13. Memorandum submitted by the Public
and Commercial Services Union
The Public and Commercial Services Union (PCS)
welcomes the opportunity to comment on the proposals for introducing
new legislation covering Corporate Killing. PCS is an independent
trade union representing over 310,000 members, many within central
government employment.
PCS welcomes the fact that this long-awaited
and much heralded measure has finally seen the light of day. We
trust that the Government will move rapidly to bring forward a
formal Bill and take it through its necessary processes and into
law.
The draft Bill will create a new offence that
targets very serious failings in the strategic management of an
organisation's activities that have resulted in death. We note
the Government aim is to focus on wider management failings within
an organisation. At present, liability hinges on the conduct of
one individual at the very top of an organisation. This development
is to be welcomed.
SCOPE OF
THE OFFENCE
It is clear from previous attempts at prosecutions
resulting from serious incidents that the law as it presently
stands offers too many loopholes through which organisations can
escape liability for serious failings in their duties to workers
and the general public. At present it is necessary to show an
individual director or senior manager of a organisation is liable.
This requires evidence of "gross negligence", and without
that there is no case against an organisation. The proposed new
legislation will make it possible to prosecute an organisation
if there is a gross breach of their duty of care and that a senior
manager of the organisation knew, or aught to have known, about
this breach. PCS agrees with the TUC that, on balance, the draft
bill is correct on this point. To restrict the awareness to actual
directors would be too restrictive, and to extend it to those
below senior manager level would undermine the focus of the Bill,
which is on corporate failings.
We would echo the TUC's concerns that subsection
2 (b) of Section 3 does not make it clear that any one of the
three tests needs to be met rather than all three. We are also
concerned that the third test, which requires the prosecution
to show that an organisation sought to profit from a failure,
could lead to action being less likely against public and non-profit
bodies. Instead we would wish to see the word "benefit"
used instead of "profit".
The new offence would cover deaths at work and
is linked to the standards required under existing health and
safety legislation. However the offence will not only cover workers,
but also those affected by the work process. Hence it will cover
both deaths in the workplace and also deaths to the public that
result from the work process, such as major transport accidents.
PCS welcomes this and believes that it is the correct approach,
although we feel that the wording of three (3) needs to be clarified
to ensure that other health and safety legislation, such as the
Working Time Regulations are also covered.
COVERAGE
The draft Bill would apply to "corporations"
and government departments, not only as employers but also as
suppliers. There is the question of whether it should apply to
"un-incorporated" bodies such as partnerships. While
recognising the difficulties, PCS believes that the coverage for
the offence should be as broad as possible. The Government has
already indicated that it wishes to look at how the legislation
can be applied to Police Forces (as opposed to Police Authorities).
We are also keen to see how the legislation would apply in respect
of civilian staff working for the Police—we firmly believe
that they should be protected by the offence.
The draft Bill has ruled out any jurisdiction
over the operations of organisations which are registered in the
UK if a fatality occurs abroad. PCS is concerned how this might
affect the position of Government departments and agencies with
staff employed abroad—such as the Foreign Office, DFID and
MoD. We believe that, if the management failures leading to a
fatality were to occur within the UK then liability under the
new offence should exist.
PENALTIES
The draft Bill will simply allow for an organisation
to be fined, although remedial orders will also be able to be
imposed. Because a company or public body cannot be sent to prison,
the Government sees no other alternatives to this. However it
recognises that in some cases, such as Crown bodies, this is just
recycling money from one department to another.
PCS cannot see how this limited penalty can
be effective as a deterrent—particularly for Crown bodies,
who are not even subject to shareholder control over profits.
We believe that a more innovative range of penalties needs to
be developed.
We note that the Government has committed itself
to increasing penalties for health and safety offences. PCS feels
strongly that such increases need to come into force alongside
this Bill—either as part of it or as simultaneous legislation.
INDIVIDUAL DIRECTORS
The draft Bill reflects the view of the Law
Commission that it would not be appropriate for an offence of
Corporate Manslaughter to look at individuals such as company
directors. However in its 2000 consultation paper the Government
accepted that without punitive sanctions against company officers,
there would be insufficient deterrent force to any new proposals.
Whilst PCS reluctantly accepts that this Bill
may not be an appropriate vehicle with which to address the issue
of director's duties, we firmly believe that the Government must
look at the responsibilities of directors quickly with a view
to tighter regulation. Whilst we are keen to avoid scapegoating
of front line employees or middle managers, it is fundamental
that criminal liability for management applies not only to the
corporate body or undertaking concerned, but also to owners, directors,
and very senior personnel who are ultimately responsible for the
management failure. We hope that the Government will consider
the issue of director's responsibilities separate from this Bill.
CROWN IMMUNITY
The vast majority of PCS members work for "Crown"
bodies and we welcome the fact that the Government has accepted
that its own departments should be covered, and that the draft
Bill will ensure that where a government department or agency
is responsible for a death at work it is prosecuted. As we are
only too well aware from the incidents that have resulted in the
death of our members in the past, seeing a prosecution take place
can be important for the relatives of the victim of a workplace
fatality. There is no logical, legal or moral case for leaving
Crown bodies exempt from prosecution where they have caused a
death and the removal of Crown Immunity will be widely welcomed.
We are, however, concerned that the draft bill
does not also contain proposals to remove the Crown's immunities
from Health and Safety legislation in the same way. The Government
has a long-standing commitment, made in their Revitalising Health
& Safety strategy document, to the removal of these immunities
and they certainly cannot continue once the Bill becomes law.
We would urge the Government to use the Bill to repeal those sections
of the Health & Safety at Work Act and other legislation that
affords Crown immunity.
We are surprised to note the absence of the
National Assembly for Wales from the list of Government Departments
etc in the Schedule and presume that this is a simple oversight.
We also believe that the Houses of Parliament need to be specifically
written into the Bill, to ensure that they are also covered by
this new offence.
SUMMARY
PCS welcomes the Bill. We believe that it has
the potential to improve health and safety standards across both
the public and private sectors and help prevent deaths of both
workers and members of the public. It will also help provide a
sense of justice to the families of those bereaved as a result
of corporate failings.
We consider that, with the exceptions outlined
above, the scope of the proposed offence is about right. We hope
that the Bill will be used as a vehicle to increase penalties
and remove Crown Immunity for all health and safety offences.
We would ask that the Government should, as
a matter of urgency, consider the issue of director's duties and
the penalties available for dealing with Corporate Bodies.
We hope that the Bill will be implemented at
the earliest opportunity.
| 
