Draft Corporate Killing Bill
TUC Briefing - March 2005
The Government published a draft Bill aimed at introducing a new offence of corporate manslaughter on 23rd March 2005. They will be seeking comments on the draft by 19th June 2005.
The draft Bill, which will apply to England and Wales, sets out proposals designed to tackle the difficulties that currently arise when prosecuting large corporations for the present offence of manslaughter.
The draft Bill will create a new offence that targets very serious failings in the strategic management of a company's activities that have resulted in death. The government aim is to focus on wider management failings within an organisation. At present, liability hinges on the conduct of one individual at the very top of a company.
The new offence would cover deaths at work and is linked to the standards required under existing health and safety legislation.
The Bill targets corporate, not individual, liability. The accompanying press release states ' The criminal liability of individual directors will not be affected by the proposals. Corporate manslaughter is an offence committed by organisations rather than individuals and will therefore carry a penalty of an unlimited fine rather than a custodial sentence.'
The new offence will apply to Crown Bodies such as Government departments, with some exceptions.
The TUC supports any new offence which makes it easier to prosecute a company, or other employing organisation, where a death occurs at work, or as a result of a work activity.
Every week an average of five workers are killed at work. Almost all of these are a result of management failures, and all of them are avoidable. These are killings that are caused by employers and it is high time that something was done to bring to account the people who cause these deaths.
At present it is necessary to show a director or senior manager of a organisation is liable. This requires evidence of "gross negligence", and without that there is no case against a organisation. This means that unless a senior manager can be found guilty of manslaughter a company can get away without facing charges. This is a particular problem with big companies.
The new offence will help prevent this, and is welcomed by the TUC.
Specific issues.
Coverage
The draft Bill applies to 'corporations' and government departments, not only as employers but also as suppliers. There is the question of whether it should apply to 'un-incorporated' bodies such as partnerships. While recognising the difficulties, the TUC would like the offence to be as broad as possible. The Government has already indicated that it wishes to look at how the legislation can be applied to Police Forces (as opposed to Police Authorities).
The draft Bill has ruled out any jurisdiction over the operations of companies which are registered in the UK if a fatality occurs abroad. The TUC believes that there are some circumstances where the legislation should apply - in particular where an worker is killed overseas because of the failure of a UK based corporation to undertake a suitable risk assessment. We will be asking the Government to consider this issue again.
Penalties
The draft Bill will simply allow for an organisation to be fined, although remedial orders will still be able to be imposed. Because a company or public body cannot be sent to prison, the government sees no other alternatives to this. However it recognises that in some cases, such as Crown bodies, this is just recycling money from one department to another. The TUC believes that a range of innovative sentencing approaches should be considered to cut the death toll at work from its current unacceptable level of five a week. These include corporate probation and more innovative financial penalties. We will be developing proposals for this for our response to the draft Bill.
We also believe that the Government should look at the overall levels of penalties for health and safety offences. They have already committed themselves to increasing penalties. The TUC would ask them to consider whether this Bill could be an instrument to achieve that.
Individual Directors
The draft Bill reflects the view of the Law Commission that it would not be appropriate for an offence of Corporate Manslaughter to look at individuals such as company directors. However in its 2000 consultation paper the Government accepted that without punitive sanctions against company officers, there would be insufficient deterrent force to any new proposals.
The TUC believes that the Government must, either through this Bill or separately, look at the responsibilities of directors. It is not companies that are responsible for killing workers, it is people. Workplace fatalities are avoidable and are usually caused by fundamental health and safety shortcomings throughout the organisation which can properly be laid at the door of the Managing Director, Board of Directors, Chief Executive, etc as appropriate.
We want to avoid scapegoating of front line employees or middle managers, but it is fundamental that criminal liability for management applies not only to the corporate body or undertaking concerned, but also to owners, directors, and very senior personnel who are ultimately responsible for the management failure. We hope that the Government will consider the issue of director’s responsibilities, either as part of the draft Bill, or in a parallel process.
Crown Immunity.
It is also important that the new laws apply to everyone, including the civil service. The TUC welcomes the fact that the Government has accepted that its own departments should be covered, and that the draft Bill will ensure that where a government department or agency is responsible for a death at work it is prosecuted. A successful prosecution can be important for the relatives of the victim of a workplace fatality. There is no logical, legal or moral case for leaving Crown bodies exempt from prosecution where they have caused workplace fatalities. The TUC would even like the draft Bill to be used to remove Crown Immunity from all health and safety offences.
We note that there are a number of exemptions proposed for public policy decisions and similar areas where the TUC accepts that it may not be appropriate for this legislation to apply, however we will be looking at the detail of these exemptions in more detail.
The process
The Draft Bill will be subject to a process known as pre-legislative scrutiny. The Government publishes a number of Bills each parliamentary session in draft form, before they are introduced in Parliament as formal Bills.
The purpose of pre-legislative scrutiny is to take evidence on the policy underlying draft Bills, and to consider whether Bills can be improved before they are introduced into Parliament. A Parliamentary Scrutiny Committee will consider the draft Bill. As yet it is not known what type of committee to set up, who will serve on it or how long it will spend considering the Bill. 'Pre-legislative scrutiny' means that interested organisations and individuals have the opportunity to submit written evidence to the committee, which will also hold oral evidence sessions in public.
No timetable has yet been announced, but the TUC hopes that the draft Bill will be introduced into parliament in the next Parliamentary session.
We have already waited for too long for legislation. However seven years since a new law was first proposed by this government we now have a draft Bill. We hope that it will be implemented at the earliest opportunity, as every year the legislation is delayed, companies who, through their management failings kill people, continue to evade justice and the families of those who die at work are denied justice.
Briefing document (1,300 words) issued 23 Mar 2005
