Examination of Witnesses (Questions 22
- 39)
MONDAY 24 OCTOBER 2005
MR MIKE
GRIFFITHS, MR
HUGH ROBERTSON
AND MR
BARRY CAMFIELD
Q22 Chairman: Good afternoon and
welcome. Thank you very much indeed for coming. The Committee
knows which organisations you are from. Can I open up really with
where the questioning of the representatives of victims left off.
It would be unfair to overstate what we were just told, but perhaps
the suggestion was, from Disaster Action, that if the Bill went
through in its current form, unamended, it might not be worth
having at this time. Can I ask each of you, if the Bill were to
go through in the form that it is in now, without some of the
amendments you might like to see, is it worth enacting?
Mr Robertson: We feel that if
the Bill were to go through in its present form what it would
do would be to help remove the loophole, since the P&O case,
Zeebrugge, about the "directing mind". That would be
a positive thing. However, really it would be just clarifying
and tightening up the law. Also, to a certain extent, in some
cases, it would help give a sense of justice to the relatives
of victims, who have lost a relative as a result of a fatality,
where the alternative is a health and safety fine, basically.
However, there are major limitations, which I think all three
organisations here have put in their submissions, around, in particular,
the fact that it is not companies that make decisions, it is individuals
that make decisions, and the only penalty for a company is an
unlimited fine, which effectively is exactly the same as the Health
and Safety at Work Act. With these caveats, we are certainly not
saying the Bill is worthless; it is something that the trade union
movement has been calling for for the last 10 years. What we believe
is that it could be far more effective.
Q23 Chairman: Thank you very much.
Mr Griffiths and Mr Camfield, broadly do you share that assessment?
Mr Camfield: We think the fact
that we clarify some of the issues around the Crown bodies, and
there would be a slight easing of the burden of the single director
mind, the idea that there may be five additional prosecutions,
has got to be worth it itself but we think would be a massively
missed opportunity, because the reality is probably that is all
we would get, in terms of this part of the legislative process,
for a foreseeable term. We think that would be a tragedy and really
a missed opportunity.
Mr Griffiths: It is broadly in
line with my colleagues. It would be a tragedy if this Bill did
not eventually become realised as an Act of Parliament, but in
its current form I have to give great emphasis to what I see and
my organisation sees are major deficiencies, which we would hope,
with the assistance of this Committee, would be corrected before
it appeared in its final form.
Q24 Chairman: Mr Robertson, can I
ask you about the overall position. Does the TUC have an estimate
of how many preventable worker deaths occur each year and, whatever
assessment you are able to make, how many of those ought to lead
to prosecutions for corporate manslaughter?
Mr Robertson: The deaths that
this would relate to would be almost exclusively the accidents,
if you like, the immediate deaths, as opposed to the 10,000, 15,000
other work-related deaths. Of those, among workers, there are
about 220 a year, 250, total. The Health and Safety Executive
recognises that at least 70% of these are the result of management
failures. Management failures are responsible for somewhere between
150 to 200 of these deaths every year. However, we think it is
highly unlikely that in all of these cases a conviction for corporate
manslaughter would be attempted or would be successful. As you
will know, the Regulatory Impact Assessment seems to put the figure
at roughly five a year.
Q25 Mr Dunne: Following on, Mr Robertson,
from what you have said, both in that context, it is very clearly
a relatively modest number of incidents where this legislation
would apply, and what you were saying about the Health and Safety
at Work regulations, do you think that, the culture which has
been introduced as a result of Health and Safety at Work, with
corporate governance coming in at a much increased level, this
Bill would impose greater burdens on business to reduce risk-taking?
And are those burdens worth it?
Mr Robertson: Certainly we do
not see corporate responsibility as being a burden. We think it
is to the benefit of the organisation itself at all levels, from
boardroom down, to be socially and corporately responsible. Hopefully,
this Bill will increase the level of responsibility. Certainly
I do not see it in any way as being something that good employers
should have any fear of whatsoever. Primarily, this Bill will
be aimed at larger employers. At the moment it is relatively easy
to prosecute a small company. It will be in primarily the large
organisations and the public sector where I think we should be
doing a lot more to encourage corporate governance and responsibility
on occupational health and safety issues. There is the issue which
is intertwined with this, which is of the duties of directors
and directors' duties, which is something which we think cannot
really be seen in isolation from the issue of corporate manslaughter,
and they are just two sides of the same coin. I think to see this
as a burden really misunderstands the way that a responsible business
will see this.
Q26 Mr Dunne: Could I ask your colleagues
whether the scope of this Bill should be increased to cover serious
injury, not just fatality?
Mr Camfield: I think it should.
We are talking about 150,000 plus injuries a year that are recorded,
over 150,000 in the recent period, and part of our concern about
this is that it is about the health and safety culture. If we
address this seriously, so that companies know that the obligation
is a very serious one, it is on them at the highest level through
the business, it is not just about preventing the most tragic
and publicly notable deaths but the scale of injury that goes
on day in and day out. We are recording cases and representing
members on a very regular basis. It picks up the issue that we
are all so concerned about, which is those occasions of the 200
odd deaths which occur. Underneath that there is that tragedy
of human misery which we think has to be addressed more seriously,
and that companies need to be liable not just for compensation
to individuals but ought to be prosecutable under legislation.
Q27 Mr Dunne: Would it be a similar
proportion that would be susceptible to negligence? You referred
to 200 deaths out of 20,000, I think, as roughly the proportion
that would apply. Do you have any figures as to how serious accidents
would fit in things?
Mr Griffiths: I certainly do not
have those precise figures, if we were to broaden it to serious
accidents, and whether the TUC would have that information or
would be able to research it for the Committee if they felt it
was important. I start from the premise that the vast majority
of deaths and, by similar definition, serious injuries are preventable.
They are preventable if only the proper duty of care was exercised
by the company. It seems to me wholly appropriate that the Bill's
scope should be increased to cover serious injuries, not just
because, in many cases, we can all appreciate the dramatic effect
it can have on dependants and their families, the type of life-changing
experiences there very well may be as a result of a major and
serious injury, but simply because of the first point I made,
that if there were a better deterrent then many of these injuries
would be avoidable. The actual penalty in different cases is likely
to be different but, nevertheless, the scope of the Bill should
be extended to cover that.
Q28 Justine Greening: In many respects,
we have already covered the next question I had to pose to you.
Mr Robertson, obviously, the courts can impose large fines on
companies when they are found to be guilty. In the case of Network
Rail and Balfour Beatty, Balfour Beatty, for instance, was fined
£10 million, so the courts do seem to show a greater willingness
to impose very high fines envisaged under health and safety legislation.
Do you think this means that a separate offence of corporate manslaughter
therefore is less needed perhaps than it was before these sorts
of fines have been imposed by the courts?
Mr Robertson: No. I think the
fines do recognise society's concerns over health and safety,
but also perhaps, to some extent, the frustration of the existing
failures of the law, the fact that we cannot at the moment, or
find it very difficult to, prosecute for corporate killing. Fines
are low and are not going to change the culture within boardrooms.
We do have to look at more innovative penalties, and there is
a problem with not only corporate killing but generally. Our submission
and the submissions of the other unions have looked at some of
the possibilities of how we can look at other penalties, such
as corporate probation, so that a company is assisted with their
health and safety culture for a period, as well as a fine. That
is one example that has been given; there are a number of others
as well. It is also the fact that we have to look at the individual
directors of an organisation as well, either within this Bill
or certainly parallel to this Bill. Certainly at the same time
we have to look at the issue of directors as well to make sure
that they change their behaviour rather than just seeing it as
something for a company which may or may not get fined, which
will be picked up by either the shareholders, in the case of a
corporate body, or in the case of a Crown body it will be just
recycling money, to be quite honest. I think it is because of
the Crown issue that we have to look very closely at the issue
of penalties. A fine only being available for corporate killing
offences by a Crown body just does not make sense.
Q29 Justine Greening: Thank you.
Mr Griffiths and Mr Camfield, do you have anything that you would
like to add to that?
Mr Griffiths: There is just one
thing I would like to say about that particular instance, because
obviously we have looked at it since we submitted evidence, and
I am sure a number of the committee will be only too well aware
of Mr Justice McKay's remarks. He said, in summing up, that this
was one of the worst examples of sustained industrial negligence
that he had come across. There was a large fine and that has been
welcomed by a great many. I suspect it was the public interest
that brought about such a fine. You also have to make some comparison
of the size of the fine with that particular company's turnover.
It is not quite so large when you put it into that sort of proportion.
I think the central point though is that here is the Justice,
in this particular case, describing it as one of the worst examples
of sustained industrial negligence, yet no individual is liable.
Mr Camfield: The campaign that
we have been involved in started 40 years ago when a construction
worker fell to his death in the River Wye when the bridge he was
working on collapsed. The case caused so much outrage at the time
that a corporate manslaughter case was taken but failed to be
proved because of the narrowness of the particular point in law.
Since then, 32,000 workers have died over that period. Coming
back to the Balfour Beatty case, it seems clear to us that these
things will hit the public at the level of what might be called
a disaster, in other words, it affects the public. The individual
disaster that is not seen, a worker tragically may be killed in
appalling circumstances, will not attract that kind of publicity.
Maybe the pressure then associated with it will be less, so I
agree very much with this point about a broad range of options
and our central point about directors' duties is one that we would
press very strongly.
Q30 Justine Greening: Just to be
clear, going back to my original question around fines, do you
think that fines in the workplace, rather than in a very public
disaster, like the one associated with Balfour Beatty, are less
likely to be quite so severe, for the reasons you have explained?
Mr Camfield: The evidence is,
the average fines are £18,000, £20,000, of that order.
We are not arguing that the fines should not be part of the armoury
of the judiciary in dealing with these issues, but just on their
own we do not think that, in terms of the culture of health and
safety across Britain, it is really going to make the difference.
Q31 Justine Greening: Thank you.
Moving on then, in terms of which organisations are covered by
this Bill, obviously the Bill itself has a definition of organisations
which actually does not cover partnerships, sole traders and other
unincorporated bodies. To your mind, how many people do you think
therefore are not covered by the legislation as it stands, in
terms of the definitions of organisations at the moment?
Mr Robertson: Part of the problem
with this is, I think, when the people were drafting the consultation
they themselves did not know, and I think it is because it is
very difficult to find out, the vast majority of the organisations
which will not be covered. You are quite right, in terms of unincorporated
bodies and partnerships there are ones which are very small and
where therefore there is not really a problem. They were the main
organisations we were talking about, in terms of the large employers
and the very, very big partnerships, large accounting and law
companies, which may or may not be covered, depending on the final
definition. We would like to see as broad a definition as possible
but we do recognise the difficulties in drafting legislation that
covers every single opportunity. I would not like to place a guess
on it, to be quite honest, but what I would say is I would hope
that, rather than making sure that every single individual, two-person,
one-person, organisation is covered, the focus is to ensure that
all large employers, which are the ones where the problem is,
are covered, broadly, I think, where we recognise the problem
is primarily large, unincorporated bodies.
Q32 Justine Greening: To your mind,
the smaller, very small, partnerships would be covered by individual
manslaughter cases, for example?
Mr Robertson: They are the ones
where there has been no real difficulty in getting convictions
in the past few years. They have all been small ones.
Mr Griffiths: I think it is a
complicated area, I accept that, in terms of the Committee's thinking;
in fact, we have said that in our own submission. If I can take
some licence with the question and just broaden my answer, specifically
we would want an assurance that offshore oil rigs and offshore
British interests would be covered by the scope of the Bill. We
have seen the Government recently covering a loophole there in
their area and we certainly would not want to have to ask retrospectively
for that to be applied in the case of this particular Act. Of
course, we also have a view that where UK companies are the controlling
mind of a UK worker, even if they are working abroad, they should
also be covered in the scope of this Act.
Chairman: We will pick that up for attention
in a few moments' time, Mr Griffiths. Thank you.
Q33 Mrs Engel: I understand that
all of the unions want to have an additional offence of unlawful
killing which is aimed specifically at company directors and senior
managers. You will be aware that under current manslaughter legislation
a lot of this is covered already. There is a specific offence,
if somebody acts grossly negligently and through that behaviour
causes death, that is covered already. How will an additional
offence under this new legislation actually make any real difference?
Mr Robertson: We have been asking
for a specific duty for directors. The problem is that the current
duty under the Health and Safety at Work Act is one which, if
they take it on, if they breach it they can be prosecuted, is
not actually a positive duty on directors. I think that is what
we have been asking for, so that it changes the focus round to
a specific responsibility for directors under the Health and Safety
at Work Act or the Companies Act. There was a private Member's
bill put in by Mr Hepburn, I think, at the beginning of this year
which would have achieved that, and that is what the TUC submission
concentrates on. We recognise that there are already-existing
penalties for individuals under manslaughter legislation and under
the Health and Safety at Work Act, and this is primarily, obviously,
about manslaughter cases and is about corporate bodies. However,
you cannot separate the corporate body from the individuals who
make the decisions, and that is, I think, what we are trying to
get at. The problem with this Bill is perhaps it does and until
you match the two up the effectiveness will be less effective.
Mr Camfield: We think, in the
T&G, that we will not make a significant impact on health
and safety in this country, and that includes corporate killing
and workplace accidents generally, until there is a specific and
general duty on company directors at the most senior level of
companies, because it will put it on their radar. I know directly
that, yes, there are some boards of companies where health and
safety would feature, but I think most of the research we have
available shows something like two-thirds would never discuss
it. They are looking at other questions involving the company's
financial future, its expansion activities, dealing with crises,
and so on, not the health and safety that is in place. It would
put it on their radar and we think what would follow would be
a reduction in accidents, in deaths at work and a reduction in
the need for prosecutions and the legal process that would come
with that. I have seen there is a straightforward way, that we
have got an army of safety reps in workplaces, battling for improved
safety conditions, working with managers. We have got the Health
and Safety Commission, the Health and Safety Executive with their
particular responsibility for developing a health and safety culture.
We have got the Health and Safety at Work Act and the courts,
and so on, but at the board of directors, at that central level,
the responsibility is devolved, as it were, to individual acts
and not to this notion of a more general mind of the company.
We firmly believe that until and unless that is addressed, and
we have no desire to see attacks on directors, and so on, but
once we have got people focusing on this issue then the culture
of a company we think will change pretty rapidly, in terms of
the way this is addressed. We see this, again, as part of the
armoury, not the sole response, there will be corporate fines,
individual liability and the other things going on, but for the
first time British companies will be at the centre of the strategic
tackling of health and safety.
Q34 Mrs Engel: If I can ask Amicus,
I understand that your memorandum proposes this additional offence.
The way that is worded in your memorandum specifically, how might
that relate to secondary offences of aiding, abetting, counselling
or procuring an offence of corporate manslaughter?
Mr Griffiths: I think the quick
answer would be, I do not know. I dare say, the courts, if you
were to include it as we have suggested, may themselves have some
difficulties there. We are absolutely clear on exactly what we
mean by the additional offence and there is an agreement between
all three parties here, but in Amicus' case there is a slight
difference of emphasis. We believe that, as well as the corporate
responsibility that senior directors will have, there is a responsibility
on an individual who is seen to be grossly in breach and responsible
for the breach of that corporate responsibility. We believe that
can only be addressed by an additional offence, as we have said,
of unlawful killing, where we could see the individual being prosecuted
for exactly that offence as a result of the breach of the corporate
responsibility. On the aiding and abetting one, I will come back
to my original answer and pass, if you do not mind.
Q35 Mrs Engel: Going back to the
Chair's original question to you really, it is the fact that a
lot of the stuff which is being proposed in this legislation could
be dealt with in other pieces of legislation. How will having
this piece of legislation improve things, and might not our dealing
with it through other ways and means actually speed it up and,
from your perspective, that should be a bit more helpful?
Mr Griffiths: From Amicus' point
of view, we are strongly recommending that it be dealt with in
this legislation. We are concerned about the delay. We are conscious
that there are parallel examinations of directors' duties and
if there were some sort of an assurance that the concerns, particularly
around the requirement for imprisonment for corporate manslaughter,
would be covered there then we might be satisfied. What we are
concerned about is that we do not think that will get picked up
in quite the same way and that is a specific Amicus view.
Q36 Chairman: Can I pursue that one.
We are due to report in December, as a Committee, the Health and
Safety Commission's review of directors' responsibilities is due
to report in December, so maybe after the report, we do not know.
If the Health and Safety Commission review came out in favour
of directors' responsibilities, in the way that you have advocated,
or in Mr Hepburn's Bill earlier this year, then would you be saying
to us, "Well, actually, we're not so bothered about whether
we've got individual liability in the Corporate Manslaughter Bill"?
Mr Robertson: We would hope that
the two things would be married up, not necessarily through the
same legislation, as opposed to specifically. We recognise this
is a Bill about corporate manslaughter and I think that is a very
important distinction. However, to make it effective we need the
two. What we would say, from TUC, and we say in our submission,
is that we believe we need directors' duties in parallel to this,
either as part of this Bill or at roughly the same time. You are
quite right, a decision may be made by the Health and Safety Commission
in December, although, on the other hand, it may not, but then
it goes to ministers. The HSE is a tripartite body and whether
or not they will be able to get agreement on a matter like this
we will have to wait and see.
Chairman: Thank you very much indeed.
Q37 Colin Burgon: Mr Robertson, the
word "culture" has been mentioned by all three of you,
and the culture you want to emphasise is the health and safety
culture, implementing and instituting it in the workforce. There
is another culture which it clashes with and we all operate in
a political context and that is the flexible labour market. How
do those two cultures sit together, can they be reconciled, or
has there got to be a primacy of one or the other?
Mr Robertson: I am not sure, in
terms of this particular draft Bill, whether or not you are talking
about, in particular, contracting, whether you are talking about
agency staff, whether you are talking generally about the large
number of self-employed.
Q38 Colin Burgon: Generally, about
agency staff?
Mr Robertson: Just people who
are not immediately employed. I think the important thing about
this is it does not have to be necessarily the employer who is
covered, it is the people, the senior manager, controlling the
operation. You will find in a lot of organisations, particularly
when there is a big chain of contracting, which I think is very
important by the Bill to much more than the building industry
perhaps, which is a major problem, technically the people who
are responsible for most of the policies are not employing the
people who are carrying them out. I think we need to be sure that
the Bill actually covers that. That is why it is important that
it is not just the employer who is covered but it is the organisation
which is responsible for making the decisions that have led to
that death which is responsible. If we can get it that broad,
which I think is the intention, then it will cover the very different
labour market we have got now from the one we had 30 years ago.
Mr Camfield: It seems to me that
the culture of health and safety needs to override issues around
flexibility, if you are putting it as bluntly as that, that there
are minimum standards that we have set ourselves. The problem
with some of the tendencies around globalisation and flexibility
are that companies, in the rush to compete, can undermine the
health and safety and conditions of their workforce and we are
aware of this as a concern. It does seem to me that we are talking
here about minimum standards. I would not see that a flexible
company and a modern company need fear decent minimum safeguards,
in terms of people's lives and their safety and health at work.
I would not see these things as being in conflict, although I
could see it being posed that way: "If we were to operate
globally, wouldn't this undermine our ability to compete?"
We do not want, thank you very much, what happened to Chinese
workers who died, burned to death, when they were locked in, in
a company, and could not escape because of the circumstances they
were in. I think a modern, flexible company which adopts a proper
culture of health and safety, and particularly if there is a level
playing-field and it is put in the boardrooms everywhere, will
compete on what is best and not a race to the bottom.
Q39 Colin Burgon: The draft Bill
proposed to remove Crown immunity for the statutory offence of
corporate manslaughter and you are arguing that perhaps the Bill
should go further and that Crown immunity should be removed for
all health and safety offences. What do you see as the strength
of that argument? Do you think that Government ministers, effectively,
will be like turkeys waiting for Christmas? Do you agree with
that?
Mr Robertson: The Government has
committed itself already to that. It is simply a question of getting
a vehicle to do it. In Revitalising Health and Safety in 2000,
it was then the DTLR, I think it was called, who committed themselves
to removing Crown immunity for health and safety offences at the
earliest opportunity.
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