Examination of Witnesses (Questions 140
- 159)
MONDAY 31 OCTOBER 2005
PROFESSOR FRANK
WRIGHT, MR
LAWRENCE WATERMAN
AND MR
MICHAEL WELHAM
Q140 Chairman: You say that there
is a focus on the individual failure but, as I understand it,
the individuals come into this only because it is a necessary
step, to get a prosecution on this law, to identify the level
in the company to which responsibility lies, that of senior manager.
The outcome—many people criticise the Bill for this—does
not hold individuals liable, it is the company that is held accountable.
Probably the bulk of evidence we have had from victims' organisations
and trade unions has said the problem with this Bill is that it
does not hold individuals liable. Is it really fair to say that
there is a focus on individual liability in this Bill or will
be seen as that by somebody looking in from across the channel?
Professor Wright: It seems to
hang around this question of culpability of so-called senior managers.
Q141 Chairman: Yes.
Professor Wright: I have some
issues relating to that but I think what we are concerned about
here—and we are dealing with all kinds of companies, not
just the large ones, I suspect—we are really interested
in organisational failure, whatever the size of the corporation.
It is another issue, a very important issue, of course, as to
whether there has been individual failure as well.
Q142 Chairman: If you follow through
the implication of what you are saying, in the places that do
not have an emphasis on identifying individuals, senior managers
or whatever, is the consequence to make it easier or harder to
secure a prosecution?
Professor Wright: That I cannot
say with any reliance because I have not looked at that particular
aspect about the chances of conviction.
Q143 Chairman: Okay. Can I ask, you
said in your evidence you think the requirement to establish that
management failure has caused a death will prevent successful
prosecution, why is that?
Professor Wright: I thought that
there was a problem in relation to clauses 2 and 3 of the Bill
taken together. I think that 3(1) is perfectly reasonable, and
one can understand that, but I think there are issues surrounding
the "senior manager" that are identified here, there
are issues surrounding the legislation or guidance element in
relation to gross breach and also issues surrounding the provision
"sought to cause the organisation to profit from a failure",
that aspect as well. I am not sure that there is a clear link
between 3(1) and the rest, that causes me some concern.
Q144 Chairman: You heard the evidence—I
know you were in the room—of the previous three witnesses
who all said it would be a lot easier if we had the original Law
Commission formation on causation in the Bill, do you agree with
that statement?
Professor Wright: Yes.
Q145 Chairman: One different point,
Professor Bob Sullivan, who I think you will know, has argued
with others that we should forget about this entire enterprise
of having a separate corporate manslaughter offence and just have
aggravated versions of the existing health and safety legislation,
what do you think about that?
Professor Wright: I think we have
probably gone too far for that. I think in the public mind this
is expected and that has to be taken into account.
Q146 Chairman: If we were not where
we are now?
Professor Wright: That is right,
if we were not where we are now we could have a different discussion,
perhaps, but I think we have gone too far.
Q147 Chairman: Mr Waterman, what
is your view about that?
Mr Waterman: I think there is
more to it than simply looking at the scale of penalties in some
spectrum and manslaughter happens to sit on the same spectrum.
If I can cite the example of Nina Bawden regretting that there
was not a manslaughter charge that could stick over the rail crash
at Potters Bar. She talked about the fact that it meant that there
would be no criminal prosecution. I think in the public mind health
and safety at work offences are just in a completely different
league from something called manslaughter. The level of public
opprobrium that would be attached to a company convicted of this
offence means that it would represent social disapprobation for
what they have been responsible for, so just a completely different
category.
Q148 Harry Cohen: Professor Wright,
you said you had a number of issues surrounding the senior management
test, I wonder if you can summarise some of those and how they
could be addressed?
Professor Wright: I think it is
pitched too high. I think the problems that we found with Hatfield,
the problems that were undoubtedly there in the consideration
of Potters Bar, are probably going to be replicated in this legislation
unless we make some changes because if you think in a large corporation
"who is such a person", there will be very few that
are able to satisfy this test, I would say, because most of the
decisions are made collectively or a number of people participate
in them. It is quite rare, I think, in a very substantial company,
such as those that were being considered in the Hatfield prosecution,
for one person to be in this position, that is why I have a difficulty
with senior manager in this form. If I might say so, I think the
problem is that it is quite easy nowadays to convict the smaller
company and the larger companies, if you like, take the spotlight
but most of the companies fall between the two and the law is
ineffective there. I think that is a problem, it would be ineffective
with this Bill with this terminology.
Q149 Harry Cohen: Could you not have
statutory duties on the company, which some have argued should
be in this Bill anyway, and delegation of those perhaps to a manager
or senior figure in the company? Do you think that would be helpful
or not?
Professor Wright: It would mean
that we would want to redefine the term senior manager to embrace
others, not because we wanted to apportion liability to individuals
but because we wanted to deal with the true problem, which is
that of organisational failure.
Q150 Harry Cohen: Mr Waterman?
Mr Waterman: If I could comment:
we understand at the Institution why the wording has been selected
because it is meant to distinguish between individuals who are
making decisions that are the equivalent of frolics of their own
and the extent to which there was something systematically going
wrong in the organisation that has given rise to a death and trying
to draw the distinction. The way it has been worded runs the risk
of reproducing the controlling mind problem that we have got at
the moment. At the moment you get to a large organisation, no
single decision is made, it is a whole series of very small judgments
that give rise to the outcome that you are trying to pin down.
We think that the earlier wording—agreeing with the previous
witnesses—which talked about falling below standards to
be reasonably expected, management failures, et cetera, that sort
of wording clearly obviates the risk of getting back in to "can
you pin this to a few senior people in the organisation and thereby
sustain a conviction for corporate manslaughter". We were
happier with the earlier position I think.
Q151 Chairman: Can I just ask, Professor
Wright, is it true that all research to date has supported the
introduction of statutory health and safety duties on directors?
This point was put to us by the CCA last time, and you said you
had done pieces of research on the statutory duties of directors
so we thought we would ask.
Professor Wright: The Company
Directors Disqualification Act of 1986 is the statute in question.
Powers available under section 2 of that Act for the disqualification
of directors for a whole host of reasons have not been widely
used, but they could have been. It is not that legislation needs
to be introduced—
Q152 Chairman: No, we need to use
the legislation we have got.
Professor Wright: That is right,
and we can but we do not. It is widely used, as many of you will
know, in the area of insolvency, 30 disqualifications a week in
that area.
Q153 Chairman: The point is it was
suggested to us in the last session that whatever research had
been done on this issue, which looked at whether or not those
powers should be brought into force, have come out in favour of
them. Can you confirm whether that is true or not?
Professor Wright: Yes. I think
the problem is this: much advice and guidance which is referred
to here has been directed at management incorporations; it has
not been directed at boards, it has not been aimed at directors.
If you look at the guidance which is available for directors it
is very sparse indeed and needs to be developed. In my view, before
you can sanction people you must tell them what you want them
to do, we have not done that.
Q154 Chairman: If you did that, do
you think the effect on health and safety and avoiding the sort
of killing that we have been concerned about would be beneficial?
Professor Wright: It would be
beneficial if we developed the direct guidance and then proceeded
from there.
Q155 Chairman: You give guidance
and then you make legal binding duties and they follow those?
Professor Wright: Yes.
Q156 Chairman: You would be in favour
of that?
Professor Wright: Yes.
Q157 Colin Burgon: Coming to the
issue of the relevant duty of care, some of the submissions we
have had so far from the unions and the CCA have said that sections
2-6 of the Health and Safety at Work Act probably are more effective
pieces of legislation and probably could trump what is intended
in the draft legislation. Would it make more sense to base the
offence on breaches of the statutory duties contained in those
clauses in the Health and Safety at Work Act rather than the duty
of care in negligence or would you say it would be better to avoid
the whole concept of duty of care altogether?
Professor Wright: No, I think
that a decision has been made earlier on to use the duty of care
in negligence, I do not see anything which is particularly damaging
in doing that. They are in effect fairly similar, although the
duties in sections 2-6 of the Act are wider. I do not think that
it is going to defeat the purpose of the Bill to stay with the
duty of care as it has been expressed, with the caveats that we
had in the previous discussion; I thought what the three gentlemen
said there was fine, I would agree with those.
Q158 Colin Burgon: Mr Welham?
Mr Welham: In addition to that,
the Health and Safety at Work Act section 2 and section 3 in particular—section
2 it is the duty of every employer to ensure so far as reasonable
and practical health, safety and welfare at work of all its employees,
and section 3 it is those who are not employed but affected by
that activity—that encompasses what we are talking about
here. If you look at failures under the Health and Safety at Work
Act, very often it is because of the management failure that we
have ended up with an incident.
Q159 Colin Burgon: IOSH have been
critical of the proposed limitations on the situations in which
a relevant duty of care would exist. You have been looking as
well at the Health and Safety at Work Act. Why should the duties
set out in section 3 of the Health and Safety at Work Act 1974
be treated as relevant duties for the purpose of the offence?
Mr Waterman: Essentially section
2 says if you employ people you have a duty so far as is reasonably
practical towards them for their wellbeing and section 3 simply
extends it to the rest of the universe. Those two sections are
extremely useful, in two paragraphs they summarise a general duty
to conduct your undertaking in a way that does not result in foreseeable
harm arising where you can take reasonably practical steps to
avoid that harm or at the very least mitigate it should it arise.
Because we are talking about health and safety failures, management
failures, being able to discuss that in the same language in the
Corporate Manslaughter Act, as in health and safety legislation,
lends itself to a degree of clarity. That is why we believe that
accompanying this with, perhaps, our recommendation would be not
a change in statute but an Approved Code of Practice for directors'
good behaviour. Then breaches of that Approved Code of Practice
could be cited in any move to disqualify directors. That would
put a wrapper of health and safety law around all of the offences
that we are dealing with and around the descriptions of good and
best practice. This would lead to clarity and avoid conflicts
in the language being used to describe the different breaches
because of the outcome being different. If you can be prosecuted
under section 2 or 3 because what has happened has not resulted
in a death, it would be extremely useful if the discussion around
the offence associated with an outcome which did include a fatality
could be in the same language, using the same definitions.
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