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My hon. Friend the Member for Crawley (Laura Moffatt) mentioned publicity, and perhaps we could look at the proceedings of the Corporate Manslaughter and Corporate Homicide Act 2007, in which we were able to introduce, as part of the penalty arrangements, a publicity order requiring an employer who had been prosecuted under the provisions to publicise the fact. There is a strong case for saying that even if we cannot
make that provision part of the regime under discussion, the publicity that surrounds those convictions is important, as my hon. Friend said. I hope that local newspapers will start to report such offences with rather more vigour than they sometimes have done. If the penalties are higher, they will inevitably—I hope—attract more publicity.
There is also the question of holding the directors of a company to account. As we heard during the Corporate Manslaughter and Corporate Homicide Bill debates, we have a parallel system whereby small employers are more likely than big companies to face severe penalties of imprisonment, because the small one-man band has the controlling mind of the company. If there are only one or two employees, it is pretty clear who is responsible. The company may even be a partnership, or, indeed, simply an unincorporated business—somebody operating on their own account. In those circumstances, the employer will be prosecuted and may face imprisonment. However, if the company is a big multinational, that does not happen, unfortunately, and we do not have any equivalent penalties to impose on it. All we can do is fine the company.
When a company is prosecuted, the dock is empty. At the very least, we ought to ensure that the directors are sitting in the dock to hear what is said about their company, as opposed to sitting outside the dock, behind their lawyers, which is what normally happens. That, in itself, might start to concentrate directors’ minds and bring to them a degree of shame for what they may have done—or rather what the company, for which they are responsible, may have done, because, hiding behind a corporate veil, they cannot be held personally accountable. That is wrong, and my right hon. Friend earlier adumbrated the need for a director’s health and safety duty. I very much share that view. Perhaps my right hon. Friend, if he is successful in next year’s ballot, can also try that as an alternative. Perhaps I shall be successful and I can add it to my list of private Members’ Bills to bring before the House because, again, it is an important feature of the process of holding companies to account.
There is no doubt that the best way of concentrating the mind of a recalcitrant director is the fear that he may be held personally liable for what his company does. When we consider some of the offences under the Companies Act 2006, it is instrumental to note that, in respect of the regulation of companies, a director can be held personally liable, but that he cannot be held liable if he or his company kills or maims one of his employees.
Andrew Selous: I agree that some directors and employers do need to be brought to book. I do not know about the hon. Gentleman’s experience when he has been out with construction inspectors, as I have, but the breaches that we uncovered were brought about—unknown to management—by employees themselves who wanted to finish their job more quickly. The employees had been given the correct equipment, but they were not using it as they had been told to. It is important to get that point on the record, because I should not want the tenor of the debate to be that all breaches of health and safety are just about evil directors; many employees are themselves responsible for breaches of health and safety.
Mr. Dismore: The hon. Gentleman makes an important point. It relates to the duties under section 7 of the 1974 Act, to which I hope to refer shortly, and how we should approach employees who misbehave. As I said earlier, we should examine the system of work that might put an employee in the position of having to cut corners. As the hon. Gentleman says, some people might behave in that way because they want to skive off early, but some might be put under pressure through a system of work that requires them to cut corners. The best example of that is white van man, who is often given impossible delivery schedules and ends up speeding and having road accidents because he is driving negligently or is too tired. A serious flaw in the operation of the Health and Safety Executive is that it does not—or did not until recently—consider such road accidents to be accidents at work. I think it has recently changed its policy, but there is still an awfully long way to go in terms of how those accidents are recorded and investigated. The HSE still sees them primarily as a matter for the police to investigate, and may start to investigate only when a major system flaw is found. It has not always seen them as a major priority.
We have to look at the other side of the coin. If someone is issued with goggles and told time and again to put them on but does not do so because they find them uncomfortable, that is significant. However, even those cases prompt the question why the employer has not taken disciplinary action. In the end, even if the employee is 90 per cent. at fault, the employer still bears some responsibility for having not ensured that the rules are properly enforced. They cannot entirely abnegate their responsibility for what happens on building sites, in factories or at other workplaces under their control. There is always a reason why these things happen. It may be a result of cutting corners; it may be because of how the wages are calculated—piece rate, job and finish or whatever. All those things are part of the systems that can lead to the taking of shortcuts and, therefore, health and safety risks. On the face of it, it may look as if it is clearly the employee’s fault, but we sometimes need to delve a little deeper.
Let me return to the responsibility of directors. We need to consider how we can make directors personally liable for some of the things that happen in the name of their company. At the moment, if a fine is imposed, even an unlimited fine, it will merely be passed on to the company’s shareholders by being paid out of the potential profits, which may be a little lower, with the result that the shareholders lose out. The shareholders, who have no control, de facto, over what is happening, end up paying the penalty, while the directors escape scot-free. I hope that as the Bill progresses we can see some progress in this respect, and if not in this Bill then in future legislation.
The real goal of the Bill is to embed a health and safety culture in every workplace in the country. It is inequitable if some workers are placed at risk by the negligence or carelessness of their employers. Contrary to many press reports, health and safety is one of the hallmarks of a civilised and cohesive society where every person looks after the safety and welfare of their fellow citizens. As my hon. Friend the Member for Crawley said, the 1974 Act imposes not just duties in the workplace but, under section 6, duties on those who employ people, and it extends to the wider general
public as well. If somebody is injured as a result of activities on a construction site—the proverbial person walking in the street who has a 2-tonne weight land on them and squash them—the employer will potentially be liable for a breach under the Act, if a prosecution follows.
The new penalties are not only about protecting employees in the workplace but protecting the contractor in the workplace and, more importantly, they are a vital protection for the general public. We have seen that in some of the prosecutions to do with train crashes. There has always been an argument about whether, in those cases, prosecutions should have been brought for corporate manslaughter. I am pleased that we now have the Corporate Manslaughter and Corporate Homicide Act 2007, which could well provide the answer to that. Families were concerned that when prosecutions were brought under the 1974 Act, the penalties imposed might have been very large—fines in excess of £1 million in relation to the Ladbroke Grove train crash—but the directors did not face personal liability. That is one of the flaws, which I pointed out on several occasions during its passage, of the 2007 Act. However, we are considering an important measure tonight— [Interruption.] It may be tonight by the time I have finished.
To achieve the full benefits of the approach that we are considering, there must be a cultural shift in the workplace. Health and safety must become central to the way businesses are run, and businesses must accept that any breach of those laws rightly results in sanctions—severe sanctions if necessary.
Laura Moffatt: I note from Hansard that there has been some debate about the human rights aspects of imprisonment for some offences. Given my hon. Friend’s expertise, has he considered whether the provisions breach human rights?
Mr. Dismore: My hon. Friend asks an important question. If I put my Chairman’s hat on, I can say that article 5 of the European convention on human rights applies. It provides for imprisonment of those who have committed a criminal offence, as long as they have a fair trial in accordance with the law. My hon. Friend does not therefore need to worry about the matter—so far as I understand it, the Bill complies entirely with the convention’s requirements. I am not sure whether my right hon. Friend the Member for Streatham or the Minister have published a certificate to that effect, but my hon. Friend the Member for Crawley does not need to worry about incompatibilities with or infringements of the convention or the Human Rights Act 1998. However, it is a good point because I believe that private Members’ Bills should go through the same process as Government measures to ensure, as far as is possible, compliance with the Human Rights Act, through the publishing of the certificate, which the Attorney-General and the relevant Minister usually sign. Hon. Members would be advised to follow that process because, in the past, some private Members’ Bills have given rise to strong questions about their compliance and compatibility with the Human Rights Act.
Health and safety law does not want primarily to achieve more prosecutions, but to prevent accidents from happening. The goal is positive prevention on the one hand and deterrence on the other. The Bill is geared
very much towards deterrence and it is important that the Government, through the Health and Safety Executive or other means, embark on a publicity campaign to ensure that employers, especially in industries that have a poor safety record, know about the consequences of committing an offence. The small one-man-band construction company could face imprisonment and other sorts of company could face higher fines. As I said earlier, I believe it is unfair that there is a two-tier system whereby the small employer is more likely than a larger one to face a serious penalty, but it is nevertheless important to do all we can to ensure that employers know that they are more at risk now than in the past.
On prevention, it is interesting to note the way the scale fits together, with improvement notices, prohibition notices and now prosecution through the Bill. We must examine the system under the 1974 Act as an entity; we should not simply lift out one piece and ignore the overall picture. Enforcement will take place generally through improvement notices. Prohibition notices are important when a major breach that is likely to cause injury is detected. I hope that the Bill means that the courts will impose significant sentences when people are in breach of a prohibition notice—I believe that that is a consequence of the schedule. Non-compliance with an improvement notice is different, and a matter for employment tribunals, as I recall.
However, prohibition notices are very serious. They are not issued that often—perhaps they ought to be issued more often—but a breach is a serious matter that should lead to prosecution and the more significant penalties under my right hon. Friend’s Bill. One of the fundamental purposes of any legal sanction for wrongdoing is deterrence, which applies equally to health and safety law.
Many commendable organisations already take health and safety seriously, but there are rogue companies that do not. In 2006-07, 241 people were killed at work, which was an increase of 17 on the previous year. That is a worrying trend and may reflect the fact that the Health and Safety Executive’s resources are inadequate. That is not a matter for today’s debate, although it is an important factor that we must take into account, because as we take less enforcement action, so it becomes more important that we should take stronger enforcement action, with stronger penalties.
Mr. Dennis Skinner (Bolsover) (Lab): I apologise for not being here earlier, but we on the Labour party’s national executive committee have been discussing, one with another, the vanity ballot that will take place some time in July in Haltemprice.
I had a case a few years ago involving a young lad who had a finger cut off by wood-cutting machine in Clumber park. No action was taken, despite all our efforts, because we were told that the owner of the machine was not worth pursuing, as he did not have any money. Is there any way in which such action could be taken under the auspices of the Bill that my right hon. Friend the Member for Streatham (Keith Hill) has introduced?
Mr. Dismore:
My hon. Friend makes more than one point; he makes two points. The first is that it is especially tragic when young people are maimed, injured or killed at work, particularly when they are on work experience. As I recall from our proceedings on the Corporate
Manslaughter and Corporate Homicide Act 2007, there was one case in which somebody was killed on their very first day at work. That case shows—although my hon. Friend’s example perhaps illustrates this rather better—that employers owe a particular duty to people with no work experience to speak of who are put in an alien environment and face hazards that they were never aware of before. Indeed, without the appropriate training and proper health and safety precautions being taken, they might not even appreciate the fact that they are in a hazardous environment. My hon. Friend’s first point is therefore about a class of people who need particular protection under the 1974 Act.
My hon. Friend’s second point is about what happens to the prosecution if the employer is not worth a bean. The answer to that is in the Bill: the employer may not be worth a bean, but he can still be locked up if the court concludes that the offence is sufficiently serious to warrant a term of imprisonment.
Ultimately, the Health and Safety Executive would have to form a view, based on the facts of the case, on whether the employer was worth prosecuting, because the decision on the penalty is a matter not for the prosecution, but for the magistrate or the Crown court judge on conviction. The Health and Safety Executive could take the view that the court would be unlikely to impose a custodial sentence, but it would still have the opportunity of a suspended sentence and the range of similar penalties that flow from that. However, I would hope that the availability of a heavier sentence, involving custody, would be an incentive for the Health and Safety Executive to prosecute those cases that would previously not have been worth the candle. My hon. Friend therefore makes an important point.
Before my hon. Friend’s intervention, I was talking about the problem of rogue companies and how the Bill will act as an additional deterrent against them. The difficulty is that the rogue company cuts its costs and undercuts good employers by providing the same goods at a cheaper price, but at the expense of its workers. That is another reason why the additional penalties are so important. They will enable the good employer to compete on a more level playing field against those who take the risk at the expense of their workers.
Mr. Skinner: My hon. Friend prompts me to refer to the fact that the work environment is changing dramatically. As he knows, I used to be involved in the mines. There were about 700,000 workers and we were all unionised; and every pit had compensation agencies. Now people work mainly in the service industry and many firms are private. My hon. Friend referred to rogue companies and all the rest of it. I think there is a minefield out there. That is another reason why my right hon. Friend’s Bill is so important. Does he believe that the Bill can catch all these people now changing the face of the industrial environment?
Mr. Dismore:
My hon. Friend raises an important point. There is no doubt that the nature of employment has changed from heavy industries towards service industries. In accepting that, we need to recognise two things. First, even working in an office is not quite as safe as we may sometimes think. There is repetitive
strain injury and strain induced by using computer screens, along with other hazards that we take for granted—tripping hazards, for example. In the health service, severe prosecutions have been brought in respect of injuries caused to staff. I believe that we have also started to see prosecutions being brought in connection with stress on the work force. A couple of years ago, the Health and Safety Executive brought what I think was the first prosecution of that sort against a health trust somewhere in the west country. I stand to be corrected, but I believe that was the first time a prosecution was brought over stress-related illness.
My hon. Friend is absolutely right about the significant change in the nature of industry, within which a whole new raft of hazards in the workplace, particularly stress-induced health hazards, need to be taken into account. At the same time, in the traditional industries, new machinery and new chemicals are presenting new hazards. Indeed, some of the older chemicals have proved to be hazardous in a way that was not originally understood. The explosion of asbestos claims is a good example. Forty or 50 years ago, people did not think that asbestos was much of a problem; but they do now, and we have seen a raft of similar conditions starting to work their way through the system.
Let me deal with the other issue that arises from what my hon. Friend said. The Health and Safety Executive is responsible for prosecutions in factories and building sites, but prosecution in respect of shops and offices is a matter for the local authority. I am afraid that local authorities are very poor when it comes to the amount of effort and resources they can put into prosecution. My right hon. Friend’s Bill does not draw a distinction between prosecutions brought by local authority enforcement agencies and those brought by the Health and Safety Executive. The Bill provides for stronger sentences under the Health and Safety at Work, etc. Act wherever the offence is committed, but we know from statistics that the prosecutions brought by local authorities are few and far between. That brings me back to my earlier point about publicity, so I hope that my right hon. Friend will ensure that local authority chief executives are notified of these significantly stronger consequences that flow from prosecution, which should incentivise local authorities to take their responsibilities more seriously and bring prosecutions more frequently where appropriate, which they may not have done in the past. I hope that the Bill will incentivise local authorities to step up their enforcement activities more generally. So far, as I said, they have been lax.
The sanction system simply does not provide a suitable deterrent for breaches of health and safety law, so the strengthening of sanctions is long overdue. It cannot be right when implementing health and safety systems can cost more than the fines that apply to them. Unfortunately, the fines are sometimes far less, with the net result that the employer can make more money by breaking the law than complying with it. It cannot be right for that to become simply part of the business risk—an assessment of how much it will cost to fix the machine as opposed to how much it will cost in fines if a finger is chopped off. That must be corrected. The stronger penalties in the Bill will go a long way towards achieving that.
Conscientious companies that take health and safety seriously should not be penalised by rogue companies receiving paltry fines. Profitability should never be part
of the equation, because people’s lives and livelihoods are at stake. In that context, perhaps I might pick up a point that has been made several times today in relation to offences under section 7 of the Health and Safety at Work, etc. Act. The early sections of that Act set out offences, and section 33 relates to prosecution. Speaking from memory, section 7 provides for the prosecution of an employee. It should be borne in mind that the duties in the Act are, of course, not absolute; the duty is only to take steps
“so far as is reasonably practicable”.
That in itself has been a cause of concern to those of us who dealt with health and safety in our previous lives. It is not a very high standard, so we are not asking employers to do a great deal. The provision is not to take steps “so far as is practicable”, which is a higher standard, and it is not the absolute standard that we thought would be imposed under six-pack regulations, which will, in large part, be subject to reasonableness tests.
On section 7 offences, the issue comes down to whether it is appropriate for the employee to be subject to the same penalties as the employer. I take some exception to what my right hon. Friend has proposed in that respect. Should the worker—the building-site labourer—face the same penalty as the multi-millionaire company owner? Is that fair or right? That is not to say that prosecution is not appropriate in the right sort of cases. Only a few dozen cases a year, if that, are prosecuted against employees directly. Usually, they are for more serious breaches such as the persistent refusal to wear goggles, which I mentioned earlier.
It would be very unfair if employees were to be scapegoated and prosecuted for the failings of their employers. The cases that come to mind are one or two of the train crash cases, in which the train driver was prosecuted. I think that my right hon. Friend may be aware of those cases from experiences in his previous life. I think that it was in the case of the Clapham train crash that the train driver was prosecuted. I think that in the end, a long time later, he was exonerated, but I may be wrong about that. Similarly, in the Zeebrugge ferry disaster, employees were prosecuted for the failings of the system imposed by P&O. The ferry disaster is perhaps a better example; the company was prosecuted for corporate manslaughter, and the prosecution failed. However, the ship’s captain and some of the seamen on the ship were prosecuted for offences, which I thought very unfair. It would be a bit disproportionate if they were to face significantly higher penalties as a result of my right hon. Friend’s Bill, but of course I would not oppose his Bill just because it raised that concern. The fact is that an employee on indictment could still face significant penalties.
Laura Moffatt: Does my hon. Friend not agree that if employees were exempted under the Bill, it might be likely that an employer would come to an arrangement with an employee whereby the employee would say that an incident was their fault? The employer could therefore escape prosecution.
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