Parliament we have some sympathy with the views of earlier respondents and hope that the proposals to involve the Director of Public Prosecutions will be sufficient to avoid the inevitable "fuzzy edges" of agency jurisdictions.

REGULATORY IMPACT

  20.  Since our sector has a strong commitment to maintain continual improvement of its good safety record; we believe that there will be little financial impact to the industry where employers are already engaged effectively with the requirements of health and safety legislation.

17 June 2005