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8.16 pm

James Brokenshire (Hornchurch) (Con): I endorse the comments of the hon. Member for Eccles (Ian Stewart) about the reasoned debate that we have had. We all share the concern to try to find a resolution to the problem and to make improvements to ensure that fatalities do not happen in the future and that people receive proper justice when incidents have unfortunately occurred and when culpability can be pointed in the direction of a particular corporate.

The points that have arisen this evening are about how best we can achieve that and whether the Bill is able to seek the punishment of those responsible for deaths of members of the public and, most important, employees just going about their daily work. Will it be able to bring about a change in the culture and the mindset of companies and the directors of organisations to ensure that we have a step change in the climate and the approach governing health and safety so that accidents and incidents can be prevented in future? As other hon. Members have said, however, the Bill falls short in a number of respects. I note that this point was reflected fairly in the Home Secretary’s speech, at least on one issue. I certainly look forward to seeing the amendments to judge the extent to which those concerns are adequately and properly addressed.

The first issue I want to consider is that of identification and of how we move on from the current requirement in common law for a controlling or directing mind. My concern, as has been expressed by others, is that the Bill appears to exchange one identification test for another—that of the senior manager. The issue has been raised by stakeholders and the Association of Personal Injury Lawyers has said that the current wording

I note that the Home Secretary has said that this specific issue will be focused on, but we cannot lose sight of such a fundamental and trenchant criticism of the structure if we are to have a law that will help to provide the sense of justice that we want to achieve.

On the concept of senior management and senior management failure, it is interesting to think of what will happen in practice and what the courts will consider in testing that when this law comes before them. Travers Smith, a City law firm, said in one of its briefing notes:

In many ways, that builds on some of the comments from the hon. Member for Eccles. Clearly, the view that some lawyers seem to be forming is that if one is looking at large organisations, things will be much more difficult to pin down.

Leading on from that is how companies operate and organise themselves. For example, there may be one very large corporate concern, but it is likely to have a holding company at the top, a plc, a listed company and, underneath that, lots of operating subsidiaries. I am not clear how the test will operate in that context. To use a lawyer’s jargon, does it pierce the corporate veil or not? Ultimately, managers at a local level could be responding to directions or a general approach from a more senior aspect within the structure of the company, at the top. Is it possible to look up through the corporate structure to see who is ultimately responsible? Which corporate are we talking about? Is it the subsidiary, the intermediate holding company, the other intermediate holding company, or the top company? We need to be clear about the practical implications of how large organisations organise themselves. In many respects, one of the problems in the past has been that the existing manslaughter law seems to enable us to pin responsibility down in the case of small organisations, small companies and small businesses, where one can look at the structure that is in place, but perhaps not in the case of larger organisations, where, judging from the examples we have heard this afternoon, it has been difficult to establish that identification principle.

Ian Stewart: The hon. Gentleman articulates this complex issue well, but does he agree that if it is possible in the case of fraud, for example, to make the link between the point of the problem and the controlling mind, that should also be possible under the Bill?

James Brokenshire: The hon. Gentleman makes an interesting point that, in many respects, cuts to the heart of the argument. One of the interesting things in the context of what the Bill provides is the interrelationship with existing health and safety legislation, where that personal liability exists. That connection between the two things concerns me in terms of ensuring that, if an action is brought against the corporate as a consequence of the Bill, that does not in some way cut across or undermine any other actions that might lie against the directors personally in the context of health and safety legislation. There is a clear interrelationship that we need to look at. I listened carefully to the Home Secretary and he seemed to say quite clearly, “No. You could have an action that would rely on this Bill and that would not impact on separate potential actions that could lie against managers or directors in relation to health and safety legislation.” That is a key aspect. It is the connection between the two things that, for me, provides the solution. As the Bill proceeds, we need to test whether that works in practice.


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On the other aspects, we need to consider where we are in terms of whom one can bring the claim against. This evening, we have discussed the issue of Crown immunity and the waiver of Crown immunity in certain circumstances. However, that is hemmed in by various exemptions that appear to draw distinctions in relation to factors that appear to apply equally to private sector organisations, as well as public bodies. We heard a moving and clear example of that type of case from the hon. Member for Lanark and Hamilton, East (Mr. Hood), who is no longer in his place. He talked about an investment that he said that Transco had not undertaken and said that that had resulted in loss of life.

Clearly, the same arguments could be set out in relation to public bodies as well as private bodies. The Centre for Corporate Accountability, which has highlighted that as a concern or reservation, says:

It is its view that

We need to examine that further. There are issues in relation to the extent to which Crown immunity applies that are right and proper. Liberty has suggested that,

Although I understand the point that is being made in that quite direct assertion, I do not think that things have gone that far. However, we need to analyse carefully where exemption lies and whether it is right to draw a distinction between public authorities on the one hand and private concerns on the other. We should be trying to achieve justice for individuals, as well as ensuring that a climate of safety is promulgated and that fewer incidents occur.

We need to effect this cultural change. In relation to the assessment of cost arising from the introduction of the Bill, it is interesting to note that it is suggested that the cost may not be that large. The explanatory notes on the financial effects of the Bill say that

£2 million to £2.5 million, and court costs of £0.1 million to £0.2 million, are likely to be

The interesting point in that context is the extent to which we are facilitating change. There is the question whether the Bill will result in the step change that I have been talking about and whether it will ensure that we do not have further deaths, or that we limit the situation as much as possible by changing the sense of culture. We may run the risk of seeing companies or organisations that already comply either over-complying or being concerned about doing things that may well be lawful for them to do. But we may not
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necessarily get at those organisations that do not comply at all with health and safety legislation. In that respect, the Bill may not change that situation. It is a question of looking at enforcement and toughening up the regime for those who do not care about the application of existing health and safety law and therefore will probably ignore the Bill, however carefully we craft it and define it. But it is clear that the stated desire of providing

is the right one; it is the one that we must look for.

The Bill is complex. I should declare at this stage that I am a lawyer—a non-practising one, I hasten to add, so I do not have any direct personal interest in the outcome—and as a lawyer I find the Bill complicated and difficult, which is why it has taken so long to get to this stage. That said, I welcome the fact that it has got this far and that we are putting this issue on the agenda.

Ultimately, however, we have to go back to the fundamental starting point. I refer to article 2.1 of the European convention on human rights, which states:

Protecting by law is our guiding principle, and I hope that the Bill will achieve that. At the moment, it does not, but I hope that, with the will of this House and through the changes made in Committee, we can create a statute that will fulfil the aspirations set out clearly by many Members in all parts of the House tonight, and that we provide a form of protection that provides justice, as well as improvements in health and safety.

Several hon. Members rose—

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. As a guide to the House, we have about 70 minutes before the wind-ups and 10 hon. Members are seeking to catch my eye. I leave it to hon. Members to do the maths.

8.30 pm

Mr. Terry Rooney (Bradford, North) (Lab): I join in the general welcome for the Bill’s publication, despite the fact that it has shortcomings. It is the 10th anniversary of the original Law Commission report and it is time that we had some progress.

To put the issue in context, earlier today I met a delegation of people from India who work in the ship-breaking industry, in which workers are extremely casualised. In India, they get a dollar a day in wages. They take approximately 100 tonnes of asbestos out of a ship with their bare hands, and they have no medical or physical protection. Some 9,000 people are dying each year. Sometimes, we need to reflect on just how far we in this country have progressed.

Sadly, my co-Chairman on the Joint Committee that undertook the pre-legislative scrutiny, my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), cannot be with us tonight because he is on jury service; there is an irony in that. But I am glad that, to judge by the comments made, virtually everybody has read the Committee’s report. Several
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Members have misquoted it, but at least they read it in the first place, which is helpful. Despite the suggestion from the hon. Member for Kingston and Surbiton (Mr. Davey), I welcome the Government’s response, particularly on corporate culture, remedial orders and removing the profit multiplication factor, which was a negative aspect of the original Bill.

I also welcome the Home Secretary’s comments on the definition of “senior manager”, which is an issue that we addressed at great length in our report. He said that he would write to Opposition Front Benchers, and I wonder whether he will extend that offer to members of the Joint Committee, because we took a great interest in that issue.

Mr. Sutcliffe: I am very grateful to my colleague and fellow MP for Bradford for giving way. I am happy to make sure that the Committee gets a copy of the amendments, as well.

Mr. Rooney: That is probably the only thing that I will get all night.

Like many others who have spoken in this debate, I remain absolutely convinced that we will not make progress in this arena until we have individual liability of directors. This is not about revenge or prosecution; it is about changing the culture of the boardroom and changing behaviour. The day that the first person goes to jail is the day that we will really see a change in attitude. If we fail to get this provision into the Bill, the Government will have to return to the issue. It will come back to haunt them if they do not bite the bullet and include such a provision, before the Bill finishes its progress through the House.

The Committee received lots of evidence, but perhaps the most telling was from Alan Ritchie, general secretary of the Union of Construction, Allied Trades and Technicians. He gave us some horrendous tales of instructions given down the telephone by a senior manager to a site manager to do work that was downright dangerous. The following quote sums it up. Alan Ritchie said that

That is where we are at. The whole history of the construction industry sums up why we are in the mess that we are in some circumstances.

The Engineering Employers’ Federation was very much in favour of individual liability. Its argument was that the good companies and directors have nothing to fear from legislation; it is the bad people who we want. This is about not chasing people needlessly, but extinguishing the bad practices and addressing the bad individuals that kill people and cause the massive accidents that have taken place.

When the Committee took evidence from representatives of the Home Office, I pressed them in particular on whether the Bill would have resulted in any change in the failure to prosecute for the major disasters that have taken place over the past 10 or 15 years. The answer was no. No matter how horrendous those incidents were—we have heard the comments of
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judges today—the Bill would have made no difference because no company or individual would have been prosecuted.

Mr. Grieve: I appreciate the point that the hon. Gentleman is making, but there have been prosecutions—not for corporate manslaughter or manslaughter, but under the Health and Safety at Work, etc. Act 1974. Although I am sure that this is not what he intended, it would be misleading to give the House the impression that no action was taken against those companies at all. The HSE is pretty proactive in that respect.

Mr. Rooney: I am trying to make two points. First, there would have been no convictions for corporate manslaughter. Secondly, it is so difficult to mount a prosecution for the existing offence of gross negligence manslaughter for individuals that no one gets convicted. That is why the legislation needs to be extended to include individual liability. There would be the same protections that exist under section 37 of the 1974 Act because the conviction of a company would be needed before an individual could be convicted. However, there are cases when the public demand that someone should at least be brought before the courts so that the case can be tested before a jury makes a decision.

Workers are killed in most such disasters, but many members of the public are also killed. The trade unions have a fantastic record of fighting for such legislation, speaking up for their members when accidents happen, representing them and giving them a voice. However, the innocent members of the public who are victims have no voice—no one stands up for them.

The evidence taken by the Committee from Disaster Action, especially that from people from the Marchioness, was powerful. The Bill provides that private prosecutions may not be brought without the prior consent of the Director of Public Prosecutions, but hon. Members should read the evidence of the people from the Marchioness and about the obstructions that were put in their way by legislative bodies, Law Officers and the legal system, which denied them any opportunity of justice, and then ask themselves whether such a provision is absolutely necessary. We need to reflect on the fact that the DPP does not have a very good track record on the issue. As I said, this is about not revenge, but justice for victims and their families.


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