Examination of Witnesses (Questions 540
- 553)
MONDAY 21 NOVEMBER 2005
MR BILL
CALLAGHAN AND
MR JONATHAN
REES
Q540 Harry Cohen: The draft Bill
gives the courts the power to set remedial orders. Some of our
respondents thought this was a bit of a duplication with what
the HSE already has. Do you think it is a duplication?
Mr Rees: Perhaps I could comment.
Obviously, the HSE has the power under the existing Health and
Safety at Work Act to issue what we call improvement notices or
prohibition notices. So on the assumption that there was a case
for corporate manslaughter involving premises or activities that
we regulated, it would be pretty inconceivable that we would not
already have taken action long before the case got near the courts
to deal with whatever the problem was, but the Health and Safety
at Work Act itself in section 42 gives the power to courts to
issue remedial action in certain circumstances, and clearly, this
Bill is not just about the Health and Safety at Work Act. So it
seems to me that there is a case for a remedial power but I think
in practice, certainly for the territory covered by the Health
and Safety at Work Act, I would be very surprised if it were used
very greatly.
Q541 Harry Cohen: Can you just explain
to me how the courts get the necessary expertise to put a remedial
order in place under your existing system?
Mr Rees: I was talking to our
legal department this afternoon and they were unable to identify
any cases where the courts have done it. Let us assume that the
courts did use these particular powers, almost certainly they
would want to take advice, if it was a health and safety issue,
from us. I think to say that they should clearly take advice—I
am not sure the particular clause does—from the appropriate
regulatory authority seems to me perfectly sensible.
Q542 Chairman: Why do they not use
them?
Mr Rees: Because in practice we
will have already taken the necessary action. Let us say that
there is an accident in a factory—
Q543 Chairman: Okay, I understand
that, but in terms of this law that we are looking at now, are
we introducing a punishment that might turn out to be similarly
redundant?
Mr Rees: I think that corporate
manslaughter does not just deal with health and safety offences.
As you said, it could deal with issues around food safety or fire
safety. I do not know whether other regulatory authorities have
the same powers as us; I am pretty sure that they do not have
the same powers. I think that there could be scope for it to be
used.
Q544 Harry Cohen: The Government's
consultation paper in 2,000 invited views on whether the Health
and Safety Executive, the enforcing authorities, should be given
powers to investigate and prosecute the new offence. That has
been dropped here. Could you comment on this role of the Health
and Safety Executive in assisting the police and the Crown Prosecution
Service in investigating and prosecuting? You are a regulatory
body, would this investigating role, possible prosecuting role,
be one that would be appropriate?
Mr Rees: At the moment if it is
an issue of manslaughter, both under the existing law or individual
manslaughter, we have the work related deaths protocol. The position
is that the police would do the initial investigation and if they
believed it was a manslaughter case they would continue the investigation,
clearly working closely with us. If at some stage they decided
it was not a manslaughter case then it would be transferred to
us to deal with under Health and Safety at Work legislation and
we would then take the prosecution. I think it is perfectly sensible
for this Bill to match or mirror what the existing provision is
on manslaughter. We would not want to be in the position of prosecuting
manslaughter cases which are by their very nature much, much more
complex and require a degree of specialism that we do not necessarily
have.
Q545 Harry Cohen: But you would expect
to assist the police in that process?
Mr Rees: We would obviously update
the protocol but we work very closely with the police and then
in due course the Crown Prosecution Service when cases are taken,
and cases are often taken both under manslaughter and health and
safety legislation, but always by the CPS if there is the greater
case of manslaughter.
Mr Callaghan: Remember, environmental
health officers also prosecute under the Health and Safety at
Work Act, not just HSE.
Q546 Harry Cohen: Those are residual
powers. The Health and Safety at Work Act 1974 gave health and
safety inspectors some interesting powers, including powers of
entry to premises, examination and investigation, and to take
a constable along if they felt there was some sort of obstruction.
When we had ACPO here, for example, they asked for comparable
powers in those manslaughter investigations. If health and safety
inspectors were required to obtain a court warrant before exercising
powers of entry, as the police are required to do under PACE,
do you believe the delay would jeopardise your investigation?
Mr Rees: Yes. The position is
that clearly under the 1974 Act in some senses we have very, very
wide-ranging powers and I think what you are saying is that those
powers are greater than those available to the police.
Q547 Harry Cohen: Yes.
Mr Rees: One of the issues clearly
is when we are doing investigations the evidence that we take
under our powers cannot necessarily be used by the police for
that very reason. I do not think, but then you would expect me
to say this and we have not looked at it in detail, there is a
case made for curtailing our powers. It is not something we have
looked at, indeed not something we have huge complaints about.
Q548 Harry Cohen: Let me turn it
round the other way. Really, I was trying to get to it round the
other way.
Mr Rees: I thought you might be.
Q549 Harry Cohen: Should the police
have the same powers that your inspectors have got?
Mr Callaghan: I do not have a
view. In one sense, that is for Parliament to decide. As you say,
the section 20 powers are quite wide-ranging but this is in the
context of regulatory offences and it is understood, I think,
by duty holders and, as Jonathan says, there have been no complaints
about the powers that inspectors have, it is the context within
which they are operating. I think the context of corporate manslaughter
will be different.
Q550 Harry Cohen: Can I pick up a
point you made in your earlier answer. You have got wide-ranging
powers and you said they cannot be used by the police. Clearly
this is a serious investigation if you are going to investigate
corporate manslaughter, should they not be able to use evidence
that you have gathered from your powers directly in a corporate
manslaughter investigation?
Mr Rees: In practice if it is
clearly going to be a corporate manslaughter case we and the police
are very clear as to who is going to take evidence under what
powers. It is not a question that we troop along, as it were,
mob handed and trample all over the scene using our powers. Broadly
what happens is if it is a corporate manslaughter case the police
will go ahead first and use their powers to get evidence. What
might then happen is they decide that it is not corporate manslaughter,
it is not a manslaughter case, in which case we will use our powers,
which as it happens are slightly greater, to take different evidence.
We do have to be very careful obviously about abiding by the distinction
in powers which Parliament has given us.
Q551 Harry Cohen: That slightly extra
power you have might make the difference in the appropriate evidence
to make a corporate manslaughter charge stick.
Mr Rees: It might. I do not know
that anybody has looked at this. We are happy to look at it further.
I have not heard it put in the past. The difficulty of making
the case stick is not really a question of regulatory powers;
the difficulty is clearly finding the necessary audit trail and
the causal links between actions and omissions and what has happened.
I do not think it is really a powers question but we are very
happy to look at it and write to the Committee further.
Harry Cohen: Thank you for your help.
Q552 Chairman: Just one very final
point, to go back to the question of directors' duties. Do you
have any indication from Government that they will be minded to
act on whatever you recommend on directors' duties?
Mr Callaghan: They have asked
for our advice and I think the Commission need to give Government
its clear advice on what should be done.
Q553 Chairman: If you were to recommend
any changes, have you got any indication of what sort of timetable
the Government might have in mind?
Mr Callaghan: If the Commission
were minded to go down the road of imposing new duties on directors
there are different vehicles for that. There is company law, the
Health and Safety at Work Act itself. As you know, some people
have suggested that this might be given legal force by approved
codes of practice which the Commission can recommend to Government.
I am speculating at the moment, the Commission may or may not
come to a clear decision on that in December. We will certainly
let you know whatever the outcome is.
Chairman: Thank you very much, Mr Callaghan
and Mr Rees, that has been very helpful. Both yourselves and Sir
Igor have been so to the point that we are slightly ahead of ourselves.
Thank you very much.
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