Examination of Witnesses (Questions 160
- 180)
MONDAY 31 OCTOBER 2005
PROFESSOR FRANK
WRIGHT, MR
LAWRENCE WATERMAN
AND MR
MICHAEL WELHAM
Q160 Colin Burgon: Do you take the
same view, Professor Wright?
Professor Wright: I do not have
a valid disagreement with what has been said.
Q161 Colin Burgon: Does that mean
you agree?
Professor Wright: I just want
to allow matters to proceed. I am wondering if we make such a
radical suggestion at this stage whether it might stop the process.
Q162 Colin Burgon: Mr Welham, do
you want to add anything?
Mr Welham: At the moment, the
Health and Safety Executive's Approved Codes of Practice are used
because it sets down a standard and the judiciary and juries are
able to read very clearly what is required. We already have directors'
responsibilities issued by the Health and Safety Commission. Now
if what was in there was expanded and developed into an approved
code of practice, first of all senior management, whatever they
may be termed: boards, at that level: will know and understand
what is required of them and so will the courts when there is
an infringement and they are prosecuted.
Q163 Chairman: Just so I am clear,
is there a serious possibility that somebody could die as a result
of a breach of section 3 but because of the way the duty of care
is framed in the draft legislation the company could not be prosecuted
for corporate manslaughter? Is that part of your reason for wanting
to bring section 3 in?
Mr Welham: I think why we are
saying section 2 and section 3 is because it is very easily and
very clearly worded, and it is well established through the Health
and Safety at Work Act now.
Q164 Chairman: I may have misunderstood,
does the danger I have described exist?
Mr Welham: No, I do not think
so.
Mr Waterman: We do not think so.
Chairman: I may have just misunderstood.
Thank you.
Q165 Justine Greening: Moving on
to the gross breach test and obviously juries' ability to look
at existing health and safety guidelines in determining whether
a gross breach has occurred, in fact they are required to do by
clause 3 of the draft Bill. Do you think they should be required
to do that? Is that a good proposal in the Bill or not, Mr Waterman?
Mr Waterman: We are very satisfied
with that test. One of the aspects of health and safety law is
that it ceases to be very detailed and prescriptive as to exactly
what you should do but more obliges you to engage in certain processes
and make judgments that will change over time as new technology
becomes available in order to control a risk or knowledge becomes
available about something which hitherto you had not understood
was a risk. That is why having a general duty to do what is reasonably
practicable means that as an employer you are obliged to review
guidance and make judgments about what good practice looks like,
what reasonably practicable means. For 30 years juries have been
reasonably competent at looking at that good practice, evaluating
evidence presented in court and making a judgment as to finding
the defendant guilty or not guilty on health and safety offences
on that basis.
Q166 Justine Greening: Do you think
there is a risk that if health and safety guidance proliferates
it is unreasonable perhaps to expect every single piece of guidance
to be adhered to and that any one can be used as a proxy, if you
like, for saying that a gross breach has occurred?
Mr Waterman: To come back to the
facts of the case, it would be very difficult to mount a prosecution
based upon an obscure sub-clause of a leaflet that was around
in a particular sector of industry for just a few months. I think
when you are talking about gross breach, you mean that there is
a whole sequence, that at various points management really should
have availed themselves of knowledge of what was going on and
recognised that it was falling below standards which similar employers
in their sector, for example, were preventing happening because
of the way that they managed their businesses. I think the use
of the word "gross" would prevent the inappropriate
prosecution based upon obscure guidance proliferating or otherwise.
Q167 Justine Greening: Thank you.
Mr Welham, anything in addition?
Mr Welham: The only thing in that
section which does cause a little bit of concern is the profit
element and how you determine profit and get to grips with that,
that becomes a bit difficult. I think, as was said earlier, between
the various subsections it is and/or which should be introduced
there and that gives the option and flexibility for those who
are prosecuting and even defending.
Q168 Justine Greening: Professor
Wright, I think in the context of the health and safety law and
guidance, in your submission you did comment that the codes of
practice were not originally intended to be used in this manner.
Does that really matter at all, do you think?
Professor Wright: I think it might
matter in terms of your proliferation point because there are
more than 400 local authorities which could issue this guidance.
There is much guidance which is issued by the Health and Safety
Executive, by the Health and Safety Commission. It has been issued
at different times, it has been written by different people, it
is not governed in the same way as legislation or approved codes
of practice. It might be possible to find conflicts, certainly
it is a situation where there are many gaps where guidance is
not issued in relation to some areas, even quite dangerous areas,
because it is left to the industry to do it, for example, and
that is not covered here. I am concerned at the bottom end, if
you like, by the proliferation and the quality of the guidance
which is available.
Q169 Justine Greening: Mr Waterman,
I think in the submission IOSH put in you wanted to extend the
concept of what relevant guidance would be to include trade or
advisory bodies and guidance that had been issued. Do you think
there is a danger that if that happens such bodies might be quite
reticent about bringing forward more guidance in the future?
Mr Waterman: Most trade bodies
issue that sort of guidance to benefit the reputable members of
their organisations and partly to protect them from unfair competition
from people who are skating on rather thinner ice in terms of
health and safety. Increasingly, looking at the Health and Safety
Commission's Ten Year Strategy, it is quite likely that industry
guidance published by trade bodies and others is going to become
the norm rather than plugging odd gaps. We think it is important
that is recognised as contributing, in a way the industry is saying
to itself "We have defined this as a reasonably practicable
way to run this sort of business in this sector addressing these
risks". Again, the test of gross breach we think would protect
organisations from nit-picking prosecutions. It would have to
be fairly clearly a falling below standards which were the norm
in that particular sector.
Q170 Justine Greening: Within those
companies, obviously, then they have to apply the guidance or
not in their decision. Do you think there is a danger, also, that
in a sense they will not look for risks in case if they find one
they are then potentially prosecutable because they did not address
it? Do you think that is a danger as well?
Mr Waterman: Being ignorant of
a risk is not really much of a defence, it is a bit like saying
you are ignorant of the law, "I did not realise this was
a speed-controlled zone" or whatever. Part of the argument
about a gross breach is that if you are putting your workers or
members of the public at risk then you have got an obligation
to ask serious questions about what risks are going to arise from
this activity and what should we be expected to do about it, and
seek competent advice and contact your trade bodies to find their
guidance or whatever. I think it is covered on the basis of normal
good practice right across commerce and industry.
Q171 Justine Greening: One of the
aspects of the Bill that has been debated is the aspect of territorial
application, as to whether a company can be prosecuted for deaths
occurring abroad for example, and the draft Bill proposes that
it should be limited to deaths occurring in England and Wales.
How do you respond to the Home Office's suggestion that the offence
would be unenforceable if it did apply to operations abroad of
English and Welsh companies and that it would be quite difficult
to gain the evidence that was needed to bring such a prosecution,
Mr Waterman?
Mr Waterman: We agree that it
would be very difficult to adduce the evidence but we would like
to see a bit more effort in exploring how it might be done. If
the chain of decision-making of the central responsibility resides
in a company, for example, headquartered in England and Wales,
and the decisions that had been made were being implemented in
another jurisdiction, we think that there ought to be serious
consideration as to whether or not it would be proper to investigate
that and if necessary raise a prosecution. It could be on the
basis that there can be all sorts of bilateral agreements so that
if there are similar laws in a country where the death occurred
and the enforcing authorities in that country were to investigate
them, they would take precedents, et cetera. We are not coming
up with a hard and fast "this is the way it ought to be"
proposal but we think it has been dismissed rather too readily
in the Home Office's position, that is all we are saying. It deserves,
we think, rather closer scrutiny. I quite liked what one of the
witnesses in the previous session said which was that perhaps
it would not be appropriate to delay the bringing in of this Bill
while that was being explored, but it could be that Parliament
was minded to revisit this for subsequent development of the law.
Q172 Justine Greening: Professor
Wright, would you have anything to add to that?
Professor Wright: I hope that
we might be able to see some progress in this area within the
European Union.
Q173 Justine Greening: Again to IOSH,
you do propose that we should at least consider having an offence
applied to deaths abroad which are caused by grossly negligent
behaviour which occurs in England or Wales. Do you think this
may dissuade high-risk businesses from running their operations
in England and Wales?
Mr Waterman: Our experience, for
what it is worth, I represent 28,000 members and we polled them,
and just under 2,000 people responded to the poll and over 80%
of them were in favour of this Bill but with some of the qualifications
which we are expressing here. Companies that are multinational
and operate on a world scale tend to be companies which recognise
that good health and safety management is good business. I have
yet to see an example of a company operating on that kind of multi-state
basis which would argue that tight health and safety regulations
in one place or another were inimical to them doing business.
Mr Welham: If I may just add in
there, a classic example is the North Sea where we have very stringent
regulation in the North Sea for oil and gas extraction but worldwide
where they are exploring, such as Russia and other parts of the
world where there is not the comparable legislation there, the
companies still continue to operate and they still operate to
the high standards.
Q174 Natascha Engel: Moving on from
that point, do you think that this Bill would increase the regulatory
burden, the red tape generally, and looking at the business case
for it?
Mr Welham: I do not think it will
because I see it as an extension of the Health and Safety at Work
Act as it stands now. This is an extension, we are now looking
at a more serious breach and failure. If a company is doing what
it should be doing with all the systems in place, and working
on doing it properly, then it becomes very difficult for the regulator
to prosecute because you are looking for the thing called evidence
and evidence is very difficult if they have got everything in
place, and there has just been some small breach. What in some
cases might be corporate manslaughter in others will remain as
a Health and Safety at Work Act offence.
Mr Waterman: There will be some
small transitional additional costs. Those of us involved in health
and safety practice are aware of the huge number of boardroom
briefings, director training courses, et cetera, which always
get stimulated, they have been the three times this issue has
come up through the Law Commission. There will be an increase
in awareness amongst directors and that has got a penalty in terms
of time commitment but that would be beneficial and we think it
would encourage greater seriousness. I think there is a general
recognition that what this new Act would mean is introducing some
fairness. I think in a lot of larger organisations there is recognition
that very small businesses can be prosecuted currently because
the controlling mind argument can be proven whereas in large companies
with multi-layer decision making they know that this is not fair.
There will be some small transitional cost but if you are complying
with health and safety legislation you will be able to defend
yourself against any possible prosecution in connection with this
offence.
Q175 Natascha Engel: Did you want
to add anything?
Professor Wright: I do think that
we are reaching the point of over-regulation, that is not to say
that I think this Bill should be stopped on that basis but I think
we need to keep a very careful watch on these things. When one
looks at the progress of regulation since the 1970s, for a whole
host of reasons we have quite a huge statute book in this area
and we need to look at that carefully for business efficiency
reasons and so on.
Q176 Natascha Engel: Another very
general point: do you think that as a result of this Bill, if
it was introduced, health and safety standards generally would
be improved?
Mr Waterman: I think, for the
reasons that I was referring to earlier, in general you can argue
that this is a bit of a strange piece of legislation in that the
same incident that could be a breach of section 2 or section 3
of the Health and Safety at Work Act because of the accidental
happenstance of the outcome results in a company being prosecuted
in this way. There is no doubt that having a manslaughter charge
as a possibility will further focus minds, concentrate senior
managers and directors, trustees of charities, et cetera, on making
sure that they really are managing their organisation in compliance
with accepted standards. We think it encourages good practice
but it needs that directors' and trustees' code of practice in
order to make it clear what those standards are.
Q177 Natascha Engel: Mr Welham?
Mr Welham: I have had practical
experience where a company we were investigating lost work, they
did not get contracts because they were under the umbrella of
a potential corporate manslaughter charge and other people did
not want to be associated and they lost a considerable sum of
money. When I spoke to the board of directors after that—it
is a very large company—they said that, combined with their
legal bill, it had changed the face of that organisation. The
fact that corporate manslaughter is potentially looming under
the current legislation, it does focus the mind. We might well
have a Bill and hopefully we will never use it but potentially
it does focus the mind because from Health and Safety at Work
Act offences you have suddenly moved into in such cases corporate
manslaughter and that is a big effect.
Q178 Natascha Engel: Professor Wright,
do you have any comments?
Professor Wright: I think it increases
the fear factor. I think the task then for us is to ensure that
we engage boards of directors in this process which leads me back
to the point which I first made which is that we must give better
guidance to directors about their roles and responsibilities.
It will help with that because it will cause, as I say, a new
level of fear.
Q179 Gwyn Prosser: Mr Welham, as
you know the Bill provides powers to the court to put remedial
orders in place. We had a discussion about that with our friends
from the legal sector. There is the thought of would the court
have the expertise and knowledge to safely do that, and that advice
could come from the Health and Safety Executive or other experts.
Do you think that is a practical proposition?
Mr Welham: Yes, because that is
what happens now. Initially when there is a serious or a fatal
accident anyway the police and the HSE are involved. Generally—I
have to use the word generally—the HSE will issue a prohibition
notice and stop a particular job going on until it is investigated,
reviewed and it is safe to continue with that process. If there
is a requirement they can issue an improvement notice and specify
what they want done to improve the standards and development.
That is there now so that will continue but rather than the HSE
issuing the notices immediately, if there was any concern then
the court can authorise or order for that work to be carried out,
and make that an order as opposed to the HSE with their system.
You use the professional bodies with their experience and knowledge.
Q180 Gwyn Prosser: Finally, Mr Waterman,
in the IOSH memorandum you recommend that it might be appropriate
to suspend penalties and fines until remedial orders are satisfied
and the court is satisfied the work has been done. Is there a
danger that will be diluting further the sanctions against companies?
Mr Waterman: What we are arguing,
I think, is that there is a general move in the HSE to discuss
what are usually referred to by the HSE and the Commission as
innovative penalties in order to leverage improvements in organisations.
What we are suggesting is that a mechanism which could be explored
would be to say "Normally we would be fining you X and we
are going to fine you something less than X but the full fine
comes into force if you do not satisfy us that you are taking
other remedial steps", particularly where those remedial
steps are a little vaguer than sometimes can be drafted in an
improvement notice to get senior management and directors to be
a bit more committed to health and safety, to develop their own
knowledge and expertise and to begin to drive the organisation
in a different direction. The idea was to perhaps assign a financial
incentive for organisations to do that in the medium term in addition
to the immediate penalty and the opprobrium of having been convicted
of such a serious offence.
Chairman: Good. Thank you very much indeed.
It has been a very helpful session.
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