Gary

I will have a crack at this one. If the Port Marine Safety Code has no legal standing, including any quasi-legal status, I cannot see how any breach could be used against the company in say a court of law. That said, why would you want to reference the Code in the first place? When writing h&s policies there is often a reference to principal laws such as HSWA or MHSWR, but no need to be more specific than that. You could of course infer the Code's existance with...statutory law and marine industry best practice...or something to that effect. Either way I don't think there is too much to worry about as the vast majority of enforcement action arises from HSWA itself and not subordinate legislation.

Ray

In principle I stand by my first post. Not sure what non-compliance could be attributed to the Code that would not be covered by other legislation such as HSWA. Anyway, if it is not a legal requirement I still can't see how one could be prosecuted. Arguably there is one exception, regarding Corporate Manslaughter, where there is a provision pursuant to s8 where a jury can consider other factors, including health and safety guidance. I mention this more in passing becuase the reality is that it is unlikley to occur - I hope.

What is the real point of the HS Policy Statement then? At the risk of being flippant - to comply with legislation.

Digressing a bit. I think you have made your own mind up to reference the Port Code and I see nothing wrong in that. Your original query was can it be used in evidence...no, if it is not a legal document. Furthermore, I doubt if anything within the document if breached would not also apply to HSWA. So, don't have nightmares about it - it's only a document.

Crack on.

So just to clarify - the HS Policy is a legal document but its content is non binding?

Colin, lets put it another way - could you be prosecuted for breach of your own policy statement?

Ray - do you know of any court action, civil or criminal where the content of a PS has been questioned?

My interest lies in the Policy Statement itself not the PMSC or any other guidance.

Cheers

GC

For the record - I think HS in Ports is in for a significant shake up in the next few years.

The provision of a h&s policy is a legal requirement pursuant to HSWA s2(3) and therefore in theory a prosecution could arise for a breach. However, in practice it is unlikely that a prosecution would occur and it is more likely a Enforcement Notice would be applied (s21/22). Not aware of any prosecutions for non-compliance, more likely it would arise from a failure to comply with an EN anyway (s33).

You just beat me to it Ray - I am satisfied in theory at least that a prosecution could arise for breach of the PS. Now perhaps time to move on to my next quandry!

Anyone ever Risk Assessed an event that is run by a completely voluntary non-profit making committee. The event attract thousands of persons, free to observe, involves fire raising, vikings and the odd transvestite!

Don't ask!

I for one would be interested to hear any sensible ideas under what provisions such a prosecution would be taken; even better a case. With my feet well and truly, firmly planted on the ground, I can't help but feel that it is at best 'pie in the sky' but welcome any evidence to the contrary. While the PS is legally required, it is essentially an 'internal' document. In a civil case however, either party may well refer to the PS as evidence too support their case.

A completed a PS is an absolute duty (subject to the number of employees) and if an EMPLOYER doesn't complete one or have one updated then of course a prosecution could follow although I think that an EN, specifically I would think an IN would be most likely.

Arguably the HSE themselve encourage the 'cut and paste' approach that is referred to, see
http://www.hse.gov.uk/pubns/priced/l113.pdf

Phil, we are merely speculating as there does not seem to be a case law precedent with regards to a H&S Policy and breach thereof. It is a legal requirement first and foremost. Therefore a prosecution could, in theory, ensue. I am not sure what relevance civil law action is with regards to the Policy as HSWA forbids any civil liability courtesy of s47. Just to add 'salt to the wound' not sure what s7 has to do with the Policy either. Section 7 as I understand it applies to employees and has nothing to with the H&S policy, unless you are implying that employees could be prosecuted for non-compliance of the policy - very unlikely.

Think you had better be careful when loading that gun...no offence meant.

Ray

As you may have corrected it,my sincere apology folks for spelling mistakes

vreach to read breach; and
abining to read abiding

Vrick

The main point of the thread (as the originator) was to test my theory on what could happen if a harbour authority incorporated a ‘Statement of compliance’ to the PMSC into its general HS Policy Statement and subsequently was found to be in breach of that statement.

The main points of discussion were (for me) the following: -

The PMSC is not legally binding.

The HS PS is legally binding and should be revised as required to ensure relevance.

Therefore in theory, there may be a possibility of a Port being prosecuted for breach of section 2 (3) of HASAWA if the Port was found to be non-compliant with the requirements of the PMSC (legal or not). The likelihood of this scenario occurring however was considered by most posters to be very low.

The reason for looking into this is for project work and for possible future issues regarding accidents / incidents within the Harbour limits of UK Ports. Remember HSE / MCA powers can be limited in this regard and some Harbour Authorities have powers to create their own legislation and byelaws. The situation can be complex. Also the MAIB have no powers to enforce the findings of their incident reports.

Another reason is that I’m getting fed up seeing the same PS Policy statement being regurgitated, slightly amended and used by many companies. This is a poor show indeed and generally (in my view) will lead to the same method being used in the general HS arrangements of the company. OK, there are a number of generic procedures that could work but there are far too many 'consultants' selling the same 'package' across sectors.

For me HS arrangements should be bespoke to the organisation and the HS Policy Statement should reflect that. If the PS is considered just a statement to 'tick a box' then I fear the rest of the system will be considered in equal terms.

My opinion is simple - You should write down what is relevant to your company and how you intend to operate safely not what you think the regulators or prospective customers want to see (Phil, the PS is used more these days a tool to highlight compliance to prospective customers, rather than just an internal document stuck up in a tearoom wall for staff to ignore).

If an organisation states that they will comply with a Code or any other guidance or legislation within their PS then they should do it in my opinion.

Phil, fair point, misinterpreted some of your comments.

Although I am not sure how an employer would use their h&s policy to defend a claim. It is basically a statement of intent, not always carried out exactly as it was written, but usually not a lot of substance either. I would have thought that evidence of a breach of statutory duty would be far more likely and effective.

Most scenarios, including s7 prosecution, are merely speculation. Indeed, there are very few prosecutions under s7 in the first place. Anyway, with enforcement action becoming less and less, you almost have to kill someone to be prosecuted these days!