|
Crown
Bodies and Health and Safety Law
| New
on this page (17 April 2003):
The Public Accounts Committee has said that it
is "unacceptable the [Royal] Mint should
hide behind Crown immunity'. To read about this
Click Here. |
| E-mail
us
if you want to know when we put
new material on website |
The
application of health and safety law to Crown Bodies
is set out in a note issued by the Cabinet office
in June 2001.
You can download the Cabinet office document itself
by clicking here
(Word Doc)
If
you want to read about Crown Immunity and Manslaughter,
click
here
If
you want to see a recent press release issued by the
CCA on the HSE and Crown Immunity, Click
Here
The
situation on Crown Bodies is summarised in detail
below.
What
is a Crown Body
Application of health and safety
law to Crown Bodies
What
the Cabinet office Procedures say
HSE
Guidance to its Inspectors
The government position on Crown Immunity
What the HSC said about Crown immunity
in 1978
The CCA view on Crown Immunity
and the Cabinet Office Procedures
What
is a Crown Body
There is no clear definition of what is a Crown
body. The enabling statute of an organisation will
often state whether or not a particular organisation
should be treated as acting on behalf of the Crown.
For instance the Radiological Protection Act 1970
provides that, with certain exceptions, that the Protection
Board created by the Act "shall not be taken
to be a servant or agent of the Crown of the enjoy
and status or immunity of the Crown", and the
National Health Service and Community Care Act 1990
states that "no health service body shall be
regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the
Crown". In contrast, however, the Building Societies
Act 1986 states that the Building Societies Commission
performs it functions "on behalf of the Crown."
The general trend is for enabling statutes to state
that the new organisation is not a crown body.
In
relation to other public bodies - where the legislation
does not clarify whether or not the organisation is
or is not an agent of the Crown - a recent Home Office
document states that:
"The
question of whether an organisation can claim crown
immunity depends upon the degree of control which
the Crown through its ministers, can exercise over
in in the performance of its duties. The fact that
a Minister of the Crown appoints the members of
such a body, is entitled to require them to give
him information and is entitled to give them direction
of a general nature does not make the corporation
his agent. The inference that a corporation acts
on behalf of the Crown will be more readily drawn
where its functions are not commercial but are connected
with matters, such as the defence of the realm,
which are essentially the province of Government.
There
is no doubt that Government Departments are Crown
bodies. The prison service - since it is also a department
within the Home Office - is also a crown body. Police
forces are however not crown bodies.
To
find out what organisations the Government considers
to be Crown Bodies, click
here
Back
to the Top
Application
of health and safety law to Crown Bodies
As the law stands a crown body is not bound by
the provisions of a statute - which would include
those provisions creating criminal offences - unless
the statute in question itself explicitly (or by 'necessary
implication') states otherwise.
The
Health and Safety at Work Act 1974 does state explicitly
that the sections of the Act that placed duties upon
employers etc. "bind the crown" in the same
way as other organisations but that those sections
of the Act that allow for notices to be imposed or
for employers to be prosecuted, do not bind the Crown.
So Crown Bodies can not be prosecuted for offences
under the Health and Safety law, though they are under
a duty to abide by the law. Again individual ministers/civil
servants can be prosecuted as individuals for health
and safety offences.
Back
to the Top
What
the Cabinet office Procedures say
According
to the HSE. "following extensive consultation
with HSE, Crown employers and the Council of Civil
Service Unions, the Cabinet Office issued a Personnel
Information Note setting out an agreed procedure on
13 June 2001"
Introduction
The Cabinet Office procedures first summarise
the legal situation
| Para.
4 |
Crown
bodies must comply with the requirements of the
HSW Act and relevant statutory provisions. They
are, however, excluded from the provisions for
statutory enforcement, including prosecution and
penalties. Effective administrative Crown enforcement
procedures are therefore vital to maintaining
employee and public confidence in the health and
safety regulation of Crown bodies. |
| Para.
6 |
HSE
makes decisions on the inspection of Crown bodies,
and any enforcement action, using the same criteria
as for non-Crown employers. HSE inspectors seek
to ensure that the law is complied with and that
Crown employers meet the standards of good practice
found elsewhere. HSE inspectors act in accordance
with the Health and Safety Commission (HSC) Enforcement
Policy Statement (Annex A). That means, for example,
that inspection and enforcement is targeted on
activities which give rise to the most serious
risks, or where hazards are least well controlled. |
Back
to the Top
Crown
Enforcement Notices
The procedures then discuss the use the Crown Enforcement
Notices. These do not impose legal obligations unlike
normal enforcement notices – but they in effect
mimic them
| Para.
9 |
Formal
action against Crown bodies by HSE inspectors
may include issuing Crown improvement and prohibition
notices. Although such notices are non-statutory,
the procedures involved are very similar to those
for statutory notices. |
| Para.
13 |
The
instructions to HSE inspectors require them to
give the same priority to a health and safety
problem found in a Crown body as they would to
one found in a private sector organisation. Allowances
of time to do remedial work in a Crown body will
be no more generous than they would be for a private
employer and the same sense of urgency will be
expected in making improvements which are required. |
Back
to the Top
Crown
Censures
A procedure has been established that is supposed
to deal with those situations where a Crown body would
in ordinary circumstances have been prosecuted. It
is called a Crown Censure. It has the following characteristics
• It is not a trial.
• No witnesses are called.
• Members of the public can not attend them.
• It is not chaired by a judge but a Senior HSE
inspector.
• The aim of the hearing is to to "seek
acknowledgment of the problem and to obtain an undertaking
to improve standards of health and safety."
| Para.
14 |
A
"Crown censure" is the term given to
the formal recording of a decision by HSE that,
but for Crown immunity, the evidence of a Crown
body’s failure to comply with health and
safety law would have been sufficient to provide
a realistic prospect of conviction in the courts
(in line with the Code of Crown Prosecutors).
Circumstances that could lead to a censure would
include a failure to comply with a Crown enforcement
notice in the time allowed. ..... |
| Para.
15 |
Where
HSE considers that a failure to comply with health
and safety law would normally justify prosecution,
HSE will first notify the Crown body concerned
at a senior level that it intends to begin the
censure procedure. The HSE investigating inspector
will then initiate a formal meeting (‘hearing’)
between a senior HSE inspector and a member of
the senior management of the Crown body involved
by writing to the Crown body ... |
| Para.
16 |
Although
a censure is not in any sense a trial, HSE will
give the Crown body advance information setting
out its ‘case’ in the same way as to
a non-Crown body which was to be prosecuted in
a magistrates’ court. The Crown body has
the opportunity to provide a written response
in advance of the hearing though HSE will not
enter into any further correspondence prior to
the hearing. No witnesses are called. |
| Para.
17 |
HSE
is responsible for inviting the relevant trade
union or other safety representative(s) to observe
the hearing, and will either do so direct or agree
that the Crown body concerned should extend the
invitation. In situations where public discussion
of any aspects of an incident or possible breach
of health and safety law would harm national security
or defence, or refer to information that relates
specifically to an individual (unless that individual
has explicitly consented to such information being
disclosed), or relate to any other circumstances
where there is a prohibition on the disclosure
of information under any enactment, rule of law
or non-statutory code, consideration must be given
to excluding trade union or other safety representatives
from that part of the hearing. Subject to these
same provisions, when HSE provides the Crown body,
at the hearing, with further information designed
to clarify proceedings, such as diagrams or photographs,
a copy of the information will also be given to
observers. |
| Para.
18 |
No
persons other than officials and trade union or
other safety representatives may be allowed to
attend a censure hearing except at the discretion
of the Crown body: every effort is made during
a hearing to ensure fair consideration of the
matters at issue, but it is not possible for a
censure hearing to have all the checks and balances
of a court and wider public attendance is not
generally appropriate. Under section 28 of the
HSW Act inspectors may, depending on the facts
of a particular case, release information to advise
the public of risks and to reassure them about
health and safety measures. |
| Para.
19 |
The
hearing will be chaired by a senior HSE inspector.
HSE will minute the meeting and, on its completion,
produce an agreed note of the meeting that will
be copied to the relevant trade union or other
safety representatives. The agreed minute can
be distributed more widely subject to the restrictions
on the disclosure of information (paras 14 and
17 above). |
| Para.
20 |
The
aim of the hearing is to seek acknowledgment of
the problem and to obtain an undertaking to improve
standards of health and safety. The hearing is
therefore commenced by the HSE investigating inspector
explaining the circumstances of the case and why
it would justify prosecution, but for Crown immunity.
The Crown body is then given the opportunity to
make any representations or arguments in defence
or mitigation. |
| Para.
21 |
If
in the course of the formal hearing the Crown
body agrees with HSE’s view that the evidence
would be sufficient to provide a realistic prospect
of conviction in the courts, HSE will notify the
headquarters of the Department. The Department
will subsequently advise the relevant Minister
having first consulted HSE on their submission,
and copying to HSE their final submission. The
fact that a censure has taken place becomes a
matter of public record, through listing in a
HSE annual report supplement (paragraph 14 above) |
| Para.
22 |
If,
after considering the HSE inspector’s response
to any representations, the Crown body’s
officials do not accept there is sufficient evidence
to have provided a realistic prospect of conviction,
HSE will invite them to make further representations
to the head of the appropriate HSE operating directorate
or division who will review the case. This is
in accordance with the HSE Service First commitments.
If the Crown body decides not to make such representations,
HSE will record the censure without further discussion. |
| Para.
23 |
Where,
despite representations, HSE remains confident
that a decision to prosecute would have been justified,
HSE’s Director General will write as appropriate
to the Permanent Secretary responsible for the
Crown body to seek agreement to recording the
censure.
Individual Crown servants |
Back
to the Top
Position
of Individual Managers and other employees
Individuals who work for crown bodies do not have
Crown Immunity. However the Cabinet Office procedures
impose serious obstacles to the possibility of prosecution.
This is because, apparently, the HSE gave assurances
in 1975 that individual would only be prosecuted where
there was "wilful or reckless disregard"
of health and safety.
| Para
24 |
Under
Section 48(2) of the HSW Act, persons in the service
of the Crown may be prosecuted for health and
safety offences, and, if convicted, fined, or
for certain offences imprisoned. Managers, as
well as other employees who are personally culpable,
should not escape prosecution simply because they
are Crown servants. However, the HSE gave assurances
in 1975 that an individual Crown servant would
be prosecuted only in the same circumstances as
an individual in non-Crown employment, for example
where there was wilful or reckless disregard of
health and safety requirements. There is no question
of individuals being prosecuted in substitution
for the Crown body, or for honest mistakes, or
because of defects in management organisation.
It is therefore highly unlikely that civil servants
would be prosecuted except, for example, through
a deliberate act or omission by them which imperiled
their own safety, or the safety of others. |
HSE
Guidance to its Inspectors
The HSC have produced a 'Sector Information Minute
(SIM 7/2002/34). This simply informs the inspector
of the the Cabinet Office memo - but for completeness,
it is set out below.
"To:
All HSE Inspectors
This SIM informs inspectors about the issue of a Personnel
Information Note (PIN) by the Cabinet Office dealing
with enforcement procedures for Crown bodies, including
Crown censures. A copy of the PIN is given at the
appendix.
|
Background
|
| 1 |
Although
the provisions of the Health and Safety at Work
etc Act 1974 (HSW Act) apply to the Crown, including
departments and agencies, Crown bodies are immune
from statutory enforcement of health and safety
legislation by virtue of HSW Act s.48(1). |
| 2 |
Whilst
proceedings may not be taken against the Crown,
administrative procedures known as Crown censures
have been developed for use in circumstances where
it is HSEâs opinion that, but for Crown
immunity, there would have been sufficient evidence
to provide a realistic prospect of conviction
in the courts. |
| 3 |
Since
1988, there have been 25 Crown censures, but the
absence of an agreed, documented procedure has
led to some difficulties in recent years. Accordingly,
following extensive consultation with HSE, Crown
employers and the Council of Civil Service Unions,
the Cabinet Office issued a Personnel Information
Note setting out an agreed procedure on 13 June
2001 (see appendix). The appendix does not include
annexes A-C containing the Health and Safety Commission's
Enforcement Policy Statement and Crown enforcement
notices. |
|
Crown
Censure Procedure
|
| 4 |
Inspectors
who are familiar with the existing censure procedure
will note the following changes introduced in
the PIN:
| 1 |
Paragraph
17 - HSE is responsible for inviting the
relevant trade union or other safety representative(s)
to observe the hearing, and will either
do so directly or agree that the Crown body
concerned should extend the invitation;
and |
| 2 |
Paragraph
22 - If, after considering the HSE inspector's
response to any representations, the Crown
body's officials do not accept there is
sufficient evidence to have provided a realistic
prospect of conviction, HSE will invite
them to make further representations to
the head of the appropriate HSE operating
directorate or division, who will review
the case. If the Crown body decides not
to make such representations, HSE will record
the censure without further discussion. |
|
| 5 |
Inspectors
will be aware that HSE's report Health and Safety
Offences and Penalties included a list of Crown
bodies which had been censured during the year
1999/2000, and similar information was published
on HSEâs Internet website. |
Date
first issued: 10 July 2001"
Back
to the Top
HSC
and Crown Immunity
In 1978, the Health and Safety Commission stated:
"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."
Government's
Position on Crown Immunity and health and safety offences
From the Governments "Revitalising Health
and Safety document"
Action
Point 15: 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.
| 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. |
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:
| •
|
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 |
| • |
In
relation to making decisions about prosecuting
individual Crown servants, assurances that the
HSE gave in 1975 should be renegotiated. The
Cabinet Office note states that:
"the
HSE gave assurances in 1975 that an individual
Crown servant would be prosecuted only in
the same circumstances as an individual in
non-Crown employment, for example where there
was wilful or reckless disregard of health
and safety requirements. There is no question
of individuals being prosecuted in substitution
for the Crown body, or for honest mistakes,
or because of defects in management organisation.
It is therefore highly unlikely that civil
servants would be prosecuted except, for example,
through a deliberate act or omission by them
which imperiled their own safety, or the safety
of others."
There
are serious problems with this.
-
The law allows prosecution for "failure
to take reasonable care" for health and
safety of others. It is not necessary to prove
"wilful or reckless disregard of health
and safety".
- Since
1975, the HSC and HSE has adopted new policies
in relation to deciding whether to prosecute
individual managers and directors of private
companies and managers of other organisations.
(see new Enforcement Policy Statement, for
example).
- The
HSE should consider the culpability of crown
servants in the same way as it considers the
culpability individuals of other organisations.
• To
see press release on issue of Crown Bodies,
Click
Here
• To download letter from the CCA
sent on 27 Sept 2002 to the HSE Director General,
Click Here
(PDF)
|
To
return to "HSE" Page, click
here
Back
to the Top
Public
Accounts Committee Report
In April 2003, the PAC issued a report on the Royal
Mint which (amongst many other things), looked at
the death of David Wynne, a Mint Employee, and whether
it was appropriate that the Royal Mint should have
immunity from prosecution.
Relevant
Excerpt from Report
| 22 |
On
28 June 2001, an accident at the Royal Mint resulted
in the death of an employee. A 6.5 tonne bell
annealing furnace became detached from the hook
of an overhead crane whilst being transported
between locations in the production department
and fell four metres to the floor, striking the
employee and causing fatal injuries. A subsequent
investigation by the Health and Safety Executive
(HSE), which received the full co-operation of
the Royal Mint, determined that the furnace had
not been properly attached and secured to the
crane lifting hook. The HSE found that the Royal
Mint had failed to perform a suitable and efficient
assessment of the risks posed by the crane operation
and that not all employees involved in the process
could be shown from written records to have received
sufficient training and instruction.[34] |
| 23 |
The
Royal Mint told us that it had undertaken a range
of measures to address the specific findings of
the HSE, which had since confirmed that it was
content with the action taken.[35] The Deputy
Master had also given particular attention to
improving health and safety standards and staff
awareness throughout the plant in the months since
the accident.[36] |
| 24 |
We
sought to establish whether the fact that the
Royal Mint enjoys the protection of Crown immunity
had contributed to the weaknesses and failings
in health and safety procedures uncovered by the
HSE investigation. Crown immunity means that bodies
such as the Royal Mint cannot by prosecuted for
offences either created by statute or of the common
law. In the case of health and safety legislation,
whilst the law applies to the Royal Mint, the
results of HSE investigations—as in this
case—can only result in Crown censure. Whilst
Crown immunity does not grant protection to individuals
from prosecution, in this instance the HSE and
Police investigations concluded that no Mint director
or employee should face prosecution. |
| 25 |
Crown
immunity does not provide protection from civil
claims. The Royal Mint has written to the representatives
of the deceased employee to confirm its admission
of liability and asked them to provide details
of the quantum of their claim, which will be considered
sympathetically by the Royal Mint.[37] The Deputy
Master gave us an absolute assurance that the
applicability of Crown immunity to the Royal Mint
in no way impacted on the attitude of the organisation
to the importance of compliance with health and
safety legislation.[38] |
| 26 |
In
a note submitted to the Committee following our
evidence session, HM Treasury officials stated
that the Government's position on Crown immunity
remains as set out by Lord Falconer in his response
to a Parliamentary Question by Lord Kennet, given
on 4 November 1999.[39] However, recent consultation
papers on corporate killing and health and safety
have proposed modifications of immunity. In the
light of responses to that consultation, officials
have analysed the options and advice is to be
put to Ministers.[40] Although recommendations
on policy lie outside the remit of this Committee,
we were told by the Deputy Master that he personally
would have no problem if a policy decision were
to be taken by the Government to remove Crown
immunity from the Royal Mint.[41] |
Relevant
Excerpt from Report's Conclusion
The applicability of 'Crown Immunity' to the Royal
Mint
| (iv) |
The
Health and Safety Executive's investigation into
the circumstances which led to the death of a
Royal Mint employee in June 2001 found the Royal
Mint to have been at fault. It is unacceptable
that the Mint should hide behind Crown immunity
in such circumstances. The Treasury should review
the applicability of this principle to a commercial
operation such as the Royal Mint. |
To see the whole report, click
here
Back
to the Top
|
