Criminal Liability in Regulatory Contexts Responses - Law ...

1.8 The current approach of making regulators accountable for their use of their
discretion, rather than removing it altogether, is in principle the right one in terms
of delivering the best outcomes for consumers and the economy. This approach
reflects the fact that enforcers are accountable public bodies subject to a range of
appropriate checks and balances. We believe the government's policy to
introduce administrative sanctions under Part 3 of the RESA as an alternative to
criminal sanctions will maximise the ability of enforcers to comply with their legal
obligation to act proportionately and use criminal sanctions as a last resort.
1.9 NB The OFT’s response has an annex of OFT criminal cases and offences under
the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).
HSE
1.10 Agree with the principle that criminal law should be reserved for the most serious
offences. Penalties should be effective, proportionate and dissuasive. Alongside
this, regulators should operate in a transparent, proportionate manner, targeting
serious issues and applying a consistent approach that is appropriate to the
regulatory regime, so that businesses are clear on what the law says, what they
must do to comply, and what to expect where they fail in their responsibilities.
The legislative architecture for health and safety in existence currently, strikes a
good balance and meets these principles.
1.11 Health and safety duties cover a diverse range of activity that could lead to harm
and it is a matter of circumstances whether a major incident, serious injury, or
death arises. The context of each breach of the law determines the enforcement
action that arises with prosecution taken in the most serious cases only. A failure
to comply with the law in respect of public safety, for example, may regulate in a
major explosion at a chemical site causing devastation in a private dwelling due
to faulty gas installation. HSE’s enforcement response in respect of these
breaches depends upon the circumstances of each case and is made in
accordance with our Enforcement Policy Statement.
1.12 The Health and Safety at Work etc Act, regulations and associated enforcement
approach is a mature regime that has overseen a considerable reduction in
injuries and ill health in the last 35 years. We are keen to ensure that these
proposals do not reduce the duties on those who create risks to manage those
risks. Recommendation 16, for example, would mean a diminution of existing
duties on directors under health and safety law, which we do not support. It is
crucial that businesses display strong health and safety leadership at board level,
taking ownership of risk and managing it. It is important that current duties on
directors remain with penalties available to the Courts where there is a serious
breach of the law and prosecution is the appropriate response.
1.13 We would not want to see a reduction in penalty options for serious offences
which place people’s lives at risk. We acknowledge that the use of civil sanctions
may be a suitable alternative means in some regulatory regimes, but with our
current wide range of enforcement options we have no, to date, identified any
significant gaps which would warrant their use within HSE.
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