INTRODUCTION

  The Royal Borough of Kensington and Chelsea takes health and safety issues seriously. It understands the Government's desire to ensure there is accountability for accidents when they occur. The present difficulty in proving the "directing mind" of a company in order to secure a conviction of manslaughter is well known. However, the Royal Borough strongly objects to the inclusion of local authorities in the proposed legislation. Local authorities do take health and safety issues seriously.

  Risk assessments are carried out regularly with relevant procedures put in place to address any concerns.

  The Council would comment on the proposals as follows:

THE OFFENCE

  The Government is proposing to shift responsibility for alleged breaches of health and safety from the organisation to senior managers. The notion that it is human failings rather than "bricks and mortar" which causes accidents is clearly understood. However, the difficulty which the proposed responsibility will create is identifying which manager and at what level responsibility lies. Would it, for example, extend to the Councillors who make policy decisions? If it does it will cause unease for Councillors if they are drawn into the consequences of the Act.

  It seems to us the organisation itself must be held responsible.

  We agree with the proposal that in order for liability to ensue, there must be a duty of care owed to the victim.

THE SCOPE OF THE OFFENCE

  The Council welcomes the Government's approach that in the case of public bodies like local authorities, an offence will only be deemed to have been committed where there is a duty of care owed:

—  as employer or occupier of land

—  when supplying goods or services or when engaged in other commercial activities.

  The proposal therefore to exclude from the Bill matters of public policy which result in death is sound.

MANAGEMENT FAILURE BY SENIOR MANAGERS

  It is agreed that working practices should be the main focus of the offence. However, it is difficult to understand how "immediate, operational negligence (our underline) causing death . . ." can be excluded. Any negligence which results in breach of the Act should be actionable.

  We are not convinced that making the organisation's senior management responsible for any offence committed will necessarily secure a conviction. It is likely that any alleged failures by junior staff will in practice be caught by the act with the senior manager being held liable. In such a situation senior managers may seek to defend their position using the "due diligence" principles and argue that a junior manager failed to follow approved practices.

  Furthermore the emphasis on procedure is regrettable, as this will stifle innovation. It should be a defence in the proposed legislation to say that we had established evidence that a particular way of working was safe in practice even if it was not standard procedure. An example could be a design which did not comply with Government guidelines on streetscape design.

GROSS BREACH AND STATUTORY CRITERIA

  The intention to reserve the "offence" for cases of gross negligence is welcomed. However, the legislation would need to be very clear about excluding from the Act, those cases where genuine efforts are made to operate in a safe or responsible way but where appropriate standards are not quite met.

APPLICATION

  It is agreed that the proposed Act should apply to companies so that profit is not put before health and safety on their list of priorities.

CAUSATION

  It is right that corporate liability should not arise if the intervention by an individual was significant which caused the death.

CONCLUSIONS

  We would reiterate our concerns that the legislation should not extend to local authorities as the existing health and safety legislations are adequate.

  Such an Act would have a negative impact on innovation in local authorities for fear of prosecution if an accident should occur. Furthermore such an Act would cause recruitment difficulties when seeking to attract both Councillors and staff to local government.