107. Memorandum submitted by the Communication
Workers Union
CORPORATE MANSLAUGHTER:
NORTHERN IRELAND—PROPOSALS
FOR A
NEW OFFENCE
Introduction
The Communication Workers Union (CWU) is one
of the UK's largest Trade Unions with 250,000 members. Along with
the TUC and other Trade Unions the CWU has been campaigning for
new laws on corporate manslaughter and directors health and safety
responsibilities since 1997 when the present Government first
came to Office and first promised to introduce a new offence.
Last year 235 workers were killed at work in
the UK, including CWU members and workplace deaths actually rose
by 4%. Reform of the law is therefore long overdue.
The CWU welcomed the Government's publication
of a Draft Corporate Manslaughter Bill on the 23 March 2005 and
are pleased to have the opportunity to respond to the consultation
papers issued by the Home Office, Scottish Executive and Northern
Ireland Office. The proposals are a step in the right direction
but at best, we can only give a "cautious" welcome the
publication of the long-awaited draft corporate manslaughter bill
as the CWU has serious concerns over just how effective it will
be.
Many feel that the lack of progress over the
last eight years on introducing a new corporate manslaughter Law
highlights the Government's contempt for workers and for the victims
of workplace injuries and deaths. During that time around 2000
people have been killed at work many of them due to serious management
failures with those responsible evading justice and the families
of those who died denied justice.
Background
The Government's draft Corporate Manslaughter
bill is a "watered-down" version of the original 1996
proposals which in our view will not bring about any significant
change unless it is amended to deal with the lack of accountability
for company directors and senior managers which the Government
itself admitted was a major concern back in 2000. Death at work
caused by carelessness and negligence will remain a mundane part
of industrial life until those exercising ultimate boardroom power
know that they could be held accountable for the maladministration
of safety in their company. When all those who are responsible
for workers health and safety are truly held to account, there
will be a significant improvement in the safety and occupational
health of workers—the longer Government backs away from
those changes the longer we will return to events each year like
Workers Memorial Day, commemorating unacceptable numbers of deaths
and injuries at work including Postal and Telecommunication workers.
We wish to stress our determination to see new effective laws
on "Corporate Manslaughter" and "Directors Duties"
brought in early by a third term Labour government. The CWU calls
upon the Prime Minister and Government to "Start Listening"
and be "Tough on Crime—Tough on the Causes of Crime".
History
In 1996, after the courts had failed to deal
with the collective management failures responsible for such high-profile
disasters as the sinking of the Herald of Free Enterprise and
the Marchioness, the Piper Alpha fire (on which two CWU members
were killed) and King's Cross fire and the Clapham and Purley
train crashes, the Law Commission proposed a new law of "corporate
killing". While in opposition and then immediately on its
return to government in 1997, Labour backed this proposal with
loud and vigorous rhetoric. Proposed legislation was the subject
of a 2000 consultation document, a 2001 manifesto commitment,
and further consultation in 2002. In May 2003, then Home Secretary
David Blunkett announced "a timetable for legislation"
with further details to be announced shortly thereafter. No timetable
followed and Home Office promises of a draft bill were made and
promptly broken with monotonous regularity for a further two years,
leading up to the publication of the Government's draft bill in
March 2005.
In early 1997, prior to the Labour Election
victory a CWU delegation met the then shadow Health and Safety
Minister at Westminster to discuss CWU policies and the Health
and Safety intentions of a new Labour Government. We received
a number of assurances that a new Labour Government would introduce
a range of new Health and Safety Laws and Regulations including
a new Corporate Manslaughter Law, harsher penalties for Health
and Safety Offences including imprisonment, greater powers and
protection for Safety Representatives, the proper implementation
of EU Health and Safety Directives not carried out by the previous
Conservative Government and increased funding for the Health and
Safety Commission and Executive.
Following their election in 1997 the Labour
government pledged to improve safety by ensuring that companies
and directors would be held to account more easily for negligent
or reckless conduct.
To date none of those promises and commitments
have been carried out and in fact Treasury spending reviews have
led to reductions in HSE Inspectors and more recently the HSE
considering proposals to reduce its vital inspection and regulation
activities as a result of the "Hampton Review".
OVERVIEW OF
THE "DRAFT
BILL"
Positive Points
The government has at last honoured its commitment
to bring forward a corporate manslaughter bill after eight years
of prevarication over corporate killing legislation.
The bill introduces a charge of corporate manslaughter
for the first time, which can be brought against companies and
organisations for cases of management failure causing death.
The court will be given powers to order convicted
organisations to take remedial steps.
Crown immunity is abolished for many government
bodies and agencies.
Negative Points
The Bill does not introduce any greater penalties
than can already be imposed under existing legislation for lesser
offences.
It does not impose any specific health and safety
obligations or duties on company directors.
The definition of senior managers is confusing
and restrictive and opens up a further loophole through which
negligent organisations could escape prosecution.
The focus on senior managers is too narrow.
The criteria from determining a gross breach
is confusing and restrictive and could be impossible for juries
to establish without any legal obligation on directors to ensure
that their organisation is complying with health and safety law.
The Bill propose a fines based penalty system
and fails to consider other more imaginative forms of penalty
which could be imposed such as custodial sentences for individuals
and probation orders for companies.
The draft Bill fails to rebalance corporate
criminal justice Law in favour of the victims of work-related
deaths and serious injuries.
The Draft Bill will only lead to an additional
5 prosecutions for corporate manslaughter each year according
to its accompanying Regulatory Impact Assessment,
The Draft Bill introduces a "profit from
failure test" that opens up a loophole through which negligent
organisations could evade prosecution for corporate manslaughter
(ie for corporate guilt to be established it would have to be
proved that an organisation sought to profit from a failure that
led to a work-related death).
The Draft Bill exempts from prosecution all
decisions involving public policy. As, by definition, any decision
by a Crown body could be argued to be a public policy decision,
every Crown body could potentially escape prosecution for corporate
manslaughter by invoking a "public policy defence".
The Draft Bill does not remove Crown Immunity
for health and safety offences
The Draft Bill fails to include all employing
organisations within its scope (ie it excludes all unincorporated
bodies and a large number of Crown bodies from its provisions).
The Draft Bill does not apply the new offence
of corporate manslaughter to UK companies that cause deaths abroad.
The Draft Bill has been published but, as yet,
there is still no timetable for, nor specific details on the mechanics
and structure of, the pre-legislative scrutiny process that it
will undergo.
Statistics
In the past five years to 2003-04 there has
been 2,157 death at work. On average there are approximately 240
workplace deaths each year. Despite these figures only 11 Directors
have ever been convicted of manslaughter. Five of the directors
were sentenced to imprisonment and another five had suspended
sentences. One was given a community service order.
During the period 2003-04 there were 159,809
accidents which did not result in a death but which resulted in
injury.
Each year around 11,000 enforcement notices
(Improvement Notice/Prohibition Notice) are issued by HSE Inspectors
and Local Authority (EHO) Inspectors.
The number of prosecutions is around 1,000 a
year.
Considering that prosecution is a last resort,
the fines resulting from prosecution are generally low. The average
fine for a breach of health and safety law was £4,036 in
2003-04.
Each year there are many hundreds of accidents
which narrowly avoid death but which often result in severe disabling
injury.
The HSE reported a 4% increase in deaths at
work during 2003-04, and that the rate of fatal injury to workers
increased from 0.79 deaths per hundred thousand workers to 0.81,
an increase of 3%.
NORTHERN IRELAND
The Home Office proposals for England and Wales
are appropriate and should be extended to Northern Ireland, just
as they should for Scotland. The proposal for a new Corporate
Manslaughter Law in Northern Ireland is just as relevant as it
is for the rest of the UK. However, the Home Office draft bill
proposal as it stands is unimpressive and unlikely to have any
significant impact on health and safety compliance or on the number
of accidents and deaths at work unless it is significantly amended.
CROWN IMMUNITY
We welcome the removal of Crown Immunity and
that the new offence will apply to the Government's own departments
who will be prosecuted where they are responsible for a death
at work. As the largest employer in the land, it is vital that
the government sets the lead on workplace health and safety. There
is no logical, legal or moral case for leaving Crown bodies exempt
from prosecution where they have caused a workplace death and
the CWU would like to see the draft bill used as a vehicle to
remove Crown immunity from all Health and Safety Offences. We
note there are a number of exemptions listed in the draft bill
in areas such as for the security and intelligence services and
for the Army in combat and combat preparations. Beyond a limited
number of such areas however the Government must ensure that any
exemptions for the Crown do not mean that the existing immunity
is removed only to be replaced by others.
JURISDICTION
The "draft bill" rules out any jurisdiction
over the operations of UK companies if a fatality occurs abroad.
The CWU believes that where a worker is killed outside the UK
because of the failure of a UK based company to undertake suitable
and sufficient risk assessments the company should be able to
be prosecuted in the UK for the new corporate manslaughter offence.
SENTENCING AND
PENALTIES
The Government has failed to give any proper
consideration to how to sentence companies and other organisations
convicted of the new Corporate Manslaughter offence. The new Corporate
Manslaughter Law will only allow the courts to impose fines on
companies and organisations plus remedial orders and not Jail
sentences like other killing offences. This is because a company
or public body can not be sent to prison and the government apparently
see no alternative to this. However, even huge fines on Companies
have a limited effect. Unless the Government establish a tough
sentencing regime for companies, the new Corporate Manslaughter
offence will have little impact.
For example the £1.5 Million fine imposed
on Great Western Trains following the Southall Train Crash was
only 5.6% of Annual Profit and this compares poorly against Competition
Law Offence Fines eg Sotheby's £12.9 Million and Genzyme
Ltd £36.8 Million.
When Royal Mail was convicted in 2003 for three
Health and Safety offences following the death of a member of
the public in a horrific accident at the Bridgend Delivery Office
the Court imposed fines of £200,000 and this compares poorly
with the power of the Postal Regulator who may impose massive
fines. After missing its 2004 targets, Royal Mail paid out £50
million in compensation fines for failing to meet quality of service
delivery targets which never hurt anyone. When the Royal Mail
Board sits down to decide their priorities, taking these comparisons
into account, how on earth will an organisation like Royal Mail
and its Directors and Senior Managers ever take their safety responsibilities
seriously enough, bearing in mind their key role is to maximise
Royal Mail's profits and minimise losses. The new draft Corporate
Manslaughter Bill may have little effect on their decision making
if the "unlimited fines" proposed in the draft bill
reflect those being imposed by the courts currently for health
and safety offences connected with convictions associated with
fatal accidents like at Bridgend.
The CWU strongly supports the view that penalties
for health and safety offences should be much harsher.
In order to introduce effective and credible
deterrents to the reckless and negligent Organisations and their
Directors and Senior Managers consideration should also be given
to a range or penalties that will deliver justice to the victims
of work-related deaths and serious injuries. For example:
— Fines should be significantly increased
for Corporate Manslaughter and the "draft bill" should
be amended to specifically require this with fines pegged to the
profits or turnover of a company or organisation. For example
a company could be ordered to pay 10% of its profits for a three
year period.
— Directors of convicted companies
should suffer automatic disqualification from being a director
as a secondary penalty additional to any Fines on the company.
Presently this doesn't happen. Between April 2002 and March 2004,
600 workers were killed and 60,000 suffered major injury at work
but not a single Director was disqualified.
— Probation Orders against organisations
should be included within a range of penalties available to the
courts. The probation order would contain an onerous requirement
to ensure the companies compliance with its safety obligations.
The HSE would play the role of Probation Officer, reporting back
to the court periodically with any breach of the order subject
to heavy fines and extension of the probation order.
— Convicted companies could as a penalty
have an equity stakeholding taken by government by way of shares
through which the HSE could influence the companies management
of health an safety.
— Offending companies should be named
and shamed through prominent publicly advertised lists, paid for
by the offenders.
— The Courts should be allowed to award
punitive damages to the victim's family which would be in addition
to any Damages awarded to the family via Civil Litigation. All
too often the victims are the surviving family who are all too
often forgotten and this would provide some direct justice to
them.
DIRECTORS AND
SENIOR MANAGERS—INDIVIDUAL
LIABILITY
The Government's "draft bill" consultation
document has concentrated on making it easier to prosecute companies.
Although we support the change proposed in relation to the accountability
of "companies", the Government has failed to give sufficient
thought and attention to the accountability of company directors.
Government therefore does not propose to invoke individual liability
against Directors and senior managers. Under the "draft bill"
therefore there will be no means of holding company directors
and managers accountable for contributing to corporate killing.
In Government's initial consultative document on reform of the
manslaughter law it was envisaged that individual directors who
had contributed to safety management failure by their connivance,
consent or neglect could also be targeted for prosecution but
the Governments "draft bill" now excludes this possibility
and this is a retrograde step in our view as it shields the decision
makers, who have the power to make the necessary changes to secure
a safe working environment.
In our view, it is crucial that the Government
give serious consideration to the area of influencing and motivating
the conduct of directors. It is often forgotten in discussions
about safety and "corporate accountability" that company
directors control companies, they decide what companies can and
cannot do, and it is their conduct and decision making that ultimately
determines whether or not a company operates safely. In our view,
although the accountability of "companies" is important,
criminal sanctions should be directed at the criminal conduct
of company directors because a fundamental public concern about
the current law is that it allows culpable company directors to
escape prosecution for manslaughter. The CWU strongly supports
the view therefore that making corporate leadership personally
responsible for serious breaches of health and safety law within
their organisations is the key to motivating directors and senior
managers in a company, making real the threat of personal liability
upon directors and senior managers.
The Government and Health and Safety Commission
(HSC) gave a commitment in the "Revitalising Health &
Safety" Strategy published in 2000 to introduce new positive
statutory health and safety responsibilities on Directors and
Senior Managers which currently doesn't exist. The Revitalising
Health & Safety Strategy Statement confirmed the intention
of Ministers, to introduce legislation on these responsibilities
and that the HSC would develop a code of practice on Directors'
responsibilities for health and safety and would advise Ministers
on how the law would need to be changed to make these responsibilities
statutory so that Directors and responsible persons of similar
status are clear about what is expected of them in their management
of health and safety. This has never been implemented.
Voluntary codes and guidance just do not work!
The HSC/E have produced some excellent guidance, leaflets and
research about the savings to industry of good health and safety.
However it is apparent that industry does not take notice of this
advice, information and guidance. It is therefore clear to our
Union that the statutory health and safety responsibilities for
Directors and Senior Managers are vital in order to stop the present
situation where they can legally insulate themselves from what
is going on in the company despite those individuals being the
people with the most power. This is bad for Safety and bad for
accountability.
The Health and Safety Executive (HSE) estimates
that up to 70% of workplace deaths are the result of serious management
failures. It is not companies that are responsible for killing
workers, it is people. Workplace fatalities are avoidable and
are usually caused by fundamental safety shortcomings throughout
the organisation which can properly be laid at the door of the
Chairman, Chief Executive, and Board of Directors etc as appropriate.
In Royal Mail the CWU has seen a number of recent
examples where the Chairman, Chief Executive and Director Operations
have not acted responsibly and have made various fundamental decisions
by "dictate", without consulting the Trade Union and
which indirectly affect the health and safety of the workforce,
exposing workers to a higher risk of injury. The effects of their
decisions were subsequently linked to enforcement action by the
Health and Safety Executive (HSE). Under the Government's "draft
bill" Directors will effectively be allowed `off the hook'
once again and will not be made to act responsibly.
Ironically, Directors and Managers can be imprisoned
for Companies Act or Taxation Offences eg "Cooking The Books"
but not for killing workers and members of the public.
Additionally, around 60 people were imprisoned
for Animal cruelty offences last year but under the new "draft"
Corporate Manslaughter bill, for committing the gravest health
and safety offence of all, killing a person, the Government propose
to continue to exclude from liability Directors and Senior Managers
whose actions and decisions may have been in serious breach of
health and safety law and which ultimately leads to a fatality.
In view of the fact that the proposed new Corporate
Manslaughter Bill will exclude individual liability, it is vitally
important that government acts to introduce new positive statutory
health and safety responsibilities on Directors and Senior Managers
as part of or alongside this legislation. Workers and the public
do expect the law to be effective in holding those individuals
responsible to account and sentencing must be appropriate and
effective and in this respect the case for reform is overwhelming.
It is our view that the "draft bill"
as it stands will not in itself achieve effective accountability
and improved standards of work related health and safety via the
introduction of such legislation. Most recently, the CWU backed
Stephen Hepburn MP's "Health and Safety at Work (Directors'
Duties)" Private Member's Bill which in spite of receiving
unanimous support in the Commons at its second reading stage fell
due to the House not being quorate. The Government should therefore
consider supporting a similarly worded amendment to this "draft
bill" in our view.
SERIOUS INJURIES
We are firmly of the view that the new legislation
should provide an offence covering serious injuries because it
is illogical to prosecute companies, organisations and managers
for corporate killing but not to prosecute for example in cases
where very serious injury resulted in an individual or individuals
who for example end up on a life support machine or paraplegic.
(The new Canadian law applies to all offences, manslaughter and
injury.)
SENIOR MANAGEMENT
(THE A
"SENIOR MANAGERS"
TEST)
The definition of "senior management"
as used in the Home Office proposals is confusing, too restrictive
and the focus on senior managers is too narrow. The Draft Bill
introduces a "senior managers" test that would open
up a loophole through which negligent organisations could escape
prosecution (ie by delegating health and safety management to
non-senior managerial levels they would fall outside of the scope
of the Bill and the reach of the law). The Draft Bill must be
amended so that work-related fatalities caused by failures at
every level of management—not just at senior level—are
admissible for use in the consideration of corporate liability
for manslaughter.
GROSS BREACH
(THE "GROSS
BREACH" TEST)
In order for an organisation to be found guilty
of the offence of corporate manslaughter a death must have occurred
as a result of a failure by senior managers that "amounts
to a gross breach of a relevant duty of care." Moreover,
in deciding upon whether or not this particular test has been
met a jury must consider whether or not senior managers:
(a) knew or ought to have known that the
organisation was failing to comply with any relevant health and
safety legislation or guidance; and
(b) were aware, or ought to have been aware,
of the risk of death or serious harm posed by the failure to comply
While we believe that failure to comply with
health and safety legislation, or indeed a failure to be aware
of the risks associated with such non-compliance, should certainly
be grounds for prosecution for corporate manslaughter we are concerned
that this particular test will be all but impossible to meet in
actual court cases because, as the law currently stands, company
directors have no legally binding duties in respect of health
and safety.
So, since there is no obligation for directors
to be informed of the health and safety performance of the company,
it will be easy under this Draft Bill for directors to argue that
they were unaware of failures—or the implications of such
failures—within the company. In other words, because a director
has no explicit legal obligation to ensure that their company
is complying with health and safety law it will virtually be impossible
for a jury to conclude that he or she knew or ought to have known
that their organisation was failing to do so. The end result will
be that prosecutions will fail through lack of evidence in respect
of this crucial test.
We would therefore argue that the only way in
which the "gross breach" test can be made to work is
if it is complemented by the introduction of legally binding health
and safety duties for company directors and their Crown body equivalents.
THE "PROFIT
FROM FAILURE"
TEST
In their assessment of the "gross breach
" test a jury must also consider another legal test imposed
by the Draft Bill: namely that for an organisation to be found
guilty of corporate manslaughter, the jury must be persuaded that
there is sufficient proof to demonstrate that senior managers
"sought to cause the organisation to profit from that failure"
(ie to profit from a failure to comply with any relevant health
and safety legislation or guidance that led to a death of a person,
or persons, to whom the organisation owed a duty of care).
We are concerned that this test opens up a potential
legal loophole for negligent organisations: evidence would be
extremely difficult to obtain and the absence of such evidence
will be used by organisations to show that their conduct was not
grossly negligent. Furthermore, we are unclear as to how this
requirement would impact upon juries assessing organisations that
do not have a profit motive—such as those delivering public
services.
We can see an argument for allowing courts—once
they have passed a guilty verdict and are determining the penalty
to be imposed—to consider whether the offence of corporate
manslaughter was further compounded by the fact that a company
was deliberately negligent in order to make a profit or to gain
some sort of benefit. But using the issue of profit to help determine
a criminal penalty is very different from using the issue of profit
to determine whether a company is guilty in the first place. We
therefore believe that, in respect of its use as a means for determining
corporate liability, the "profit from failure" test
must be removed.
VICTIMS
The key aim of the Health and Safety at Work
Act 1974 which amongst other things established the Health &
Safety Commission and Executive (HSC/E), is to prevent deaths
and injuries, at work and so reduce victims. The view of the CWU
is that the balance of power and influence needs to be redressed
in favour of victims as our Union's view is that currently, industry
has far too much influence on the Government and the HSC. Baroness
Scotland, Minister responsible for criminal law reform, said on
29 April 2004 "the Government is engaged in an ambitious
and extensive modernisation of the criminal justice system, to
rebalance it in favour of the victim and the community".
The Government's proposed draft Corporate Manslaughter Bill as
proposed however will fall well short of redressing the balance
of power unless alongside the new Corporate Manslaughter Law,
the Government impose statutory safety duties upon directors,
as promised by the Deputy Prime Minister in 2000 in the "Revitalising
Health and Safety" Strategy document.
PRE-LEGISLATIVE
SCRUTINY
After 8 years of delays and around 2000 deaths
at work in the mean time the Government should announce the timetable
and set up the Parliamentary Scrutiny Committee to consider the
"draft bill" and submissions without further delay.
Further delays will see further deaths and further cases of culpable
companies and their managements escape justice. Over the last
year our own Union has sadly witness several members killed at
work and the employers evade real justice.
CONCLUSIONS
The legislation as proposed in the "draft
bill" falls well short of our Union's expectations. The draft
bill as it stands is unimpressive and unlikely to have any significant
impact on health and safety compliance or on the number of accidents
and deaths at work unless it is significantly amended. The draft
bill if unamended would leave the UK with inferior legislation
to that in countries like Australia, Canada and Ireland. With
significant amendment the bill has the capacity to become an important
and powerful piece of legislation."
From our point of view the purpose of the new
Corporate Manslaughter law should be:
— To motivate Directors and Senior
Managers and so deter organisations from exposing people to unnecessary
dangers,
— To ensure that individual Directors
and Senior Managers understand that they can expect to be held
to account for their conduct, where their actions or omissions
result in death of a worker or member of the public,
— To provide a practicable and just
framework where the criminal law can be applied to serious misconduct
which causes death with penalties that fit the crime, and
— To regain and maintain public confidence
in the law and in the accountability of corporations, companies
and other organisations as well as the people to run them and
make the crucial decisions.
RECOMMENDATIONS SUMMARY
— The Government has got to "Start
Listening" and be "Tough on Crime—Tough on the
Causes of Crime".
— Ensure the Treasury provides sufficient
resources to employ additional Inspectors enabling HSE to provide
the crucial support and expert assistance to the Police in Corporate
Manslaughter investigations.
— The Government must redress the balance
of power in favour of victims as currently Industry and the CBI
has far too much influence on the government and the HSC.
— Government must ensure that any exemptions
for the Crown do not mean that the existing immunity is removed
only to be replaced by others.
— Where a worker is killed outside
the UK because of the failure of a UK based company to undertake
suitable and sufficient risk assessments the company should be
able to be prosecuted in the UK for the new corporate manslaughter
offence.
— Fines should be significantly increased
for Corporate Manslaughter convictions and the "draft bill"
should be amended to specifically require this. Consideration
should also be given to fines pegged to the profits or turnover
of a company or organisation. E.g. 10% of company profits for
a three year period. Directors of convicted companies should suffer
automatic disqualification. Probation Orders against organisations
should be included within a range of penalties. The Courts should
award punitive damages to victims families.
— The new legislation should also provide
an offence covering serious injuries on a similar basis to the
new Canadian law which applies to all offences, manslaughter and
injury.
— The definition of "senior management"
as used in the Home Office proposals is confusing, too restrictive
and the focus on senior managers is too narrow. The Draft Bill
must be amended so that work-related fatalities caused by failures
at every level of management—not just at senior level—are
admissible for use in the consideration of corporate liability
for manslaughter.
— The only way in which the "gross
breach" test can be made to work is if it is complemented
by the introduction of legally binding health and safety duties
for company directors and their Crown body equivalents.
— The "profit from failure"
test must be removed because this test opens up a potential legal
loophole for negligent organisations and evidence would be extremely
difficult to obtain.
— It is vitally important that the
Government acts to introduce new positive statutory health and
safety responsibilities on Directors and Senior Managers as part
of or alongside this legislation.
— Government should announce the timetable
and set up the Parliamentary Scrutiny Committee to consider the
"draft bill" and submissions without further delay.
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