145. Memorandum submitted by the National
Union of Rail, Maritime and Transport Workers
SUMMARY
1. The National Union of Rail, Maritime
and Transport Workers (RMT) welcomes the decision of the Home
Affairs Committee to conduct an investigation into the draft Corporate
Manslaughter Bill.
2. The high profile and very tragic accidents
which have resulted in loss of life on the railways have contributed
towards public pressure for a change in the law on Corporate Manslaughter.
However it is not just the high profile accidents that highlight
the need for effective Corporate Manslaughter legislation as there
are still far too many deaths of railway workers due to the failure
to comply with health and safety legislation and standards. The
National Union of Rail, Maritime and Transport Workers is the
largest rail union; we represent more than 44,000 workers directly
employed in the railway industry, and therefore are grateful for
the opportunity to comment on the Corporate Manslaughter Bill.
3. Last week Network Rail (formerly Railtrack)
was found guilty of breaching safety regulations in the run up
to the Hatfield crash in October 2000. This also followed an admission
of guilt by Balfour Beatty to offences under the Health and Safety
Act. However the admission of guilt by Balfour Beatty was only
forthcoming after the company knew that it was not facing charges
of Corporate Manslaughter. This is despite the fact that there
had been a shocking neglect of the railway infrastructure in the
run up to the disaster.
4. RMT wish to see legislation that ensures
companies, on the railway and in other industries, are held accountable
for their actions in the workplace. We can advise the inquiry
that in addition to the high profile accidents on the railway
there has been a steady increase in the number of fatalities of
track workers.
5. In February 2004 four railway workers
died at Tebay after they were struck by a runaway vehicle. In
September 2004 a further two railway workers were killed by a
road rail vehicle. Further details on these incidents are given
later in this submission. In 2004 a total of eight workers were
killed in four accidents, (Rail Safety and Standards Board, 2004
Annual Report). This was the highest number of deaths since 1990-91.
In all the 2004 incidents better planning and/or site management
could have prevented the fatalities.
6. In addition to informing the committee
about developments on the railway RMT will also briefly comment
on other aspects of the Bill. We believe that the publication
of the draft Bill is a step forward from the current position
where effective prosecutions for corporate manslaughter are virtually
impossible. However we believe the Bill needs to be improved in
a number of areas. The suggested amendments are not minor matters
and are necessary to underpin the Bill and ensure effective legislation.
7. RMT is concerned that sufficient deterrents
are not in place in the current draft legislation; in particular
Directors and senior managers will not face liability. We believe
this would be a mistake and will mean that the Corporate Manslaughter
Bill will have little impact, and it will certainly not bring
about a cultural change throughout UK workplaces.
8. The Bill needs to be far more imaginative
in relation to the penalties that can be incurred. As the Bill
stands the only penalty available will be a straight forward fine.
This is far too narrow and the Government should consider other
measures that can also be taken against companies as well as company
directors, for example fines levied according to company profits
or turnover, and director's removal from office where offences
justify this.
9. The Bill should be amended so that all
employing organisations are covered. At the moment the Bill does
not propose to cover unincorporated companies. RMT are also concerned
that many institutions of the Crown will be exempt.
10. RMT represent merchant seafarers and
we therefore wish to see protection afforded to seafarers in the
same way as shore based workers. If the ship is registered in
the UK the Government retains jurisdiction when the vessel is
outside UK territorial waters and as a minimum UK shipping companies
must be liable for death and injuries incurred irrespective of
the location of the vessel.
11. Finally we must express our strong desire
for the legislation to be implemented by the end of this Parliamentary
session in November 2006. Revisions to Corporate Manslaughter
legislation have now been debated for nearly a decade and the
Government has promised the legislation since 1997.
THE NEED
FOR NEW
LEGISLATION
12. Since 1965 very few prosecutions have
been attempted under current legislation, only three small British
firms have ever been found guilty of corporate manslaughter and
there have been no convictions for major incidents. Attempts to
bring prosecutions for manslaughter failed after the 1997 Southall
rail crash, in which seven people died, and after the 1987 Zeebrugge
ferry disaster, which killed 192. As stated above, corporate manslaughter
charges arising from the Hatfield derailment in October 2000 have
also recently been dropped.
13. At present companies can only be tried
for corporate manslaughter if there is an individual in their
organisation who can be identified as the "controlling mind".
Lawyers believe that the difficulty is proving that one person
in a position of control was personally responsible for gross
negligence of health and safety laws. General failure, or the
actions of a junior employee, are not deemed to be sufficient.
Corporate manslaughter cases have only been successful in small
companies where it is easier to establish lines of responsibility
and a controlling mind at the top.
THE HATFIELD
TRAIN DISASTER
14. The derailment of the high speed train
at Hatfield illustrates the desperate need for a change in the
law relating to corporate manslaughter. In October 2000 a high
speed GNER train from Kings Cross to Leeds careered off the track
at 115 miles per hour. The defective rail had actually been identified
in November 1999 by Balfour Beatty which was the principal contractor
for Railtrack on the route.
15. After the incident the Railtrack Chief
Executive, Gerald Corbett, admitted that the track was in "an
appalling and totally unacceptable condition", and resigned.
In contravention of the rules no speed restriction was imposed.
In February 2000, eight months before the derailment, the rail
was identified as needing urgent replacement. A new rail had sat
alongside the existing track for at least five months prior to
the crash. Prosecutors stated that the crash was a disaster waiting
to happen and that a cavalier approach had been taken to the safety
of the trains.
16. Both Railtrack and Balfour Beatty were
identified as being culpable for safety failings. Due to the massive
backlog of repairs Railtrack granted a general derogation to Balfour
Beatty which waived normal maintenance deadlines. This was a flagrant
breach of standards and outside of the contractual obligations
of both companies. In total there were over 200 track defects
within the first 43 miles from Kings Cross and the broken rail
was described as one of the worst cases of fatigue ever seen by
experts. When the train travelled over the track at 115 miles
per hour the rail shattered into over 300 pieces.
17. Despite the graphic nature of this sequence
of events corporate manslaughter charges were not successful.
Charges were originally announced against Railtrack and Balfour
Beatty in July 2001, but for Network Rail (formerly Railtrack)
they were dropped in September 2004 and in July 2005 charges against
Balfour Beatty were also dropped.
18. The trial judge, Mr Justice Mackay,
stated that he understood that there would possibly be "concern,
disappointment and perhaps distress to the relatives of those
who died in this tragic crash". Following his dismissal of
charges he added "I have tried to explain why it is that
I am obliged by existing law to make this ruling. This case continues
to underline a long and pressing need for the long-delayed reform
of the law in this area of unlawful killing. There are thankfully
signs this reform is now in sight."
19. The dismissal of the case happened despite
the fact there were clear warnings given on the state of the track
and senior personnel were identified. For example Nicolas Jeffries
had taken over responsibility as civil engineer to Balfour Beatty
in July 1999 and the prosecution stated that his position identified
him as "a mind of the company". He had a wide and significant
remit, a safety critical post and there was no one more senior
than Mr Jeffries within his sphere in Balfour Beatty.
HEALTH AND
SAFETY FAILURES
ON THE
RAILWAY
20. As detailed earlier in this submission
the new legislation must also be applied where applicable to less
high profile incidents of company failure that result in workers
deaths. RMT is extremely concerned that the Bill has been drafted
in such a way as to focus only on a limited number of high profile
accidents. Certainly rail crashes involving passenger injury and
death attract far greater publicity than railway worker fatalities.
Our concern would seem to be justified given that the Regulatory
Impact Assessment has estimated that the legislation as currently
constituted will only lead to an additional five prosecutions
per annum.
21. In 2004 there were a total of eight
fatalities for railway workers (Rail Safety and Standards Board,
2004 Annual Report) arising from four separate incidents. It is
a sad fact that in every accident resulting in the death of railway
workers last year poor planning and/or inadequate site management
were identified as primary causes. In 2005 a further four rail
workers have so far been killed on the track.
22. On 15 February 2004 four workers were
killed, and three more injured, in an incident at Tebay. A runaway
rail wagon came loose at a yard and ran four miles away down the
hill on the track near Tebay before ploughing into the men working
on the track. The men killed were working under arch lamps and
it is believed that the runaway vehicle would have been running
virtually silently as the generators were working. It is unlikely
that the men would have known anything about it until the vehicle
hit them.
23. The inquiry found that due to inadequate
planning a rail wagon had to be hired at extremely short notice
and therefore there was little choice but to use a supplier who
was relatively new and had not been thoroughly assessed. The rail
wagon hired had brakes which were not functional, no test was
carried out and the consequences were of course fatal.
24. A further tragedy followed on 28 September
2004 when two workers were killed between Cannock and Hednesford.
In this incident a Road Rail Vehicle (RRV), which was used to
reposition rail as unloading and relaying of rail was taking place,
reversed back up the track and struck the two men working on the
relaying of rail.
25. Again in this instance inadequate planning
was to blame. A detailed work plan was not produced in time for
the job and insufficient planning had taken place in respect of
an inspection of the site, so details were not safely recorded
in the method statement produced for the work. In addition, labour
supply organisations were being used and sufficient notice should
have been given of the job and the intended duties so that an
assessment could be undertaken by the contractor of the necessary
competence of the personnel required. This was not done and safe
systems of work were not planned to take account of the multiple
activities and vehicles being used on the worksite.
26. It is vital that a new Corporate Manslaughter
Law will tackle the very real shortcomings that continue to be
highlighted with tragic results in the railway industry. The Corporate
Manslaughter Law should not just be introduced to tackle high
profile accidents, but also the continued health and safety violations
of companies that has resulted in the deaths of railway workers.
THE PROPOSED
LAW AND
SUGGESTED AMENDMENTS
27. RMT are concerned that the new Bill
as currently drafted will have only a very limited impact in the
workplace. There should be a clear responsibility on Directors
and senior managers under the legislation, so that action can
be taken if they are deemed to be grossly negligent in their duties.
Directors and senior managers basically run companies and public
policy demands that they should be held accountable.
28. At the current time the law places unreasonable
obstacles in the way of successful prosecutions of directors and
senior managers. First of all there has to be a specific duty
of care, but normally this does not exist as the duty of care
is between the company and the employee. Secondly any conviction
would have to arise from specific action, not a failure to act
or an omission, when in fact it is far more likely that the later
will cause the accident.
29. RMT believe that the Law Commission,
upon which the Governments proposals are based, seriously failed
to consider how the requirement to find a positive duty to act
affected the ability to prosecute individuals who in all other
respects may be seriously culpable.
30. The RMT would also like to see a far
wider range of penalties available to the prosecuting authorities.
The current proposals limit penalties to just the imposition of
a fine and this is woefully insufficient. Custodial sentences
have to be an option for Directors and other senior individuals
should their actions or lack of action be serious enough. However
as organisations cannot be sent to prison other penalties need
to be included.
31. Penalties that the Government could
make provision for in the Bill include the disqualification of
Directors or fines linked to the profitability or turnover of
a company. In the case of publicly quoted companies an equity
stake is also an option. Research by the TGWU and the centre for
Corporate Accountability reveals that between April 2002 and March
2004 some 620 people were killed and 60,177 people suffered major
injuries at the workplace, but not one Director was disqualified
as a result of these deaths and injuries.
32. RMT would like to see the legislation
apply to as broad a range of employers as possible; this should
therefore include unincorporated bodies whether they are private,
voluntary or public. There should be no widespread exemption for
Crown authorities on the grounds of public policy if the effect
of this is to exempt virtually all Crown body decisions.
33. As stated earlier RMT are also concerned
that there is to be no prosecutions for UK companies that cause
deaths abroad. The union represents merchant seafarers on UK flag
ships but often the ships can be operating in non-UK waters, this
applies even to ferries going short distances to France or the
Netherlands. UK flagged ships are UK workplaces, if foreign flagged
vessels are in UK waters the law of another state applies in respect
of employment legislation. It is therefore inconsistent to state
that if an accident happens abroad UK legislation does not apply
and seafarers deserve the same protection as UK shore based workers.
34. RMT have also noted that there could
be a potential loophole in the legislation if companies delegate
health and safety legislation to non-senior managerial levels.
The Bill as currently constituted states that offences will occur
if senior management know or should have known of failures in
health and safety. Therefore further consideration needs to be
given to the definition of those who are responsible for health
and safety and the way around this would be to define it on the
basis of those that have the authority to act on behalf of the
organisation.
35. The legislation states that prosecutions
can be brought where it can be shown that an organisation sought
to profit from a health and safety failure. This could be difficult
to prove, and it is also not appropriate for public and non-profit
bodies. We therefore recommend that the definition should be "benefit"
as opposed to profit.
CONCLUSION
36. RMT welcome the long awaited publication
of a Bill on Corporate Manslaughter. We hope that following the
changes outlined above this long outstanding measure can be implemented
quickly. The Bill needs to be strengthened in a number of areas
otherwise its impact will be very limited and a golden opportunity
for an effective and far reaching reform of the law will have
been missed.
37. The tragedy of Hatfield illustrates
how inadequate the current law is. However as we have demonstrated
there are many examples of violations of basic health and safety
practices on the railway even if the vast majority of them are
not as high profile as Hatfield. The new law needs to be effective
so that the continued failures to undertake basic health and safety
practices are no longer tolerated and real sanctions are applied.
The health and safety failures that we have illustrated in respect
of Tebay and Hednesford are frequent occurrences on the railway.
38. The union would like to see the law
amended so that directors and senior managers are liable for prosecution
under the new legislation. A range of penalties need to be available
including imprisonment for the worst offences. Simple fines on
companies will not deter the worse actions of individuals who
after all determine corporate policy. Even a substantial fine
can be comfortably taken on board by a company if they have benefited
from cutting corners on health and safety.
39. The Bill also needs to be amended so
that the definition of those who are responsible for health and
safety failures cannot be used to circumvent the law. We would
also like to see the full range of organisations covered and the
test should be whether an organisation is seeking to benefit as
opposed to seeking to profit.
40. Finally UK companies should also be
liable for offences that occur abroad and held to account for
their actions in the same way as they will be in the UK. In particular
merchant seafarers need protection on UK flagged vessels as these
are effectively UK workplaces.
16 September 2005
| 
