The government is determined that the proposed corporate manslaughter Bill will become law. Not only will this fulfil a long-standing manifesto commitment, but it will complete part of the Warwick agreement between the government and the trade unions.
The government says the delay in bringing the Bill forward is due to the complexity of the law involved. A more likely reason is the intense lobbying by parties – from victims groups and trade unions to various business organisations and the CBI.
While initially criticised as a weak piece of legislation that lacked teeth to curb the deaths and injuries being cause by rogue employers, the Bill is likely to undergo substantial amendments following scrutiny by the select committees on home affairs and work and pensions.
Most employers have expressed support for the Bill. The fact that it would not result in charges being brought against individual managers or directors has pleased the CBI, which lobbied hard for this. The remedies are not much different to existing penalties for breaches of the Health and Safety at Work Act.
However, the select committee’s hard-hitting report recommended substantial changes to increase the scope of the legislation, extend the range of penalties, and simplify the Bill to make it easier to bring charges.
Taken together with the report from the Hampton Review on reducing red tape for business, and the Health and Safety Executive (HSE) review of regulation and enforcement, the Bill is likely to be amended to give it some of the teeth critics have demanded. We are, therefore, likely to see a two-stage approach. First, an amended Bill, followed by further amendments relating to sentencing, penalties and sanctions against individuals.
The following amendments are likely:
Removal of the senior manager test proposed in the Bill. This test was criticised by the select committee because its complexity would probably result in another ‘controlling mind’ test (where it is necessary under law to identify the person responsible) making it difficult to bring charges.
The government will now look at a simpler test.
The reduction of Crown immunity, which is likely to be clarified, but not removed entirely, to provide a level playing field for both the public and private sectors.
The select committee criticised the limited sentencing proposals and called for clarity on the level of fines and a broader range of penalties to be considered. Campaigners have been pressing hard for individual directors to be disqualified and for fines to be higher and related to the company’s means. Penalties might include corporate probation – where an organisation is required to prove to a court that it has changed its behaviour.
The final form of the legislation will not be known for some time and there could still be significant amendments to the Bill. Whatever the final outcome, the loophole that literally let employers get away with murder is closing.
Organisations that are well-regulated and safety-conscious need not fear the new law, however. HSE guidelines (INDG:343), if properly implemented, should ensure that companies do not fall foul of the new legislation.
Corporate Manslaughter Bill proposals
- An offence of corporate manslaughter can be brought against incorporated organisations.
- An organisation will be guilty if the way its activities are managed or organised by its senior managers causes death due to a gross breach of duty of care. A ‘senior manager’ is one who plays a significant role in decision-making in the management of its activities. A ‘gross breach’ is conduct falling far below what could reasonably be expected.
Crown immunity is to be substantially reduced.
Penalties: unlimited fines and/or remedial orders.
- Individuals can still be charged with gross negligence manslaughter under the existing common law (the maximum penalty is life imprisonment).