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It is equally important for the private sector. Who goes to jail if there is a conviction for a corporate manslaughter is an issue in this Bill. My noble friend indicated that this probably would not happen because an individual would probably be prosecuted on his or her own as well. That is not how I and a few others have read this Bill, but we may have got it wrong. It is terribly important that, if any company or organisation is convicted under one of the clauses that carries a jail sentence, we do not get into a situation in which it is a person at a very low level who goes to jail and the directors get off because they say that they were not around. That would be highly unsatisfactory. The only answer is to ensure that, if a jail sentence is deemed necessary and appropriate, it should apply to an individual who has been charged on the evidence presented. I very much look forward to my noble friends responses on those issues.
Lord Addington: My Lords, this is a comparatively modest Bill. First, if you do not happen to be familiar with the area and you look at it for the first time, you think, What does it mean?. Secondly, you ask yourself, Am I going to be interested?. The answer will probably be no. But it falls to me today to cover this subject.
The basic principle that fines are too low is one that we do not have a problem with. For very serious offences that endanger life and limb, the existing structure means that you face inappropriate levels of fine. The problem, as my noble friend suggested, is that you then come into the area of the reverse burden of proof. Once again, that is a subject to which I had not paid a great deal of attention, but it was explained to me that it is when you have to prove that you have not committed an offence. I am sorry to explain it in such basic terms, but that is the level at which I am operating in this situation. You can be sent to prison not because you were proved to have done something but because you have not proved that you did not do it. That is the area of concern, as it seems to me.
In addition, as the noble Lord, Lord Berkeley, has just pointed out, there is the question of where the buck stops in an organisation. Both those questions are ones to which we need a good, clear answer. Where is the process of precedent that is expected to be established or has been established? Please can it be pointed out to us, so we can make sure that we know exactly what we are dealing withand that the business community knows exactly what it is dealing within this process? Then you will know the positive benefits of what will happen if something goes wrong. This is about punishment with regard to risk-taking and risk aversion. It does not really matter what penalty you have if you do not enforce it properly; let us not forget that, for a start. In what part of the process will you intervene and who will take responsibility? As the noble Lord, Lord Berkeley, said, who in the chain of command will be in the position to say, No, we will not do that; we will not cut that corner.? Where does that happen? What is the legal process behind that, and how do the two interact?
That is the major concern, as my noble friend pointed out. He talked about the consequences of being risk-averse and how that could slow down the process of taking decisions on an engineering project, or any activity. If that is not clear, it could have great negative impact. Health and safety is always criticised for that. To be perfectly fair, everybody is against health and safety regulation until it is their little Johnny on the ladder. I fully appreciate that. People think that it is a silly regulation until it is me or mine who is at risk or has been hurt. So we must try to get as much balance as we can with this and address it properly. What is the process and what is the framework?
My noble friend mentioned that things can go horribly wrong. Piper Alpha will always be on my mind. It was a very odd day for me. I was in Aberdeen, graduating from university. All of us at the university had big smiles on our faces, but all those involved in the offshore industry there were going round with looks of panic and fear because they were worried about their colleaguesand, indeed, many of them had lost people. It can go horribly wrong.
Those in the train industry pointed outI think this is where much of the objection is coming fromthat with public transport disasters there seems to be a suggestion that anybody could have been there: that there is the fear that it could have been any one of us. The press seem to pick up on this and go for people in organisations, people who may not have any opportunity to stop what is going on. So clarification is very necessary to make sure that the legislation does what is intendedthe noble Lord, Lord Grocott, has been absolutely clear about the intentionand makes sure that those at the right point feel a greater obligation if something goes wrong and pressure is applied to them
So clarification of existing laws and conventions, and how they interact, is required. If that cannot be given today, will the Minister make sure that all those who are going to speak and those interested in the debate know about it, so the legislation can proceed with greater clarity, at the very least?
We have just heard that we will have the opportunity to make a small amendment or two. There may be a small one here, which I would suggest will not affect parliamentary time too much. I hope that everybody will be open to making sure that this Bill works properly and that it addresses the issues that need addressing. Once again, clarity and information are required now.
Lord Taylor of Holbeach: My Lords, I declare an interest as an employer of full-time and seasonal workers in my familys agricultural and horticultural business. I hope that I can assure noble Lords that we run an orderly ship; therefore, I am not as an employer fearful of legislation which imposes a tight regime on these matters.
Along with other noble Lords, I welcome the Bill. I thank the noble Lord, Lord Grocott, for introducing it to the House. This is the sixth time the Bill has been introduced to Parliament. Since the Government clearly support it, it is extraordinary that these three clauses have not been put through in government time. I hope
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The Bill is desirable for many reasons. I understand the caveats of various noble Lords who have spoken, but I support it because the noble Lord, in presenting the Bill, gave the core case for it becoming law. I emphasise my pleasure at seeing a health and safety Bill that does not heap on regulatory burdens with little or no benefit to the public, but instead targets the truly irresponsible and negligent employers who put people in serious danger.
The 2006 Macrory report, Regulatory Justice: Making sanctions effective, highlighted that effective deterrents, properly targeted, can benefit legitimate businesses by reducing the need for frequent and onerous investigations. I hope that the Government will take that report to heart and will seek to reduce the overall burden as a consequence of this Bill. I would like to think that the noble Lord, Lord Grocott, can give us any concrete examples of deregulation or easing employer costs that he expects to happen. Indeed, the Minister might also be thinking in this way.
There is also, as the noble Lord, Lord Grocott, said, the benefit to legitimate businesses of a level playing field. When the penalty is actually less than the cost of compliance, there is an economic advantage even for non-compliant employers, let alone for those who are not caught. Another report, by Philip Hampton, identified this problem in 2005, so I am pleased that this will finally be resolved.
As I have mentioned, I have great hopes that this Bill will be properly targeted. Health and safety legislation will only work effectively if both the right person and the right behaviour are identified. The noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Addington, were particularly concerned about that.
I hope that the tight focus, identified by the noble Lord, Lord Grocott, in sentencing policy where imprisonment is concerned can be put in the Bill. There is a contrast between the sentences available to the courts, for which the Bill provides, and the sentencing guidelines which the noble Lord described. His emphasis in the guidelines was on wilful negligence, whereas the provision in the Bill is much wider.
My honourable friend in another place, Mr Andrew Selous, raised a concern that the new penalties might fall on the wrong person. That resulted in reassurance about the care that courts and investigators would take in ensuring custodial sentences would only be applied to a person deserving of such a punishment. I hope the Minister will also be able to reassure me that similar care will be taken with financial penalties.
Unfortunately, health and safety legislation over the past few years has proved to be a large and very blunt instrument when targeting dangerous behaviour. When even the Health and Safety Executive and the Royal Society for the Prevention of Accidents have spoken out about the stifling effect of layers and layers of risk-assessment and health and safety preventative measures now required for the most trivial of events, it is clear that something has gone wrong.
Health and safety has now become a phrase considered synonymous among the wider public with overreaction, molly-coddling and a complete absence of common sense. We need to be able to address the issue. It is not surprising. Stories about village fêtes and school trips being cancelled frequently find their way into newspapers. Even those who fully understand the legislation think that such an effect is unnecessary. It is clear that none the less the perception is very much in existence.
I am involved with a local charity event in Spalding involving a flower parade. The health and safety provisions have augmented over time. The costs involved are making some of these events prohibitively expensive. I believe that one of the elements of a firm sentencing process is to make it much easier to reduce the regulatory burden, putting the onus back on individuals to deal with these matters as a matter of common sense.
What are the Government doing to improve the situation? This Bill will, quite rightly, raise the penalty for egregious behaviour, but it would be appalling to think of it as acting as a further deterrent on the sorts of events I have just mentioned. How will the Government ensure that the intention of this Bill is fully understood, not only by employers, who must be aware of the increasing penalties before it can be fully effective as a deterrent, but also on officials, who so often appear to give a misleading impression to the wider public about what is and what is not acceptable?
Finally, I would like to raise a small query about the statistics on workplace injuries. A Written Answer from the Government in another place confirmed that fatal accidents involving at-work vehicles are only included in the annual Health and Safety Executive publication if they involve a specific road-side activity. I hope the Minister will be able to clarify this further. The noble Lord, Lord Berkeley, pointed out his concerns here. I appreciate that many fatalities involving vehicles may occur where neither the worker nor the employer is at fault, but that is equally true of accidents on site. Is it not the case that employers have equal responsibility to ensure that work vehicles are safe, just like any other company-owned equipment, and that employees are suitably trained and licensed to drive? I quote from my own experience. In my business we have protocols for drivers, not just commercial goods drivers but sales people and others who use company cars and their own cars for work. It is important that this attitude is more general and properly perceived as being part and parcel of health and safety, not just at work.
I would not want to end my speech on an unduly negative note. Health and safety is about creating an attitude of mind. In the February 1974 general election, the good people of Chesterfield chose to return not me but the noble Lord, Lord Varleygreatly, I am sure, to the advantage of both another place and this House; I have been doing my best to make up for that since. In the long journey since the Act of that year, attitudes have changed. The noble Lord, Lord Grocott, pointed out how dramatically the figures have changed and how the record of health and safety is revealed in the statistics. The overwhelming number of employers and employees are aware of safety in the workplace in a way in which they were not when that Act came in.
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The Bill assists that process, and I hope that we can recognise that it also gives a chance to lift a regulatory burden that may not now be as necessary as once it was. I thank the noble Lord for introducing the Bill.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton): My Lords, the Government very much welcome the introduction of the Bill by my noble friend Lord Grocott. I am delighted that he has decided to introduce and take forward these measures. I congratulate him on his comprehensive and detailed exposition of the terms and implications of the Bill. I also congratulate and thank the right honourable Member for Streatham, Keith Hill, for his skill and collaborative approach in successfully piloting the Bill through the Commons. He demonstrated a willingness to consult widely with a range of stakeholders, and to take on board the views and concerns of honourable Members. In short, his approach was exemplary.
I am particularly pleased that there was strong cross-party consensus on the Bill in the other place. I place on record my thanks to the honourable Members for South West Bedfordshire, Andrew Selous, and Rochdale, Paul Rowen, for their proactive support. That has been reflected wholeheartedly by the Conservatives todayfor which I thank the noble Lord, Lord Taylorand, with some qualifications, by the noble Lord, Lord Addington.
These proposals are entirely consistent with the Governments health and safety strategy and the wider consideration of regulatory sanctions outlined in both the Hampton and Macrory reports. The Government are satisfied that the HSE, local authorities and other health and safety regulators are doing all that they can to bring successful health and safety prosecutions. However, the courts are prevented from imposing adequate and realistic penalties in some of the most serious health and safety cases. I stress that the Bill does not add to or change any of the existing duties on employers or individuals, nor does it create any new offences. Rather, it provides for changes to the current penalties regime for health and safety offences which was last changed in 1992.
The HSE and other regulators prosecute when it is proportionate to do so: when failures to comply with the law are serious and when serious risks are not prevented. That is in line with HSE policy and the enforcement principles supported by the Government, which were helpfully outlined by my noble friend Lord Grocott. The proportionate approach is evident in the fact that all of the HSEs activitiesincluding inspections, of which there were some 60,000, and investigationsin 2006-07 resulted in it issuing 8,071 enforcement notices and 1,141 offences being prosecuted. The response to most breaches is advice and information. Nearly 80 per cent of the HSEs prosecutions were completed in the lower courts.
Those cases which are brought to the courts represent the most serious breaches of health and safety legislation where people have been unacceptably exposed to risk
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In 2006, Judge Roger Scott criticised current health and safety legislation after he was forced to free a gas fitter who put customers at risk from deadly carbon monoxide fumes. Branding Paul Regan dangerous, the judge said:
The individual had admitted pretending to be a Corgi-registered fitter, carrying out work while not registered, and was fined £1,072 at Bradford Crown Court for four charges relating to the quality of work. This is clearly a situation that we must address, and the Bill does. The availability of stiffer sentences will strengthen the deterrent to others who might think that it is worth their while to continue to benefit from carrying out work that puts innocent people in danger.
As my noble friend Lord Grocott explained earlier, the Bill will make imprisonment an option for the judiciary and the courts for a wider range of serious breaches of health and safety legislation. It will also help to address the mounting concern at the anti-deterrent effect of what many see as derisory penalties handed down by the courts. As my noble friend also said, as far back as 1998, the Court of Appeal identified that the general level of fines in health and safety cases was too low and gave examples of particular aggravating and mitigating factors which might be relevant when a court decided on a sentence. Aggravating factors included whether death resulted from the breach; whether the defendant failed to heed warnings, including, for example, previous HSE advice or action including improvement and prohibition notices; and whether the breach was deliberate with a view to profit or to save money.
The Health and Safety Executive, local authorities and other health and safety regulators now ensure that the courts are made fully aware of these factors before sentencing, which has resulted in some improvements in the level of fines. However, health and safety fines are still generally lower than those imposed on companies by financial regulators for regulatory breaches and competition offences. It is important for social and economic reasons that breaches of financial and competition regulations are punished heavily, but it is also right that corporate health and safety crimes should attract more serious sanctions such as increased fines and, in the most serious cases, imprisonment. It is wrong that a relatively small number of businesses can gain a commercial advantage from putting the lives of their workers and members of the public at risk. Both the Hampton and Macrory reports recognise that the penalties handed down by the courts are not
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It is vital that the courts can reflect the growing condemnation that society reserves for businesses and individuals who profit or gain an advantage at the expense of other peoples health and safety. Extending the availability of imprisonment to most health and safety offences is expected to lead to a small increase in those sent to jail for health and safety offences. However, the most important effect is expected to be more effective deterrence, especially in relation to directors and managers whose influence in securing good health and safety is critical.
Of course, it is for the courts to decide the appropriate penalty for the health and safety offences brought before them. By extending the maximum fine available to the lower courts to £20,000 for most health and safety offences, and by making imprisonment an option, the Bill would give the courts full scope to exercise their discretion and judgment in health and safety cases. Allowing the lower courts to have a wider range of sentencing powers for health and safety offences will also reduce the need for cases to be referred to the higher courts for sentencing. This will speed up the resolution of such cases, improving the delivery of justice, and will reduce court costs for both the defendant and the regulator. It will also free up time in the higher courts, improving the efficiency of the justice system.
The extra deterrent effect of higher fines when an organisation has failed to meet the proper standards of health and safety will also provide a further driver for ensuring safe working practices. It will achieve this by focusing attention on the importance of good, sensible health and safety management which protects people in the workplace and those who might be affected by work activity. The Bill supports the majority of businesses in this country that take health and safety seriously in tackling those that seek to gain a competitive advantage by cutting corners on health and safety.
The noble Earl, Lord Mar and Kellie, my noble friend Lord Berkeley and the noble Lord, Lord Addington, referred to corporate bodies. There is no prospect of a company being sent to prison. That cannot apply if the only entity being prosecuted is the corporation. Therefore, issues around a corporation having to cease trading simply do not arise. I make it absolutely clear for the record that if the corporate body alone is the subject of the prosecution, and the prosecution is successful, individuals cannot be dragged into serving a prison sentence in lieu of the corporation. If individuals are prosecuted in their own rightoverwhelmingly, prosecutions involve corporate bodiesa custodial sentence may be relevant in extremis. However, a successful prosecution against a company cannot drag in imprisonment for individuals. I hope that I have addressed that point.
Some noble Lords referred to the Bills engagement with the European Convention on Human Rights. This is a complex and detailed issue but one of crucial importance and I am grateful to have the opportunity to deal with it today. The convention point at issue is Article 6.2, which concerns the right to a fair trial and
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