Ian
Stewart: Rather than making play of the issue, I should
point out that although we certainly understand the hon.
Gentleman’s rationale, the number of cases where inspectors have
issued notices are relatively
low.
Mr.
Grieve: That may be true. One could argue that the HSE or
local authorities certainly are short of staff to go round inspecting
premises and slapping on the necessary orders. I am sure that if there
were more inspectors, more prohibition and improvement notices would be
served. However, my experience is that, where someone has died, which
is what we are talking about, the situation is gone over with a
fine-toothed comb, so I would be startled if, following that,
prohibition and improvement notices were not imposed if they were
required. Often, of course, when one is dealing with companies with any
sense of responsibility, they move pretty quickly themselves to remedy
any breach. Sometimes, in co-operation with the Health and Safety
Executive or the local authority, they remedy the breach themselves, so
that no notice ever has to be served.
I have two problems with the
amendments. First, amendment No. 83 proposes a procedure whereby if
there is a criminal trial at which someone is found not guilty, a
remedial order is still imposed. We will not know the circumstances in
which a not guilty verdict is returned. It may be after a full hearing,
when the judge has had an opportunity to consider the matter and hear
all the evidence, but it could happen, and sometimes does, at a much
earlier stage of a trial, when the judge has had absolutely no ability
to evaluate all the facts of the case. In those circumstances, unless
the judge converts himself into an equivalent of the employment
tribunal dealing with the prohibition or improvement notice procedure,
he will be ill placed to deal with the issue in
court. One of the
wider criticisms that I have of clause 10—we could deal with it
in a clause stand part debate, but we can deal with it just as easily
now—is that it is unclear who will supervise and monitor the
imposition of remedial orders and who will provide the expert input to
the court about the remedial orders that may or may not be necessary.
Let me make the position clear: I am not saying that that cannot be
done, but it will need the active participation of health and safety
inspectors from either the HSE or local
authorities. The blunt
truth is that I question whether clause 10 has any real value at all. I
am sorry to have to say that to the Minister. The
attempts—worthy attempts, if I may say so—by the hon.
Member for Manchester, Central to beef it up seem to run into the
practical difficulties that I have identified. It would be interesting
to hear from the Minister how he really thinks the clause 10 regime
will work. I have a
couple of amendments, which are due to be considered later. I may be
able to short-circuit that discussion by saying that they would remove
the word “prosecution” and insert “Health and
Safety Executive”, precisely because it seems to me that the
prosecution is in no position to make applications for remedial orders
generally unless the HSE or some other responsible organisation is
there to advise
them.
The
Chairman: If the Minister wants to respond to that and if
the Committee is happy, I am, again, perfectly content to consider
those amendments as part of this
group.
Mr.
Sutcliffe: Thank you, Mr. Gale. I agree with
the hon. Member for Beaconsfield that my hon. Friend the Member for
Manchester, Central had a worthy objective in proposing his amendments.
I understand the spirit that he is trying to generate in relation to
them. Clause
10 enables the court to order an organisation convicted of the new
offence to take steps to put right the management failure that caused a
death. It also allows the court to remedy any consequence of that
management failure if the court believes that it, too, was a cause of
death. For example, if the convicted company failed to put in place
adequate systems for monitoring the safety of its activities, and the
consequence of that was dangerous practice on the shop floor, the court
would be empowered to order changes both to the systems and to the
practices that led to the fatality.
We expect the
use of remedial orders to be relatively uncommon after a conviction,
for the reason that the hon. Gentleman gave—regulators would
already have acted. However, it would still be useful to enable a court
to add its weight to the necessary measures that a convicted defendant
needs to take to put its house in
order. Amendment No.
83 is designed to extend those powers, so that courts can impose
remedial orders on organisations that have not been convicted of
corporate manslaughter. It is an extremely unusual step to impose a
court order on a defendant who is not convicted of a criminal offence.
I understand the point that organisations may carry out practices that,
although not grossly negligent and warranting a conviction under the
new offence, are not safe. However, organisations that have been
investigated and subsequently prosecuted for corporate manslaughter
will have been thoroughly scrutinised—long before the trial,
hopefully—by the relevant
regulator. For
example, the Health and Safety Executive is empowered to issue
improvement notices and prohibition notices that require illegal or
unsafe practices to be remedied. Failure to comply can result in
prosecution, leading to imprisonment and fines of up six months or
£20,000 in the magistrates court and two years or unlimited
fines in the Crown court. Other regulators have similar powers. Unsafe
practices are therefore likely to have been identified and addressed
prior to the
trial. It
is also worth noting that an organisation acquitted of manslaughter may
be convicted on health and safety offences, in which case remedial
orders would still be available to the court. We therefore believe that
there are sufficient opportunities to intervene in organisations to
ensure that unsafe practices do not continue without extending what is
intended to be part of the response to a criminal conviction to an
unconvicted
organisation. Amendment
No. 86 is designed to make it possible for a court to identify
individuals who will be responsible for ensuring that the remedial
order is complied with. Amendment No. 110 specifies that any person
named in an order may be guilty of contempt of court if the company
fails to take the steps set out in the order. The penalty for that
would be up to two years’ imprisonment or an unlimited fine. The
effect of that would be essentially to impose a sanction on an
individual for the faults of a company, a concept that my hon. Friend
will pursue later. I am uneasy about the implications of
that. Although I
accept that there is concern to ensure that organisations take remedial
orders seriously, the proposal raises several questions. First, how
does the court decide on whom to impose the order? One solution might
be to impose it only on those who have health and safety
responsibilities, but that might have the perverse effect of
discouraging people to take on responsibility for such a crucial part
of an organisation’s functioning. Alternatively, the order could
be imposed on all directors. However, it is not clear how the court
would deal with the fact that some directors may be in a better
position to control compliance than others. There is also the matter of
what happens if named people leave the company.
We want organisations to comply
with remedial orders when they are made, which is why we have made the
consequence of not complying with an order more serious than was the
case under the draft Bill. Breach of the order will be heard in the
Crown court, not the magistrates court, and we have raised the penalty
for non-compliance to an unlimited
fine.
Tony
Lloyd: I seek some information from my
hon. Friend. Obviously, the measure is technical and important. Under
the Health and Safety at Work, etc. Act 1974, the prohibition notices
that are imposed on a company stop the work process. If the company
continues to work and breaches the order, is the remedy operated
against the company or against the
individual?
Mr.
Sutcliffe: As my hon. Friend said, the matter is
technical. The 1974 Act certainly gives the opportunity to send
individuals to prison for breaches and consistent breaches of their
obligations. We know what he is trying to achieve by holding
individuals to account but, like the hon. Member for Beaconsfield, I do
not think that it is right to take the action set out in the
amendments. We will talk about corporation probation and other issues
later. I ask my hon. Friend l to withdraw his amendment, having put on
the record the issues that it
raises. The hon.
Member for Beaconsfield referred to amendments Nos. 141 and 142. They
would mean that the Health and Safety Executive, as opposed to the
prosecution service, would make applications for remedial orders. I see
merits in that proposal and will deal with the wider point about
regulator involvement in a moment. I wish first to explain why I shall
not be supporting the
amendment. The Health
and Safety Executive will not always be the appropriate regulator. It
may be that the Food Standards Agency is the relevant regulator, or the
Office of Rail Regulation, so limiting the role to the HSE is not apt.
That, of course, can be remedied, but whichever is the appropriate
regulator, the prosecution service will bring the case and the
regulator will only have limited formal involvement in the trial. It
would not be appropriate to give it a formal role at this
stage. We fully expect
the prosecution to liaise closely with the relevant health and safety
authority prior to making any application. It will then be open to the
convicted organisation to make representations to the judge about the
order, and to present any evidence that the order would be
inappropriate or unnecessary. We think that that will provide
sufficient safeguards against misguided
orders. The Bill does
not make specific provision for monitoring compliance with remedial
orders. However, the relevant enforcing body such as the Health and
Safety Executive will have a strong interest in ensuring that safe
practices are adopted in a convicted organisation. We are therefore
confident that, as well as being involved in the drawing up of remedial
orders, regulators will be fully engaged in monitoring compliance with
such orders, without the Bill making specific provision in that
respect.
I hope that
that provides the answers sought by the hon. Member for Beaconsfield in
relation to amendments Nos. 141 and 142, and that my hon. Friend the
Member for Manchester, Central will withdraw his
amendment. 3.45
pm
The
Chairman: In view of the situation that I have created, I
invite Mr. Grieve to
speak.
Mr.
Grieve: I am grateful, Mr. Gale and I hope that
not too many problems have been caused by short-circuiting a debate on
my closely linked amendments. The Minister has reassured me
sufficiently, so I shall not press those amendments to the vote; they
were probing amendments anyway.
The Minister has acknowledged
that the expertise lies with the regulatory authorities—that is
quite clear. It is therefore obvious that if the remedial orders are to
have any value, the regulatory authorities will have to provide input
at the beginning, advise the prosecution, and monitor compliance,
though I accept the Minister’s point that the relevant authority
will not necessarily be the HSE. Regulations will have to be made by
the Government to ensure that that happens. It may seem obvious that it
should happen, but I sometimes think that without a statutory
obligation and responsibility it is amazing how much organisations are
willing to wash their hands. It may not be a matter for primary
legislation, but I suspect that regulation will be necessary.
There is another matter, which
I have mentioned in a wider context, which applies to remedial orders
and to prosecutions generally. The Crown Prosecution Service, and the
police, are ill equipped to deal with technical prosecutions in the
field of health and safety; they do not really know what they are
doing. I have been persuaded of that by the one or two occasions on
which I have seen a prosecution happen after investigations of possible
corporate manslaughter as it currently exists—with individual
directors’ liability. The trouble is that the CPS and the police
tend to take the lead over the HSE and the enforcement authorities
because, in the hierarchy of things, manslaughter is perceived as more
serious than a breach of the Health and Safety at Work, etc. Act
1974. The result is
that interminable interviews take place at police stations, in which
the interviewer is not the person who really knows the issues. The
anecdotal evidence is that that person—the HSE inspector or the
local authority inspector—sits on a chair in the corner, with
his eyes rolling to the ceiling, thinking, “Can’t we get
on with it? This person isn’t asking the right
questions.” That problem goes right through the entirety of the
prosecution machinery in the Bill, but it applies particularly to
remedial orders. Deciding which such order is appropriate will require
the closest involvement of the relevant enforcement agency. The
Government will need to make quite clear to those agencies what they
have to do, and will also need to make clear to the CPS that the
agencies will be, if not equal to the prosecution, very important
players in the process.
Tony
Lloyd: I have enormous sympathy with the points that the
hon. Member for Beaconsfield has just made. However, although I
understand his and the Minister’s arguments, which are powerful,
a problem in our society is that even regulatory authorities have not
always done their job properly. Sometimes, even in doing part of the
job they have not gone as far as the public may have expected. The
railway industry is a classic example, and over the years I have been
known to say one or two unkind things about the railway inspectorate.
In his summing up in the Hatfield disaster, for example, the judge
observed that it was He said it
was, “the worst example
of sustained industrial negligence in a high-risk
industry” It is an
industry that has its own regulator, but that regulator failed to act
in a satisfactory way to protect the travelling public. That is an
important point to bear in mind if we say that the prohibition system
as it exists must always work.
Ian
Stewart: I distinctly remember being shocked that the 1974
Act was, to my knowledge, the first Act to allow the police to enter a
site. The purpose of the Act was, in cases where something was so
dangerous that it could not be dealt with by the regulatory approach,
to give the police the power to go on to a site to save life. We must
remember that although we are interested in process, this is a very
complex area—hon. Members who have argued with me about
prevention rather than remedy should remember
that.
Tony
Lloyd: My hon. Friend makes a good point. All legislation
of this kind is better if it is part of prevention rather than remedy,
but when things have gone wrong and can no longer be remedied, we need
to examine how to build in a remedy. A man called Kenneth Farr was
decapitated by an unsecured car park barrier at Asda in Cardiff; a
similar accident happened at another Asda car park that resulted in a
prosecution and a fine, but the regulatory authorities failed to insist
that they brought in a proper remedy.
Much as I respect regulatory
authorities, they do not always get it right. It may sometimes be
appropriate for the court to be involved, which is obviously why I
support my hon. Friend’s amendment seeking to give the courts
that capacity. There may be circumstances in which that is necessary
although it may be rare in cases of corporate manslaughter that the
remedy has not already been properly actioned. When that remedy is
needed it is helpful to give the court that
power. I will seek
leave to withdraw the amendment, but I hope the Minister will reflect
on two things. First, the reason I asked him about the operation of the
1974 Act is that under that Act a remedy can be applied against
individuals where the company fails to act on a prohibition order or
the equivalent. The Minister confirmed my belief in that respect. The
comparison to the amendment we have sought to move is a real one. Will
the Minister reflect on that as it may not be the right way of doing it
but we should at least consider it quite
carefully? Secondly, I
do not think the hon. Member for Beaconsfield heard me earlier when I
mentioned the Marchioness tragedy and made the point that a
prosecution was taken forward. The prosecution failed, but it was clear
at the end that there should have been remedies applied. Although it
may be unlikely that by that stage of other cases, the remedy would
still be lacking, if it were lacking, it would be sensible in the final
analysis for the court to make an order imposing the remedy—even
if the prosecution has failed. I hope the Minister will think about
what lies behind these amendments. In recognising the time of day and
the will of the Committee, I beg to ask leave to withdraw the
amendment. Amendment, by leave,
withdrawn.
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