77. Memorandum submitted by the Commercial
Workers Union
INTRODUCTION
The Communication Workers Union 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. Last year 235 workers were killed at work in this
country, including CWU members and workplace deaths actually rose
by 4%. Reform of the law is therefore long overdue. The proposals
are a step in the right direction but at best, we can only give
a "cautious" welcome to 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 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 that "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 with a consultation period ending in June 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 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 doesn't introduce any greater
penalties than can already be imposed under existing legislation
for lesser offences.
— It doesn't impose any specific health
and safety obligations or duties on company directors.
— The definition of senior managers
is confusing and restrictive.
— The focus on senior managers is too
narrow.
— The criteria from determining a gross
breach is confusing and restrictive.
— The Bill fails to consider other
more imaginative forms of penalty which could be imposed.
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%.
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 &
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 Regular 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. Fines should
be significantly increased for Corporate Manslaughter 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. 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.
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.
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 & 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 Government's "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.
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 eight years of delays and around 2,000
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, leaving
the UK with inferior legislation to that in countries like Australia,
Canada and Ireland.
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 eg 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.
— 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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