In May 2003, the UK government renewed its long-term commitment to legislate on corporate manslaughter - ie deaths caused by management failure, where the company's conduct falls 'far below what could reasonably be expected'. Trade unions gave the move a cautious welcome, while employers' responses were more mixed.
The government announced in May 2003 that it intends to introduce legislation on corporate manslaughter, with details to follow in the autumn. The home secretary, David Blunkett, said: 'there is great public concern at the criminal law's lack of success in convicting companies of manslaughter where a death has occurred due to gross negligence by the organisation as a whole. The law needs to be clear and effective in order to secure public confidence and must bite properly on large corporations whose failure to set or maintain standards causes a death.'
The initiative follows a recommendation by the Law Commission in 1996 for a new offence of corporate manslaughter in order to better hold large as well as small firms to account for causing death through grossly negligent failures of management. The government issued a consultation paper on the issue in May 2000, and in October 2002 proposals were unveiled to create a new criminal offence of corporate killing for deaths caused by management failure, where the company's conduct fell 'far below what could reasonably be expected'. The law would target companies rather than individual directors, which was viewed as legally unworkable. The most recent announcement followed an attempt by the Labour Party backbench MP, Andrew Dismore, to have the offence of corporate killing included in the current Criminal Justice Bill.
Employers' response
The Confederation of British Industry (CBI) has objected to the proposed company conduct test, claiming it could 'leave companies defenceless'. In response to the 2000 consultation, the CBI argued that any new offence should apply to behaviour that 'wilfully or recklessly disregards foreseeable risks' to employees and the general public. Though it was quite proper to oblige firms to ensure the health and safety of employees, 'as far as reasonably practical and where there is reasonably foreseeable risk', John Cridland, the CBI deputy director-general, said: 'the tests for this new offence must be fair on companies. Under the present proposals they are not and that could create unnecessary confusion and uncertainty.' The CBI was also sceptical about the effectiveness of the new offence because firms already face unlimited fines under existing health and safety laws. In addition, the CBI believes that the new offence should apply to state organisations, which are exempt under current proposals.
Reservations were also expressed by employers' associations in industries most likely to be affected by the new legislation. The Construction Confederation gave the proposals 'a cautious welcome', while awaiting further details. It also expressed doubts over likely effectiveness. However, Andy Sneddon, the health and safety director of the Confederation, welcomed the decision to focus on companies rather than directors, which he said would have 'cut across the collective responsibility that should exist in organisations to manage safety'. The Confederation said that emphasis should also be placed on 'incentivising' excellent health and safety practice through the procurement process and employer liability insurance premiums.
Trade union response
The Trades Union Congress (TUC) set out its position in two papers published in March and April 2003. The first, The answers to work-related deaths: why we need a new corporate killing law, was published jointly with the Centre for Corporate Accountability, an independent not-for-profit advice, research and lobbying group, and Disaster Action, a charity established by survivors and the bereaved following a series of major disasters in the UK in the late 1980s. It points out that existing law makes it difficult to convict companies for manslaughter because, rather than focusing on systemic management failures, an individual director or senior manager needs to be convicted of gross negligence. The complexity of management decision-making in large organisations makes it difficult to identify such an individual 'controlling mind and will'. A new offence of corporate killing would improve accountability and prevention as fines would be more likely and much larger than under present law. Brendan Barber, the TUC general secretary, said that 'a law against corporate killing will be good for business, good for safety and good for workers and members of the public whose lives are currently being put at risk.'
The second document, Corporate accountability and real corporate responsibility, was published to mark Workers' Memorial Day on 28 April 2003. It noted the conclusions of the Health and Safety Executive (HSE) that over 70% of deaths and serious injuries at work are due to management failures and therefore are preventable. The report calls for higher and proportionate fines, a fixed penalty-point system and disqualification for directors convicted of serious health and safety offences, and more scope for imprisonment. 'Until company directors face imprisonment for failing to comply with a larger range of health and safety breaches, the message will not get through to some employers,' it states.
Unions also want more powers for their workplace safety representatives and more resources for the HSE to conduct inspections. The specialists' and managers' union Prospect says that, although the number of inspectors has increased from 1,442 in 1997 to 1,625 in 2002, much more time is now spent on administrative duties. In addition, the number of local authority enforcement officers, responsible for offices and shops, fell from 1,590 in 1996 to 1,070 by 2001. The public services union Unison claims that the total number of inspections has fallen by 41% in the last five years. Yet the continued extent of problems in some sectors was revealed in the spring and summer of 2002, when a campaign of inspections in 1,113 sites in the construction industry led to 460 prohibition notices and 97 improvement notices. The Construction Confederation reportedly refused to take part in a voluntary workers' safety advisers project run by the HSE and TUC.
Commentary
The governing principle in English law on the criminal liability of companies is that those who control or manage the affairs of the company are regarded as embodying the company itself. Before a company can be convicted of manslaughter, an individual who can be 'identified as the embodiment of the company itself' must first be shown to have been guilty of manslaughter. Only if this individual is found guilty can the company be convicted. Where there is insufficient evidence to convict the individual, any prosecution of the company must fail. Current manslaughter laws thus make it virtually impossible to successfully prosecute large companies because of the difficulty in identifying a senior manager as the 'controlling mind' responsible for the death. There has only ever been a handful of successful prosecutions for corporate manslaughter under English law, all against small companies.
The proposed change to the law focuses on managerial control systems rather than individuals, and is long overdue. Yet it could go further. First, the anomalous exclusion of many public sector employers under 'crown immunity' needs to addressed. Second, the courts need to have greater recourse to custodial sentences for directors found to have wilfully neglected their health and safety duties. Third, more resources need to be dedicated to enforcement and education, including within the workplace itself through stronger rights for trade union and workplace safety representatives. Committed employers should have little to fear from any of this. On the other hand 'the criminal, the clueless and the compliant', to use the terminology of the former TUC secretary, John Monks, need stronger measures to save themselves and, more to the point, their employees, from paying the price of failure. (J Arrowsmith, IRRU)