The Health and Safety Executive's (HSE) decision to issue a Crown censure to the Ministry of Defence (MoD) last month over the deaths of three army reservists in the Brecon Beacons (see news, page 5) brought the concept of Crown immunity to public attention and triggered renewed calls for its removal.
Detractors argue that the legal doctrine acts as a disincentive to good safety and health management, and is unsuited to the way in which today's Crown bodies operate as modern employers. Its defenders believe it is essential to protect the public purse and allow Crown bodies, particularly those with extraordinary remits such as the military, to carry out their duties effectively.
Unbound by law
Under the concept, also known as sovereign immunity, extensions of the British Crown, such as government bodies, cannot be prosecuted for offences created by statute or those under common law.
"The justification for Crown immunity in the criminal context is that prosecutions are brought by and on behalf of the state, and therefore in effect by the sovereign, and the sovereign can't prosecute himself or herself," says Jon Cooper of law firm Bond Dickinson. Immunity at one time also extended to civil proceedings but that was diminished by the 1947 Crown Proceedings Act.
Crown bodies must comply with health and safety law, and the regulator can still investigate any failures. But they cannot be prosecuted or be subject to any statutory enforcement action.
Section 48 of the Health and Safety at Work Act (HSW Act) states that the Crown is bound by the provisions of Part 1 and regulations made under it, except sections 21 to 25 (which cover notices and powers to deal with imminent danger) and 33 to 42 (offences and prosecutions).
Though the derogation from Section 33 prevents the HSE prosecuting Crown employers, it can apply an administrative procedure known as Crown censure (see box on page 32). This allows the regulator to summon a Crown employer to be censured for a breach of the act or regulation in cases where it believes there would have been enough evidence to provide a realistic prospect of conviction. Inspectors can also issue Crown notices. The procedures are similar to those for statutory enforcement notices but are not legally binding and the Crown cannot be prosecuted for breaching them.
The protection from prosecution does not extend to Crown employees. Section 48(2) of the HSW Act is clear that, though they do not bind the Crown, sections 33 to 42 apply to "persons in the public service of the Crown as they apply to other persons".
Cooper says: "I think people sometimes misunderstand that Crown immunity is limited to the Crown itself and doesn't cover individuals. Crown employees can be prosecuted under Section 7 [which applies to employees at work]."
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". The regulator has always said it has no intention of prosecuting individual civil servants instead of their departments.
In and out
What constitutes a Crown body today is a grey area. Changes in the structure of the civil service, its functions being hived off into different types of agency -- even converted into government-owned corporations -- and increased use of private contractors, have all blurred the lines.
"There is an argument," says Cooper, "that Crown immunity in terms of health and safety doesn't really reflect the way in which the Crown organises itself today and its role as a substantial employer."
The Corporate Manslaughter and Corporate Homicide Act 2007, which denies Crown bodies immunity in most cases, includes a list of departments and bodies that can be convicted of the offence. The Crown Prosecution Service states: "The offence will apply to Crown bodies that are incorporated, such as the Charity Commission, Office of Fair Trading and Postal Services Commission. The act will also apply to a wide range of statutory public bodies which are not part of the Crown, including local authorities, NHS bodies and many non-departmental public bodies with executive responsibilities."
But there is no similar list for health and safety legislation.
"You have to take each case as it comes and see if Crown immunity is raised as an issue," says Cooper. "It is up to the individual organisation to argue whether it has and that involves analysis of the statutory constitution and function of the organisation concerned."
For its part, the HSE states vaguely on its website that Crown employers "include government departments, next steps executive agencies and some other organisations sponsored by departments". (Next steps agencies are executive arms of government departments; the name comes from a report that recommended their creation and they include the Passport Service and the Royal Parks department.)
Between May 1999 and January 2015, the HSE issued 30 censures. Half were administered to the MoD (with two further censures on the Defence Science and Technology Laboratory, which is part of the MoD, and its predecessor, the Defence Evaluation and Research Agency). HM Prison Service has been censured four times, and the Scottish Prison Service twice. Other bodies, each receiving a single censure, include the Highways Agency, Royal Mint, HM Revenue and Customs, the Historic Buildings and Monuments Commission (English Heritage), and the Department for Education and Skills.
The complexity of modern Crown arrangements is exemplified by the former Highways Agency. At the time of its censure in January last year, after the death of a traffic officer in 2012, it was an executive agency of the Department for Transport. In 2015, it was replaced by Highways England, which is a government-owned company created under the Companies Acts. Likewise, the Royal Mint, censured as an executive agency of HM Treasury in 2002, is now a government-owned limited company. Presumably, both are now open to prosecution as incorporated companies.
Move to remove
There was a move away from Crown immunity in the 1990s until the mid-2000s but that has now stalled, unless the shift to incorporated bodies carrying out functions previously carried out by the Crown can be counted as removal by default.
The NHS Community Care Act 1990 took immunity away from the NHS, and this seems to have had a positive effect on safety management. A report in 1997 from the parliamentary public accounts committee, Health and Safety in NHS Acute Hospital Trusts in England, noted the NHS Executive had put on record that the HSE "believed the health service had consistently improved its performance since the lifting of Crown immunity".
The momentum behind removal gathered pace in 2000, when the Labour government's Revitalising Health and Safety strategy committed it to abolishing Crown immunity, "when parliamentary time allows". The government believed it needed to show a good example and Crown employers should be as accountable in law as others.
This commitment was never fulfilled but the debate reopened later in the decade in the run-up to the introduction of the corporate manslaughter law, which allows prosecution of Crown bodies for the offence with some exceptions, including military activities.
"Under Section 11 of this act, Crown immunity is dramatically reduced," says Cooper, "which reflects a more realistic approach to the way the Crown organises its activities in terms of health and safety management. It's regarded as a large employer, so why should it not be subject to the law and its sanctions?"
The corporate manslaughter legislation, however, has left the illogical situation in which most Crown bodies can be convicted of corporate manslaughter but not for safety and health offences, an anomaly raised in the debates before the act was passed but so far unresolved.
"[Crown immunity] acts as a disincentive for government departments and agencies to engage properly with their responsibilities in terms of health and safety in the workplace," argues Phil Madelin, national officer in the PCS union's legal and personal case unit. "They are large corporate-type employers now."
Referring to the HSE's censure of the Highways Agency over the road fatality, he suggests a large private contractor would have been prosecuted and faced a large fine. "In what way is the impact of that person's death on families and friends different in that it doesn't require the employer to be held to account?" he asks.
The GMB union also argues that immunity creates inequalities. "There should be a level playing field between private and public sector employers. Most importantly, every life prematurely ended deserves the same level of justice regardless of whether the employer is a Crown body," says GMB national health, safety and environment director Dan Shears.
Describing the censure process as a "waste of time", Madelin says as a sanction it has no power to make organisations change anything and, because it is carried out behind closed doors, there is no transparency about the facts or visibility of an organisation's failings. "It's a bit like being called into the headmaster's study," he suggests.
Even the Cabinet Office's own guidance note acknowledges "it is not possible for a censure hearing to have all the checks and balances of a court".
Hilary Meredith, of Hilary Meredith Solicitors, which specialises in claims on behalf of the UK armed services and represents the father of one of the reservists who died as a result of the Brecon Beacons march, says that "while the Crown continues to enjoy the privilege of immunity there is no real sanction". There is also no follow-up, she adds. "Nothing happens after a censure. In my mind, it's practically meaningless."
Cooper, who has been involved in censures on both sides, says the difficulty is that the process requires the Crown department to accept its shortcomings, and if it doesn't there is no forum for establishing them: "All that happens if the body doesn't accept there is sufficient evidence is that they are invited to make further representations to the head of the appropriate directorate or division, who then reviews the case." (see box).
One of the arguments most often used in support of Crown immunity is that fining a public body simply diverts taxpayers' money to pay the penalty and could weaken vital services. The anomaly is that the same argument could apply to corporate manslaughter penalties. "But if you look at current sentencing policy for health and safety [offences], this issue is picked up already," says Cooper. And the latest sentencing guidelines in force since February make it explicit, stating: "Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on provision of its services."
Another popular argument in support of immunity is that its removal could inhibit the ability of some organisations -- particularly military bodies -- to carry out crucial, sometimes dangerous, functions. It is hard to see how this could apply to the Department for Work and Pensions (DWP) or HMRC.
But, even in connection with the military, Meredith rejects the argument: "I don't think in a modern society that an organisation should enjoy the privilege of being completely immune to any prosecution." She is campaigning, alongside the parents of those who died at Brecon, for the MoD to become subject to the corporate manslaughter offence. "The deaths at Brecon did not happen in the heat of battle; it was a selection course where, if systems were properly in place, those deaths could have been easily avoided," she says.
Cooper points to other built-in legal protections that could negate some of the perceived risks of removing Crown immunity. "Before you can prosecute, you have to be satisfied that the evidential tests play out, but also that it's in the public interest to prosecute," he says. "It's arguable there are sufficient safeguards both as to the risk and consequences of prosecution through the evidential requirements, the public interest test, and the different approach the courts take to sentencing public bodies."
Though there seem to be robust practical, logical and ethical arguments against it, even supporters of the removal of Crown immunity are pessimistic about current prospects. "It's highly unlikely it will be removed during this parliament," says Shears at the GMB. "It doesn't seem to be a priority for either central government or HSE and, given the stretched resources that HSE can deploy, there are higher priorities at present."
Madelin goes further: "There's no interest on the part of government or the Crown to get rid of it because it gives them an absolute shield to hide behind. The last time there was any focus, they said 'when parliamentary time permits'. Yet they managed to find time for anything else but. No one on either side of the political spectrum seems to have any interest in getting rid of it."
When IOSH Magazine asked the HSE for its stance on immunity, a spokesperson said it was not appropriate to comment. As we went to press, the DWP, of which the HSE is an executive non-departmental public body, had not replied to a request for details of its position, perhaps further evidence of a lack of any political appetite for changing the status quo.
Crown censure is the formal recording of the HSE's decision that, but for Crown immunity, the evidence of a failure to comply with health and safety law would have been enough to provide a realistic prospect of conviction in the courts.
The process involves the HSE notifying the Crown body "at a senior level" of its intention to censure, and initiating a formal meeting (hearing) between a senior HSE inspector and a member of the senior management of the body involved.
A guidance note produced by the Cabinet Office in 2001 notes that, "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 can provide a written response before the hearing but the HSE will not correspond further.
Union or other safety representatives are invited to observe the hearing but no witnesses are called. The HSE minutes the meeting and produces a note. If the Crown body accepts the HSE's view on the evidence, the executive will notify the headquarters of the entity, which in turn will notify the minister responsible.
If the Crown body does not accept there is enough evidence, it can make further representations to the head of the appropriate HSE directorate or division, who will then review the case. If no representations are received, a censure will automatically be recorded. If, after the review by the head of directorate or division, the HSE is still confident that a decision to prosecute would have been justified, the chief executive will write to the appropriate permanent secretary to seek agreement to the censure.