Examination of Witnesses (Questions 40
- 48)
MONDAY 24 OCTOBER 2005
MR MIKE
GRIFFITHS, MR
HUGH ROBERTSON
AND MR
BARRY CAMFIELD
Q40 Colin Burgon: Without wishing
to encourage any splits here, the TUC and T&G take a slightly
different line on this senior management test from that of Amicus.
Is that a fair view? How do you respond to Amicus' view that the
focus of the Bill would be undermined if the offence were extended
to cover the activities of those below the position of senior
manager?
Mr Robertson: I do not think there
is any disagreement, in terms of the application of the Bill,
in terms of corporate manslaughter and senior manager. I do not
think there is any disagreement on that at all. The problem for
all organisations is that the existing wording in Section 2 relates
to "the whole or a substantial part" and our concern
is that where there is an organisation which has got a large number
of subsidiary companies, which may be small in terms of the overall
size but are still pretty large, a senior manager in charge of
that factory could be exempted because of the wording "a
substantial part". Generally, we do not want it knocked down
the chain as far as possible, we do think it should be the senior
manager, in terms of the ones that make decisions, which is what
the Bill recommends. On that, I do not think there is any major
disagreement between us, Chairman.
Mr Griffiths: No. If I may, on
behalf of Amicus, I gave some emphasis earlier to a slight difference
between the submissions of the three representatives here. There
is no problem, in Amicus' view, with the definition that you have
in the Bill at present. We are concerned to make sure that definition
captures, to use the phrase, the controlling mind and we can see,
in a large organisation, as has been suggested, with possibly
as many as a thousand workers on site, the person responsible
on that site would be a senior manager and not necessarily a director
and that person clearly should have the responsibility for the
health and safety on that site. Where there is a specific difference
is that we go on to say, with our reference to unlawful killing,
that should also allow for imprisonment and not just a fine of
a corporate nature. There is no difference in the definition and
defining a senior manager, as well as the director, as being responsible
for the corporate responsibility. What we say is, that individual,
with serious breaches, could possibly be subject to imprisonment,
if clearly they were the responsible person.
Q41 Gwyn Prosser: Mr Griffiths, you
started to tell us earlier on that you thought another deficiency
in the Bill was the fact that it does not cover UK workers outside
of England and Wales and indeed non-UK workers outside of England
and Wales. Do you want to argue that point to us now?
Mr Griffiths: My apologies, if
I decided to answer a question I had not quite been asked but
I was keen to make sure that this came in. Without dwelling on
the repeat, we do see that it is possible for UK workers to fall
outside the scope of this Act and therefore to be vulnerable and
possibly to be subject to abuse, simply because of the vulnerability
and the fact that they are not covered within the scope. We would
want there to be a clear acceptance that UK workers working abroad
could be covered in the circumstances where the parent company,
once again, was the controlling influence of the health and safety
requirements.
Q42 Gwyn Prosser: What about non-UK
workers working for that British company?
Mr Griffiths: In exactly the same
case, the employer having the responsibility for his employees,
it is not necessarily a definition of nationality here, it is
a definition of the company's responsibilities to all of its workforce.
Q43 Gwyn Prosser: What is the view
of the T&G, Mr Camfield?
Mr Camfield: Our view is that
if individuals who commit murder abroad can be prosecuted in the
UK there should be no reason why a company that commits corporate
manslaughter abroad should not be prosecutable in the UK. We think
that this would affect only companies registered in the UK. Again,
we think this is an important tool, if we are really serious about
creating a culture of health and safety and not saying that British
companies based here or registered here can operate with impunity
abroad, because this is exactly the argument we get played back
to us from certain Third World countries, which say that they
can operate with impunity, whether it is on asbestos, no-one can
deal with that. We should be setting an example that where British
companies are operating abroad, for offences of corporate manslaughter,
as a minimum, they should be prosecuted under UK law.
Q44 Harry Cohen: Some questions about
the gross breach, as it is defined in the draft Bill. It includes
a "profit from failure" test. Is it relevant whether
or not an organisation has profited from non-compliance with health
and safety law or guidance?
Mr Griffiths: There are two aspects
of gross breach, I will answer that particular one but would want
to come back on an extra point that we have made in our submission.
In terms of the question, is it relevant if they have profited,
we think that the definition and the use of the term "profit"
is wrong anyway, we think the proper and correct term should be
"benefit". An individual company may not be making a
specific profit but they could have a clear benefit from a major
breach in health and safety. I think the examples are obvious
but I can give some if the Committee wishes. I hope that answers,
in a roundabout way, the point you make. The other thing is, while
we are on gross breaches, we think that the current way in which
the Bill is framed in, is it, 3(2)(b) of the Act, that there is
a requirement to meet all and every single one of those breaches,
and we would imagine you mean that it is any one of those and
we would certainly want that correction made.
Q45 Harry Cohen: To Mr Camfield,
the T&G said in its evidence it would be impossible to establish
that a senior manager knew or ought to have known of a breach
of health and safety law. Why do you say that? Why do you say
that would be impossible?
Mr Camfield: We say that is the
likely consequence of the way the Bill is presented, because of
the definitions around what a senior manager is. We would prefer
the term about a management failure, which then would enable us
to determine whether in corporate liability, and here we are talking
about fines, a company would be likely to be exposed to the judicial
process. The problem that we have got with the senior manager
test again is, because of the qualifications, you can be in the
construction industry a senior manager running maybe a major project
but not a senior manager within the terms of the law, because
in terms of the whole structure of the company that may be just
one of many projects that you are managing. Therefore, a senior
manager who commits some cardinal sin based on that site might
not then expose the company to a prosecution because they will
not meet the test of a senior manager. Indeed, some companies
might want to reorganise their structure to redefine who has what
powers so that the actions of managers of particular plants, or
indeed wider areas, are not seen as strategic, they are not regarded
as senior managers. We think the test is too narrow.
Q46 Harry Cohen: The last point on
this gross breach aspect is that a court would have to look at
compliance, or not, with health and safety legislation and I think
you have argued that it should also be health and safety guidance.
Some have argued that might be too broad. Why do you say that
is relevant?
Mr Robertson: At the moment legislation
or guidance, I think, is what it actually says. Our concern was
that it refers specifically to the Health and Safety at Work Act,
but in actual fact we think there are certain other pieces of
legislation, particularly the Working Time Directive, which should
also be taken into account. Certainly, statutory guidance under
the Health and Safety at Work Act or an improved Code of Practice,
I think, under the existing wording would be covered, it does
say specifically it is not just legislation, which we welcome.
However, we just wanted to make clear that we do not want just
legislation covered by the Health and Safety at Work Act but there
is other primary legislation which relates to health and safety
matters which should also be covered.
Q47 Mr Rooney: To the TUC. Why do
you think it is necessary for more work to be done on penalties?
I know this has been kicking around for long enough. Who do you
think should do that work?
Mr Robertson: I think probably
that is for the Government to decide. Why do we think there needs
to be more done? The reality is that we know there are still 220,000
people injured every year here, so the current system of fines,
the average fine still being under £10,000 a year, just is
not working for health and safety offences. There is no reason
to believe that it is going to work any better for the very rare
corporate manslaughter offences you are likely to get under this
current Bill. What we need to do is say what is actually going
to work, what is going to change the culture. We would rather
there were no convictions under this, because we would rather
there were not any offences being committed, that no-one was actually
killing. The most useful thing about this is if it can be used
to change the culture. It is not just about revenge, it is actually
about prevention, that is the reason we are all here, and the
current fines clearly are not working. Even the £30 million,
the fact we have had them, I think honestly, that is really a
sense of frustration by the judiciary that they cannot do more.
We have got to say what is going to be effective. We have made
some suggestions. The only other thing in this is going to be
to be able to ask them to correct the mistake that they made.
Despite the fact we can get serial criminals in the boardroom
who have got dozens of Health and Safety at Work offences, lots
of enforcement notices against them, at what stage do you say
enough is enough, at what stage do we look at disqualification
of directors, at what stage do we start looking to say, "Yes,
we have to put them on probation, we have to look at other alternatives"?
I think this is the clearest example of where we definitely need
more penalties, that fines alone are not going to work, I am afraid.
Q48 Mr Rooney: Amicus, you also floated
the idea of the equity fine. How would you see that working?
Mr Griffiths: I think we make
clear reference in our submission to equity fine. I think, just
a general point is that, as my colleague has just said, here is
a real opportunity to bring in some alternative penalties, other
than the two that are often talked about, the fines which are
clearly there and that which we are asking for, imprisonment,
here is an opportunity to bring in some real deterrence. The equity
fine is one which we think should be given serious consideration.
Not only is there a financial burden and a passing of compensation
to the dependants in this particular instance, but actually it
is a penalty against the shareholders, which we think will be
quite useful in deterring those that have the responsibility to
the shareholders maintaining their responsibility to their workforce.
We think the chemistry between the management of the company,
the investors represented by the shareholders and the workers
in the company, to which management have a responsibility, is
quite interestingly mixed by the application of an equity fine,
as we have suggested.
Chairman: Thank you very much indeed,
gentlemen. Again, a lot of ground covered in a short space of
time and a very useful complement to our first session. Thank
you very much indeed.
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