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Workplace Fatalities

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Stringer.]

10.2 pm

Tony Baldry (Banbury): In 1998, a constituent of mine, Simon Jones, a student at Sussex university, was tragically and traumatically killed after just two hours on his first day working for the Dutch firm Euromin Ltd., at Shoreham docks. I believe that Simon's death and the subsequent acquittal of the company's general manager, James Martell, has made clear fundamental failures of the law when it comes to safety in the workplace. Regardless of the outcome of the court case, I have no doubt that there is a real need for the Government to examine closely the operations of the Crown Prosecution Service, the Health and Safety Executive and the police in cases of deaths at work.

In Simon's case, we need simply to consider the gulf between the observations made by some of those authorities and the actions that they took. I understand that a now-departed ships agent and sales executive at Euromin wrote to the HSE to say that it would

"only be a matter of time before someone was killed",

and that there was "inadequate manning and safety" at the docks. What did the HSE do? Nothing.

Let us consider the activities of the CPS. I understand that it wrote to Simon Jones's family to say that there was

"no doubt Euromin employed an unsafe working environment".

There is no doubt about the words of the CPS: Euromin employed an unsafe working environment.

Despite there being no doubt about the severe lack of safety at Euromin, what did the CPS do after Simon's death? Nothing. It was not until the third time of asking—not until two High Court judges had told the CPS that it was "irrational" not to prosecute—that the CPS decided that it was

"in the public interest to prosecute".

I have no doubt that it is now in the public interest considerably to strengthen the law in relation to deaths at work.

The death of Simon Jones at work demonstrates existing shortcomings both in the law and in the practices of the agencies that should be most concerned to ensure that everything that can be done to reduce the risk of workplace deaths is done. Sadly, other cases also demonstrate complacency and the slow and seemingly less than committed prosecution policies that currently exist.

Although I intend to outline several problems, there is one overarching and urgent necessity: every work-related death should be treated as a manslaughter investigation from the outset, until manslaughter can be eliminated. Without that provision, it is clear that the hurdles will remain too high for those who want to prosecute.

However, any attempt to improve safety at work is undermined when one realises that the HSE is not doing its job of investigating deaths at work. Only 6 per cent. of serious accidents at work are looked into by the HSE, while a mere 10 per cent. of severe injury cases, and amazingly, only 20 per cent. of cases in which death occurs, lead to prosecution. That means that the HSE does

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not investigate four in five deaths at work. That is of greater concern given the even more staggering fact that the HSE appears to suggest that 70 per cent. of the 25,000 deaths at work since 1995 were the result of management failure. In that case, why have only six cases of corporate manslaughter been brought, and why have only two of them resulted in conviction?

I am additionally concerned that the HSE may have substantially under-recorded the number of deaths that take place at work. When I wrote to the director general of the HSE on that point, he pretty much conceded that the HSE often has an insufficient idea as to whether an individual is an employee or a member of the public when it initially registers a death in the workplace. That is unacceptable. Indeed, if the HSE is unsure about whether it is recording as members of the public people who are in fact employees, that serves to underline the pathetic rate of corporate manslaughter cases being pursued. I hope that the Government and the HSE will seriously consider implementing proposals to increase the reporting of all deaths in the workplace.

This specific case, however, raises two wider concerns which relate to the actions of the police and the CPS as well as of the HSE. Those three authorities form the "protocol of liaison" on deaths at work. I shall offer some suggestions that the Government might consider in relation to this protocol and to the CPS and the police, but first I shall focus again on the HSE.

Currently, there are two categories of offence as regards a work-related death: manslaughter and regulatory offences. Manslaughter requires evidence of gross negligence as against simple negligence for a regulatory offence. That immediately creates a problem as regards corporate accountability. I ask the House to consider the Home Office's recent response to me on that point.

A letter from the Home Office of 24 October 2001 stated that although the Government intended to legislate, they must

"ensure that we balance the entitlement of the public to see justice being done and the need to protect corporations that have taken all reasonable precautions from an unjust prosecution".

However, the letter went on to state that the Government felt that they must also ensure that

"the emphasis is on the responsibility of the corporation itself, as a legal body, taking responsibility for its actions . . . however, individual officers could still be prosecuted if there was sufficient evidence".

By distinguishing between manslaughter and regulatory offences in relation to deaths at work, one Government objective is being cancelled out by the other. Surely, on a simple interpretation, logic might suggest that a work-related death through negligence is no different from a gross act of negligence and hence the presumption of corporate manslaughter. Why do the Government feel the need to distinguish between manslaughter and regulatory offences? What is the difference between gross negligence and negligence?

Although I agree that the HSE's focus should remain largely preventive, it occurs to me that part of the reason for its disappointingly low level of investigation and prosecution is that it is attempting to strike a somewhat false balance. Clearly, that would be easily remedied if all deaths at work were initially treated as manslaughter until proven otherwise. That problem is plainly underscored

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when one considers the protocol's initial assessment in relation to police investigation. Consider the wording of the introduction to the protocol:

"the police will conduct an investigation where there is an indication of manslaughter".

Yet paragraph 1.1 says that a police investigation could be undertaken

"where the circumstances might justify a charge of manslaughter".

Even more contradictorily, paragraph 2.1 asserts that that may happen where there is

"evidence or a suspicion of . . . gross negligence".

Such inconsistent language in the protocol about what evidence is needed before an investigation is even started will not advance the accountability of businesses, their managers and directors.

It is now necessary for the Government to introduce legislation so that corporate killing is immediately treated as manslaughter until the evidence demonstrates the contrary; otherwise, if the Government's new protocol retains the distinction between the initial assessment and manslaughter inquiries, there surely needs to be consistency about the degree of evidence before a proper manslaughter inquiry can be commenced.

In my opinion, evidence that might justify a charge of manslaughter presents far too high a test. It does not even offer the chance for consistency in police investigations. That lack of consistency and its consequence as regards the police attitude towards deaths at work become clearer if one considers the resources made available for the initial investigation.

In various responses to my letters, the Home Office has made it clear—I quote from a letter dated 15 January 2001—that

"one of the most important parts of the Protocol is for Chief Constables to appoint Regional Liaison Officers, who should maintain contact with nominated representatives in the CPS and the HSE in the relevant region".

But it was not necessarily clear that that was the case with Simon Jones's death. For example, it took more than six weeks for the police investigation to begin. Why? I would suggest once more that the inherent weaknesses in the current two-stage process mean that it is not made clear whether the initial assessment itself is an investigation; thus it seems likely that some police forces will not direct into it sufficient resources. Not only is that ambiguity unacceptable, it does not create the accountability to which the Government aspire.

In fairness, I suspect that the Government believe that the protocol involves more accountability than it does. For instance, the Home Office letter to which I alluded on the line of accountability of police investigation stressed effective working with the HSE, yet how can such work be effective when the HSE itself appears to support my concerns with the current initial assessment under the protocol, given that it observes that

"in most cases it is unlikely that a manslaughter investigation will commence based solely on an initial assessment of the facts surrounding a fatality"?

If that is so, and initial assessments only pick up the most transparent cases of manslaughter, the two-stage process must surely have failed, especially if the HSE has failed to refer evidence to the police.

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Furthermore, it seems that the protocol's current process of undertaking an initial assessment may in itself result in unnecessary delay in those cases where a decision is subsequently taken to launch a manslaughter inquiry. Indeed, it would appear that there was a perhaps an inverted occurrence of that scenario with Simon Jones's case. In a letter to the victim's family, the HSE states:

"I said that the HSE were about to brief Counsel to ensure we had all the necessary evidence . . . however, before this final item of evidence was obtained, the start of the Judicial Review process into Crown Prosecution Service's decision not to take manslaughter prosecutions was announced. This prevented us obtaining this last item of evidence and left us once more in the position of awaiting a decision on manslaughter prosecutions".

Surely that cannot be effective working, as the Government claim.

It is clear to me that, if the Government were to introduce legislation so that directors or managers were responsible for deaths at work, the new protocol would create a far clearer line of accountability. Directors are, after all, responsible for employees in all other corporate aspects. Thus two further issues need to be clarified under the current protocol.

First, there are the continuing concerns over how the criteria are applied by HSE inspectors. The Government chronically under-resource those authorities, yet it is clear that, although the HSE needs to operate within resource limitations, if it were to develop more detailed guidance, such a system would ensure that decisions on whether to investigate would be more rigorously based and more transparent, which would ultimately lead to more consistency. There is also the additional concern about whether the HSE passes evidence to the police as it should.

Secondly, there are the actions of the police when it comes to evidence gathering. I am told time and again in Home Office responses that police officers—I quote from a letter of 5 December 2001—

"go through a nationally organised training programme . . . of a very high standard."

I do not doubt that. However, I doubt the effectiveness of the protocol when it is clear that many police forces are unaware that the protocol even exists.

I understand that the police are not provided with any training on issues relating to manslaughter in the workplace and on how to conduct a thorough investigation in these circumstances. How can that help those responsible to be accountable? It is perhaps no wonder that in Simon Jones's case the actions of the CPS fell well below what is acceptable. I can only assume that the Government's talk of balance on corporate death and the CPS's action, or lack of action, puts the prevailing defence of the "effective workings" of the protocol on a somewhat false foundation.

In Simon Jones's case, there was the wrong application of the law and the wrong law was being applied. As a consequence, I am not filled with much confidence when the Government tell me that everything is all right because the CPS will be involved at every stage to ensure that legislation is "fully workable and effective".

It comes as an insult to the family of Simon Jones when, after its recent Crown court case, Euromin is fined only £50,000 for what clinically has to be described as a corporate death. Once again, it perturbs me that the law

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is being applied the wrong way round. Surely corporations should be fined if they fail to secure safety, but manslaughter, and hence prison sentences, should be invoked for those directors whose failure on safety results in fatality.

If that is to happen, the Government need to publish their promised Bill on corporate manslaughter. Yet Parliament is still awaiting a commitment for the timing of such a Bill. If and when there is a Bill, I would ask the Government to consider the following five questions. Will the Bill make clear the line of accountability between the police, the HSE and the CPS? Will the Government ensure that if one or more of these authorities fails to take sufficient action, they will then take action against those authorities? Will the police be given proper training on issues relating to manslaughter in the workplace and on how to conduct a thorough investigation?

Will further protocols cease with the two-stage process of investigation and initially consider all cases of deaths at work as corporate manslaughter? Ultimately, will corporate directors be held responsible for corporate employees—such responsibility being the most effective deterrent against insufficient safety at work which causes deaths at work?

I suggest that these five questions would make legislation workable, effective and, above all, balanced. I strongly suggest that the five questions, if answered properly, would in part ensure that, as the Minister concerned at the time told Simon Jones's family in a letter of 20 September 2000:

"When flagrant health and safety crimes are committed, the case for punitive punishment is unquestionable."

There are far too many deaths at work and we need to ensure that actions are taken that make deaths at work a crime that does not pay.

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