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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 540-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS AND WORK AND PENSIONS COMMITTEES (DRAFT CORPORATE MANSLAUGHTER BILL SUB-COMMITTEES)
DRAFT CORPORATE MANSLAUGHTER BILL
Thursday 10 November 2005 MRS EILEEN DALLAGLIO and MR JOHN PERKS DR JANET ASHERSON and MR MICHAEL ROBERTS Evidence heard in Public Questions 290 - 401
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs and Work and Pensions Committees on Thursday 10 November 2005 Members present Mr John Denham, in the Chair Colin Burgon Mr James Clappison Harry Cohen Natascha Engel Justine Greening Gwyn Prosser Mr Terry Rooney ________________ Memorandum submitted by Marchioness Contact Group
Examination of Witnesses
Witnesses: Mrs Eileen Dallaglio, member, and Mr John Perks, member, Marchioness Contact Group, examined. Q290 Chairman: Could I welcome you this morning. As you know, this is one of a series of oral hearings that we are having on the draft Corporate Manslaughter Bill. We have also received a large amount of written material, which gets published and on which we will draw heavily for our final report. I wonder if you could briefly introduce yourselves and explain the aims of the organisation. Mrs Dallaglio: I am Eileen Dallaglio. I am a founder-member of Disaster Action, a founder-member of the Marchioness Action Group, and currently with the Marchioness Contact Group. The aims have always been very clear. At the time of that disaster, when 51 young people lost their lives, we went in search of truth and justice as to how such a tragedy could come about in the middle of London, within a hand's stretch of this building. Being a former air stewardess, in charge of health and safety on an aeroplane carrying 130 people, I had a very good training, and I was very concerned about the manner in which my daughter died along with 50 other people. We pressed for an explanation and the truth and justice, pushing for an inquiry into river safety. It started with the Hayes Inquiry, but went on to the coroner's court - that was a massive battle - truth and justice - and realising that we were extremely restricted with the laws. It then went on to Lord Justice Clarke's public inquiry into river safety - which threw out a few more faces - and then finally on to Lord Justice Clarke's report that branded Ready Mix Concrete, Tidal Cruisers, East Coast Aggregates and South Coast Shipping guilty in their failures to implement a safe system of safe navigation of their vessels on the River Thames. In fact they appointed themselves, the managing director of East Coast Aggregates, in charge of health and safety. Our aims have always been the same: that that should never, ever happen again. People in this building - and this is the only place you are ever going to get any justice, because the courts certainly did not mete it out - there should have been an immediate inquiry following that disaster into section 55 of the Merchant Shipping Act. It was actually held some 13 years down the line by Lord Justice Clarke. In his words, "We are today where we should have been 13 years ago." Mr Perks: Correct. Mrs Dallaglio: Those are our aims. They continue now. We want some peace from this disaster and we want to make sure that this Bill for corporate accountability and corporate responsibility is pushed through Parliament. We realise the difficulties you have. We do not have a witch hunt on the corporate companies - let us make that very, very clear. There are a few that are rogue and those people have to be brought into line. It means that they must be made accountable, either on the criminal side or on the civil side - which in 16 years of the Marchioness none of them have been: they have successfully handed us the liability for their misdemeanours. Mr Perks: My name is John Perks. I will not go through what Mrs Dallaglio has just said. I am a part founder-member myself over the last 15 years, so I concur with everything she has said. To tell you a little bit about myself gives the background to how strong I feel about the health and safety issues and what you ladies and gentlemen are up to to get this Bill through however or which way it goes. Q291 Chairman: To be helpful, I hope you will be able to cover the specifics about the issue here. Mr Perks: Yes, from questions from the Chair, obviously. Q292 Chairman: Having established who you are, I will try to move through this, and I will try to make sure that if there are issues we are not covering that you have the opportunity to bring those in. Mr Perks: I will be very brief, because Eileen has said all of that, and obviously that is the direction we are going in. For the last 10 years, I have been involved in the construction industry as a project manager, so our committee is aware, through my discussions with them, what is on board here. I have written the CDN documents, the method assessments, the risk assessments, so basically there is a background for the whole of our committee to glean information from myself. Q293 Chairman: Thank you very much indeed. The aim of this Bill, as the Government have put it to us, is to ensure that where people are guilty of corporate manslaughter there can be criminal convictions. In your view, why did the manslaughter prosecutions under the existing law fail you in the Marchioness case? Mrs Dallaglio: I do not think the proper charges were brought in the first place. I think there should have been an immediate inquiry under section 55 and that would have quickly established who was guilty of those deaths. It was a massive loss of life here in the middle of London. In Lord Justice Clarke's words: "It cried out for public scrutiny" yet it got none. I could not believe, as the years went through, starting from the trial of the Master of the Bowbelle, you were up against future Lords and Law Lords of this country representing the corporate companies. There is no legal aid available to anybody to fight a case for negligence. It was quite clear very early on that some person or persons had been negligent in those deaths, and yet we went into a court of law where we were looking at arcs of visions and strobe lights - from day one in Douglas Henderson's two trials - and nowhere, but nowhere, did they ever address issues of how, where, why and by what means 51 people lost their lives. Q294 Chairman: Is it your sense that it was not necessarily the law itself that stopped there being a conviction but the way in which the case was handled and pursued? Or is there - and this is central to our inquiry - a fundamental problem with the way the manslaughter law currently exists which made it impossible to get a conviction, even though elsewhere in the process there had been a verdict of unlawful killing? Mrs Dallaglio: That became clear over the years. That became very, very clear. I attended every court hearing in the land, or every hearing outside the courts pertinent to this inquiry and even others - the rail disasters. We have people bringing cases against those responsible for those deaths in the Ladbroke rail disaster, and they damn well know that under the present structure of the law in this country they are not going to get a criminal conviction against the directors of those companies, who have been found causative of failure in their duty to protect the public at large. That is something that I feel very strongly about, because it is a total and utter waste of public money in the present manner, and this building has a duty to put it right, to ensure that all of the facts are looked at, and that these people, these individuals who have a malaise ----- Q295 Chairman: I am really sorry to cut you off, because I can quite understand why you want to express your views so forcefully. Mrs Dallaglio: I am sorry. Chairman: But I am keen in the limited time we have that we should cover a number of quite specific questions. I do not want to cut you off but I am worried that we might lose the opportunity to gain some insight on some specific points. Could I turn to Mr Prosser. Q296 Gwyn Prosser: Good morning. You have just made the point that there was no redress, there were no means of pursuing criminal prosecutions at that time or since. You have been closer than anyone to these matters and you have rehearsed these issues lots and lots of times, but could you tell the Committee why it is so important in the case of the Marchioness, for instance, that criminal prosecutions against individuals should have taken place rather than what happened: the public inquiry and inquest. Mrs Dallaglio: I think there has to be something set out in law whereby, if these people do not put in place the proper procedures to protect the public, they will be held accountable. At the moment - and I am not a lawyer, but, by God, I have learned a lot about the law over the years - these people know that they are not going to be held accountable. They sit there with impunity and laugh at you. Those in this building have a duty to protect the likes of us. They have a duty to do that. And that is what I want to see in the future. I never want to see that sort of thing happen again. Mr Perks: The view that the Marchioness Committee holds is that the existing punishments for gross, blatant breaches of health and safety laws are totally inadequate. They are not a sufficient deterrent. They do not reflect the public desire for retribution when people are unlawfully killed as a result of those breaking the law. That is what is happening in construction and on our public transport systems, and it has to stop. Q297 Gwyn Prosser: You have made the point Mrs Dallaglio that directors can act with impunity and the law does not touch them. Under the present existing law, if loss of life can be related directly to the actions or inactions of an individual (for gross negligence, et cetera) then charges can be taken against that individual and the penalty can go as far as life imprisonment. Why do you think this particular piece of legislation should include direct personal liability for directors and others? Mrs Dallaglio: We have seen prosecutions. We have come a long way since 1989. The Selby rail disaster: one individual. There are several others. But we have not had a successful prosecution of a director or directors who have continuously allowed a malaise to exist within their corporation, where they have failed to set in place the correct health and safety procedures which are necessary to protect the public and the individuals that work for them. For God's sake: if they do, they have nothing to fear. Nobody mixes with corporate people more than I do within the Twickenham organisation, the RFU, and, quite frankly, we have the highest standards over there, every time I go to watch a match there and over 100,000 people go in and out of the turnstiles. They have nothing to fear if they put into place the correct procedures to protect people. But, over many, many years, many, many rail disasters, they have not put those things in place. They have appointed themselves health and safety directors, in charge of large vessels the size of a football pitch on the River Thames. Mr Perks: We do not follow the mandate that was put down in government, that we find the legal system or the courts processed that as it should be processed. We find constantly that you will have companies that just wriggle. I say "wriggle": they have vast armies of QCs, solicitors, barristers to call upon, and they seem to deflect those responsibilities that they are charged with as a director of a company. Many times they wriggle and wriggle and away they go. This, we say again, has to stop. The people in this House, you are the people who can change this for the people of this country . It is our politicians we are addressing this to now. You are the people who can address what is wrong within that system. Q298 Gwyn Prosser: On this specific issue of the personal liability of directors, some of the other witnesses from other victim support groups have given us their opinion that without personal liability being attached to the Bill - and it is not there at the moment - we might as well not bother. What is your view of that? Mrs Dallaglio: Personal liability. In every respect in the Marchioness tragedy, from my own experience and what I have experienced within our committee, these companies took Francesca's life unlawfully, and she had a right to it under Article 12 of the European Convention. They handed us 15 or 16 years of non quality of life and a horrendous path - whereby I would not bestow it on my worst enemy - and I thank God that I have survived it. And then, to add to everything else, they have handed us the financial liability for it as well. Q299 Chairman: Mrs Dallaglio, perhaps I could address you on Mr Prosser's point because it is quite an essential issue for the report that we write at the end of this process. Obviously we cannot re-run the hearings, but would you suppose for the sake of argument the law we are now discussing was in place and it proved possible to convict the companies involved in the Marchioness disaster for corporate manslaughter under this Bill. As the Bill stands at the moment, the companies would be convicted, but there would be no individual convictions for liability on directors. Is the Bill in that form worth having? You get part of what you want, a conviction of the companies, but you would not have liability for directors. It is a hard question, but - as close to a yes or no as you can - is it worth pursuing a bill that does not have individual directors if at least you can convict the companies? Mrs Dallaglio: It is a bit of a red herring, but it is a step in the right direction. Mr Perks: It is not the answer, Chairman. Nowhere is it sufficiently near to becoming the answer. Responsibility and accountability is not apathy in the boardroom. Those guys are there to look after the welfare also, but what they go out to do is find where the profits are and what is payable. Chairman: That is very helpful. Thank you very much indeed. Q300 Natascha Engel: In your submission you argued that you believe there must be imposed a legally binding safety duty upon directors. Why do you believe that health and safety duties for directors are necessary? Mr Perks: It is the same situation as I was talking about just now. Otherwise, they just wriggle and wriggle away. There might be derisory fines, aimed possibly at the company - it depends on the organisation, how big the corporation is. They could be derisory anyway. If you look at the net profits of companies in relation to some fines, they are appallingly bad. But, until somebody in the boardroom, a director or chairman, is imprisoned then we are not going to go anywhere down this route. He has to be picked off because he is responsible. If you are responsible in an organisation, that is your response. You hand down responsibilities, although you must be aware of where you are giving those responsibilities and who is answering what to you. Q301 Natascha Engel: In the case of the Marchioness, do you think there was evidence that directors had taken insufficient account of health and safety? Mr Perks: Indeed, yes. You had people wandering about ... Can I say it, Chairman? The companies? Q302 Chairman: It is ---- Mr Perks: That would not be helpful. You know the companies anyway, so .... Obviously they walked away clapping their hands. We saw them across the road. Q303 Natascha Engel: Do you think there was a specific breach of health and safety legislation by individual directors? Mr Perks: Yes. Yes. Mrs Dallaglio: If you put a man in charge of a vessel the size of a football pitch and you set him loose on the River Thames here without checking his CV to say what his previous experience is ---- Q304 Natascha Engel: I appreciate. The issue is why it was that existing health and safety legislation could not be used in order to identify that somebody had been in breach of that. Mrs Dallaglio: You are asking me. I am not a lawyer. I was a woman who was highly traumatised for a lengthy period of time by the loss of my daughter. I put that in the hands of you people here. I looked up to the law - to those who make the laws, those who administer them, those who carry them out. Q305 Natascha Engel: The point I am trying to get to, again moving on a little bit, is do you think that we should amend existing legislation such as health and safety law in order to cover what it is that you feel is needed? Or do you think a separate piece of legislation on corporate manslaughter needs to be introduced? Mr Perks: Government legislation in the past has protected these organisations and corporations. Let us come in from there. Whatever is decided in this House, whatever we do we must not get into the situation that again there is boardroom apathy in certain companies. That might be 10% or 20%, but, until we change that, I do not believe the existing laws and even the legislation that you are going along now is going to be anywhere near sufficient to be a deterrent for these powerful people. You can ask other pressure groups or trade unions and I think you will find a similar thing to what we are saying. Anything would be helpful, but we have been trying to get help for 15 years. We did not just put a flag up two weeks ago and say, "Yes, we need to come up and see you guys because of ..." We have been through every court in the land. We are still saying, yes, there is boardroom apathy, and, until in this House it is changed, we are going to have a problem, the public is going to have a problem. I think yourselves have a duty of care to the public. That is your first duty as politicians. I think now is the time to think deeply about that. Think deeply about it. Q306 Chairman: I understand it is the responsibility for us as legislators ----- Mr Perks: I am sure you are aware, Mr Denham. Chairman: -- rather than for you to write the law for us. I think we accept that responsibility. Q307 Mr Clappison: You will be aware that the Government's original consultation paper five years ago proposed that there should be no requirement that individuals obtain the consent of the Director of Public Prosecutions to bring proceedings for the new offence. However, the Bill as it has now been published requires the consent of the Director of Public Prosecutions before such a private prosecution can be brought. Do you have views on that? Mr Perks: Our experience of the Director of Public Prosecutions is quite appalling over the years - I will not bore you with that. So I would be saying, "Don't waste your time." We have been to the Director of Public Prosecutions. I have so many letters - the pile must be this high over 15 years. Waffle, waffle, waffle. Five years later: here we go again - swings and roundabouts - we cannot do that and we cannot do this. I would say bypass them. Mrs Dallaglio: It is a delaying process. The quicker you get to what really brought it about, the better. Q308 Mr Clappison: I guess the counter-argument to this - and I can imagine what your view is going to be - is that the ability to bring private prosecutions might give rise to some ill-founded prosecutions. How do you respond to that theory? Mrs Dallaglio: Ivor Glogg brought a private prosecution in the case of the Marchioness and that caused a lot of dissent at the time because we felt we were on the verge of a public inquiry into the disaster. But, you know, he lost his wife, and it was his right to do so. He felt very strongly about it. He had his own company. They bankrupted him, these corporate companies. They bankrupted him. He went through God knows how many courts. I attended all of them. Again, bogged down with arcs of visions, technicalities of law, points of law, they were thrown out, and he had to find another £50,000 for judicial review to get back into the courts again. Q309 Mr Clappison: Just to make it absolutely clear from what you have said: he brought a private prosecution and at that stage you felt you were close to getting a public inquiry, but the fact that a private prosecution had been brought then affected the decision on a public inquiry. Mrs Dallaglio: Exactly. Yes. Initially we had what is now known as a flawed report at the MAIB under Captain De Coverly which the government of the day instigated, and that really set the basis for a lot of the injustice that occurred - at Glogg's private prosecution and any other court hearings, and, indeed, at the coroners' courts as well. Q310 Natascha Engel: One of the issues about private prosecutions is that people may not be in a position to take financial risk. You said the gentleman spent £50,000 on a private prosecution. Mrs Dallaglio: No, he spent his entire money. He was bankrupt. And, most incredibly, the thing I could not understand when it finished, when it finally finished, was that he never had the money to take it to the crown court: he was on the verge of going to the crown court then but did not have enough money. They had bankrupted him. Q311 Natascha Engel: If you have private prosecutions, then people who are not in that financial position in the first place would be dissuaded from doing so, whereas if you go through the DPP, it means it is public funds. That is a very important thing to remember. Mrs Dallaglio: You say that, but my own experience, from what we have witnessed in the Marchioness tragedy, is that when they finally did bring some charges against the operators of both vessels - two minor charges, I might add, for their failure to keep a proper lookout and failure to arm the crew with walkie-talkie radios - it was always going to fail because the charges were not .... Q312 Mr Clappison: To take you back to the private prosecution you mentioned, he only got as far as the magistrates' court, did he? Mrs Dallaglio: Exactly. He got to the stipendiary magistrate at Bow Street court. I saw Glod after that - I had a cup of coffee with him afterwards, and I was heartbroken, obviously, because yet again it had been thrown out. He had been sent into an ante room and he came back into the court and he was given all of his expenditure from public funds. I could not understand, why because if you lose a case in any court you pick up the liability for it, and I went and had a cup of coffee with him afterwards and I said, "What in God's name did you do? Did you accept a pay off or what?" He said, "Eileen, I have gone as far as I can go on it. I cannot take any more. They have bankrupted me." Q313 Mr Clappison: In that process, did the stipendiary magistrate find that there was a case to answer or not? Mrs Dallaglio: It was a technicality of law. It had been thrown out. If you reached a point where the stipendiary magistrate or the judge was going to reach a decision to commit them to the crown court, then they came up with some other highfaluting argument or technicality, and it was thrown out again. Glod went through five or six courts like that. Q314 Mr Clappison: The blame of what you are telling us briefly is that the ----- Mrs Dallaglio: The evidence was always there. This is what I am trying to tell you. It was always there and nobody looked for it. Q315 Mr Clappison: But it is difficult and impractical for an individual to do that on their own. Mrs Dallaglio: Absolutely. Impossible. Q316 Harry Cohen: I would ask you to try to be quite specific in your answers. In your evidence you say that the courts must be provided with the powers to impose stronger sentences. Sentences I think means two things. One is money. From what you have said I think I have got the gist that you want stronger monetary sentences. We have seen, by the way, a recent case where there was something like a £10 million fine on one company. I want to ask you, first, if you mean money. Secondly, we have dealt with the individual liability or not aspect, but this Bill just talks about unlimited fines and/or remedial order. When you say stronger sentences, do you mean additional sentences other than that? If so, what would you want them to be? So there are two specific points there: money and additional sentences. Mr Perks: I think I said earlier that some of the fines were derisory with a view to the companies. I am not talking about Joe Bloggs down the road who puts a few bricks in the wall - you know, we can have him any day of the week, we can put him away for five years. We are saying, "Yes, realistically you are talking bigger money now than the other very, very small sums" - I mean, the sort of sums we have been looking at in the past are pocket money for them for the weekend - but imprisonment ... If somebody, a high-profile figure in this country at the boardroom level, is imprisoned for a minimum of five years, then you will get the answers to your questions in health and safety in this country and the transport systems. Imprisonment. Higher fines? You can go as high as you like. Some of these guys can wriggle out of millions. Accountability and responsibility. Q317 Harry Cohen: But on the companies themselves do you want higher fines? Mr Perks: Yes, indeed, higher fines. Put them out of business. If they are negligent, reckless, incompetent companies, put them out where they should be, not earning a living. We should not have a bunch of cowboys running these industries, or some of them, scot-free. They walk away. Every time they walk away. You look at the Paddington people's faces, our faces, at the tragedies we have had. It has got to stop, gentlemen. Q318 Harry Cohen: On the stronger sentences beyond fines, do you have any other policies that you want other than what you have mentioned already? Mr Perks: The responsibility and accountability that goes with that devastation, whether it be in the workplace or a public place. But what never filters through to those victims - and that is the journey to hell for the rest of their lives ----- Q319 Harry Cohen: Are you saying compensation? Mr Perks: No, I would say cover costs or damages. I am not saying compensation. Costs and damages for a start. Mrs Dallaglio: Could I come in on that one. The very first thing I heard a corporate lawyer say in a court of law which I entered - the very first one - "My Lords, we accept full liability." Their liability under the Fatal Accidents Act of 1986 and the Miscellaneous Act 1982, I went on to learn, was limited to your funeral expenses. To this day, ladies and gentlemen, these two corporate companies, that 13 years down the line were bandied causative of my daughter's death along with 50 other people, have not even paid the funeral expenses. Two or three years ago I went back to college and I did a computer course at the age of 64. With my husband, I did a direct and indirect cost account on that computer. I am not talking about compensation - there is no compensation. I am not talking about legal fees. I am talking about direct and indirect costs attributable to this disaster through what we have achieved in these groups - and that is immense. Those are the pluses of what we have been through in the last 15 years: five lifeboats on the River Thames - that have saved 91 lives in 18 months and been called out 394 times. Tom Luce's inquiry into coroners and coroners' practices - no coroner will ever treat another family like Knapman treated our family. They, to me, are the pluses. Now, to be actually here with you today, to be pleading - and not only for us, all the public out there, but for you as well - because any one of you could find yourself in the position that I found myself in and Mr Perks found himself in in 1989. The direct and indirect costs, ladies and gentleman, amounted to £156,000. And the compensation took ten years to arrive. That arrived on 10 October 1999, ten years after the disaster, and it totalled £310.46. And in the case of Mrs Garcia, £20 - because we dared to question it. We dared to question it. And we were not looking for compensation in those courts we went into; we were looking for truth, justice, and we were also looking for people to take on the responsibility that these companies had taken our children's lives. What they had imposed on us was a life sentence and no quality of life for nearly 15 years. Q320 Harry Cohen: That is a good point there about improved ---- Mrs Dallaglio: Forgive me, but I feel very strongly about these points. I think you would each feel the same if you were in my position. Q321 Harry Cohen: I think that is a good point made there about improved contributions to the victims' families in the legal process. That is certainly worth taking on board. Aside from the issues covered so far, do you have any other concerns about the drafting of the offences in the draft Bill at the moment? Mr Perks: I do not want to cover ground again, but, as I said, there are strong points. I think the other thing we must look at - which I did make a note of when sitting in the corridor - is that people have nothing to fear from laws that are put in place to protect the public and everybody within the public system. Responsible executives - and there are thousands and thousands - managing directors, if they are all equipped with the knowledge to deal with such matters of health and safety - not them themselves but those people who are answerable to them - have no fear of new laws. Especially in construction, you have the CDM cushion. Safety plans, method statements and risk assessments, all these are in place. If we are looking for that controlling mind, if all these things are aware for these responsible executives, what do they have to fear? Nothing. Nothing at all. If you do not put those in to protect you and be conversant with them, you should not be running the company in the first place. Mrs Dallaglio: Could I raise one other point that caused me a great deal of concern in the question of liability and who they handed the liability to. In the case of the Marchioness tragedy, within about five months of the disaster, Lord Justice Sheen set up his court and all the lawyers were there for both sides, plus steering committees and what-have-you. The companies were there to limit their liability and they were allowed to limit it to the tune of £870,000. Given that the Marchioness is a passenger vessel and was carrying 131 passengers that night - and 51 lost their lives and God knows how many were traumatised - by law that vessel had to be insured for £6 million. That £6 million was paid into court. Under Lord Justice Sheen, the judgment debt rate at the time was 15%, and Lord Justice Sheen agreed that it should remain at 15% for the duration of those claims, for a lengthy period of time. Needless to say, interest rates from about 1993 began to drop, as a result of which, as my case came to court for Francesca's civil claim, they were then fighting - cross-summonses went in - to make sure they got below the Calderbank offer by lowering the judgment debt rate to 8% from 1993. I had a High Court judge, a Court of Appeal judge, who took a point of law made by an imminent judge, upheld by another judge at divisional court level, and, on a purely subjective view, turned it around. It was as if he was saying to me, "Not only am I not going to increase these damages, but I am effectively going to decrease them by 8%," hence the cheque for £310.46. I had to mention that because it is food for thought. Q322 Chairman: Those of us who have been watching Bleak House on Sundays would think that not much has moved on since Jarndyce v Jarndyce in Charles Dickens' day. Mrs Dallaglio: It is a joke. The trouble is it would not, because there has been set a precedent in law. That is what upset me. Not that this wretched judge did not increase the damages - that did not upset me at all. What really upset me was that he took a point of law, made by an imminent judge, upheld by another judge, and on a purely subjective view, because he was in the Court of Appeal - huh! - he turned it around. And people who might follow my tragic path in the future, they will quote that point of law. That has upset me. That upsets me. Not the money. The money was irrelevant. Mr Perks: To finish your question, if I may - and I will be very brief: it is our experience and there is a groundswell in the public that these companies and organisations are directly dictating to this House. Q323 Chairman: Mrs Dallaglio and Mr Perks, thank you very much indeed. You have put your points very forcefully and very clearly. I think, quite fairly, you say it is the responsibility of Members and in due course the laws in this House to tackle these matters. I think you have helped us enormously, both in the detail but also in giving the background as to why this legislation is coming in front of us now. I hope we will be able to reflect some of what you have said when we report on the legislation in the House. Mrs Dallaglio: May I thank you all, and you personally, because you are the Chairman, obviously, who makes the major decisions here, and I thank you for inviting us to give verbal evidence. We are not lawyers. We are ordinary simple people who were thrown into a major disaster and had to cope with it. Mr Perks: May I also add to that response. Thank you Chairman, thank you Committee members, for listening to us today. I hope you can take on board some of the information we have hopefully provided to the questions. Memorandum submitted by Union of Construction Allied Trades and Technicians Examination of Witness
Witness: Mr Alan Ritchie, General Secretary, Union of Construction Allied Trades and Technicians (UCATT), examined.
Chairman: Good morning, Mr Ritchie. Thank you for joining us. Before we come to you, Mr Cohen. Harry Cohen: I just want to declare to the Committee that I am on the Parliamentary Panel of Advisors for UCATT. There is no financial gain personally, but I wanted to make that clear. Q324 Chairman: Thank you very much indeed. Mr Ritchie, perhaps you could introduce yourself briefly and then we will go to questions. Mr Ritchie: My name is Alan Ritchie. I am General Secretary of the construction trade union UCATT. We have 125,000 members employed in the construction industry throughout the United Kingdom and the Republic of Ireland. There are 2.2 million people working in our industry and it attributes to 9% of the GDP in the UK. UCATT have a longstanding campaign for safer sites and have consistently raised the issue of the disproportionate high levels of fatalities, injuries and ill health which affect construction workers. Since the beginning of April 2005 there have been 40 fatalities amongst constructions workers. It would only be right for me to pay tribute to George Brumwell, the General Secretary and my predecessor, who died on Tuesday. George was a long campaigner for corporate manslaughter legislation to come into our industry. I would like to quote a speech he made at the conference in April 1992 when he stated that he wanted "proper investigation, proper accountability, radical changes to the criminal justice system and new criminal offences to cover corporate recklessness where life and limb are put at risk or in danger." UCATT believe that is the only way we can achieve what some people would consider to be a radical line - and I know we have ruffled a few feathers so far as construction employers are concerned. When you listen to the points that were made, such as, "Well, a company might go out of business" or "It might put some financial strain on a company," we ask: What does it do to the families of the people who are killed in our industry? George Brumwell made the point that it was time that we called a halt to unnecessary deaths in our industry. The question really is about whether there is a will within the industry or on the part of the police who are there to protect us; the HSE, who are supposed to be there to enforce and protect; and on the part of the courts, who are there to protect and enforce the rights of the individuals. Our campaign really is concerned with highlighting the weakness that exists in all those areas. Chairman: Mr Ritchie, I do not want to cut you short but I hope we understand the general points and I hope we can cover all the issues of concern to you. With the events in the House this week, I had not heard of the George Brumwell's death. He would have been known to a number of members of the Committee, so, please, would you pass on our condolences. If we could now go to the questions. Q325 Colin Burgon: Good morning, Mr Ritchie. I met George Brumwell several times and he certainly was an outstanding figure in the construction industry. Several trade unions have given evidence to us, including Amicus and T&G. Why for UCATT is the statutory offence of corporate manslaughter such a priority? Mr Ritchie: We are a specialised trade union, not a general union, and we deal mainly with the construction industry. If you look at the HSE league tables, we are at the top. We are twice as high as agricultural. As general secretary and when I became a regional organiser, I had to go to the widows of some of our people who had been killed on sites and I had to explain to them the tragedies, what had happened, and the justice system of where we are. Even to this day, this year alone, I was up in Dundee, where the company went into court and pleaded guilty: "Yes, we breached the Health and Safety at Work Act - fair cop, Guv' - and we killed the employee." The judge was scathing on the company and then fined them £7,500. We think that is a scandal. I cannot justify that to the dependents or to the widow, that that is justice. There is no consistency in law. When you are a drunk driver and you go behind the wheel of a car and you knock someone over, you face a custodial sentence. But, in this country, if you are a construction worker and you break the Health and Safety at Work Act and you kill your employee, you face an average fine of about £7,000. It is scandalous. Not only that, I have met some of these directors in my role as regional secretary for Scotland and now as general secretary, and one of the directors put it to me in this way: "Alan," he said, "one of your contracts has got £20,000 a day plus penalty clause for every day it is late. For us to introduce health and safety and to be rigid on it could possibly put that contract behind, whereas, if we break the Health and Safety at Work Act and kill the employee, we face an average fine of £7,000. It is a big choice for us as a company, isn't it?" That is where the injustice to the law is. That is why construction is very important. By the end of this week, another two people will have been killed. To be fair to George Brumwell, George Brumwell was campaigning for this legislation for the last 20 years. We have seen a lot of construction workers killed in that time. We do not want any more delays in this legislation. Q326 Colin Burgon: People who have submitted evidence to this Committee have told us that the Bill, as it is currently drafted, will add to what is called the regulatory burden on companies and it will not dramatically improve safety at work. What is your response to that? Mr Ritchie: I just do not accept it. I have heard it all from construction employers. Some construction employers say that this could put a further burden on us. Constructions employers who are playing it by the book have nothing to fear with this legislation. They are doing everything that is right. It is the ones who are not who have everything to fear from this legislation. I have heard this about red tape. I was out in Dubai this year on a construction project that was there for the ILO. In their health and safety there is a lot left to be questioned. There are no real regulations as we have here. The construction paper there said to me, "Look, we are trying to get the facts and figures of how many people were killed last year in Dubai construction." The contactor, once he had come back home, told me that 700 Indians alone were killed in the construction industry - that is deaths - because there are no regulations, there is no safety net there. And, by the way, there are British companies working out there. You have got to turn round and ask yourself: If you did not have that red tape, if you did not have that regulation, what would it be like compared to at present in the construction industry? I do not accept that this red tape, or so-called red tape, is going to be a further burden. As I am saying, there are a number of good companies out there who are playing it by the book and are doing everything properly and right, who have nothing to fear, as I am seeing it. The people who have to fear are the companies who are just turning Nelson's eye to the whole situation of health and safety. Not only that, the statements we have heard from the Health and Safety Executive are saying by far over 80% of the deaths in constructions could have been avoided if proper planning in health and safety was implemented. Q327 Colin Burgon: In your memorandum to the Committee you highlighted that in the year 2003-04 there were just short of 5,000 workers who sustained serious injury in the industry. Would you argue that we need a statutory offence of causing serious injury by gross negligence? Mr Ritchie: Yes. We did include in our submissions the "over three-day injuries". We are saying that major injuries are amputations, fractures. We think they are important as well as corporate manslaughter. We are saying that the seriousness of these injuries should be taken into consideration, and, also, that if the situation has been gross negligence then we believe the Bill should cover that. As I say, we have criticisms of the Bill but we have got to see it as better than nothing and we are going to support it and hope it is going to be implemented. Q328 Mr Rooney: As you are probably aware, on Monday we heard from industry representatives. They were arguing that the prospect of individual liability would increase the "fear factor" of individuals and organisations but would not necessarily lead to any improvement in health and safety. How do you respond to that? Mr Ritchie: Again, what I have already said, that if a company is implementing a proper health and safety policy they have nothing to fear. If they are turning round and saying that it is going to introduce a fear factor, then there is no fear factor at the present time. We have got some good construction sites going at the present time, where proper health and safety is being managed and is being implemented, with the T5 and sites like that - massive construction sites. They have nothing to fear from corporate manslaughter. The only people who have anything to fear is if their company is totally ignoring health and safety procedures at the present time. Q329 Mr Rooney: I might come back to that in a minute. You have argued that secondary liability should not be excluded, but that should only be applicable to senior managers. Why do you think it should not go down the line below that, so that if people have aided, abetted, counselled or procured, then the offence of corporate manslaughter below the level of senior managers? Mr Ritchie: The problem we have got with that is that we have a lot of subcontracting within the construction industry. You see some of these big contracts and over the site there is a big board up with the name of the company. They do not employ anyone on the site, they will subcontract a subcontractor to a subcontractor, and it goes right down the line. Our fear is that that responsibility is then shifted to these wee subcontractors. The main contractor is responsible. He is responsible for his site. We would be fearful if that responsibility was then going to be shoved on to somewhere else. Q330 Mr Rooney: Just to clarify this, are you saying that in all cases liability should lie with the main contractor, irrespective of what any other subcontractors does, no matter how big that subcontractor is? Mr Ritchie: The main contractor should have a policy for the subcontractors and the procurement, and he sets out the guidelines to those subcontractors and says "Look, here you are, here are the conditions I want you to work on site; here is the health and safety practice I want you to follow out." If he does not do that and says to the subcontractor, "Oh, it is up to you," our fear is the subcontractors - as happens a lot in the construction industry - will then declare themselves into liquidation. The main thing is that if there is going to be control on the site and health and safety, the onus should lie with that main contractor. Q331 Mr Rooney: I understand what you are saying, but could I clarify this. Your argument is that the main contractor should be responsible and the person held responsible for all health and safety issues, including deaths. Mr Ritchie: Yes. Q332 Mr Rooney: If he does what you just said and lays down conditions for subcontractors as to how they should work, and one of those subcontractors breaches that, why should the main contractor be held responsible? Mr Ritchie: It just does not happen when a death occurs on the site. What normally happens - and I am saying with this main contractor - is that the main contractor goes in there and lays down the conditions for the subcontractor and he says, "Look, this is what I want." He should be policing that subcontractor to make sure he is carrying out his duties. Now, if a situation suddenly is highlighted to that main contractor, then he can remove the subcontractor off the site. The problem and the danger that I see is that, if you start putting that responsibility down the line, sort of thing, then you are giving a cop-out clause to the main contractor: "It was not me, Guv'. It was him." That is our fear. That is why we are saying the main contractor is responsible. He is responsible for driving health and safety on the site. He is responsible for hiring the subcontractor; he should be checking that subcontractor before he comes on the site: Is he going to comply with the legislation? What is his track record? What is his performance in other contracts? That is the responsibility of the main contractor. If we turn round and say that responsibility can be passed on, we see a fear for us. Q333 Mr Rooney: Do you not think that statutory duties for directors could be dealt with in other legislation, not least to prevent this legislation being further held up? Mr Ritchie: No. The problem I have got is we have waited 20 years, as I have already said for this legislation to come through, and I do not mind the legislation being held up as long as it will only be processed at the one time and it is not going to be a wait of another 20 years. That is why we would say, "Yes, it should all be part of the one Bill." But if it has got to be that for making it a better implementation of the policy, then we would not be opposed to that separate legislation, as long as it is all going to be enacted at the one time, as long we are not going to be sitting here in time saying "We still have a problem with this and we are going to go back into it to amend" or whatever. That is the danger of it. But, yes, if you were turning round and saying to us, "Well, would you prefer to allow that slight delay?" yes, we would go down that road of delay but making sure that it is all being implemented at the one time would be essential for us. Q334 Colin Burgon: A slight delay, not a long one. Mr Ritchie: No. Q335 Natascha Engel: My question moves on from Terry's, but about senior management within one organisation. In previous evidence sessions we have had a lot of debate about definitions of senior management but also about what defines the passing of, the devolving of responsibility. The Law Commission has made a very strong point about the fact that health and safety should be the responsibility of management more generally. What is your view? What are your anxieties about the definitions of senior management and laying that firmly at their door? Mr Ritchie: We are saying obviously that senior managers and directors at the very top of the companies are going to be held responsible. We have always said that with the first prosecution that comes up with a director of a construction company for breach of the Health and Safety at Work Act and killing an employee, we believe there would be a jolt in our industry which then would be reflected in better health and safety standards. We think that it is the senior people who have to be held accountable as individuals. That is why it has to be directors and those senior managers that are there. Q336 Natascha Engel: Do you not think there might be a problem with that, in that it makes those people less likely in practice to take on that responsibility for health and safety because it is such an individual responsibility? Mr Ritchie: No, I do not think so. I think the situation is that first of all some senior directors have got to make sure that someone responsible comes in and there has got to be a senior manager who has to be responsible for that. Again, I do not think they have anything to fear as long as they are operating proper health and safety structures at the present time. But they have got everything to fear if they are not. I will tell you one thing, one of the points is that if you want to murder someone in this country, the best thing to do is to employ them in the construction industry: get them as a subcontractor and kill them and you would face a fine of £7.000. That is how ludicrous it is. Q337 Justine Greening: Part of the draft Bill is about what organisations it should encompass. At the moment, the proposal is that it should exclude partnerships, sole traders, and other incorporated bodies, for example clubs. I know that in UCATT's submission you thought it should include all employing organisations. Do you not think that those small organisations that would be captured by your proposal are already covered by the individual manslaughter offence? Mr Ritchie: We are saying that a lot of unincorporated companies in construction are small - so-called small businesses, one-man band types of thing. Often, though, their actions lead to deaths. We are saying, "Yes, it should cover everyone. It does not matter the size of the company." May I just say that you could be pointing at me and I could turn round and say, "Yes, trade unions should be excluded as well because we are a charity and we are not a company," but I do think we are responsible to our employees and we should be included. Q338 Justine Greening: Another part of your submission concerns the duty of care that an employer owes. We have already talked in these sessions today about the fact that on many construction sites you have a principal contract and then lots of subcontractors. You have said that the principal contractors should be responsible but do you think there is a way in which the legislation could be drafted better in order to make sure that subcontractors are ultimately held responsible if it is truly them that are in breach of the legislation? Mr Ritchie: Yes. I think compliance with the health and safety legislation should be sufficient - they should be the guidelines and the rule of thumb. If subcontractors are not complying with HSE and their recommendations, then they should be prosecuted. But if there is a clear sign there that it is the subcontractors, and the company is complying with the legislation, then that should be sufficient in itself. If there is a subcontractor who breaches the Health and Safety at Work Act, we believe he should be prosecuted, as under the law just now. But, again, I go back to the main thing: the main contractor is the person who is responsible to make sure that his subcontractors implement proper health and safety structures. Q339 Justine Greening: To press you, it sounds like you are happy with the way the legislation is worded at the moment, but you feel that if it incorporated your suggestion of the principal contractor that would be sufficient. Mr Ritchie: Yes. Q340 Chairman: Could I pursue this. I think we are pretty much there, but it is the same theme, which is probably the most important one for the construction industry. Would you like the legislation specifically to say, in a situation where you have a principal contractor and subcontractors, that the principal contractor would always have legal responsibility under this Act, even if the subcontractors also individual have a liability? Mr Ritchie: Yes. I think the specific duties we see would be placed in directors of the main contractor. We would see that as important. Q341 Chairman: We raised this in a previous evidence session, with the construction industry, as I recall. They did not argue that there were not circumstances where the principal contractor should be held responsible but they said it should be on a case by case basis, that it is something that the courts and the prosecutors should investigate on a case by case basis. Sometimes it might be a principal contractor, sometimes just a subcontractor. What is your argument against doing it on a case by case basis? Mr Ritchie: I think there is a problem there. Obviously it gives you the chance to give it back and to try to find a loophole. And, again, I am talking about the bad contractors, where they are looking for that loophole, where it is business as usual and they will just carry on. The situation under the present law, the way it stands just now, is that the main contractor is responsible for everyone on site. To be consistent in law and your drafting of the legislation here ----- Q342 Chairman: -- that is health and safety. Mr Ritchie: -- you have got to carry on just now. Chairman: That is very helpful. Q343 Gwyn Prosser: As you know, the Bill, as it is drafted, requires a jury and judge to take into account a series of factors before deciding whether there has been a breach and whether they have fallen far below the level of safety. One of the considerations is whether a company has "sought to profit". UCATT have made the point in their written submission that that is a loophole because it would be difficult to have a paper trace and prove that they have sought to profit. Albeit that particular element is not a requirement of prosecution, it is just something that they wish they must consider. How strongly do you feel about that? Mr Ritchie: Again, it is about these loopholes. I can just imagine it in court: "Is there any documentation or minutes of a meeting to say that this company went out of their way to breach the Health and Safety at Work Act?" "No." "Well, there you are. There is no evidence there." We are saying you will never get a minute from the directors to say we are going to go out today and break the Health and Safety at Work Act. They will never do that. Pressures come on the job: the job is behind; penalty clauses are all over it; the pressure is on the directors. Things will happen. Constructions will go out. It is not down in black and white. It is not taken as a minute. That is the danger when you turn round and say there has to be evidence or proof to say that a company went out of their way to breach the Health and Safety at Work Act. Again I go back to a case in Scotland. They were digging a trench and the site agent contacted the company and said, "Look, this needs to be shored. I've got to get machinery in to put the shoring in." "Well, how long will that take?" "About a couple of days." "Look, get the job done." The JCB came in, dug the hole, the lad went down directing the pipes in, it caved in on top of him. Dead. The company went in and said, "Yes, that is right. We are guilty." As I say, they were fined £7,500. You will never find a minute to that effect. You will never be able to turn round and say, "Here's the evidence here, my Lord. Here you are, the directors took that decision." You will not find that and that is the problem if you are saying there should be proof or evidence. Q344 Gwyn Prosser: I take the point and it is a very strong point that you make. However, bearing in mind that the Bill does not actually require that to be a necessary element to prove guilt, is it not useful to have it in place, because there will be elements where it will have an important bearing? My own view is that the reasonable judge, listening to the evidence of the particular case you have cited, will say, "What other motivation would that company have for taking the cheap option?" - for taking this fast route, to profit from it. Mr Ritchie: It is just this written evidence. That is the problem with this - a proof. We are saying that that could be used in a court of law. Q345 Gwyn Prosser: I want to ask one question about sanctions. You have made the point this morning, again very clearly, about small financial sanctions against a company which has huge penalties against it: that if they just make the calculation on paper, then they certainly will profit from taking the cheap and the unsafe route. You have argued in your submission that, because of that, fines - even unlimited fines - are not sufficient. Putting aside for the moment the personal liability of directors, which my view the Committee is getting closer and closer towards supporting - and that is for the Committee to decide later - putting aside that particular element, what other innovative sanctions would UCATT recommend should be in the Bill? Mr Ritchie: One of the things about sanctions against a company and why we say that the directors should be responsible is because we believe that companies do not kill people. It is not just this bland thing, that a company goes round and decides to kill. It is individuals who take decisions, and that is why we are saying that there. Sanctions in themselves - if it was an option for the judge to say, "What we will do is we will just give a sanction to the company", a big fine or whatever - that can always be taken---- Q346 Gwyn Prosser: Are there no sanctions that can be taken against the company corporate? I have sympathy personally with the view of the individual liability but, putting that to one side, are there no further innovative sanctions you can take against the corporate body other than just fines? Mr Ritchie: Again, it is a question of interpretation of law. We heard evidence this morning, where the judge will say, "Oh, there's a court case back there, 20 years ago. That's a precedent. We will need to look at that". The problem is, once you start saying, "Take that away from the individual's responsibility", there is an alternative there of sanctions against the company and, "We'll just go for the sanction against the company". We are saying that again would be a cop-out. That is why we are saying it has got to be the directors who are held personally responsible. Q347 Chairman: Two last points from me. I want to go back to that previous discussion you had which was very interesting, about the evidence on gross breach. In the case that you described in Scotland - the very distressing case - how big was the company involved? Mr Ritchie: A big company, a large company. Q348 Chairman: So there was a long way from any senior managers to whoever it was on the site who said, "Do it that way"? Mr Ritchie: Yes, but I would also refer to our submissions. We have an example of a prosecution in the construction industry and we name the defendants and the dates. A trench collapsed, resulting in fatalities; the fine was £3,500; the company was found guilty of breaching health and safety - £185. These are resulting from deaths. Q349 Chairman: It is a big company, so a long way from any senior managers to whoever it probably was on the site who took that decision about how to dig the trench. In terms of the point Mr Prosser was asking about, about the guidance that is in the current legislation of the factors the jury has to consider and your concern that there may not be evidence, in the sense that somebody at a senior level has taken the decision that led to the death - as a point of interest, has your union had any legal advice from your own advisers on whether this test would have helped the jury in any of the cases you have dealt with recently? The point you have made is a very important one for us, namely as to whether the guidance in the Act will be helpful to a jury or whether it will get in the way of a prosecution. You have suggested to us this morning that it could actually get in the way of a prosecution, in the absence of an e‑mail or the recording of a phone conversation, or whatever else. It is important that we look at this very carefully in our report. I wonder whether you have had any legal advice as a union that this would be the case, that this would be the problem. Mr Ritchie: In the discussions we have had with our lawyers, what the lawyers are saying is that we have to try to make it as watertight as possible, and to leave any loopholes in there would leave the chance then to make the Bill useless. That is what concerns us. Q350 Chairman: I should know this, but have you submitted that in your memorandum - your legal advice? If not, if you are able to do so it would be very helpful. We may have it already and, if so, we apologise. The final point we have half-covered already. We obviously do not know what goes on within governments. We only read the newspapers, like everybody else! It is fairly open knowledge, however, that there have been some debates in government about bringing this legislation forward at all, and is one of the reasons why it has taken so long. This may be a question you just throw back to us and say, "You have got to decide", but if, for example, Mr Prosser turned out to be right and we produced a report that said we were very sympathetic to the idea of introducing individual liability as opposed to just corporate liability, that might have the effect of reopening the entire debate within government about whether to do this legislation now or not. If you were caught between that sort of rock and that hard place, would your choice be to go with what is there, because at least after 20 years there is some success for the campaign that George Bromwell launched, or would it really be to say the weakness would be so great that it would be worth carrying on the campaign for a bit longer? Mr Ritchie: We would like to see the legislation in this term of Parliament; but if there was a situation where delay would strengthen it, then we would accept that. The thing is, again, it is the time limits on that delay. If you are saying to me, "We are going to have to change this. It will take us another 20 years", then no, I would not go for that. But if we could get it clearly defined that it would, maybe not in this session of Parliament, certainly go in the next session; that we have got to tighten the Bill; tighten up these loopholes; make sure that these unscrupulous employers are not going to get away with murder - which is what they have been doing - then, yes, we would live with that delay. But, as I am saying, it is a limited delay that we would live with. Q351 Chairman: Mr Ritchie, thank you very much indeed. It has been a very helpful session. Mr Ritchie: Thank you very much for inviting us. Memorandum submitted by the Confederation of British Industry Examination of Witnesses
Witnesses: Dr Janet Asherson, Head of Health and Safety, and Mr Michael Roberts, Business Environment Director, Confederation of British Industry, examined. Q352 Chairman: Thank you very much indeed for coming in. I think that you have heard a bit of the preceding session and you know that this is one of the hearings we are having on the Bill. We are pleased that you have been able to join us, because you were not able to when we had the EEF and the IoD. Would you like to introduce yourselves briefly to the Committee? Mr Roberts: My name is Michael Roberts. I am Director of Business Environment at the CBI. Dr Asherson: I am Janet Asherson. I am the Head of Health and Safety for the CBI. Q353 Chairman: Can we start with an issue that you have made, with a number of other employers. It is the question of risk aversion. Your evidence, and indeed that of some other employer organisations, has warned of a culture of risk aversion. The first point is why should it? The legal advice we have had fairly consistently is that any company which follows health and safety law properly will not be at risk of prosecution under this. So why should this create risk aversion? Mr Roberts: The extent to which there is a concern about this issue stems from concern about areas of the draft Bill which at present stand unclear: issues around what exactly is meant by senior management; what is meant by management failure. Those issues of lack of clarity raise a concern about the extent to which this Bill might encourage greater risk aversion. We conducted a survey together with the legal firm CMS Cameron McKenna, and I think they have submitted evidence separately. That survey did suggest quite strongly from the respondents that there would be an increased risk aversion in companies as a result. Q354 Chairman: Is that not just a snapshot of a poor state of understanding, which exists long before the legislation has become law? Presumably organisations like the CBI - if you share the view that if your company are doing proper health and safety law you will not be at risk - should, by the time any law comes into force, be able to turn round those conceptions, make sure the understanding is good and make sure there is not a problem. Mr Roberts: We would certainly see ourselves as having a role in trying to share an awareness of what the law, once it is enacted, means. However, until there is clarity on some of those issues that I mentioned, there will be this concern that---- Q355 Chairman: Hopefully we will come to the areas that you want clarified. It is true, is it not, that to some extent we want more risk aversion in precisely those companies that are most likely to do things wrong? Dr Asherson: The important thing is that we want managed risk assessment. There are many drivers at the moment that are making companies risk-averse: aspects of reporting and making sure that every I is dotted and T is crossed. This is just one other area where people feel they have to add bureaucratic systems that may not necessarily be adding to the outcome of better health and safety controls. Q356 Chairman: If it is the case that if you follow health and safety legislation properly, you are very unlikely to be found guilty of an offence of corporate killing, is it not just reality that that is reflecting the fact that the possibility of heightened sanctions is making companies more aware of their existing legal liability? Mr Roberts: I am not sure it is immediately obvious that heightened sanctions necessarily equates to improved health and safety performance by itself. Q357 Chairman: No. I am talking about the risk aversion. It sounds from what you are saying that it is basically the case that, if you follow good health and safety legislation and practice, you are not likely to be prosecuted under this Bill. That is certainly the advice that we have had so far. If it is leading to risk aversion, therefore, that may be because companies are not necessarily giving the priority they should be to decent health and safety. The fact that they might be prosecuted in a more serious manner may be increasing fears, but those are the sorts of fears we should be increasing, are they not? Mr Roberts: I do not think it is immediately obvious that companies, at least in this country, are not treating health and safety with the seriousness it deserves, when you look at all the available evidence. Comparing incidence rates of fatalities in the workplace between the UK and other developed economies, we have one of if not the lowest incidence rate of fatalities. That does not mean that more cannot be done, and clearly we all support further work; but, on the face of it, it is not immediately obvious that this is not being treated seriously by companies in this country. Q358 Chairman: Do you think that, inasmuch as you can assess it, work-related injuries and fatalities will actually fall as a result of the Bill? Mr Roberts: It is difficult to find evidence that would suggest that. If you take the case in France - and it is only one example, to exemplify the point - which does have an offence of corporate homicide, it also has an incidence of fatalities in the workplace which is twice that we find in the UK. So, again, prima facie it is not immediately obvious that there is a connection between a change in the law, which is perhaps a toughening in the law, and improved health and safety in the workplace. Q359 Mr Clappison: Turning to the question of regulatory costs, broadly speaking the Government's case is that regulatory costs will only fall on those companies which currently fail to have proper health and safety systems in place. Do you agree with that or not? Mr Roberts: Reflecting my earlier comments, I would say yes, if indeed the intention of the Bill is carried through in terms of practice. If, however, there are residual areas of uncertainty, then I think what might occur is that companies, particularly at the larger end, may feel that there is a need for, if you like, more paper-based audit trails to cover or to track decisions as they go through an organisation. There may be some implication in terms of the insurance that companies will need to take, and which they do take at the moment, in the event that they need to defend themselves against prosecutions. There may be an increase in premiums, if there is a degree of uncertainty or perceived uncertainty about how the new law would work. So I think that "it depends" is the essence of my answer. Q360 Mr Clappison: I think that we all want to avoid generating unnecessary costs because of uncertainties which should not be there. Are you confident that your memorandum sets out all the areas which you regard as being of uncertainty that cause you concern? Mr Roberts: I believe so. Dr Asherson: Yes, picking the major ones, I think that we have covered those areas where the uncertainty is such that we have concerns. Q361 Mr Clappison: The Government have also argued that the costs for legal advice and training on the new proposals will be relatively small. Do you agree with that? Dr Asherson: This is an area where, again, it depends on how the Bill comes out. Most companies have a legal requirement for training and they have courses that they run already. They already refer to solicitors before taking much action, and the legal advice is there. Undoubtedly there will be some companies who have sufficient in-house expertise to evaluate exactly what they do and do not need to have, and whether any consultants' advice is necessary. Our concern is that there are some companies that do not have these resources, which will be beguiled by consultants offering advice, and they will take that on board and perhaps it is not necessary. Obviously the CBI would wish, when there is clarity in the final Act, to be able to assist businesses in assessing exactly what is required. Q362 Mr Clappison: How do you assess the current level of awareness and understanding of the proposed offence amongst your members? Dr Asherson: Amongst our members it is quite high. Many of them have trawled the publication; they are planning ahead; they have been planning ahead for some time. This has been a very long, slow fuse already. Q363 Mr Clappison: May I ask Mr Roberts this? You made certain remarks about France, the existence of corporate homicide there, and the level of fatalities in the French industry. Have you any evidence to date that the discussions surrounding the possible creation of this offence have improved health and safety compliance or not? Mr Roberts: I do not think there is any evidence that it has made any difference either way - the discussions around the draft legislation. Again, that probably reflects my earlier comments around the fact that the UK has a strong track record in health and safety in the workplace. Q364 Justine Greening: Looking at small and medium enterprises, obviously they sometimes face different financial challenges to the larger ones in dealing with new laws and regulations. What impact do you think this Bill will have on them? Dr Asherson: We do not have any evidence to differentiate, but a general feeling is, as I said previously, they do not have the resources to evaluate for themselves whether or not they should be taking a quantum leap in activity. So they will tend to rely perhaps on sources of information that might over-emphasise the need for consultancy, more legal advice. They may well overreact and pay more, comparative to their profit base or to their running costs. Q365 Justine Greening: Do you not think that, on the flip side of the argument, there is also an argument to be made for saying that this actually levels the playing field for small and medium enterprises? In fact, many of the companies currently being held responsible for fatalities tend to be smaller companies, where there is a more direct relationship between management and the actions that then happen on the ground, leading to fatalities. Mr Roberts: To the extent that the intent behind the draft legislation is to change the arrangements governing prosecution affecting larger companies, then I think that your point is valid. However, if indeed, as the Bill has been presented, it does not make a material difference to what is currently required under health and safety at work, then you would not expect to see much change either way. Q366 Justine Greening: Moving on to how overseas companies which may be considering investing in Britain may look at this legislation, are you aware of any evidence that that is happening? If so, do you think that it will have a material impact on inward investment from foreign companies in Britain at all - if this law goes through? Mr Roberts: If it goes through, my instinct is that it probably would not make a material difference, because companies, whether they are inward investors or indigenous companies, do not automatically go into business with the intent of causing harm, either to employees or to consumers. So in a sense they should have nothing to fear, if the law is well crafted. Where I would suggest a caveat is whether the intent of government, that the new law should lead to something of the order of five prosecutions under the new Act per annum - if that intent does not materialise and in practice we see a significantly larger number of prosecutions being brought, whether or not they are successful, then, while I would not want to overstate the point, it might send an outward signal to inward investors about the operating environment within which they would find themselves if they came to the UK, and that would be an unfortunate and negative perception that they would have. However, I would not want to overstate the importance of that. Q367 Harry Cohen: Can I first ask you a general question. I was looking at your evidence and you put in a bullet point, "Generally, prosecutions and penalties are not the prime motivators for a company to deliver good health and safety systems and performance". What is then? Dr Asherson: I think that there are many drivers. Some surveys of companies' motivation about compliance with health and safety come up with a very strong answer: that it is morally right to do so. There are other drivers in terms of litigation fears, but I think that penalties and laws are one amongst very many motivators of the whole health and safety package and the drive for good performance in this area for most of the companies - most of the companies within CBI membership. Q368 Harry Cohen: You say that you do not want it to apply to individual directors. If, during a case for corporate manslaughter under this law, it becomes clear that actions of neglect of an individual director contributed to the death, should there not be some sanction against him? Perhaps that he should not be in charge of or be an officeholder in another company or that particular company in the future? Would that not be reasonable? Mr Roberts: Our view would be that there are already existing sanctions against individuals under existing health and safety legislation. So it is not immediately obvious that there is a case to introduce an individual liability for the corporate failure. Q369 Harry Cohen: I understand that, but if an individual has been pretty well tied down to the offence, or it looks like he is going to be, and it is proven during those cases - notwithstanding that he must have a right to defend himself in that process - should there not be a sanction of his not being an officeholder? Dr Asherson: You have to look at the totality. Again, it is a matter of facts and evidence and it would depend on the case. If you are looking at somebody who had the responsibility and authority and could remit resources to manage an issue, then he may well be caught under company legislation in any case. We think that one of the issues in looking at directors' responsibilities in relation to health and safety is that there is no such discipline as health and safety within a company; it is a broad batch of activities, for which there are industrial relations on one side, financial responsibilities on the other. You have to look much more holistically at a director's duty. However, if they were personally responsible in terms of gross negligence and could themselves be found culpable of manslaughter, then that is a separate offence which should be considered in any case. Q370 Harry Cohen: We have heard in the other sessions that these offences are often taken as a cluster. You might have the corporate manslaughter and other individual cases together. Is it not reasonable that, as part of that cluster - again if the evidence is pointing to that director - he could be found guilty of a secondary offence and perhaps punished for it? Dr Asherson: I think that the cherry-picking of offences is very concerning to the variety of enforcing authorities that are involved, and very concerning to companies - where you have one bite of the cherry and, a year later, there is another bite of the cherry. There is an argument that this should be considered much more holistically, and the issue of corporate manslaughter does bring certain elements on the health and safety side together. However, we also have to look at the developments in terms of the company law and the directors' duties - under that activity - where I think you are going to look at a more holistic and cohesive view. Q371 Harry Cohen: Let us come on to directors' duties. You have argued that they should be treated in a separate way from this legislation, in separate debates - I suspect that there you mean separate legislation. However, is there not an advantage to putting in this legislation, or the guidelines that come with the legislation, specific duties on directors to do with health and safety? Because if they were complying with it, they could use that as a defence if they were subsequently accused. Dr Asherson: In this offence, I think that we are looking at the level of senior management team commitment and team activity, which is all about delivering health and safety, and where corporate manslaughter will fall. It is very, very rare in corporations that it is ever the obligation or fault of a single person. I think that it is this collective activity at a senior enough level to be identified with the corporation that has to be addressed. Individual directors and their culpability is already recognised under health and safety legislation, which is much more specific, or under general duties under the Companies Act legislation. Q372 Mr Rooney: In your memorandum of evidence you express this concern about the concept of a senior manager and restricting the offence to that. Accepting that, would you be satisfied with going back to the original Law Commission proposals, such as general management failure? Dr Asherson: We have looked very carefully at our members' view of what a senior manager is. There are very few people in a company who actually recognise themselves in that description. The more general issue of management failure seems to make it even more questioning as to who exactly bears the responsibility that links to the corporate identity. We would be seeking to ensure that the failure reflected a level of management where the authority and the responsibility to direct the company and to make disbursements of resources clearly links to the corporate image. I think that is the challenge for the Bill. Q373 Mr Rooney: Does that not then extremely narrow the field of who could or would be held responsible? Mr Roberts: I would draw your attention back to the intent of the draft legislation, which is not to impose anything more than is currently required under health and safety law. As you are more than well aware, at the moment to secure a prosecution of corporate manslaughter you have to show that there is a directing mind. Our concern is that if you replace that concept with a concept that focuses on senior managers, in some way it seems to be changing the burden of any failing within a company, which seems to us to be contrary to what the law is intended to do here. Q374 Mr Rooney: But the whole intent of this Bill is to overcome the hurdle of the controlling mind. The "controlling mind" condition has meant that large numbers of cases have failed where, by anybody's measure, convictions should have been secured. That controlling mind issue has prevented successful prosecutions - in all sorts of horrendous cases, not run-of-the mill cases. That is the intent of the Bill - to remove that. Mr Roberts: To remove that test, but I think the essence of what is behind that is nevertheless to retain the focus of the draft law on corporate failure at a senior level, at a very high level, to complement the existing sanctions which exist for individuals under existing health and safety law. Our concern is that if you talk about "senior managers" in the rather loose terms that the Bill currently talks of, you are actually widening the scope of potentially liable individuals, whose decisions may or may not lead to a fatality. That, to our mind, does not seem to be consistent with the intent of the Bill, which is to focus on senior, significant corporate failure. Q375 Mr Rooney: Take a huge multinational company. You can have people managing units of that company that are far bigger than even an average SME, but who by your definition would not be classed as senior managers where, in an individual company of that size, they would be. Is there not a contradiction there? Dr Asherson: No, I think that you are seeking to define something where the balance of authority and responsibility is relevant and if, at that level within that subsidiary company, it satisfies that test, then that is fine; but that is not necessarily called a "senior manager". That term, in business, is certainly somebody who will not have the responsibility across the piece, to direct resources that will lead to such a catastrophic failure as to have the corporate manslaughter charge seized of the company. Q376 Mr Rooney: Do you agree there is a risk that responsibility for health and safety in large companies will be delegated below the level of senior manager - if we can ever agree a definition of "senior manager" - to avoid liability for the offence? Is there a danger of that? Mr Roberts: There may be a risk, but I challenge whether that would actually happen. In the event that that happened, or was shown to have happened and that it had led to a fatality, I think that it could be argued in court that was a clear incident of management failure. It was a clear attempt to absolve a more senior person of responsibility - possibly to people who are not capable of exercising that responsibility. It would seem to me that it would be arguable in law that that constituted a serious management failure, in which case you would secure a prosecution. Q377 Chairman: Can I pursue the same point, because I am still not wholly clear on your view on what should come in place of the senior manager test. You say in your evidence that you wanted to capture the real level of decision-making. Most people who have argued against the senior management test have actually said, "Let us go back to the original Law Commission proposal", which you do not like either. So what would you put in the law that would capture what you call "the real level of decision-making"? Mr Roberts: We have no definitive view on that. I think that reflects the fact that this is genuinely difficult; that corporate structures vary enormously. One thought that occurred to us would be perhaps to focus the intent of the Bill on directors, which is generally speaking a concept that is recognised in other parts of the law. Q378 Chairman: That would only work, would it not, if you were able to accept in the same piece of legislation that directors were, by definition, responsible for what happened at management levels below them - because they were directors in the company? Otherwise, you would repeatedly be in the position of saying, "There is no evidence that an action by the directors led to this and therefore there is no prosecution". Mr Roberts: If the intent of the Bill is to try to show that there is some form of management failure, then---- Q379 Chairman: The Australians have a concept, and I will not get the term for it right, but it is basically a failing of corporate culture. I am sure that you are more familiar with it than I am. You know the idea: that basically if a company is run in such a way as to give rise to the death of somebody, then that is a ground for prosecution and that, almost by definition, then comes back to the board of the company, because a company, through its social and corporate responsibility, is responsible. Would that concept be a better way of capturing this? It seems to me that if you narrow it down to try to look at specific decisions of directors, the scope for evading prosecution will be huge. Dr Asherson: You have to look at specific decisions that allow the systems to be set up. You are looking at that level of management, or directors, or whatever we like to call it, where they have the authority and the resources to set up the systems throughout the company. That may be systems and culture, because actually they will go together, but I think that is the level you are looking at. Then they should have the authority to ensure that those systems reflect their original good intentions. Q380 Chairman: Would you have an objection to introducing, perhaps on the face of the Bill or in the list of factors that the jury has to take into account, some sort of concept of the corporate culture? Dr Asherson: That is more preferable than allowing them the latitude to look at absolutely everything. It is another one of those phrases that is a bit of management-speak that would perhaps need to be teased out more generally, so that people understood what a good corporate culture looked like in practice. Q381 Chairman: You have also pointed out that you have different structures of organisations, so that there will be what you would call an inevitable inconsistency between the treatment of different situations where somebody is killed. I think that the Government themselves have recognised that if you owned one warehouse you might be held responsible; if you owned 20 warehouses, the same incident might not lead to anybody being prosecuted - not under this legislation, at least. You say that it is an inevitable problem; it is a serious problem. Do you think that there is a way of resolving this inconsistency within the law, or is it just something where essentially the Government will say, "We are going to have to live with that, because we can't find a way round it"? Mr Roberts: It may well be the latter. Again, I draw you back to the intent of the Bill, which is to focus upon the worst examples of corporate failure that can be proven; that this should lead to a very limited number of prosecutions in any year. If that is the case, inevitably you are drawn to some way of defining, more tightly than more broadly, who are the people whose decisions are relevant. It seems to me that is a legitimate ambition, given that on the one hand we have a good safety record in this country and, on the other hand, we do not want unduly to catch so many people in the net that you actually encourage what you suggested might or might not be the case, which is a risk-averse culture throughout the organisation. Q382 Chairman: I do not know if you heard Mr Ritchie's evidence from UCATT. You have dealt in part of your evidence with complex companies and subsidiaries. He obviously, coming from the construction industry, was particularly concerned about subcontracting, where it is not the same company at all. The same problem of inconsistency exists and is probably multiplied many times over in those situations. He said to us very strongly, "You really should, in law, be making the prime contractor on a project responsible by definition, even if you can also prosecute individual subcontracting companies". That would clearly bring some consistency into it. What would your view be of that? Mr Roberts: I will turn to Janet in a moment, but I think this is a developing area, if I understand it - the whole concept of how far things like duty of care extend from a contractor to a subcontractor. Logically, you would expect there to be some degree of responsibility on the prime contractor. The issue is about how far and how detailed that execution of responsibility should be. If a prime contractor asks reasonable questions of a subcontractor about what health and safety management systems they have in place, do they have well‑recognised, accredited schemes in place in terms of their operations, and the answer back is positive to all of those, then I think that it is reasonable to say that the prime contractor has carried out their due responsibility. If it is then shown that in fact the subcontractor did not have those things in place, I think that many prime contractors in that situation would find it a not satisfactory situation to be in, if they were then in some way being found responsible. Q383 Chairman: So in principle, if the law were structured in a way that did not exclude a prime contractor from the frame just by virtue of a contractual relationship and, clarifying it, it leads to the draft Bill ensuring that happened, you would not in principle have any objection to that - as long as the actual test was applied fairly in individual cases? Mr Roberts: I think that is correct. Dr Asherson: Yes. Q384 Chairman: We are at the moment unclear about whether the law does do that or not. Some of our witnesses have talked as though it definitely does and others have said that it does not. Mr Roberts: I think that it is a shared uncertainty. Chairman: That may be one of the areas you want clarified. Q385 Gwyn Prosser: Clause 3 seeks to clarify the definition of gross breach. It goes on to list a number of factors which the jury would be required to consider. It makes it clear that it is not an exclusive list and it invites the jury to consider other matters, or certainly it allows them to do so. The CBI have been critical of this arrangement, because I guess you think it is too loosely worded or does not define matters so closely. Dr Asherson: It appears to me that you are giving an enormous latitude about perhaps personal prejudices that may reflect knowledge, concerns, beyond the issues that are truly relevant to the case. It does say "relevant duties", but what is relevant to an individual juror might be very different from what would be considered relevant to society in general. I think that is just the risk. There needs to be a little more guidance and direction that it should be very relevant and pertinent to the facts of the case, rather than the general catch-all, "Oh, well, if you can think of anything, then you can throw that in". I think that has dangers. Q386 Gwyn Prosser: Would it not be reasonable to allow the judge to identify something in evidence and direct the jury to consider this as an addition to the list? Dr Asherson: Yes, and the judges will have freedom to do that anyway. Q387 Gwyn Prosser: So it is just the issue of the jury making their own decisions? Dr Asherson: Yes, it is on the face of the Bill then, that it allows that latitude. Perhaps the phraseology is not drawn up tightly enough to be on the face of the Bill. Q388 Chairman: One of the things that would be excluded under the Bill would be the deaths of prisoners in custody - part of the police functions. Some companies, probably some of your members, now run police custody suites. Is your understanding that those private companies would be covered by this by virtue of being private companies, or excluded from this by virtue of providing public activity? Mr Roberts: I think it is fair to say that it is unclear. Dr Asherson: Yes, you may well ask! Q389 Chairman: That is two or three we have got now! Dr Asherson: We have trawled through the draft and been back and fore through the drafting, and it seems to me that there are three main levels of concern. The duty of care - it is not clear in law as to whether some Crown establishments and public authorities do have a duty of care. There is the element of whether they are acting in terms of public policy or execution. That is a very large grey area. Then there is the possibility of the secretary of state making regulations to prescribe where prosecutions may be taken. So there are three huge areas of uncertainty, where our members are simply not sure whether they are in or out and their competitors in the public sector would be treated in a similar fashion. Q390 Chairman: I think we have got from your evidence that you are not convinced that the Government are saying that a level playing field has been achieved, as it stands at the moment. Mr Roberts: I agree with that. It is partly the lack of a comprehensive list of all of those public bodies - I use the term "public bodies" loosely - which ones are covered by the Act or not covered by the Act. Then, as Janet indicated, there is this grey area regarding the function of public policy versus executive function, which it seems to me potentially opens up an non-level playing field. For example, to the extent that executive functions in a hospital are directly the result of policy decisions on resources in the health service, it is not quite clear how any final responsibility for acts which may or may not lead to a fatality operate in that environment. However, when you compare that with the situation of, say, a private sector hospital, where the management has both the strategic responsibility for deciding resourcing and the executive decisions which flow from that, it would seem from the way the law is currently drafted that they would be liable in the event that those decisions led to a fatality. Chairman: That is helpful, and we have one or two other sessions, including one with the minister at the end of this, and that is useful material for us to clarify what the Government are trying to achieve in those areas. Q391 Harry Cohen: A number of witnesses have expressed concern about companies possibly going into liquidation to avoid fines. What they are suggesting is that there should be a power to freeze the company's assets if a corporate manslaughter prosecution is going to be underway. What is your view of that suggestion? Mr Roberts: Our basic view is that would be contrary to our concept of natural justice. If the prosecution has not actually been concluded and found against the defendant, then one would assume that the company that is being prosecuted is innocent until that point in time. To freeze their assets until that point in time would be contrary to natural justice. Q392 Harry Cohen: What about the natural justice of using a loophole, in effect, or going into liquidation and setting up another company down the road, to avoid what would be a legitimate penalty? Mr Roberts: Janet may want to come in on this, but I take you back to the context within which we are operating, which is a country in which health and safety in the workplace is taken extremely seriously and where our record is perhaps second only to one, which is Sweden. How big is this problem? Q393 Mr Rooney: I want to follow this because there has been, not necessarily liquidation, but incidents in the past of very large corporations facing significant liabilities who have shifted all their assets to Belize, the Cayman Islands, or wherever, to avoid penalty. Do you not think that there should be some means in the law of protecting potential victims from that sort of escaping justice? I accept that freezing assets totally is a draconian step; but do you not think that the courts should have some powers - because these things do not just happen, you get wind of them - to stop that happening? Mr Roberts: If you were going to go down that route, you would have to do it in a way which achieved two things. First, it did not prevent the legitimate operations of that company prior to the successful conclusion of prosecution and, secondly, in a way that did not impute guilt to that company until such a point in time as that had been proven. Q394 Mr Rooney: By the very action of shifting their assets abroad it is almost an admission of guilt. Mr Roberts: I do not think that would stand up in a court of law. Q395 Mr Rooney: No, but the same applies to what you are saying: there should be a presumption of innocence. By taking action to prevent a penalty being collected, they take action. Mr Roberts: An innocent company - subsequently proven to be innocent - might be behaving entirely rationally in trying to avoid the freezing of assets, or whatever is your sanction, in advance of the conclusion of the court. It would be entirely rational, even if they were innocent. Q396 Mr Rooney: Let us just step back one. It is not a general principle in the Bill, freezing assets. What I am saying is this. Where a prosecution is underway and a company then seeks to remove its assets from the jurisdiction of the court, the court should have the power to take some action - pending the outcome of the case. Dr Asherson: Then you are talking about another set of evidence where, once the prosecution had been charged and it could be shown the extent to which they were shifting assets - and even possibly where they were shifting assets to - that could be questioned by the court. However, it might be something that would be prudent, and in the interests of shareholders, to protect the reputation of the company. If you start looking at motives in that area, you need the appropriate checks and balances to make sure that you are trying to identify the motives behind it. It is a very difficult area. There are some times when we are going to get it wrong and the courts are going to get it wrong; but if that ruins a company that was innocent and is unnecessarily charged, then you must have some sort of means of redress. So there is a lot of discussion round that area, and I am sure that we can get cleverer in the means of being able to put things perhaps into escrow accounts, in the event that serious wrongdoing is heavily suspected - but there are a lot of caveats round that. Mr Roberts: We are mindful of the reason why you are asking the question. My challenge back to yourselves, or anyone else promoting this idea, would be to show the extent to which this has been an issue in the past. Currently, it is possible to impose unlimited fines on companies for health and safety offences. If it could be shown that there has been a material problem here, that companies have been engaging in this sort of unfortunate behaviour in order to avoid the financial liability in the event that they are found guilty of an offence, then maybe there is an issue to be addressed. I am not aware of any such evidence. Q397 Chairman: You make the point that it may be hard to impose sanctions on foreign‑registered companies, and we probably need to clarify whether any of our extradition treaties apply to companies as opposed to individual directors. Does this not point to the need to introduce into the Bill a wider range of sanctions, so that a company that failed to comply or respond to a prosecution under this legislation could, for example, have its trading in this country affected, could be guilty of a further offence of failing to comply with the remedial action? There are surely a number of sanctions that could potentially be imposed on a company that is simply trying to evade this on the grounds that they were foreign-registered? Dr Asherson: I do not think that we have a problem about looking at that aspect. The idea of innovative penalties is a good basis to explore, but I think it has to be looked at in the round of the general criminal law, because these sanctions could be available for other acts: not just corporate manslaughter. We need to tease out what innovative penalties could be imposed and could be made to stick on foreign companies, who may also have the ability to move rapidly elsewhere in the world. Q398 Chairman: To turn it round, if a British citizen commits a crime overseas, they can be tried in this country - for murder or child abuse, for example, and things like that. There are a number of clearly established practices in law. Why should a British company operating overseas, albeit the local standards on health and safety may be far lower, be free from prosecution under British law if they commit a crime overseas? Dr Asherson: We do not have a view that they necessarily should not. We just question that putting an obligation in the Bill which in practice requires incredible resources, and international law as well, needs further investigation. The main problem in most of these areas is getting the evidence, crossing barriers and national jurisdictions, rather than the aspects of the structure of the law. We are just asking that there should be some serious thought put into what can realistically be achieved in this area. This law is rapidly developing and it is something that we should keep under review when we are looking at the structure of the legislation; but we do not have a view that it should not be in there necessarily. Q399 Chairman: Looking at national jurisdictions rather closer to home, as a Committee we have not yet decided but we may look at the same areas of concern that you have about whether what emerges in Scotland will be the same as in England and Wales, because there is a parallel process going on. If there were to be different regimes in England and Wales, Scotland, and Northern Ireland, are you able in any way to quantify what the real business cost of that would be? There is an obvious case in terms of equity and fairness and all the rest of it, although the criminal justice systems are different in the countries; but have you been able to look at what the real implications would be for British businesses of having to operate to different standards? Mr Roberts: At this stage it is impossible to assess with any confidence what the impact might be. One could just infer what might be the case. If there is a difference between the two jurisdictions, one could infer that companies - particularly those companies that have operations on both sides of the border, for example, utility companies, retailers which have chains across the UK - would put in place systems within their organisations which seek to meet the most stringent of the two jurisdictions, if I can use that terminology. The concern that we would have would be whether or not the more stringent of the two jurisdictions would be something that is appropriate, given what we are trying to achieve here - which takes us back to some of the earlier comments that we have made about the proposals in England and Wales. However, to be fair, we are dealing in the realms of the hypothetical here. Q400 Chairman: Have you at all, as an organisation, engaged with the Scottish Expert Group? Dr Asherson: Yes. Q401 Chairman: Do you have a sense of what is emerging there and whether there is an actual issue here about which we should be concerned? Mr Roberts: We have had a CBI representative on the group that was looking at the issue in Scotland. There are all sorts of rumours around, but we do not know exactly where this is going to end up. Chairman: It has been a very useful session. Thank you very much indeed. |