Examination of Witnesses (Questions 340
- 351)
THURSDAY 10 NOVEMBER 2005
MR ALAN
RITCHIE
Q340 Chairman: Could I pursue this.
I think we are pretty much there, but it is the same theme, which
is probably the most important one for the construction industry.
Would you like the legislation specifically to say, in a situation
where you have a principal contractor and subcontractors, that
the principal contractor would always have legal responsibility
under this Act, even if the subcontractors also individual have
a liability?
Mr Ritchie: Yes. I think the specific
duties we see would be placed in directors of the main contractor.
We would see that as important.
Q341 Chairman: We raised this in
a previous evidence session, with the construction industry, as
I recall. They did not argue that there were not circumstances
where the principal contractor should be held responsible but
they said it should be on a case by case basis, that it is something
that the courts and the prosecutors should investigate on a case
by case basis. Sometimes it might be a principal contractor, sometimes
just a subcontractor. What is your argument against doing it on
a case by case basis?
Mr Ritchie: I think there is a
problem there. Obviously it gives you the chance to give it back
and to try to find a loophole. And, again, I am talking about
the bad contractors, where they are looking for that loophole,
where it is business as usual and they will just carry on. The
situation under the present law, the way it stands just now, is
that the main contractor is responsible for everyone on site.
To be consistent in law and your drafting of the legislation here—
Q342 Chairman: — that is health
and safety.
Mr Ritchie:—you have got
to carry on just now.
Chairman: That is very helpful.
Q343 Gwyn Prosser: As you know, the
Bill, as it is drafted, requires a jury and judge to take into
account a series of factors before deciding whether there has
been a breach and whether they have fallen far below the level
of safety. One of the considerations is whether a company has
"sought to profit". UCATT have made the point in their
written submission that that is a loophole because it would be
difficult to have a paper trace and prove that they have sought
to profit. Albeit that particular element is not a requirement
of prosecution, it is just something that they wish they must
consider. How strongly do you feel about that?
Mr Ritchie: Again, it is about
these loopholes. I can just imagine it in court: "Is there
any documentation or minutes of a meeting to say that this company
went out of their way to breach the Health and Safety at Work
Act?" "No." "Well, there you are. There is
no evidence there." We are saying you will never get a minute
from the directors to say we are going to go out today and break
the Health and Safety at Work Act. They will never do that. Pressures
come on the job: the job is behind; penalty clauses are all over
it; the pressure is on the directors. Things will happen. Constructions
will go out. It is not down in black and white. It is not taken
as a minute. That is the danger when you turn round and say there
has to be evidence or proof to say that a company went out of
their way to breach the Health and Safety at Work Act. Again I
go back to a case in Scotland. They were digging a trench and
the site agent contacted the company and said, "Look, this
needs to be shored. I've got to get machinery in to put the shoring
in." "Well, how long will that take?" "About
a couple of days." "Look, get the job done." The
JCB came in, dug the hole, the lad went down directing the pipes
in, it caved in on top of him. Dead. The company went in and said,
"Yes, that is right. We are guilty." As I say, they
were fined £7,500. You will never find a minute to that effect.
You will never be able to turn round and say, "Here's the
evidence here, my Lord. Here you are, the directors took that
decision." You will not find that and that is the problem
if you are saying there should be proof or evidence.
Q344 Gwyn Prosser: I take the point
and it is a very strong point that you make. However, bearing
in mind that the Bill does not actually require that to be a necessary
element to prove guilt, is it not useful to have it in place,
because there will be elements where it will have an important
bearing? My own view is that the reasonable judge, listening to
the evidence of the particular case you have cited, will say,
"What other motivation would that company have for taking
the cheap option?"—for taking this fast route, to profit
from it.
Mr Ritchie: It is just this written
evidence. That is the problem with this—a proof. We are
saying that that could be used in a court of law.
Q345 Gwyn Prosser: I want to ask
one question about sanctions. You have made the point this morning,
again very clearly, about small financial sanctions against a
company which has huge penalties against it: that if they just
make the calculation on paper, then they certainly will profit
from taking the cheap and the unsafe route. You have argued in
your submission that, because of that, fines—even unlimited
fines—are not sufficient. Putting aside for the moment the
personal liability of directors, which my view the Committee is
getting closer and closer towards supporting—and that is
for the Committee to decide later—putting aside that particular
element, what other innovative sanctions would UCATT recommend
should be in the Bill?
Mr Ritchie: One of the things
about sanctions against a company and why we say that the directors
should be responsible is because we believe that companies do
not kill people. It is not just this bland thing, that a company
goes round and decides to kill. It is individuals who take decisions,
and that is why we are saying that there. Sanctions in themselves—if
it was an option for the judge to say, "What we will do is
we will just give a sanction to the company", a big fine
or whatever—that can always be taken—
Q346 Gwyn Prosser: Are there no sanctions
that can be taken against the company corporate? I have sympathy
personally with the view of the individual liability but, putting
that to one side, are there no further innovative sanctions you
can take against the corporate body other than just fines?
Mr Ritchie: Again, it is a question
of interpretation of law. We heard evidence this morning, where
the judge will say, "Oh, there's a court case back there,
20 years ago. That's a precedent. We will need to look at that".
The problem is, once you start saying, "Take that away from
the individual's responsibility", there is an alternative
there of sanctions against the company and, "We'll just go
for the sanction against the company". We are saying that
again would be a cop-out. That is why we are saying it has got
to be the directors who are held personally responsible.
Q347 Chairman: Two last points from
me. I want to go back to that previous discussion you had which
was very interesting, about the evidence on gross breach. In the
case that you described in Scotland—the very distressing
case—how big was the company involved?
Mr Ritchie: A big company, a large
company.
Q348 Chairman: So there was a long
way from any senior managers to whoever it was on the site who
said, "Do it that way"?
Mr Ritchie: Yes, but I would also
refer to our submissions. We have an example of a prosecution
in the construction industry and we name the defendants and the
dates. A trench collapsed, resulting in fatalities; the fine was
£3,500; the company was found guilty of breaching health
and safety—£185. These are resulting from deaths.
Q349 Chairman: It is a big company,
so a long way from any senior managers to whoever it probably
was on the site who took that decision about how to dig the trench.
In terms of the point Mr Prosser was asking about, about the guidance
that is in the current legislation of the factors the jury has
to consider and your concern that there may not be evidence, in
the sense that somebody at a senior level has taken the decision
that led to the death—as a point of interest, has your union
had any legal advice from your own advisers on whether this test
would have helped the jury in any of the cases you have dealt
with recently? The point you have made is a very important one
for us, namely as to whether the guidance in the Act will be helpful
to a jury or whether it will get in the way of a prosecution.
You have suggested to us this morning that it could actually get
in the way of a prosecution, in the absence of an e-mail or the
recording of a phone conversation, or whatever else. It is important
that we look at this very carefully in our report. I wonder whether
you have had any legal advice as a union that this would be the
case, that this would be the problem.
Mr Ritchie: In the discussions
we have had with our lawyers, what the lawyers are saying is that
we have to try to make it as watertight as possible, and to leave
any loopholes in there would leave the chance then to make the
Bill useless. That is what concerns us.
Q350 Chairman: I should know this,
but have you submitted that in your memorandum—your legal
advice? If not, if you are able to do so it would be very helpful.
We may have it already and, if so, we apologise. The final point
we have half-covered already. We obviously do not know what goes
on within governments. We only read the newspapers, like everybody
else! It is fairly open knowledge, however, that there have been
some debates in Government about bringing this legislation forward
at all, and this is one of the reasons why it has taken so long.
This may be a question you just throw back to us and say, "You
have got to decide", but if, for example, Mr Prosser turned
out to be right and we produced a report that said we were very
sympathetic to the idea of introducing individual liability as
opposed to just corporate liability, that might have the effect
of reopening the entire debate within Government about whether
to do this legislation now or not. If you were caught between
that sort of rock and that hard place, would your choice be to
go with what is there, because at least after 20 years there is
some success for the campaign that George Bromwell launched, or
would it really be to say the weakness would be so great that
it would be worth carrying on the campaign for a bit longer?
Mr Ritchie: We would like to see
the legislation in this term of Parliament; but if there was a
situation where delay would strengthen it, then we would accept
that. The thing is, again, it is the time limits on that delay.
If you are saying to me, "We are going to have to change
this. It will take us another 20 years", then no, I would
not go for that. But if we could get it clearly defined that it
would, maybe not in this session of Parliament, certainly go in
the next session; that we have got to tighten the Bill; tighten
up these loopholes; make sure that these unscrupulous employers
are not going to get away with murder—which is what they
have been doing—then, yes, we would live with that delay.
But, as I am saying, it is a limited delay that we would live
with.
Q351 Chairman: Mr Ritchie, thank
you very much indeed. It has been a very helpful session.
Mr Ritchie: Thank you very much
for inviting us.
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