Minutes of 170th Edinburgh Branch Meeting
Craighouse Campus, Napier University, Edinburgh – Thursday 9 March 2006 - 130pm
Sederunt: G B Dickson A Finnie R Robertson G MacGregor L Crichton L Young J Brannigan A Leaver A Green D Leckie S McMorland P Keogh P Veitch K Lloyd S McColm I Wilson J Fell R Gunn I Sinclair K Breem
J Hepburn M E Powell G McGeorge A Petrie N Kelly J Robertson G Lyall R Innes R MacLean S Page J Thorp M F Thorburn P Quill A Bell G Dick R Brownlie D Sinclair M Kelly R Lovering S Brown S Hunter N Doherty B Davies R Edward S Beaton V Stewart B Stainton A Curran M Johnstone M Bancroft D Richardson M Grimmer M Powell J McMahon A Dick I M Murray I Graveson D Gillespie M Campbell B Anderson R Robertson S Stanfield S Njere-Mambo
Apologies: John Green, Ann Diment, Andrew Reid, Martin Scott-Smith, Simon Heesom, Derek Cawkwell, Billy Byrne, G McNab, Dick Morrison J Davis
1. Chair: Marion Johnstone took the Chair and outlined the Safety arrangements (Fire)
2. Minutes of previous meeting - February 2006
• Receipt – anyone wishing to receive by email inform the Branch Secretary.
• Accuracy: add G MacNab to Sederunt. With this addition, they were agreed a true record: Proposer – Russell Brownlee; Seconder – Roddy MacLean.
• Matters arising not on the Agenda - None.
3. Correspondence
3.1 Events
•
March 21: DUNDEE: HSE
SCAFFOLD SAFETY EVENT: 9am to 3pm: Discovery Centre, Dundee.
Those interested in attending will include scaffolding contractors and building
companies who employ their own scaffolders throughout Tayside, Angus and North
Fife.
raise awareness of legal requirements, standards of training and competency
expected, information on how to protect the public and design issues. Ritchie
McCrae 0131 247 2111. www.hse.gov.uk
• 21 March: Scottish Ergonomics Forum: human factors tools. richard@keilcentre.co.uk
• 24 March: Hazardous Waste Workshop. 09:30 - 14:00:Dunblane Hydo, Perth Road. FREE half-day workshop: focus on the regulatory controls put in place to deal with hazardous waste, practical measures available to minimise waste and techniques to help manage resources better. Of particular interest to waste producers, especially those whose wastes are newly designated as hazardous -fluorescent lighting tubes, oily wastes, pesticides and electrical equipment
• 10-12 April: Universities Safety and Health Association: Annual Conference: Main day: 11th April. 6 expert presentations & 2 participative workshops: City Quay Apex Hotel, Dundee. £145. www.dundee.ac.uk/safety/conference2006
• Friday 28th April: West Lothian Council/West Lothian Trade Union Council/Scottish Hazards Campaign Group: International Workers’ Memorial Day Seminar: 10 am 12 noon: Bathgate Sports Centre. Email Branch Secretary.
3.2 Job Spot
West Lothian Council: HR Adviser: Occupational Health and Safety: West Lothian House
Salary From £20,808 - £29,541 Area Livingston
West Lothian Council’s Occupational Health and Safety Team is committed to building a positive safety culture which improves the wellbeing of our employees. As part of this team you will contribute at a professional level to the provision of occupational health, safety and welfare policies and practices ensuring that the Council’s policy objectives and statutory obligations are met. You must have a comprehensive knowledge of health and safety and be able to demonstrate the practical application of that knowledge. Crucial skills include excellent report writing, oral and written communication skills as well as the ability to work on your own initiative. You will be able to solve problems as well as persuade and influence people at all levels. Ideally you will be a Chartered Safety and Health Practitioner of the Institute of Occupational Safety and Health. A NEBOSH Diploma Part 2 or equivalent is required.
Closing Date17/03/06. www.westlothian.gov.uk Or for application pack,Telephone 01506 773933 (24 hour answerphone) recruitment@westlothian.gov.uk
3.3 Other
Scottish Construction Forum: Demonstration Projects:
Demonstrating Innovation and Exceptional Performance within the Scottish Construction Industry
Projects promising innovation and exceptional performance are proposed by industry and selected by expert panel. Results are disseminated through presentations, newsletters and case histories. d.r.forbes@dundee.ac.uk 01382 385 721
4. Group Reports
• Branch Education & Development Adviser – Liz Young. Liz said she would be attending the annual BEDA meeting on 26 June and would report back thereafter with more about CPD.
• Groups
Fire Risk Management – D Sinclair
LAST FRMSG Committee Networking Meeting: Our last meeting was organised by the Fire Risk Management Specialist Section of the Ireland Branch and took place in Dublin. Approximate 80 delegates were given presentations on various aspects around emergency evacuations. It was very well organised and incorporated a mini exhibition.
NEXT FRMSG Committee Networking Meeting: Due to the delay in the introduction of the Fire Safety Order we have changed the theme of our next meeting. It is still being finalised but we hope to hold it at Sunderland FC's stadium (with Tyne & Wear Fire Services Training Centre as a back up) on the 12th of July. We were inspired by some of the topics covered in Dublin and intend to have "Fire Safety at Special Events" as the theme. As this venue is relatively near I will make sure that I get details out to everyone as soon as there are finalised.
Membership: We have invited representation from the Institute of Fire Preventions Officers (IFPO) and the Society of Industrial Emergency Services Officers (SIESO) to join our committee, both are organisations with similar aspirations to ourselves and we had SIESO present at our December meeting just four days after the Buncefield 'oil fire' incident.
Representation at Branches: We now have nominated contacts in all but 5 Branches and we are actively working on getting volunteers in place ASAP.
Regulatory Fire Reform Order: I informed the Branch back in January that the implementation date for England & Wales had been put back. I am pleased to say that it was announced earlier this week that it will now be 1st of October 2006 in line with Scotland.
And finally: This will be my last report as Chair of the FRMSG. Sandy Black will take over from me after the IOSH conference next week. My last task will be to introduce the speaker at our SG slot on the Tuesday. I will however continue to serve on the FRMSG committee and have volunteered to be the SG's Web Champion.
Construction – A Dick: From 1st March, THE Construction Sector Skills Council was now combined with the Construction Industry Training Board.
• Forth & Tay District: no meeting since last Branch meeting
6. Guest Speaker
CORPORATE KILLING: HOW THE LAW IN SCOTLAND COULD DEVELOP
By David Leckie, Partner: Maclay Murray and Spens
Graham Llyall introduced the speaker for the afternoon’s presentation as David Leckie a Partner in the firm of MacLay, Murray and Spens who practices both English and Scots law and his specialist area is commercial litigation and advocacy with particular expertise in Health and Safety. He writes and lectures widely in his specialist areas and teaches pat-time in the post graduate diploma at Heriot-Watt University.
The speaker then indicated that he would do his best to make what could be a rather dry topic interesting and speedy if nothing else as he was going to attempt to cover the same presentation which he had done in the past taking closer to 4 hours than the 45 minutes which he had available this afternoon.
He then showed a snippet of a video of a Russian mine manager attempting to show that a fatal accident at his mine had not been linked to drinking, whilst unknown to him in the background is an obviously inebriated minor – this was to demonstrate that management can be held accountable for lots of actions which they have no idea of happening.
Identification Principle
For culpable Homicide or Manslaughter to be secured the prosecution must identify an individual in the Company who is the controlling mind of that organization and whose actions were grossly negligent. Hence – a Corporate body can only be found guilty of gross negligence manslaughter if a “directing mind” of that body is also found guilty. The impossibility of such an identification has led to the collapse of every corporate manslaughter of large organisations as examples – Transco gas explosion, Hatfield rail crash, Barrow Borough Council 7 deaths from legionaires disease.
In the last Queen’s speech at the opening of Parliament comment was included about the changing of the law relating to Corporate Manslaughter and recent comments from a Home Office Lawyer has indicated not so much IF the law is made, but more a case of WHEN. The law is a certainty it is only the detail which is not finalised as yet.
Kathy Jamison (The Justice Minister) has indicated in a report that the need is there and the law should be radical and innovative and the Scottish Executive aim to get to grips with it irrespective of the position in England and this was all linked into the Transco case.
Level of proof
Whereas the original requirement is one based around the position of proving gross negligence, the Scottish proposal moves towards a position of proving recklessness
Punishment
The format of punishment with imprisonment for individuals cannot be applied to an organization hence in considering this it and is suggested to include –
· Corporate Probation
· Equity Fines
· Community Service
The Scottish proposals also include the radical change of deaths occurring outside Scotland where there is a link back to an organisation based in Scotland could still result in charges being brought in Scotland.
Need for the law & consistency
There is thinking that there is no need for a new law as the far reaching elements of the Health & Safety at Work Act is sufficient in itself, but it needs to be enforced to a consistent meaningful standard. Some of the prosecutions (or lack of them) in the past is not far from a “joke” – in the Piper Alpha incident of 1988 no one was prosecuted for the failings which is not a condition which would be tolerated today.
Any new Law must be -
l Robust and Versatile
l Reverse Onus – Prove innocence
l Individuals (sections 7 and 37)
l Notices – a cheap and easy method with little major effort
l Unlimited Fine - Disqualification
l Imprisonment?
However, it has to be said that there is not really a justification in a new Law, as these standards actually reflect the existing H&S Laws if only the existing laws were enforced fully and correctly.
Level of HSWA Fines
It is a sad fact that despite the level of fines which could be imposed for breaches of the H&S Laws, the actual level have until very recently been derisory as shown by this graph.
Looking at the level over the past 6 years we see-
1999 – two sizable fines = £1.2 and £1.5M
2002 – one sizable fine = £1M
2004 – two sizable fines = £700,000 and £2M (Paddington Rail crash)
2005 – six sizable fines = £895,000; £900,000,
and then we see the big rise - £15M for the Transco case;
£13.5M for the Hatfield rail crash;
£400,000 for a fire in Edinburgh: and £400,000 for a single death from a failed lift
Action Taken by HSE (GB)
Again from analysis of the actions of HSE – the larger
elements are related to Notices for the periods – 2001/2002, 2002/2003 and
2003/2004, whilst the smaller figures on the top relates to the prosecutions.
You may also notice that both figures are decreasing
Directors, Managers and Employees Prosecuted (03/04)
The level of prosecutions against individuals is also very low. For 2003/2004 there were –
17 prosecutions of individuals against section 37 of HASWA
25 prosecutions of individuals against section 7 of HASWA
Conviction rates per offence charged
Within England we see in the order of 80% of convictions from the prosecutions taken, whereas in Scotland we are only looking at 41%. This failing is considered to be related to the prosecution failing to make the case fully which in turn may be related to the Scottish system whereby the “Fiscal” is required to put the case and there are very few who are as familiar with H&S Law as specialists within the legal profession who may be called upon to defend the case. It is a sad fact that Aberdeen is the only Sherrifdom with its own specialist with H&S knowledge on the books.
Individual Manslaughter Charges in recent Years
There were some 253 manslaughter cases in England (which were about 6% successful) where a death had been investigated by the Police, and only one in Scotland.
Individual sentences show a range of sentences from 6 months to 18 months, but either way it appears that you would go to prison if found guilty in England
· Paul White Sentence = 12 m Sept 05
· Glen Hawkins Sentence = 9 m Mar 05
· Lee Harper Sentence = 16m Jan 05
· Paul Ellis Sentence = 12 m 2004
· Peter Pell Sentence = 12 m 2003
The Corporate Manslaughter Bill
The issue of gaining a conviction against a charge of Corporate Manslaughter is virtually impossible to prove and it would only apply to possibly 5 cases per year as it is only applicable to the most serious incidents.
The speaker then showed a picture of a worker on a rooftop working very close to an unprotected edge as an illustration of the difficulty of proving demonstrable and knowing gross negligence or recklessness by senior management.
The New Offence – (Corporate Manslaughter)
This is suggested to be based on the following factors -
· gross breach of a relevant duty of care
· by senior managers
and this is where the weakness may lie.
There would be a need to consider the complete management chain
Then there is a need to consider what makes for a Senior Manager
· This perhaps someone who plays a “Significant role” in:
a) Making of decisions about how the whole or a substantial part of activities are managed or organised, or
b) Actual managing or organising of whole or substantial part of activities
Then there is the considerations of what makes for a “Gross Breach”
· Conduct falling far below what can reasonably be expected
· Failure to comply with H and S legislation or guidance. If so:
· How serious was failure
· Did senior managers know of failure and risk of death
· Did organisation seek to profit from failure
How serious was the failure – was it undertaken with Senior Management knowledge – did the organisation seek to profit from the event. The speaker then indicated that he felt the IOSH paper on the topic had considered all of the correct aspects such that he agreed with the bulk of the paper.
The approach of the Scottish Executive is to consider more being made of a “Safety Culture” within an organisation
Home Affairs Sub Committee
In an aim to gain progress a Home Office Sub-committee has offered a report on the following web site -
www.publications.parliament.uk/pa/cm/cmhaff.htm
They have considered the Scottish Offering and have now stated there should be -
No further delay
Remove senior management
Remove Duty of care concept
Individuals – directors duties (it is a sad fact that a road death by recklessness resulted in a 14 year sentence on an individual)
The Sub Committee further indicated that the law should include
· Agency and subcontractors
· Parent companies being held accountable
· Unincorporated bodies/crown immunity not being exempted
· Offences in EU being heard here
· Scotland and England to be consistent
· Innovative penalties to be utilised
Other Issues
The speaker then ran quickly some other issues which he felt justified to be considered
l Directors Disqualification which is available under existing laws
l Professional Advisers – external contractors can be prosecuted
l Parent Companies
l Contractual Chain – emphasising the prime importance under CDM etc - Making sure the H&S issues are clear, Who does what etc – Beware of email it is a nightmare and dangerous as items sent can be considered as evidence in court (even when you believe it has been deleted it is still discoverable)
l Management Structures
l Contracts of Employment - there is a duty comply which is two way
l Section 7
l Communication of h and s policies
l “Health and Safety Director”
l “Competency”
l Safety Culture
www.hse.gov.uk www.corporateaccountability.org
5. Members Items
• IEMA – Peter Quill
Peter made a brief presentation about the Institute of Environmental Management and Assessment. IOSH Environmental Group and IEMA were developing closer ties.
Formed in September 1999 following a merger between:
– Environmental Auditors Registration Association (EARA)
– The Institute of Environmental Assessment (IEA)
– The Institute of Environmental Management (IEM)
– Incorporates the Centre of Environmental Assessment & Management (CEAM)
Membership Profile
• Inclusive (not exclusive):
– Environmental Managers
– Environmental Auditors
– Regulators
– Impact Assessors
• Who work for..
• Business & Industry;
• Training and Educational Establishments;
• National and Local Government;
• Environmental Enforcement Authorities; and
• Consultancy.
• Membership: 9500+
• A leading professional environmental institution
• Internationally recognised
• The IEMA has members in over 60 countries
Specialist Registers
• Environmental Auditors Register
• Individual Environmental Impact Assessment Practitioner Register (EIA)
• Specialists in Land Condition (SiLC) www.silc.org.uk
Other Interests:
– Eco-Management and Audit Scheme (EMAS) UK Competent Body www.emas.org.uk
– Acorn www.iema.net/acorn
Regions and events
• 80+ regional events per year over 13 regions
• National events:
- Annual Conference
- EMS National Forum
- Scottish Conference
Publications
· The ‘environmentalist’
· The ‘practitioner’
· EIA guidelines
· ‘Perspectives’
· IEMA Downloaded
Training Accreditation
• 80 IEMA Approved training providers
• Courses delivered in 32 different countries
Range of courses expanding ......
• Courses - suitable for a wide range of practitioners
Membership Benefits
• FREE copies of the IEMA magazine ‘the environmentalist’
• FREE ‘Practitioner’ journals and other publications
• FREE entry to regional events and activities
• DISCOUNTED entry to the IEMA national events
• NETWORK with over 9500 environmental practitioners
• Specially negotiated PROFESSIONAL INDEMNITY INSURANCE for environmental management professionals
* 74% of IEMA members stated that their membership was important in supporting their personal career development and enhancing their professional status*
Associate membership (AIEMA) is increasingly becoming a prerequisite in many job advertisements
Work towards the Chartered Environmentalist qualification (CEnv)
Memorandum of understanding with IOSH
Agreed Professional Objectives:
• Liaise in Promotion of Aims and Objectives
• Make respective Journals, Magazines and other Publications available to each other
• Possible formation and recognition of members with a view to maintaining professional standards
• Offer hospitality & assistance to members
• Identify the possibilities of developing joint training initiatives, joint seminars and events
• Develop further links between the IOSH Environmental Specialist Group and IEMA
Max confirmed that there was a link from the programme page of the Branch website to IEMA Central Scotland Programme.
• IOSH Council of Management – M Bancroft
Max distributed a paper outlining how IOSH was governed explaining the relationship between the IOSH Presidential Team, the Board of Trustees and the Council of Management. This latter body took overall strategic decisions, met every six months and had several important sub-committees. Members of the Branch who wished to make a contribution at national level were encouraged to consider serving on the Council. It was now elected at large and included non-Corporate members (as did the Board of Trustees) It would be good to have at least one member of the Council who was from Scotland and who would interact with the newly re-constituted IOSH Scotland Committee. Further details of the precise rules timetable etc were on the IOSH HQ website.
7. Closing details
• Dates of next meetings
District: April 6th: 730pm: Health, Safety and the Built Environment at the Scottish Parliament: Jake Fenton, CMIOSH.
Edinburgh Branch
13 April: New Fire Bill Scotland - how the Fire and Rescue Service intends to audit it: Brian Chisholm, latterly Group Manager: Community Safety, Business and Commerce: Lothian and Borders FR Service
• Closure – Tea/Coffee – Mingle
|
Max Bancroft, MRSC, MIOSH Branch Secretary |
Richard Lovering, CFIOSH |
