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Session 2007 - 08 Publications on the internet General Committee Debates Health and Safety (Offences) |
Health and Safety (Offences) Bill |
The Committee consisted of the following Members:Chris Shaw, Committee
Clerk
† attended the
Committee
Public Bill CommitteeWednesday 26 March 2008[Mr. Greg Pope in the Chair]Health and Safety (Offences) Bill9.30
am
The
Chairman:
Before we begin our consideration of the Bill, I
have a couple of announcements to make. First, Members may remove their
jackets if they so wish during Committee proceedings. Secondly, I
remind Members to switch phones, pagers and BlackBerries to silent
during meetings of the Committee. I also remind Members that adequate
notice should be given of amendments. As a general rule, I do not
intend to call starred
amendments.
Clause 1Health
and safety offences: mode of trial and maximum
penalty
Question
proposed, That the clause stand part of the
Bill.
‘After
section 33 of the Health and Safety at Work etc Act 1974, there is
inserted—
“33A
Fines
(1) The level of the fine
imposed, subject to the maximum stipulated in Schedule 3A, shall be
determined by, amongst other relevant considerations, the financial
assets and income of the person or employer
concerned.
(2) The maximum
fines in Schedule 3A shall, by order made by statutory instrument, be
increased, on 1st January, annually by the increase in the general
level of earnings for the year to the previous 31st
March.”’.
Keith
Hill (Streatham) (Lab): Before going on to make detailed
remarks about the Bill, may I say that I am almost speechless with
pleasure at the thought of serving under your chairmanship,
Mr. Pope? I retain my original awe at the concept and
appearance of Chairmen of Committees from those days in 1992 when we
entered Parliament together, and I am certain that you will preside
over our deliberations with magisterial impartiality, notwithstanding
the fact that you are one of my oldest and closest friends in the House
of Commons.
Clause 1
is by far the most important of the three clauses in this short Bill,
because it brings in schedule 1, as well as schedules 2 and 3, which
replace the penalty provisions of section 33(1A) to (4) of the Health
and Safety at Work etc. Act 1974, and also sets out the mode of trial
and maximum penalties for health and safety offences listed in section
33(1)(a) to (o) and for offences under existing statutory provisions
where no other penalty is
specified.
Perhaps I
might take this opportunity to set out how the Bill changes the present
arrangements, and the background to the changes. I shall also say a few
words
on the higher fines proposed in new clause 1. The hon. Member for
South-West Bedfordshire may wish to raise some wider issues in respect
of the proposed penal regime, and I shall, of course, be happy to
respond to his
remarks.
Three changes
to the present arrangements are set out in the Bill. First, the maximum
fine that may be imposed by the lower courts is raised to
£20,000 for most offences. Secondly, imprisonment becomes an
option for most health and safety offences in both the lower and the
higher courts. Thirdly, two further offences become triable in either
the lower or the higher
courts.
The
Bill increases the sanctions available for offences under the 1974 Act.
The call for increased sentencing under health and safety at work
legislation has two origins. Over the years, there have been repeated
expressions of frustration by the courts at their inability to impose
custodial sentences for health and safety offences. Secondly, wide
consensus has developed among all interested
parties—stakeholders, as they are now known—that tougher
sentences are
required.
That
consensus emerged from 1999 to 2000 in the consultations leading up to
the publication in June 2000 of the “Revitalising health and
safety” strategy statement by the former Department of the
Environment, Transport and the Regions. Paragraph XIX of annexe A to
the document
states:
“The
question of what penalties should be faced by those who breach health
and safety law received the highest number of responses. The
overwhelming message was that the current level of penalties is
inadequate (only 7 per cent. considered the current system to be
satisfactory).”
Indeed,
paragraph 59 in the main part of the strategy statement announces a
measure with proposals for higher and lower court fines and the wider
availability of imprisonment as the Government’s response to the
consultation.
That
measure has been introduced five times in different forms. Naturally I
am hoping that this will be fifth time lucky. Clearly, the Bill is
supported by the Government, and by the Health and Safety Commission
and by the Health and Safety Executive, both of which have maintained
their belief in new or enhanced sanctions over a period of years. More
recently, the Bill’s purposes of toughening up the sanctions
available under legislation has received support from two reports
prepared for the Government: the Hampton report entitled
“Reducing administrative burdens: effective inspection and
enforcement”, which was published in March 2005; and the
successor Macrory report entitled “Regulatory Justice: Making
Sanctions Effective”, which was published in November 2006.
There has remained wide acceptance of the case for tough
penalties.
I
acknowledge that both the Engineering Employers Federation—the
manufacturers’ organisation—and the CBI have reservations
about the custodial aspects of the Bill, but I detect a fairly wide
measure of support for its principles. In its note on the Bill, the EEF
states that its
members
“support the
principle of serious penalties for serious
offences”,
and the CBI
note states that
it
“supports the
principle behind this Bill to bring penalties for breaches of specific
duties to safeguard health and safety in line with general duties, and
to bring the penalty framework for health and safety offences in line
with other offences.”
I am grateful for that support.
The CBI is right on both counts. One effect of the Bill will be to
bring the maximum fines under the health and safety legislation into
line with those already available under comparable regulatory
legislation—for example, environmental and food safety
legislation. A second effect will be to increase the maximum fine in
the lower courts for specific breaches of regulations from
£5,000 to £20,000, which is the level available for
breaches of general duties under sections 2 to 6 of the Act and on the
reasonable grounds that such breaches may be just as serious as
breaches of general
duties.
Let
me make a further point about the reasonableness of the provisions. The
maximum fine of £20,000 does not go beyond the limit set as long
ago as 1992, under the Offshore Safety Act 1992. In addition, the new
maximum of £20,000 is not sought for all
offences—specifically not those committed by individuals, which
will continue to be subject to the maximum in the standard scale of
charges. Let me also point out that, while the Bill raises the fines
imposable in the lower courts for most health and safety offences,
there are no changes in the higher court fine, which is
unlimited.
The purpose
of the higher fines is more effective deterrence. As Philip Hampton
recognises in his report, to deter irresponsible behaviour and to
encourage compliance with the law, penalties need to be high enough to
eliminate the gain from breaking the law. He states the general
position
thus:
“Illegal
operators have incentives to undercut honest businesses, partly because
penalties are low absolutely, but more worryingly because penalties
imposed often do not reflect the commercial advantage a business has
gained from
non-compliance.”
Philip
Hampton has no doubt about the inadequacy of current penalties under
the Health and Safety at Work etc. Act
1974:
“In
2003-04, the Health and Safety Executive prosecuted 1,756 cases, with
an average fine on conviction of £4,036 in magistrates’
courts, and £33,036 in Crown Courts. The deterrent effect of
such fines is likely to be low. For any company other than the
smallest, a £5,000 fine is likely to be an insignificant
sum.”
That is why
recommendation 6 of the Hampton report states that maximum fines in the
magistrates courts should be increased and, under recommendation 7,
fine levels should take account of the economic benefit gained, which
is what we are doing under the
Bill.
It is in the
context of the expectation of higher fines and more effective
deterrence that I turn to new clause 1 and proposed new section 33A(1)
of the 1974 Act. Although I expect the courts to impose higher fines
generally as a result of the Bill, I would not expect them to be so
high as to ruin an offending company. However, I have no doubt that, in
some cases, the risks created and the injury or damage to health will
be so great as to justify such a course of action, but that will be
rare.
As for the
financial assets and income of the person or employer concerned, the
consultation paper on the sentencing guidelines for the Corporate
Manslaughter and Corporate Homicide Act 2007 states:
“It is common practice
for an organisation to supply its accounts to the court in order to
demonstrate its ability to pay a fine for an offence under the HSWA, as
otherwise the court is entitled to assume that the organisation can pay
any fine it chooses to impose.”
With regard to an individual, not a
company, the court is under a duty to inquire into his or her financial
circumstances before fixing the amount of the fine. Moreover, in order
to obtain information about the financial circumstances of a defendant
who is an individual, the court has the power to make a financial
circumstances order, requiring the defendant to give that information
to the court. I expect the courts to impose a fine that, in their
opinion, reflects the totality of the offence, taking into account all
relevant details, including the financial circumstances of the
defendant.
With
regard to corporate defendants, I expect the approach to be that set
out by the Court of Appeal in Regina v. F. Howe & Son
(Engineers) Ltd. in 1999:
“The objective of
prosecutions for health and safety offences in the workplace is to
achieve a safe environment for those who work there and for other
members of the public who may be affected. A fine needs to be large
enough to bring that message home where the defendant is a company not
only to those who manage it, but also to its
shareholders.”
The
court stated that a fine should not, in general, be so large as to
imperil the defendant’s continued trading. However, there might
be exceptional circumstances in which a defendant ought not to be in
business. The court has to look at the whole sum—fine and
cost—that it has ordered the defendant to pay and to consider
the impact of that sum. That seems characteristic of the reasonableness
and proportionality of the approach adopted in health and safety cases
both by the courts and the prosecutors over the years, and I expect it
to continue. I hope that I have reassured the hon. Member for
South-West Bedfordshire (Andrew Selous), and that he will not press his
new clause to a
Division.
New
clause 1 would insert proposed new section 33A(2) into the 1974 Act.
The provision deals with the annual uprating of fines with which I feel
an instinctive sympathy, but I cannot support it for two reasons.
First, it is about primary legislation about which I obviously cannot
make any commitments and, secondly, it is important to recognise that
the new higher levels of fine proposed under the Bill represent far
more than a simple uprating in line with inflation. They represent a
statement by Parliament that we are now ready to see a step change in
the direction of tougher enforcement in health and safety offences, as
a simple uprating in line with inflation would put the maximum fine
imposable by the lower court at £6,500. The Bill will increase
it to £20,000, which is a qualitative as well as a quantitative
change. It is in line with the strong consensus in favour of tougher
sanctions represented by earlier consultation on “Revitalising
health and safety” and reflected subsequently in the Hampton and
Macrory
reports.
9.45
am
Andrew
Selous (South-West Bedfordshire) (Con): I am puzzled by
what the right hon. Gentleman said about proposed new section 33A(2)
limiting the increase in fines to £6,500. The intention behind
the proposal was to index the higher sum of £20,000 in the Bill
so that we do not have to come back to Parliament to uprate the figure
in years to come. That was certainly the intention. If I did not make
it clear, I apologise to the right hon.
Gentleman.
Keith
Hill:
I am grateful to the hon. Gentleman, and I
absolutely take his point. Although I have some instinctive sympathy
with the proposal, I am unable to
it, because it requires primary legislation, about which I can make no
commitments. If we were simply in the business of uprating fines under
existing legislation through this Bill—there have been no
changes in the level of fine or standard scale of charges since 1992,
which is surprising—we would be considering a 30 per cent.
increase in the fine to allow for inflation, which would take it to
£6,500. We are in fact doing a good deal more than that. We are
making a qualitative change, by making a large-scale increase in the
level of fine, to reflect a change of consensus in our attitude towards
health and safety offences. I hope that that satisfies the hon.
Gentleman.
Andrew
George (St. Ives) (LD): I assume that the right hon.
Gentleman wishes his Bill to be inflation-proof, or would rather that
in years to come, we do not have to revisit the merits of having this
legislation in the first place. Surely, it would be advantageous if
such an amendment could be introduced to make this legislation
inflation-proof. Is the right hon. Gentleman telling the Committee that
he is not able to accept the new clause for some procedural reason that
the rest of us do not follow?
Keith
Hill:
I am grateful to the hon. Gentleman for his
intervention. Let me say in passing that I am grateful to hon. Members
from all constituencies for their attendance at this Committee. Let me
get that on the record in the event that I do not have the opportunity
to say it later.
Let
me reiterate the point that although I completely sympathise with the
notion that we need to uprate fines in line with inflation—and I
reiterate my surprise that changes have not been made to fines for some
15 years, including fines under the wider criminal justice
system—such a move is a matter for primary legislation to which
I cannot make a commitment in this Bill. However, if my hon. Friend the
Minister wishes to elucidate the matter further, I would be delighted
to accept a
reappraisal.
The
Parliamentary Under-Secretary of State for Work and Pensions
(Mrs. Anne McGuire):
Given what my right hon.
Friend said about an inflation-linked approach, does he accept that by
setting the limit at £20,000, it sets a fine level that would
not become inadequate for a considerable distance in future? It would
be very unusual if we incorporated into the Bill something that
inflation-linked the fine. Most other Acts—probably all other
Acts—set fines at a fixed level, at a fixed point in time, so
the provision would put this Bill outwith the normal procedure for
setting fine limits.
Keith
Hill:
I am grateful to my hon. Friend, who puts the
measures into context by telling us how successive Governments have
approached the issue of setting fine levels and of operating fines over
a
period.
Mr.
Jim Devine (Livingston) (Lab): I have listened to the
arguments. If £20,000 is the limit today, and if my right hon.
Friend has attempted to take five Bills
through the House, in 15 years’ time and perhaps after a further
five or six Bills, his successors may try to put this through, so why
should the £20,000 not be inflation-
linked?
Keith
Hill:
Again, I am exceptionally grateful to my hon. Friend
for his intervention. He reflects the Committee’s general
frustration at the approach to such matters, but it is a matter of the
Government’s response on these cases. If at a future date it
becomes necessary to intervene further on the level of fines for health
and safety offences, I am certain that my hon. Friend will be happy to
pick up the baton that I now metaphorically deposit in his hand. As he
knows, I shall not be here to take up such matters in future
Parliaments.
Mr.
John Heppell (Nottingham, East) (Lab): I understand why
hon. Members want the fine to be inflation-linked, but the
administration could be an awful burden, and it could be difficult to
achieve clarity. It is easy for people to understand a summary penalty
of £20,000. If it were linked to inflation, it could become
£20,100 next year, and then £20,220. It would change
every year, and the silly situation would be that people would not know
what the top-level fine is. It is much more sensible and much less of
an administrative burden to leave it as it
is.
Keith
Hill:
I am grateful to my hon. Friend, another of my
oldest and closest friends in the House, for coming to my rescue. I
thank him for his wise words, which I hope will at least offer some
explanation and satisfaction to the
Committee.
I shall
conclude my observations on new clause 1. I was explaining why the
levels of fines represent a qualitative change in our approach to
penalties for health and safety offences. In fact, that reflects an
inclination, which has grown in the courts, both higher and lower, to
impose higher fines over time. For example, in 1990-91, the average
fine per conviction, excluding fines over £100,000, stood at
£728. By 2006-07, it had risen to £8,723 for both courts.
By my calculation, that is an eightfold real-cost increase that is way
beyond inflation
levels.
The Bill
provides scope for yet higher penalties specifically by raising the
maximum available to the lower courts, where the great majority of
health and safety cases continue to be prosecuted. Having said that,
the hon. Member for South-West Bedfordshire made the tempting offer of
an annual uprating, but I am content to resist the proposal for all the
reasons
given.
Andrew
Selous:
It is a pleasure to serve under your chairmanship
again, Mr. Pope. I am pleased that the Bill is being
considered in Committee, and I am grateful for the collegiate way in
which the right hon. Member for Streatham has talked to me, and no
doubt to other hon. Members, in getting the Bill this far. I am
grateful for his comments on new clause 1, and I shall deal first with
that before coming, if you will allow me, Mr. Pope, to a
range of issues on clause stand part. Clause 1 is the guts of the Bill,
and we need clarification on some important issues of the Bill’s
application.
I am reassured by what the right
hon. Gentleman said about proposed new section 33A(1). He
referred to the sentencing guidelines on the Corporate
Manslaughter and Corporate Homicide Act 2007, and the way in which
courts take into account the financial ability of a business or
individual to pay a fine. I hope that that will provide similar
reassurance about the way in which fines are levied in relation to this
legislation.
I hope
also that the cost to the business of rectifying the deficiency that
caused the health and safety breach will be taken into account. Paying
a fine is one thing—we all accept the reason for fines and their
importance as a deterrent—but we must remember that the first
and most important thing that the business needs to do is to buy and
install the necessary safety apparatus, such as railings or harnesses,
to ensure that its workers are safe. When the right hon. Gentleman
replies to the debate, will he say something about courts taking into
account the cost of rectifying the relevant deficiency, as well as the
ability of the business to pay the
fine?
I
listened with interest to the comments on my proposed new section
33A(2), and I sense that I am sailing against a wall of some
impenetrability in trying to do something quite reasonable and
sensible. It seems as though I am simply being told, “We
don’t do it that way in Parliament.” I think it a good
and sensible idea, but I sense that I shall have to hoist the white
flag here and now, as I am not going to get far. However, I put down a
marker to the Minister: I do not think that saying, “We
don’t do it in other Bills, so it would be wrong to do it
here” is a real reason. There is merit in my proposal, and it
might be right to do it both here and elsewhere. Money has a real
value, and inflation destroys the value of money over time. As the hon.
Member for Livingston, who obviously studied his economics carefully at
school, rightly told the Committee, £20,000 will not be worth
what it is now in several years’ time.
I flag this as a general issue:
what is the most efficient way to ensure that we are not all coming
back to debate endless statutory instruments on simple annual
upratings? We should ensure that, when Parliament sets a fine, it
maintains its real value over time. That is all I seek to do. I shall
not press the new clause to a Division. We have debated this issue, and
if other hon. Members want to return to it on Report, or in another
place, they have the option of doing
so.
Moving to the
stand part debate on clause 1, hon. Members will have before them
copies of new clause 2. I assure you that I shall not discuss that new
clause in detail, Mr. Pope, as it has not been selected for
debate. I understand from my conversations with those in the House who
help Opposition Members that it was not selected because of proposed
new section 33B(1), but that proposed new section 33B(2) would have
been selectable if it had been tabled on its own.
Proposed new section 33B(2)
raises a general issue that applies to clause 1: I should like to know
why we are seeking to impose a penalty of imprisonment for nine
offences for which it was not a penalty before. Eagle-eyed members of
the Committee might spot that the reasons given in paragraphs (a) to
(d) come directly from the regulatory impact assessment of the Bill. At
paragraph 30 on page 5, the RIA
states:
“Imprisonment
is likely to continue to be confined to health and safety cases which
would be likely to cause public outrage”.
Then it lists four
examples. It refers to cases involving recklessness about the
possibility of serious harm; deception intended to undermine
enforcement; deliberately creating serious risks with a view to profit;
and serious neglect leading to major injury or
death.
10
am
I do not think
that any member of the Committee would quibble with any of those four
reasons for allowing a prison sentence to be imposed, but the fact is
that under the bald legislation—it will be the law if the Bill
completes all its stages—it will also be possible to impose a
prison sentence on summary conviction for much lesser offences. We are
talking about a prison sentence being imposed by a magistrates court,
without a jury. For example, it would be possible to send someone to
prison for the failure to display a health and safety poster. I am not
saying for a moment that the courts have gone down that route in the
past.
Since 2005,
there have been, I believe, only six cases in which people have been
sent to prison for health and safety offences, as I am sure the right
hon. Gentleman and the Minister will rightly point out, so the rate is
running at about two cases a year. However, given that we are widening
the scope of the offences for which people can be sent to prison, it is
very important that we have a reassurance that the courts will
proportionately and properly use the power that they have asked for and
that we will give to them. That is what was behind the part of new
clause 2 that would have been in order if it had been tabled on its
own. Thank you for letting me explain that in detail, Mr.
Pope.
A further issue
has been raised with me by one of the outside interest groups that have
commented on the Bill. It relates to the general issue of imprisonment
on conviction for a health and safety offence of a body corporate.
Clearly, if a body corporate is found guilty of a health and safety
offence, we cannot send the company to prison; we have to send an
individual. The question, particularly in respect of a large company,
is whom we send and whether we are certain that we have the right
person.
Let me give an
example. A large engineering company has a director of health and
safety on its board. I am talking about a named board director, a main
board director, who has overall responsibility for health and safety.
That individual has been absolutely upright and honourable in the
course of his or her duties and has moved heaven and earth, within that
business, to ensure that health and safety have top priority.
Underneath that individual director, down the line of management, an
individual manager has gone to extraordinary lengths to conceal his or
her dereliction of duty in not taking health and safety seriously and
behaving properly. The individual director could not reasonably have
done more than he or she did to ensure that health and safety
legislation was properly enforced throughout the business, but an
individual manager had been deceptive in covering up breaches of health
and safety.
Will the
main board director—who is perhaps the person in the newspaper
headlines, the person who comes to national attention after a major
health and safety incident—be imprisoned, even though they may
have done all that they reasonably could have done to prevent a health
and safety offence? How will we be
certain, under this legislation, that we are imprisoning the person who
should go to prison for the breach, rather than someone who should not?
Thank you again, Mr. Pope, for indulging me by allowing me
to give that example. I seek reassurance from the right hon. Gentleman
and the Minister on that
issue.
The regulatory
impact assessment refers hon. Members to the Health and Safety
Commission’s excellent enforcement policy statement—I do
not know whether other hon. Members have read it—which contains
reassuring phrases about proportionality. On page 6, that document says
that offences
“should be
proportionate to any risks to health and safety, or to the seriousness
of any breach, which includes any actual or potential harm arising from
a breach of the law.”
We
all want to see that. The RIA also refers to a document called
“Enforcement Concordat”, published some years ago by the
then Department of Trade and Industry, which mentions the
importance of proportionality in sentencing and says, on page
26:
“in some instances
the circumstances of an infringement and the enforcement body’s
own policy will mean that prosecution is a disproportionate form of
action to deal with the
matter.”
Hon. Members are
referred to general reassurance in those two current documents. I am
pleased that those two documents offer reassurance on
proportionality.
The
right hon. Gentleman mentioned in his earlier remarks the sentencing
guidelines on the Corporate Manslaughter and Corporate Homicide Act
2007. The Engineering Employers Federation—the right hon.
Gentleman has already commented with approval on his dealings with the
EEF—has requested sentencing guidelines to be given to judges
and magistrates to ensure that proportionality, which is crucial, is
tied down, so that those who have genuine worries about the application
of the Bill can be properly
reassured.
It is worth
commenting in passing, as the right hon. Gentleman did in his speech on
Second Reading, on a possible breach of the European convention on
human rights in terms of the Bill’s imposing imprisonment on the
basis of the reverse burden of proof, which is different from the
general presumption in English law, where people are presumed innocent
and it is up to the prosecution to prove that they are guilty. Under
the Bill, on an allegation of an offence, where a duty of care is owed
and where the matters were within the personal control of the
individual, there is a reverse burden of proof. The explanatory notes
helpfully go into some detail, on page 4, on this
issue.
I am not a
lawyer. I hope that the Government have taken the best legal advice
available to them on this point, because the legal comment—I
will not say advice—that has been passed to me from outside
organisations has expressed surprise about this issue, and perhaps
further assurance could be given. From my point of view, the
explanatory notes are reasonable and sensible. However, it would be
useful if the right hon. Gentleman or the Minister, when she replies,
reassured the Committee about how the process will work in the British
legal system, in respect of the European Convention on human
rights.
In conclusion,
I ask the right hon. Gentleman in particular to respond to the call for
sentencing guidelines from the Engineering Employers Federation and
others. He paid tribute to the EEF’s motives and
its overall approach to the Bill. It has a reasonable concern in raising
such issues. If he addressed the point raised by the EEF and the CBI,
it would go some way to strengthen and help bed down what I believe
will be an important piece of legislation, but one which needs to be
properly, sensibly and proportionately
applied.
Andrew
George:
It is a pleasure to serve under your chairmanship,
Mr. Pope. I was conscious that anyone looking at the Bill
superficially might fear that it was simply an extension of the nanny
state and another means of adding to overcrowded prisons through
legislation. The right hon. Gentleman’s opening remarks will
have reassured people that this is a sensible measure, and I support
it. I entirely endorse the contribution of the hon. Member for
South-West Bedfordshire and new clause 1. I am disappointed that he
suggested he would wave a white flag on the inflation linking in
proposed new section 33A(2). I still do not entirely understand why the
right hon. Gentleman and the Minister in her earlier intervention gave
the impression that that would not be acceptable on this or on any
other occasion on which legislation might be introduced.
At the
moment, we live in relatively economically benign circumstances, thanks
to Liberal Democrat policy: the Government adopted in 1997 the
copyrighted Liberal Democrat manifesto commitment to create an
independent Bank of England, which has created the framework for the
present settled economic circumstances. If that were not the case, we
would not have Zimbabwe-style inflation, but we would to need to
revisit this issue regularly. It seems absurd that the upper limit of
many of the fines that might be imposed under such legislation need to
be revisited regularly. Given the current situation, perhaps we can be
relaxed over a 15-year period. As the hon. Member for Livingston said
in his intervention, it may take five or six attempts before we can
revisit the issue once again. Who knows how small an impact that might
have relative to the effects of inflation over
time.
The
Minister argued that it would seem inappropriate to take account of
inflation because that is not done in respect of other legislation.
Just because the same mistake has been made in other legislation does
not mean that we need to perpetuate that approach, which I think is
fallacious in any case. The hon. Member for Nottingham, East said that
it would be unfair if those who committed an offence did not know what
fine might be imposed on them and that it might be £150 more
than they expected. That is a rather weak
defence.
10.15
am
The point that I
was trying to make was that in reality, the £20,000 limit would
remain, because the courts would not impose a fine of £20,300;
the following year, it would be £20,450. It would almost
certainly not be the case that the clerks in court would start working
out percentage rises each year after the legislation was passed. It
would be much more sensible to have a round figure, so that people and
the courts would know what it was. There would be much greater clarity
than the notion of it going up by
inflation.
Andrew
George:
I am sure that that is right, and that common
sense would prevail. There must be a way of finessing the arrangement
so that we would not have to offer small-change answers and provide for
the constant regularising of the bureaucracy surrounding minor
amendments to the fines. Over a period of time, those figures could be
rounded up without bringing the matter back to Parliament. I am
disappointed that we cannot use this as an opportunity to look again at
the concept of inflation-linking such a fine base, particularly when
considering maximum fine levels. Other than that, I endorse the remarks
made by the hon. Member for South-West
Bedfordshire.
Dr.
Alasdair McDonnell (Belfast, South) (SDLP): Like other
hon. Members, I would like to express my sense of privilege and
pleasure in serving on the
Committee.
I shall be
brief, as much has already been said, and many considerations covered.
However, this matter is extremely important, particularly to those who
have suffered as a consequence of health and safety failures. I am
concerned that the Bill affects only England, Scotland and Wales, and I
question why it has not been extended to Northern Ireland, or why
Northern Ireland is exempt, because there are serious problems with
health and safety failures
there.
There
was a particularly bad accident in the last couple of weeks, in which
scaffolding and a new building collapsed. Concrete was being poured on
to the top floor, and the whole thing collapsed in a concertina effect
through the building. Six building workers were trapped and seriously
injured underneath it all. Someone must be responsible. Luckily, none
of those people died, although they were badly injured and still have
not recovered.
Perhaps
I should have tabled an amendment, but I am keen that the Bill should
be extended to include the safety of our building workers and others in
Northern Ireland. It is an extremely important issue, and we do not
want a lower standard of health and safety than is enjoyed in the UK
generally.
Mr.
Robert Syms (Poole) (Con): May I first declare an interest
as a director of a family building and property
business?
I broadly
welcome the Bill. From what we have heard today, the vast majority of
employers in this country are responsible. In fact, there are
relatively few prosecutions. We should all be thankful for that,
because, as the hon. Member for Belfast, South mentioned, the
consequences of injury are not only physical pain, but economic
dislocation for many of the people who are affected. We have all seen
such examples in our constituencies. In my experience as an employer,
it was not necessarily employers who had difficulty, as sometimes it
was long-term workers who were trying to persuade them of the benefits
of changing the way in which they
worked.
As the right
hon. Member for Streatham said, it is time for a step change, not least
because there has been a major change in the work force, with
600,000-odd people from eastern Europe coming in. That raises all sorts
of other matters, and I hope that I am not straying too far from clause
1. It is appropriate not only for the legislation to be passed, but for
the Health
and Safety Executive to run a publicity campaign about the higher level
of fines. I disagree with my colleagues about the £20,000 fine.
As I understand it, the £20,000 is the maximum amount, and
£20,000 is far easier to impart in a publicity campaign. At the
end of the day, we do not want to prosecute people, but to deter them
so that they make proper risk assessments. That way, people will not be
injured and they and they families will not have years of misery as a
result.
I broadly
welcome the Bill and the £20,000 upper limit. I have a few
concerns about sentencing, to which my hon. Friend the Member for
South-West Bedfordshire referred. That problem could be overcome by
giving guidelines to lower courts, as the Engineering Employers
Federation proposes. It is important to use a higher level of fine to
publicise the requirements so that people have another look at how they
are doing things. That will show the many millions of people who work
in the UK that they must do everything in their power to deliver a safe
workplace, because anything else is
unacceptable.
Mrs.
McGuire:
Like other hon. Members, I should like to say
that it is a pleasure to serve under your chairmanship, Mr.
Pope. Having served alongside you shoulder to shoulder in the
Government Whips Office, I now have a more interesting relationship
with you in this context this morning. I also add my congratulations to
my right hon. Friend on being the fifth and, I hope, the first
successful promoter of such a Bill. We certainly have great hopes that
it will become an Act, and I thank him for piloting it
through.
It
is obviously not my responsibility to reply to the debate, as that
honour falls to my right hon. Friend, but I want to pick up on a couple
of issues that have been raised and are appropriate for me to deal with
as the Minister. The hon. Member for South-West Bedfordshire, as usual,
drew some exaggerated examples, but I know that he often exaggerates to
make a point, so I will clarify a couple of them. He raised the spectre
of an individual being imprisoned for failing to display a health and
safety poster. I hope that the Committee accepts that the Health and
Safety Commission has a targeted and proportionate enforcement policy,
and therefore a case would not be taken against a director for failing
to display such a poster. In addition, the sentencing guidelines would
indicate a small fine for failure to display important health and
safety posters. I appreciate that the hon. Gentleman often uses such
exaggerated examples to illustrate his point, and I hope that that
explanation gives him some confidence.
The hon.
Gentleman also raised the issue of ECHR compatibility. I am sure that
both he and my right hon. Friend will have confidence that, as part of
the clearing for the Bill, the LP Committee and the Government’s
legal advisors looked carefully at the compatibility with human rights
legislation and advised us that the proposals are acceptable. That is
set out in the explanatory notes, and that is why the Government
support the
Bill.
Mrs.
McGuire:
It is the Legislative Programming
Committee—my apologies for using its shortened name.
I want to set
the issue of fines into some sort of context, which will link with a
number of comments that have been made. As my right hon. Friend
indicated in his contribution, if the maximum fine had kept pace with
inflation, there would have been a 30 per cent. increase from the
£5,000 that was set in 1992. Over those 15 years, we had five
years of Conservative Government in which the stability of the economy
was not quite as great as it has been in the past 10 years, thanks to
Labour’s stable economic policy. If the fine were to keep pace
with inflation, which only rose by 30 per cent. during that period, I
estimate that it would take roughly 50 to 60 years before it reached
the £20,000 figure. That should answer the question asked by the
hon. Member for St. Ives. I estimate that even my hon. Friend the
Member for Livingston would probably not be here to take up the baton
that my right hon. Friend so generously gave him earlier in the
debate.
The ceiling on
the fine has been pitched so far ahead that it will more than keep up
with any inflationary pressures, and it will certainly keep up with the
benign stability that we in government anticipate for the next 50 years
under a Labour Administration. I hope that that gives some comfort to
the hon. Member for St. Ives. He will not be here after two or three
years, trying to ensure that the fine keeps up with inflation. I know
that he is a young man, but I suggest generously to him that it might
be his successor’s successor who would be here to consider
that.
This is an
excellent Bill, and as had been mentioned, this clause is the core of
the measure. Once again, I offer the Government’s support to my
right hon. Friend in pursuing this
legislation.
Keith
Hill:
Let me again express my gratitude to all hon.
Members for their attendance and contributions. I shall consider the
speeches we have heard in reverse order, and conclude by looking in
wider terms at the issue of custodial sentences because I recognise
that that is a serious issue. I am grateful to my hon. Friend the
Minister for her remarks on human rights, specifically on the European
convention on human rights.
On the reverse burden of proof,
which was raised in the note by Network Rail on the Bill, may I tell
the hon. Member for South-West Bedfordshire that the Government have
taken the best advice. There is a detailed explanation in the
explanatory memorandum and I am content that, as far as possible, the
measure is ECHR-proof. I am grateful to my hon. Friend the Minister for
her observations on the inflationary aspects of the measure. For one
moment of deep anxiety, I thought that we were teetering on the brink
of a breakdown of consensus, but she drew back from the precipice and
made an excellent point about the way in which, in relation to the
level of fines, the legislation will keep up with inflationary
pressures for many years to come. It has always been my experience of
Committee that issues are picked up completely out of the blue, acquire
a life of their own, and dominate proceedings. I certainly never
imagined that inflation-proofing, however good an idea it is, would
acquire such significance. However, I hope that we have offered an
adequacy of explanation for why the new clause should not be included
in the Bill.
I am grateful
to the hon. Member for Poole, who is an old adversary in Committee.
Over many years, we faced each other in Standing Committee as Minister
and shadow Minister, and dealt with a succession of measures. He is a
metaphorical adversary, but he is also a friend. I welcome his support
for the Bill. I was interested in his comment that sometimes employers
might find it difficult to persuade long-term employees of the
desirability of making changes. In preparation for the Bill, I took the
opportunity to read the Second Reading of the Health and Safety at
Work, etc. Bill in 1974. It makes fascinating reading. The Bill was
introduced by Michael Foot, and it was Willie Whitelaw who replied to
it. In fact, most of the legislation had been prepared by the preceding
Conservative Administration. The new Labour Government added the
provision for trade union health and safety representatives, which is a
first-class idea that has stood the test of time and on which there is
consensus. Interestingly, there was no Division on the Bill on Second
Reading.
10.30
am
I take the
point about accession state workers, and I accept the case for a
publicity campaign on the Bill’s provisions, if they are
enacted. The Government, the HSE and employers’
organisations—if I can say so, from my conversations with
them—would be keen to do that. The hon. Member for Poole
mentioned sentencing guidelines, and I shall discuss those in due
course. I welcome the support of my hon. Friend the Member for Belfast,
South. I was interested in his suggestion that the measure which, as
reserved legislation applies to Scotland and Wales as well as to
England, should be extended to Northern Ireland. I undertake to make
the most vigorous representations possible to secure such an extension,
which I am sure would be welcomed by all parties in the
House.
I
am grateful to the hon. Member for St. Ives for his intervention,
specifically for his recognition that this is not a nanny-state
Bill—we talked about that outwith the confines of the Committee.
Let me reiterate that the measure introduces no new regulations and no
new compliance costs, and it will penalise only the lawbreaker. Indeed,
there is a theory that greater deterrence can promote a lighter-touch
inspection regime. I have already dealt with the hon.
Gentleman’s point about inflation-linking, which has received
adequate ventilation in
Committee.
I turn now
to the intervention by the hon. Member for South-West Bedfordshire,
about whether the level of fines take into account the cost of
rectifying the deficiency that has been identified. I can do no better
than return once more to the judgement of the Court of Appeal in the
case of Howe in 1999, which stated
that
“a fine should not,
in general, be so large as to imperil the defendant’s continued
trading.”
There
may be exceptional cases in which a defendant ought not to be in
business. Let me offer the Committee reassurance by saying that Howe
constitutes part of the sentencing guidelines issued to the higher
courts under health and safety legislation. I will come to that point
in due course. I hope that that reassures the hon.
Gentleman.
In my
concluding remarks I will deal with the prosecution of individuals and
how we know that we have the right culprit, as it were. However, let me
end
the debate on clause 1 and new clause 1 by reminding the Committee of
the answer to the question of why we are extending imprisonment to a
greater range of offences under the Bill—an issue that the hon.
Gentleman raised in the bulk of his contribution. The answer is that we
now have a history, going back to the mid-1990s, of judges expressing
discontent precisely at their inability to impose jail sentences for
health and safety offences. Indeed, in my speech on Second Reading I
cited the case, mentioned by my hon. Friend the Member for High Peak
(Tom Levitt) in a recent Adjournment debate, of a judge in the
Nottingham Crown court who complained that he could only fine a man
whose negligent work had led to two deaths from carbon monoxide
poisoning. In 2006, in another carbon monoxide case, a judge in
Bradford Crown court said of a cowboy gas fitter named Paul
Regan:
“The
family were put at risk of death by poisoning or explosion. I
wouldn’t allow you within 150 miles of my house. You should go
to prison for 18 months but as it is I can only fine
you.”
In
1999, a judge complained about his inability to imprison two so-called
company directors for employing children illegally in an
asbestos-stripping contract. In the circumstances, all that he could do
was give the pair a community service sentence. The Bill would make
imprisonment available as a sentence for illegal child employment in
factories. In 1996, following a methane gas explosion at a coal mine,
in which two workmen were badly burnt, the mine manager was found
guilty on five counts concerning the management of the mine,
ventilation and explosives use. The judge expressed surprise that fines
were the only penalty available considering the seriousness of the
offences. There are cases going back to 1994, in which judges have, on
occasion, invited Parliament to consider the possibility of making
custodial sentences available more widely.
I do not claim that there have
been many occasions on which the courts have expressed frustration
about the absence of custodial sentences for health and safety
offences, but there have been enough to justify extending the
provision. The regulatory impact assessment accompanying the Bill,, to
which the hon. Member for South-West Bedfordshire alluded, draws
attention to the infrequency with which individuals are prosecuted for
health and safety offences. It records that between 2005 and early
2008, only six people have been sent to prison for health and safety
offences. Our expectation is that that might double to three or four a
year if the Bill is enacted.
A certain amount of attention
has been directed towards the extension of the imprisonment sanction to
the lower courts. In one briefing, that was described as a denial of
the right to jury trial. However, lower courts may already impose a
custodial sentence for failing to comply with an improvement or
prohibition notice, a court remedy order or a number of offshore
offences. The option of imprisonment is available under other
regulatory legislation, including the Environmental Protection Act
1990, the Water Resources Act 1991 and the Food Safety Act 1990. I
share my hon. Friend the Minister’s slight irritation at the
suggestion in another briefing that the option of imprisonment would
apply to a failure to display a health and safety notice, because that
discounts the extraordinary restraint and focus that the HSE already
adopts in its approach to prosecutions.
It is true, as the hon. Member
for South-West Bedfordshire said, that the number of prosecutions that
the HSE has undertaken is very small, but they relate to the most
serious offences for which criminal proceedings are found to be in the
public interest. The health and safety inspectorate operates to very
strict guidelines in its approach to investigation and prosecution, and
they are set out in the Health and Safety Commission’s
enforcement policy statement. The hon. Gentleman referred to it, and it
sets out five principles of enforcement: proportionality, which means
relating enforcement action to risk; targeting, which means focusing on
activities where risks are greatest and hazards least controlled;
consistency; transparency, and
accountability.
The statement also sets out the
criteria to be applied when bringing prosecutions, beginning with the
need to exercise discretion and identify factors such as death
resulting from a breach of legislation; reckless disregard of health
and safety requirements; significant risk or persistent and significant
poor compliance; failure to comply with an improvement or prohibition
notice or the repetition of a breach that was subject to a formal
caution; the supply of false information or an intention to deceive;
the obstruction of inspectors in the course of their duty; and even
assault.
On the
prosecution of individuals—an issue raised by the hon. Member
for South-West Bedfordshire—how does one know that one has the
right culprit? The enforcement guidelines state that prosecutions
should proceed when the breaches that I mentioned have occurred and
when investigation reveals that the offence was committed with the
consent or connivance of the individual, or as a result of neglect on
their part. The enforcement statement—paragraph 41—says
that, subject to the rigorous criteria for bringing a prosecution that
I have
mentioned,
“enforcing
authorities should identify and prosecute or recommend prosecution of
individuals if they consider that a prosecution is warranted. In
particular, they should consider the management chain and the role
played by individual directors and managers, and should take action
against them where the inspection or investigation reveals that the
offence was committed with their consent or connivance or to have been
attributable to neglect on their part and where it would be appropriate
to do so in accordance with this
policy.”
In
other words, the enforcement statement encourages a punctilious
examination of where the responsibility lies in the chain of command.
We should recognise the almost restrictive—certainly
weighty—considerations upon which prosecutions are mounted. I
also point out to the hon. Gentleman that it is not only the health and
safety inspectors, but the courts that exercise strict criteria in the
approach to custodial sentences. The Powers of Criminal Courts
(Sentencing) Act 2000 stipulates that a court may not pass a custodial
sentence unless it is of the opinion that the offence or the
combination of the offence and others associated with it were so
serious that only such a sentence could be justified. It is my firm
view and expectation that imprisonment under the Bill, if enacted, is
likely to continue to be confined only to such cases as are
likely—as the regulatory impact assessment puts it—to
cause public
outrage.
Nevertheless,
I recognise the concerns expressed about the extension of the option of
imprisonment in the Bill. I want to suggest to the Committee and
specifically the hon. Gentleman a way of dealing with those concerns. I
have met with the EEF, and I have read the briefing circulated by the
CBI and Network Rail, although I can hardly believe that any of those
organisations or their associated bodies are remotely likely to be
caught by the custodial provisions of the Bill. I fully acknowledge the
fact that the great majority of magistrates in the lower courts or
judges in the Crown courts would deal with a health and safety
prosecution only on rare occasions. On such occasions, it might be
helpful if sentencing guidelines on the new provisions of the Bill were
available. The relevant bodies are the Sentencing Guidelines Council
and its sentencing advisory panel. I cannot resist referring to the
membership of the Sentencing Guidelines Council, whose deputy chairman
is one Igor Judge, known of course in his other incarnation as Judge
Judge—at least I got that on the
record.
My
understanding is that the Sentencing Guidelines Council is already
minded to do further work on environmental and regulatory offences when
it comes to review its work programme for 2008-09. With regard to
magistrates courts, sentencing guidelines already include guidance on
health and safety offences, but I understand that the Sentencing
Guidance Council has recently reviewed the whole guidelines package and
consulted on proposed amendments with a view to issuing a revision in
August. I also understand that the HSE and the Office of the Rail
Regulator are due to meet the council in April, to discuss the
guidelines in more detail. With regard to the higher courts, general
guidelines exist that cover health and safety cases such as the 1999
Howe judgment, which I have mentioned.
10.45
am
As will be well
known, the Sentencing Advisory Panel has recently consulted on
sentencing for the offence of corporate manslaughter and for health and
safety offences involving death, with a view to advising the Sentencing
Guidelines Council, and the resulting draft guidelines are due in the
autumn. It would be extremely timely therefore if the attention of the
council were to be drawn to the new provisions of the Bill and if the
council were requested to issue guidelines on the Bill, assuming that
it will be enacted and possibly incorporated in the work already going
on. I give a commitment to approach both the council and the Secretary
of State for his support in that matter, and I hope that I can rely
upon the Minister for her sympathetic consideration of the proposal. I
hope that I have answered all the questions asked by hon. Members in
their interventions, and I commend clause 1 to the
Committee.
Andrew
Selous:
I am grateful to the right hon. Gentleman and to
the Minister for their replies in what has been a useful debate and for
all the contributions that we have heard. I do not intend to press new
clause 1 to a vote, as I have been reassured by what the right hon.
Gentleman has said about proposed new section 33A(1). With regard to
proposed new section 33A(2), we seem to be in a situation that reminds
me of how, when I was a Territorial soldier in an artillery regiment
many years ago, we had an expression of shooting plus and minus at the
target. It now seems that we have perhaps shot some way forward from
where we would
be if the inflationary increases had been included, and I do not know
how long we will wait until we are again behind. Perhaps that is just
how we will have to leave things, but I think that all that was said on
that needed to be said.
I am grateful to the right hon.
Gentleman for giving me some reassurance about the admittedly unusual
situation that I put to him, but it nevertheless could occur in a large
company, so it was about ensuring that one gets the right person. What
he put on the record was important and shows the wider purpose of this
part of parliamentary scrutiny, and those who are concerned about such
matters can be reassured by what he
said.
I am
particularly grateful to the right hon. Gentleman for his wish and
suggestion that the Sentencing Guidelines Council should be asked to
look at this legislation, and I ask him and the Minister to keep the
Committee and Parliament informed of the progress of those
negotiations. In an ideal world, the Sentencing Guidelines Council
would come up with its pronouncements at the point at which the Bill
became law, so that we would have the whole package, with complete
clarity and the important reassurance that several hon. Members
mentioned the need for. I am genuinely grateful to the right hon.
Gentleman for that offer, as it is just the sort of thing that the
Committee is here to achieve, and I am pleased to have got that. Having
listened to the debate, I will not press new clause
1.
Question put and
agreed
to.
Clause 1
ordered to stand part of the
Bill.
Clause 2
ordered to stand part of the
Bill.
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