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10 Oct 2006 : Column 252

I also agree with the approach of my hon. Friend the Member for Beaconsfield (Mr. Grieve). He took a very reasonable and well-informed view. We need to see how we can improve this legislation. The first thing that strikes me as being in need of improvement is the complexity. We can improve the Bill through simplification. It deals with a complex area of the law and, as the debate has shown, it is not without complication itself. We must remember that it will have to be implemented by the courts and understood by juries, whether or not they benefit from the services of the Chairman of the Home Affairs Committee. They need to understand the legislation, and there needs to be as little room as possible for escape through the loopholes that complexity inevitably brings.

The Bill also needs to establish effective deterrents. We are talking about a very serious crime, with the most serious of all consequences. Of course the vast majority of employers are responsible and caring people, but a small minority are unscrupulous and irresponsible, and in some cases criminally negligent.

The issues at stake are profound. Serving on the Joint Committee of the Home Affairs and Work and Pensions Committees, which looked into the Bill, I was struck by the evidence that we heard from groups and individuals. It brought home to me—if it needed to be brought home—just how profound the issues are, and just how tragic the consequences can be. There was, for instance, the evidence from the mother of Simon Jones, on behalf of the Simon Jones memorial campaign. The Home Secretary mentioned that lady in his speech, and his quotation from her words was apt.

Let me briefly remind the House of the background to the case. Simon Jones was a 24-year-old university student taking a year out in 1998 who signed on at an employment agency to obtain work. One morning, without prior knowledge of where he was being sent, he was put in a taxi and sent to Shoreham docks. Within two hours of his arrival, he was dead. I am sure that all of us who heard the evidence from that lady before our Committee, and that of many other groups—including evidence on the Marchioness case—were moved, and understood the need to establish effective deterrents to try and safeguard employees and members of the public as much as possible.

We need to view the Bill according to the criteria set out by my hon. Friend the Member for Beaconsfield. We need to ask what difference it makes and what, in practical terms, it adds to the existing law. We hope that it will make a difference, but I have one slight reservation on which I should like the Minister to comment. I have some idea of the extent of the problem, and it must be emphasised that we are talking about a very small minority of employers, but all the indications are that there is a problem that needs to be addressed.

According to the explanatory notes, it is estimated that between 10 and 13 additional cases of corporate manslaughter will arise following the implementation of the new offence. Does that figure do full justice to the extent of the problem?

As for penalties, I agree with my hon. Friend the Member for Beaconsfield about the level of fines. We must have appropriate levels that create a deterrent. Let us look at innovative penalties for the offence, bearing in mind the obvious restrictions on the type of penalty
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that there are for corporate bodies. In its evidence the CBI said that it was fully prepared to accept the proposal as a good basis to explore, taking a responsible and enlightened approach. There is a consensus on effective deterrents and on an effective and simplified law. That consensus exists across responsible employers, employees, trade unions and members of the public. We need to do justice to their concerns and to that consensus.

I believe in free enterprise and the freedom to innovate, but not in employers having the freedom to be criminally negligent. We must crack down on that. Let us work together so that we have a Bill that achieves that end.

9.7pm

Ms Katy Clark (North Ayrshire and Arran) (Lab): I am grateful for the opportunity to put on record my support for the Bill, so far as it goes. As we have heard many times today, we have waited for a long time for the Bill. Many on this side of the House and in the wider Labour and trade union movement—as well as those who have been directly affected by incidents, particularly in the workplace—have campaigned long and hard for legislation that will protect all those in the workplace. We wanted a Bill that would cover all employing organisations, whether public, private, voluntary, incorporated or unincorporated, and the individuals who own and manage them. The Bill must hold all of them accountable under the law.

Clearly, the Bill in its current form does not go as far as that. We have heard many times from Members on both sides of the House about how it could be improved to provide more protection for more people. The reality is that the Bill will help some people.

We heard a number of powerful examples from hon. Members, such as my hon. Friend the Member for Aberdeen, North (Mr. Doran), of situations where the Bill might provide great assistance. We know that, every year, more than 200 people die in the workplace. Last year, 384 members of the public died in the workplace as a result of negligent employers. We know that 1,000 other people died in road traffic incidents related to the workplace. Many other incidents are not recorded, including incidents that happen at sea but not logged.

We are told that 70 per cent. of those incidents result from health and safety failures and negligence by management. We are aware of the scale of the problem and of the human tragedies that are involved. I met with my constituent Dorothy Wright earlier today, whose 37-year-old son Mark was killed last year in a workplace incident. She said that it was “a mother’s worst nightmare.” Her son was incinerated at work as a result of failures in health and safety in the workplace as well as failures in legal practices. That was also a tragedy for his wife and two young children.

The reality is that many of those affected are young people and they are most at risk, which makes it an even greater tragedy if there is an incident. It is vital that we make sure that we have a legal regime that provides effective sanctions to ensure that management are not willing to take risks with the health and safety of their employees. We know that we do not have that now and we know that Scottish law on culpable
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homicide and English law on gross negligence and manslaughter have been completely inadequate to deal with those issues. I thus ask the Minister to look again at the legislation and perhaps to reflect on finding other ways of dealing with these problems.

Many hon. Members have expressed strong views about the need for individual directors to have individual responsibility and to be liable for any lapses in their legal responsibility for health and safety at work. I ask Ministers to take the strength of those views into account and to reflect further on the Bill. Labour Members are certainly well aware of the strength of feeling on this issue up and down the country. We saw it at the Trades Union Congress last month, when policy decisions were taken to seek to strengthen the Bill, and we saw it overwhelmingly again at the Labour party conference, where the importance of effective individual sanctions and the responsibility of directors was emphasised. As we move through the process, I hope that those issues will be looked at again, so that we move forward from what is already good legislation to make it even more effective in certain circumstances. We want to ensure that the legislation is even better, dealing with a far wider range of circumstances.

The reality is that hundreds of people are affected every year. Some cases may not be preventable, but the cases that we are talking about—cases of gross negligence, for example—are avoidable and preventable. Those cases should be subject to the criminal law and the individuals affected should get justice in the same way that others who have crimes committed against them get access to the justice system.

9.12 pm

Mr. Philip Dunne (Ludlow) (Con): I am conscious of the time, so I shall confine my remarks to issues that have not been raised in the generality of today’s debate, which has been extremely constructive. I welcome the Bill. I was privileged to serve on the Joint Committee that conducted pre-legislative scrutiny. The consensus was remarkable, except for one issue that I shall touch on in a few moments. On that, I am with the Government rather than with my Committee.

We received some moving testimony from victims’ groups, which brought home to me the depth of feeling about these personal tragedies, particularly about the lack of ability to right the wrong. People in those groups faced many years of anguish, mainly because of the lack of ability to bring successful prosecutions at the corporate level. Employers’ groups have also welcomed the Bill, recognising the importance of having it on the statute book to help companies that are indulging in best practice corporate governance in their health and safety regimes. They are doing the right thing and only the bad apples will get caught.

Somewhat against the flow of debate but in common with Conservative Front Benchers, I believe that individual liability provisions should not be built into the Bill. Speaking as chairman of the all-party group on corporate governance, my concern about going down the individual liability route is that we might find ourselves tying up major corporates in an excessive amount of red tape and weighing them down with an
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obsession with seeking to protect themselves from risks that they are already dealing with in most cases— [Interruption.] The hon. Member for Barnsley, West and Penistone (Mr. Clapham) takes issue with that—

Mr. Clapham: The hon. Gentleman has already heard from various contributions that only a small minority of corporation managers fail to follow proper safety practices. If the Bill included provisions on named directors, I believe that it would lead to a much better safety culture, which would result in fewer accidents down the line at work. It is not simply a matter of revenge, but of how we stimulate a whole safety culture.

Mr. Dunne: I hear what the hon. Gentleman says, but we already have the legislative framework that allows us to pursue directors who are grossly negligent. The downside to the benefit of providing an umbrella and blanket approach is the burden that it would place on all the good companies that conduct themselves properly. That is a serious consideration about which the Government and directors’ groups are concerned. I was about to cite a previous Home Secretary who felt that such a provision

That would drive good directors out of high risk companies and, potentially, good companies out of this country.

Ian Stewart: Will the hon. Gentleman give way?

Mr. Dunne: No, I am afraid that my time is very limited.

The Bill needs to be improved in four areas. We have touched on the scope of the Bill, and the contradictions were well illustrated by my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright). Partial immunity for the public sector is a matter of degree, and the Select Committee debated the question of the emergency services having some immunity for some of their actions, as otherwise some people might not be rescued because the members of the emergency service had been instructed not to save lives. That would be a dotty state of affairs and the Government have got that right.

However, the Government have introduced several other exemptions that are illogical and nonsensical. Why should those responsible for statutory inspections, such as the Food Standards Agency, be exempted from the provisions in the Bill? Why should those responsible for inspecting child protection institutions be exempted? Why should the probation service be exempted from the provisions? I urge hon. Members to consider those points in Committee.

The issue of undertakings has been raised by other Members. In particular, the hon. Member for Bradford, North (Mr. Rooney) talked about subcontractors. It is wrong that unincorporated bodies will not be covered by this legislation in the same way as corporate bodies will be. I speak as a partner in a farming business that is unincorporated. If we had a
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health and safety issue, I should be capable of being sued in the same way as if the business were incorporated.

We have heard much debate on the senior manager test. I suspect that much of the discussion in Committee will be on that issue and how one defines it, in this complicated corporate world of global companies in which decisions are taken at many levels.

On the issue of territoriality, we have touched on the question of Scotland, but we have not mentioned territoriality beyond the British Isles. The Select Committee raised that issue, because several British companies operate offshore and outside British territorial waters. We have heard about the fishing industry, for example, and we should be able to pursue corporates if a negligent incident happens there. We should also consider whether the Bill should extend to British companies operating in the EU. I commend consideration of that point to the Committee.

9.18 pm

Ann McKechin (Glasgow, North) (Lab): Like several of my hon. Friends, I welcome the Bill. I also agree with some of the comments that have been made about the senior management test, and I am pleased that my right hon. Friend the Home Secretary has indicated that he is prepared to reconsider the issue. The issues of penalties and corporate probation periods are also important.

I shall concentrate on the issues pertaining to Scots law. As my hon. Friend the Minister is aware, the addition of Scotland to the Bill was a last minute call. As a result, Scotland has not benefited from the wide consultation on the Bill that has happened in England and Wales or the scrutiny of the Select Committee. That places a greater onus on the Government to try as hard as possible to ensure that the Bill works for Scotland as much as it does for the rest of the United Kingdom.

I say that because the Stockline factory explosion occurred two and a half years ago in my constituency, killing nine people. As many other hon. Members have mentioned today, the human cost of death at work affects so many families in this country. In the past 10 years, the rate of fatal injury in Scotland has, with the exception of only one year, remained significantly higher than that in the UK as a whole. Similar differences are evident in the figures for major injuries.

Scotland has a different legal environment for enforcement. Prosecutions must be made through the Procurator Fiscal Service rather than taken directly to court by the Health and Safety Executive. The Procurator Fiscal Office faces great challenges in its work load and it is perhaps unsurprising that few members have great experience in the health and safety aspect of the law.

Sadly, the courts in Scotland tend to fine much lower amounts than those in the rest of the UK. In 2004-05, the average fine per conviction was £4,846—a decrease on the previous year of £8,191. We need a much better partnership between the Health and Safety Executive, the Procurator Fiscal Service and judges if we are to stop being the poor relation in the UK when it comes to health and safety.


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That is why I accept that Scotland cannot afford to lag behind the rest of the UK and why we should have legislation that covers the whole of the UK. However, as I said to the hon. Member for Dundee, East (Stewart Hosie) earlier, there is a fundamental difference in the common law position.

The purpose of the Bill, as stated on page 3 of the explanatory notes, is to try to cover the

It is trying to create equivalence in the law, regardless of the legal structure of the body that causes the death.

That follows the common law definition of manslaughter by gross negligence in the Adomako case in 1997. It based its description on the civil law interpretation of a breach of a duty of care. However, the definition is the exact opposite in Scotland, where, in the Transco case, which my hon. Friend the Member for Lanark and Hamilton, East (Mr. Hood) mentioned, Lord Osbourne commented:

If the Bill is enacted, it would not provide equivalence for Scotland but create a definition of a crime that would apply only to corporations and specific Crown bodies and not to individuals and other organisations that the measure does not cover. I do not propose that the Home Office start interfering with Scots criminal law—my hon. Friend the Under-Secretary can rest assured about that—but I hope that he will engage in urgent consultation with the Scottish Executive as well as specific institutions such as the Scottish Law Commission on the best legislative route to ensure coherence for the victims of the crimes that we are considering.

Partnerships are excluded from the Bill on the basis that, in England, they are not a separate legal entity. However, the opposite is the case in Scotland. Partnerships are a separate legal entity and it could be argued that it would be logical to include them in the Bill.

Pages 25 and 26 of the Joint Committee report recommended that the Government provide certainty on the law of causation by including the Law Commission’s original provision in the Bill. The Government rejected that, based on several recent English legal cases, on page 8 of their response. Will my hon. Friend the Under-Secretary confirm whether the Department has taken specific advice on the matter as it relates to Scots law? If so, what were the conclusions?

Clause 16 refers to prosecutions only by the public authorities, but for some odd reason it does not refer to Scotland and I therefore presume that private prosecutions in Scotland would be permitted under the Bill as it stands. Special constables are covered in only England and Wales. I am sure that we shall try to iron out those points in Committee.

Like many other hon. Members, I welcome the Bill. More needs to be done to strengthen it to ensure that it works and I look forward such progress in Committee.


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