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Since
1978, the Health and Safety Commission's position
has been that crown immunity should be removed. It
stated that:
"Crown
bodies have the same obligations under the HSW Act
as other employers but, unlike other employers,
they can neither be issue with statutory improvement
or prohibition notices, nor be prosecuted …
The Chairman of the Commission has frequently drawn
attention to our view that it is not right that
Crown employers should be in a privileged position.
From evidence given to us by the [Health and Safety]
Executive we have concluded that the attitude of
Crown employers to health and safety is in general
no better and no worse than other employers and
the same provisions relating to enforcement seem
to be necessary if the legislation is to be effective
in Crown establishment."
More
recently the Government has confirmed that it would
like to remove crown immunity. In the Strategy document,
published by the Department of Transport and the Environment
and the HSC in 2000, it was stated at action point
15 that:
The Government will seek a legislative opportunity,
when Parliamentary time allows, to remove Crown
immunity from statutory health and safety enforcement.
Until immunity is removed, the relevant Minister
will be advised whenever Crown censures are made.
The
report states that
| 72. |
Crown
bodies have always been exempt from provisions
in health and safety law for prosecutions and
statutory prohibition/improvement notices. The
Health and Safety Executive currently enforces
health and safety in Crown bodies by means of
non-statutory improvement and prohibition notices.
When, but for Crown immunity, the Health and Safety
Executive would have prosecuted, there are agreed
arrangements for recording a Crown censure against
the Crown body concerned. |
| 73. |
The
Health and Safety Commission will advise Ministers
on the range of options for introducing statutory
health and safety enforcement against Crown bodies.
The Food Safety Act 1990 offers a possible model.
This provides for statutory improvement and prohibition
notices against Crown bodies and, in lieu of prosecution,
the power to seek a High Court (or, in Scotland,
Court of Session) declaration of non-compliance.
In the meantime, the Cabinet Office in consultation
with the Health and Safety Executive is to issue
new guidance to departments and agencies on the
procedures for enforcing health and safety requirements
in Crown bodies. |
However,
it appears that the Government's position is not to
allow for crown bodies to be prosecuted in the same
way as other organisations.
| To
see what else the Government committed itself
to in the 'Revitalising Health and Safety Document",
click here |
The
CCA's View
In
relation to the notion of Crown Immunity, it is the
CCA’s view that:
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There
is no justification for Crown Bodies to be treated
any differently than other organisations. |
| • |
Crown
immunity should be removed and crown bodies should
be treated in exactly the same way as non-Crown
Bodies |
| • |
The
proposal to treat health and safety offences by
Crown bodies in the same way as offences in the
Food Safety Act is not sufficient - since a 'decleration
of non-compliance' is only a ruling in a civil
court and it explicitly states that any declaration
by the civil court would not "make the crown
criminally liable. |
In
relation to Current Procedures, it is the CCA’s
view that Crown Censures should be held in public:
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