TUC response to draft corporate manslaughter bill
TUC Response to Consultation on a draft Bill to amend the law on Corporate Killing
The TUC welcomes the opportunity to comment on the proposals for introducing new legislation covering Corporate Killing. The TUC represents almost 7 million employed people in 69 Trade Unions.
The TUC does have concerns over the draft Bill, which 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. We note 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 TUC has, for many years been aware of the failings within the existing law and believes that this change is necessary if corporate responsibility on health and safety is to be improved, and the relatives of those killed as a result of corporate failings are to see justice done. However, in itself it will do little to prevent the 250 annual deaths from injury and the over 10,00 annual deaths from work-related illnesses which occur every year, unless action is also taken on both penalties and the duties of directors.
Scope of the Offence
At present it is necessary to show an individual 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. The proposed new legislation will make it possible to prosecute an organisation if there is a gross breach of their duty of care and that a senior manager of the organisation new, or aught to have known, about this breach. The TUC believes that the current definition of 'senior manager' is too imprecise and may lead to delegation of responsibility. The criterion has to be not the level of manager, but the authority to act on behalf of the organisation. The TUC also has concerns that the current wording may not include all workplaces, in particular those that contract services or employ agency staff where the actual managerial relationship is unclear. While the TUC would not support an over-broadening of the definition to the extent that it would include all staff with a managerial role, we do feel the current definition could result in employers reorganising management structures to prevent them being covered.
The TUC is concerned that Subsection 2 (b) of Section 3 does not make it clear that any one of the three tests needs to be met rather than all three. The TUC is also concerned that the third test, which requires the prosecution to show that an organisation sought to profit from a failure, could lead to action being less likely against public and non-profit bodies. Instead we would wish to see the word 'benefit' used instead of 'profit'.
The new offence would cover deaths at work and is linked to the standards required under existing health and safety legislation. However the offence will not only cover workers, but also those affected by the work process. Hence it will cover both deaths in the workplace and also deaths to the public that result from the work process, such as major transport accidents. The TUC welcomes this and believes that it is the correct approach, although the TUC believes that the wording of 3 (3) needs clarified to ensure that other health and safety legislation, such as the Working Time Regulations are also covered.
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 would also ask that consideration be given to extending the provisions to British Dependencies which are often used to register Merchant Shipping such as Bermuda, Cayman Islands, Gibraltar and the Isle of Man.
Penalties
The draft Bill will simply allow for an organisation to be fined, although remedial orders will also 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.
Although the TUC would like to see a range of more innovative penalties such as the removal of directors and 'corporate Probation', we recognise that this issue relates to all corporate offences, not just Corporate Killing, and would hope that the Government will look at this issue generally.
We note that the Government has committed itself to increasing penalties for health and safety offences. 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. This is a view endorsed by the TUC.
The TUC is concerned that there are no proposals to clarify the duties of directors and to ensure they are individually liable for their actions, should they lead to the death or injury of an employee or member of the public. In the last Parliament a private members Bill was introduced, with wide support form Trade Unions, in an attempt to introduce a specific duty on Directors. Unfortunately this did not progress. In addition the Work and Pensions Select Committee report into the work of the HSE/C recommended that the Government look at the issue of Directors Duties. In their response to the report the Government asked the HSC to consider the issue, but they will not do so until December 2005 at the earliest.
The TUC believes that the Government must look at the responsibilities of directors with a view to tighter regulation. The TUC wishes 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.
Without a clear legal duty on Directors, backed up with appropriate penalties, it is unlikely that the Bill will make any significant cultural change in the safety regimes of organisations. The TUC believes that the Government must introduce legislation on director’s responsibilities, either as part of this Bill or in tandem to it.
Crown Immunity.
It is also important that the new laws apply to everyone, including all public bodies. 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 a death and the removal of Crown Immunity will we widely welcomed.
The Government has previously indicated support for the removal of Crown Immunity for all Health and Safety Offences and the TUC hopes that this Bill could be used as a vehicle to achieve this end.
Summary
The TUC believes that, while the bill may help provide a sense of justice to the families of those bereaved as a result of corporate failings, in itself it will do little to reduce the number of fatalities caused by work unless, as part of this bill, or in tandem to it, the Government considers the issue of director’s duties and the penalties available for dealing with Corporate Bodies.
We consider that, with the exceptions outlined above, the scope of the proposed offence is about right and welcome the proposals to remove Crown Immunity.
We hope that the Bill will be used as a vehicle to increase penalties and remove Crown Immunity for all health and safety offences.
Stay Updated
Want to hear about our latest news and blogs?
Sign up now to get it straight to your inbox