Draft corporate manslaughter bill
TUC Briefing
The Government announced, in the Queen’s speech on 23rd November, that it intended to publish a draft bill which would introduce a new offence of corporate manslaughter.
The TUC believes that the Government announcement is a result of the pressure that has been put on it by the TUC, trade unions, and campaigning organisations such as the Simon Jones Memorial Campaign and the Centre for Corporate Accountability.
Overview of draft bill
The Government says that the draft Bill, which will apply to England and Wales, would set 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 the Government has indicated it will be clearly linked to existing health and safety legislation.
The Government has made it clear that the bill will target corporate, not individual, liability. It states 'The new offence would not require an individual to be guilty of particular conduct and would not therefore be a suitable basis for prosecuting individual directors or others. But where a particular person is themselves directly to blame, prosecution on an individual basis will remain possible for existing offences.'
TUC view
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. However it will only be successful if it also provides for effective penalties. It is likely that the draft bill will simply allow for an organisation to be fined. Because a company or public body cannot be sent to prison, we believe 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.
The TUC also believes that the Government must, either through this bill or separately look at the responsibilities of directors. The Home Secretary announced last year that his proposals on corporate killing will cover companies, but not individual directors. However, 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.
It is also important that the new laws apply to everyone, including the civil service. He hope the government is not going to hide behind Crown Immunity, 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.
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.
However as soon as the draft bill is published interested organisations may only have a few weeks to prepare evidence for the committee.
No timetable has yet been announced, but the TUC hopes that the draft bill will be published at the earliest possible opportunity so that it can complete its committee stage prior to any election being called.
We will be calling for a final Bill to be introduced into parliament in the next Parliamentary session.
We have already waited for too long for legislation. It is seven years since a new law was first proposed by this government This is one the last promises of Labour’s manifesto to be implemented and every year the Government delays, companies who, through their management failings kill people, continue to evade justice and families of those who die at work are denied justice.
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