2nd reading in the Lords
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Lord GrocottLabour- Quote
- My Lords, I beg to move that this Bill be now read a second time. This is a Private Member’s Bill from the other House on the subject of health and safety at work and it is a privilege for me to have been asked to present it. It goes without saying that I could not single-handedly have presented the material that I shall be giving to the House and I need to give out one or two words of thanks. The first goes to my right honourable and very good friend Keith Hill, who piloted the Bill through the Commons. He was lucky enough to win a ballot for a Private Member’s Bill, which few of us were able to do. Secondly, I thank my noble and good friend Lord McKenzie of Luton who, as well as being the Minister who will be speaking later, is the lead Minister for health and safety at work. It is nice to have the lead Minister in our House. I also thank his officials and the staff at the Health and Safety Executive who did all the work. I hope I am not being premature in thanking the opposition parties. The Conservatives and the Liberal Democrats were very supportive in the Commons and I feel that may be the case today. There has almost always been all-party support for health and safety legislation. Let me begin with a word or two about the parent Act. One of the things I have enjoyed about this operation has been reading the speeches made during the passage of the Health and Safety at Work etc. Act 1974, which was introduced by that short Government between February and October 1974. Many positive contributions were made in the Commons at that time by people whose names may be familiar. I can call them by their real names as they were at the time. There were contributions from Jeff Rooker, Tom King and Giles Radice; and it would not be proper legislation without a supportive contribution from the noble Earl, Lord Ferrers, in this House. It has been a nice trip down memory lane. My only regret is that the people of Lichfield and Tamworth decided in February of that year not to send me to the House of Commons and so I was not able to do anything about it myself. In its 34 years, the Health and Safety at Work etc. Act has experienced minor amendments from time to time, and this Bill is one such amendment. The Act has been added to by many regulations but its substance—that is to say, the structures, duties, offences and the approach to safety in the workplace that it established—has remained intact and has stood the test of time. The standards of culture that it enshrines have been sustained by the Health and Safety Executive, a body of high national and international repute, and by the highly respected role played by environmental health officers who enforce health and safety in offices, shops and similar premises at local level. The record of the 1974 Act speaks for itself. Between 1974 and 2007, the number of fatal injuries to employees fell by 73 per cent; the number of reported non-fatal injuries fell by 70 per cent. Between 1974 and 2007, the rate of injuries per 100,000 employees fell by a huge 76 per cent, and Britain had the lowest rate of fatal injuries in the European Union in 2003, which is the most recent year for which figures are available. The EU average was 2.5 fatalities per 100,000 workers; the figure in the UK was 1.1. So what are the reasons for the Bill? Why is it necessary to increase the penalties as the Bill seeks to do? There are three principal reasons: first, to update the penalties so that, in simple, layman’s terms, the penalties match the offence; secondly, to provide for more effective deterrence; and, thirdly, to establish greater efficiency in the dispensation of justice. On tougher penalties, there is a well-established view that the fines available under health and safety legislation are inadequate. As long ago as 1998, the Court of Appeal judged that the health and safety fines being imposed were too low. In the consultation leading up to the Government’s publication of their strategy statement, Revitalising Health and Safety, in June 2000, the overwhelming view of consultees was that the general level of penalties imposed by the courts was inadequate. Only 7 per cent considered that the existing framework for penalties was satisfactory. In 2005, Philip Hampton, in his report for the Treasury on regulation and enforcement, noted that the existing maximum fine of £5,000 for a breach of a regulation was an insignificant sum for most businesses. The point was reiterated in 2006 by Professor Macrory in his regulatory justice report. On the option of imprisonment, there is a history going back to the mid-1990s of judges expressing discontent at being unable to impose jail sentences for the most severe health and safety offences. Examples include prosecutions involving illegally employing children to help with the removal of asbestos and the fabrication of test certificates for cranes where the offences were carried out with the consent of the company director. In practice, of course, because health and safety failures typically result from a chain of decisions rather than from one person’s action, it is likely to remain the case that the prosecution of individuals for health and safety offences will be very infrequent. Nevertheless, I believe that the courts are right to call for the availability of the penalty of imprisonment for the most serious offences. The second reason for higher penalties is for more effective deterrence. If we are to deter irresponsible behaviour and encourage compliance with the law, penalties need to be high enough to eliminate the gain from breaking the law. Philip Hampton puts the general principle, and this is the message to good businesses, which are of course in the majority: “Illegal operators have incentives to undercut honest businesses, partly because penalties are low absolutely, but more worryingly because penalties imposed often do not reflect the commercial advantage a business has gained from non-compliance”. Hampton had no doubt about the inadequacy of the penalties under the 1974 Act. He said: “In 2003-04, the Health and Safety Executive prosecuted 1,756 cases, with an average fine on conviction of £4,036 in magistrates’ courts, and £33,036 in Crown Courts. The deterrent effect of such fines is likely to be low. For any company other than the smallest, a £5,000 fine is likely to be an insignificant sum”. That is why Recommendation 6 of the Hampton review was that maximum fines in the magistrates’ court should be increased and Recommendation 7 was that fine levels should take account of the economic benefit gained. The Bill will implement those recommendations. The third reason for these changes is the need for greater efficiency in the court system. There is little doubt that at present the lower courts will often refer the most serious cases, which they are otherwise quite competent to hear and judge, to the higher courts because they feel that they do not have adequate sentencing powers. Typically, that could cover cases taken under regulations governing asbestos, gas safety or construction. Consequently, court cases are delayed, court time is wasted and the more valuable time of the higher courts is used up unnecessarily. By extending the £20,000 maximum fine to the lower courts and making imprisonment an option, more cases will be resolved in the lower courts and justice will be administered more efficiently. The Bill had not only cross-party support in the Commons but widespread support for its principles from a range of people, including employer organisations, trade unions and professional bodies such as the Institution of Occupational Safety and Health and the Health and Safety Lawyers’ Association. The support for the principles of the Bill is very welcome, but I know that there have been some concerns about the option of imprisonment, which the Bill extends. I hope that I can offer some reassurance. First, imprisonment is widely available under other regulatory legislation, including the Environmental Protection Act 1990, the Food Safety Act 1990 and the Water Resources Act 1991. It is helpful to note that these arrangements seem to have worked well, without objection, for many years. More importantly, I should highlight the strict guidelines which are observed by the regulators in their approach to the prosecution of health and safety offences. The document which they work to is the Health and Safety Commission’s Enforcement Policy Statement. Paragraph 39, which I recommend to anyone in doubt about this, makes it clear that prosecutions should be in the public interest and where one or more of a list of circumstances apply. These include where, “death was a result of a breach of the legislation … there has been reckless disregard of health and safety requirements … there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance … false information has been supplied wilfully, or there has been intent to deceive in relation to a matter which gives rise to significant risk”. These are very strict considerations about very serious matters. Prosecutions are not undertaken lightly. However, I recognise the concern that has been expressed about the extension of the option of imprisonment. My right honourable friend Keith Hill recently approached the Sentencing Guidelines Council with a view to its issuing fresh guidelines to the courts in response to the Bill’s provisions. The Sentencing Guidelines Council has responded positively, indicating that it has identified these offences for inclusion in its work programme and will review that programme in the event of the Bill becoming law. Now to the Bill’s provisions; it will, as the Long Title states: “Revise the mode of trial and maximum penalties applicable to certain offences relating to health and safety”. The Bill comprises three clauses and four schedules; this is the technical bit, but it will not take a moment. Clause 1 brings in Schedules 1 and 2, which respectively replace the penalty provisions of subsections (1A) to (4) of Section 33 of the Health and Safety at Work etc. Act 1974 and paragraphs (1A) to (5) of the Health and Safety at Work (Northern Ireland) Order 1978. The schedules also set out the mode of trial and maximum penalties for the health and safety offences listed in the 1974 Act and paragraphs of the 1978 order. Clause 2 introduces Schedules 3 and 4, which deal with consequential amendments and repeals respectively. We always try to follow the principle of conveying to the House anything we know which is relevant, even if it is not yet official. In that respect, I understand that the Delegated Powers and Regulatory Reform Committee will publish its comments on Clauses 2(2) to 2(6) next week, and some change may be necessary in Committee. I fully recognise the crucial nature of the work of the Delegated Powers and Regulatory Reform Committee, but I am absolutely confident that we shall be able to satisfy it on those provisions. Clause 3 sets out the Short Title, commencement and extent of the Bill. As the Explanatory Notes and other notes indicate, the Bill has no significant implications for public expenditure—it would not dare to do that at the moment—or public sector manpower. It creates no new regulatory requirements, and no new compliance costs arise for those obeying the law. However, the Bill engages with the European Convention on Human Rights, which I shall mention briefly in a moment. I turn to the changes set out in Schedules 1 and 2. The schedules list the new proposed penalties at each level of court hearing. They set out three changes to the present arrangements. First, they raise the maximum fine that may be imposed in the lower courts to £20,000 for most health and safety offences. The higher court fines remain unlimited. At present, the lower courts are able to fine up to a maximum of £20,000 for breaches of general duties to safeguard people’s health and safety. The current maximum penalty for specific breaches is a £5,000 fine, but such breaches may be just as serious as breaches of general duties. Specific breaches include, for example, those of asbestos and construction regulations. The Bill would extend the £20,000 lower court maximum to offences that typically have created risk directly or indirectly, or actual injury, damage to health or death. The £20,000 maximum is extended also to offences, for example, that undermine the ability of enforcers to investigate what may be serious health and safety offences. The second change to present arrangements is set out in the schedules and would make imprisonment an option for most health and safety offences in both the lower and the higher courts. At present, imprisonment is an option only in certain cases. In the lower courts, it is an option only for failure to comply with an improvement or prohibition notice, or with a court remedy order, and for offshore offences. In the higher courts, it is an option only for failure to comply with licensing arrangements or explosives provisions, or disclosures in breach of the Act. Those are all serious offences. However, the Bill will extend the option of a custodial sentence to other offences; for example, where the illegal removal of asbestos has exposed people to serious risk. It is my expectation that imprisonment will continue to occur only in the most serious cases and that there will be only a minimal increase in the number of offenders going to prison, which currently is three or four a year. The third change to present arrangements would make two offences which are currently triable only in the lower courts either-way offences, like most health and safety offences, so that they would be triable in either the lower or the higher courts. These offences are, first, under Section 20 of the Act, the contravening of any requirement imposed by an inspector—for example, to give information for an investigation or to leave premises undisturbed after an incident—and, secondly, preventing another person appearing before an inspector or answering his or her questions. Under the Bill, those offences can in future attract the tougher penalties available in the higher courts. Finally, I shall say a word on the Bill’s engagement with the European Convention on Human Rights. The courts have already held that the burden imposed by Section 40 of the 1974 Act is compatible with the convention. The question is whether the Bill increases the likelihood of a successful European Convention on Human Rights challenge by introducing the option of imprisonment for an offence to which the reverse burden of proof applies. My advice is that such a provision can be compatible with Article 6.2 of the convention if it is justified on the basis that is reasonable and proportionate and does no more than is absolutely necessary to accomplish the aims of the statute. Those points are made in paragraphs 20 and 21 of the Explanatory Notes, and I know that my noble friend Lord McKenzie will address the matter in his speech a little later. The United Kingdom is a world leader in health and safety, but we must always strive to do better. Last year, employees in Britain suffered nearly 230 work-related deaths, nearly 30,000 major injuries and well over 100,000 lesser injuries that kept them off work. Of course, it is not only employees whom the legislation seeks to protect but members of the public who suffer death or injury at workplaces. In 2006-07, more than 120 members of the general public were killed, and nearly 17,500 reported injuries. I hope that this short Bill will play its part in our striving to do better. Its purposes are clear: to punish the criminally negligent who put life and limb in danger in the workplace, to deter those who are tempted to cut costs by breaking the health and safety law, and to render faster and more efficient justice. The Bill seeks to do all this with no new regulatory requirements or new compliance costs in any sector, and I commend it to the House. Moved, That the Bill be now read a second time.—(Lord Grocott.)
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The Earl of Mar and KellieLiberal Democrat- Quote
- My Lords, it is always difficult to be seen as criticising health and safety at work or anywhere else, but the Bill raises some questions. I am mindful of the 20th anniversary of the Piper Alpha disaster and the start of the plastics factory disaster inquiry in Maryhill in Glasgow. The noble Lord, Lord Grocott, has brought forward this challenging Bill and explained it well. In this short intervention, I shall raise seven points in the Bill which I do not fully understand, or at least did not do so before I heard the noble Lord’s explanation. First, the Bill seems to be a hybrid between regulatory and criminal legislation. That may not necessarily be a bad thing. Secondly, the Bill proposes the use of a reverse burden of proof; that is, guilty until proved innocent. I have read that this reverse burden of proof has up till now been used only for regulatory rather than criminal offences. Thirdly, the Bill allows for the imprisonment of the body corporate, but it is not at all clear about how the human representatives of the body corporate will be chosen. How will they be selected? This reminds me of the wretched whipping boy supplied to take the punishment of the youthful King James VI in George Buchanan’s schoolroom. Fourthly, I can see considerable impact on minute-takers and pressure on them after each meeting to establish and record who had reservations about each corporate decision. Fifthly, is there not a better reality for corporate imprisonment? Rather than directors or senior staff being imprisoned, is not corporate loss of liberty in fact suspension from trading? Does the Bill not attempt to dismantle the concept of a separate legal persona for businesses? Sixthly, Network Rail has suggested amendments which reduce the imprisonable to those who are personally and identifiably guilty. Seventhly, Network Rail also points out that, without such clarification, someone who had not attended the trial could be imprisoned—a sort of contracted blame-taker. Will the Government support the Bill? I look forward to hearing that my worries about it are ill founded. At this moment, I fear that it will promote risk aversion.
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- 10:25
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Lord BerkeleyLabour- Quote
- My Lords, I congratulate my noble friend Lord Grocott on moving the Bill, because it is an important addition to health and safety at work legislation and to the Corporate Manslaughter Act that we debated a year or two ago. I also congratulate my right honourable friend Keith Hill, who, in addition to starting this Bill in the other place, has the undying gratitude of the whole rail freight industry—I am chairman of the Rail Freight Group—for introducing an amendment to the Railways Act 1993, which was the privatisation Act, stating that the Government and the regulator had a duty to promote freight as well as passengers. He deserved a lot of credit for that. This Bill is a good sequel to that legislation because it affects the railways. However, it affects many other parts of industry as well. I certainly agree with my noble friend, who said that the penalties should be seen to be changing behaviour and should be a deterrent. It is the usual story that those who do it right have nothing to fear and those who do not need to be dealt with. I have two issues to discuss. First, there is the issue of the Health and Safety Executive treating all industries fairly. The other is the corporate manslaughter issue that the noble Earl, Lord Mar and Kellie, raised. It is essential that the HSE is seen to treat all industries equally across modes, be they roads, railways, the building industry, ports, or offshore oil. It is disappointing in some ways that the maritime sector is not covered, so that the terrible accident involving the “Bowbelle” is not part of the HSE’s remit. Whether it should be is not something for this Bill. One issue that worries me is that the railways are still seen to be a high-risk industry, along with offshore oil and a few others, whereas the roads are not. My noble friend in his excellent opening remarks cited 230 work-related deaths, in which the HSE had been involved in prosecutions, and 120 other members of the public who had died. That figure is much too high, although, as he said, it is probably lower than in many other member states; but you can then compare that with around 3,000 road deaths every year. I know that the number is coming down, which is a great tribute to our colleagues in the Department for Transport, but 3,000 is still very high. A significant proportion of those deaths are defined as being “at work”. Of course, the road maintenance and construction people are clearly at work, but a large proportion of drivers are at work. Whether it is 30 per cent or 40 per cent we can debate, but certainly most heavy-goods vehicle drivers and white van drivers are at work. In recent years, the HSE has made more effort to prosecute people and companies that allow their employees to work particularly long hours, and I hope that that will continue. Even 25 per cent of the 3,000 road deaths each year is still a great deal higher than the figures that my noble friend quoted in other industries. It is very important, from the public perception angle, that the HSE really has a go at road fatalities. I know, as a result of previous debates that we have had here, that the usual explanation for not doing more has been that it is up to the police. Then one finds that it is not a primary duty of the police to do this, so the consequence is that nobody does it. That is a great shame. I hope that my noble friend the Minister can give me some comfort that this will continue to change. It has changed—that has started—but there is still quite a long way to go. The other issue is corporate manslaughter and going to jail. As the noble Earl, Lord Mar and Kellie, said, it is difficult to send a company to jail. I am not sure where we ended up with the corporate manslaughter debate and whether government agencies are included in the provisions. Whether Highways Agency directors would go to jail if they did something that justified a prosecution is an interesting idea. As a colleague said to me before this debate, it would be even more surprising if the Prison Service was convicted and went to its own jails, which I am sure is unlikely to happen, because somebody would arrange for it not to happen. It is equally important for the private sector. Who goes to jail if there is a conviction for a corporate manslaughter is an issue in this Bill. My noble friend indicated that this probably would not happen because an individual would probably be prosecuted on his or her own as well. That is not how I and a few others have read this Bill, but we may have got it wrong. It is terribly important that, if any company or organisation is convicted under one of the clauses that carries a jail sentence, we do not get into a situation in which it is a person at a very low level who goes to jail and the directors get off because they say that they were not around. That would be highly unsatisfactory. The only answer is to ensure that, if a jail sentence is deemed necessary and appropriate, it should apply to an individual who has been charged on the evidence presented. I very much look forward to my noble friend’s responses on those issues.
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- 10:28
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Lord AddingtonLiberal Democrat- Quote
- My Lords, this is a comparatively modest Bill. First, if you do not happen to be familiar with the area and you look at it for the first time, you think, “What does it mean?”. Secondly, you ask yourself, “Am I going to be interested?”. The answer will probably be no. But it falls to me today to cover this subject. The basic principle that fines are too low is one that we do not have a problem with. For very serious offences that endanger life and limb, the existing structure means that you face inappropriate levels of fine. The problem, as my noble friend suggested, is that you then come into the area of the reverse burden of proof. Once again, that is a subject to which I had not paid a great deal of attention, but it was explained to me that it is when you have to prove that you have not committed an offence. I am sorry to explain it in such basic terms, but that is the level at which I am operating in this situation. You can be sent to prison not because you were proved to have done something but because you have not proved that you did not do it. That is the area of concern, as it seems to me. In addition, as the noble Lord, Lord Berkeley, has just pointed out, there is the question of where the buck stops in an organisation. Both those questions are ones to which we need a good, clear answer. Where is the process of precedent that is expected to be established or has been established? Please can it be pointed out to us, so we can make sure that we know exactly what we are dealing with—and that the business community knows exactly what it is dealing with—in this process? Then you will know the positive benefits of what will happen if something goes wrong. This is about punishment with regard to risk-taking and risk aversion. It does not really matter what penalty you have if you do not enforce it properly; let us not forget that, for a start. In what part of the process will you intervene and who will take responsibility? As the noble Lord, Lord Berkeley, said, who in the chain of command will be in the position to say, “No, we will not do that; we will not cut that corner.”? Where does that happen? What is the legal process behind that, and how do the two interact? That is the major concern, as my noble friend pointed out. He talked about the consequences of being risk-averse and how that could slow down the process of taking decisions on an engineering project, or any activity. If that is not clear, it could have great negative impact. Health and safety is always criticised for that. To be perfectly fair, everybody is against health and safety regulation until it is their little Johnny on the ladder. I fully appreciate that. People think that it is a silly regulation until it is “me or mine” who is at risk or has been hurt. So we must try to get as much balance as we can with this and address it properly. What is the process and what is the framework? My noble friend mentioned that things can go horribly wrong. Piper Alpha will always be on my mind. It was a very odd day for me. I was in Aberdeen, graduating from university. All of us at the university had big smiles on our faces, but all those involved in the offshore industry there were going round with looks of panic and fear because they were worried about their colleagues—and, indeed, many of them had lost people. It can go horribly wrong. Those in the train industry pointed out—I think this is where much of the objection is coming from—that with public transport disasters there seems to be a suggestion that anybody could have been there: that there is the fear that it could have been any one of us. The press seem to pick up on this and go for people in organisations, people who may not have any opportunity to stop what is going on. So clarification is very necessary to make sure that the legislation does what is intended—the noble Lord, Lord Grocott, has been absolutely clear about the intention—and makes sure that those at the right point feel a greater obligation if something goes wrong and pressure is applied to them So clarification of existing laws and conventions, and how they interact, is required. If that cannot be given today, will the Minister make sure that all those who are going to speak and those interested in the debate know about it, so the legislation can proceed with greater clarity, at the very least? We have just heard that we will have the opportunity to make a small amendment or two. There may be a small one here, which I would suggest will not affect parliamentary time too much. I hope that everybody will be open to making sure that this Bill works properly and that it addresses the issues that need addressing. Once again, clarity and information are required now.
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- 10:35
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Lord Taylor of HolbeachConservative- Quote
- My Lords, I declare an interest as an employer of full-time and seasonal workers in my family’s agricultural and horticultural business. I hope that I can assure noble Lords that we run an orderly ship; therefore, I am not as an employer fearful of legislation which imposes a tight regime on these matters. Along with other noble Lords, I welcome the Bill. I thank the noble Lord, Lord Grocott, for introducing it to the House. This is the sixth time the Bill has been introduced to Parliament. Since the Government clearly support it, it is extraordinary that these three clauses have not been put through in government time. I hope the usual channels will continue to find time because I hope this time it will successfully make its way on to the statute book. The Bill is desirable for many reasons. I understand the caveats of various noble Lords who have spoken, but I support it because the noble Lord, in presenting the Bill, gave the core case for it becoming law. I emphasise my pleasure at seeing a health and safety Bill that does not heap on regulatory burdens with little or no benefit to the public, but instead targets the truly irresponsible and negligent employers who put people in serious danger. The 2006 Macrory report, Regulatory Justice: Making sanctions effective, highlighted that effective deterrents, properly targeted, can benefit legitimate businesses by reducing the need for frequent and onerous investigations. I hope that the Government will take that report to heart and will seek to reduce the overall burden as a consequence of this Bill. I would like to think that the noble Lord, Lord Grocott, can give us any concrete examples of deregulation or easing employer costs that he expects to happen. Indeed, the Minister might also be thinking in this way. There is also, as the noble Lord, Lord Grocott, said, the benefit to legitimate businesses of a level playing field. When the penalty is actually less than the cost of compliance, there is an economic advantage even for non-compliant employers, let alone for those who are not caught. Another report, by Philip Hampton, identified this problem in 2005, so I am pleased that this will finally be resolved. As I have mentioned, I have great hopes that this Bill will be properly targeted. Health and safety legislation will only work effectively if both the right person and the right behaviour are identified. The noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Addington, were particularly concerned about that. I hope that the tight focus, identified by the noble Lord, Lord Grocott, in sentencing policy where imprisonment is concerned can be put in the Bill. There is a contrast between the sentences available to the courts, for which the Bill provides, and the sentencing guidelines which the noble Lord described. His emphasis in the guidelines was on wilful negligence, whereas the provision in the Bill is much wider. My honourable friend in another place, Mr Andrew Selous, raised a concern that the new penalties might fall on the wrong person. That resulted in reassurance about the care that courts and investigators would take in ensuring custodial sentences would only be applied to a person deserving of such a punishment. I hope the Minister will also be able to reassure me that similar care will be taken with financial penalties. Unfortunately, health and safety legislation over the past few years has proved to be a large and very blunt instrument when targeting dangerous behaviour. When even the Health and Safety Executive and the Royal Society for the Prevention of Accidents have spoken out about the stifling effect of layers and layers of risk-assessment and health and safety preventative measures now required for the most trivial of events, it is clear that something has gone wrong. Health and safety has now become a phrase considered synonymous among the wider public with overreaction, molly-coddling and a complete absence of common sense. We need to be able to address the issue. It is not surprising. Stories about village fêtes and school trips being cancelled frequently find their way into newspapers. Even those who fully understand the legislation think that such an effect is unnecessary. It is clear that none the less the perception is very much in existence. I am involved with a local charity event in Spalding involving a flower parade. The health and safety provisions have augmented over time. The costs involved are making some of these events prohibitively expensive. I believe that one of the elements of a firm sentencing process is to make it much easier to reduce the regulatory burden, putting the onus back on individuals to deal with these matters as a matter of common sense. What are the Government doing to improve the situation? This Bill will, quite rightly, raise the penalty for egregious behaviour, but it would be appalling to think of it as acting as a further deterrent on the sorts of events I have just mentioned. How will the Government ensure that the intention of this Bill is fully understood, not only by employers, who must be aware of the increasing penalties before it can be fully effective as a deterrent, but also on officials, who so often appear to give a misleading impression to the wider public about what is and what is not acceptable? Finally, I would like to raise a small query about the statistics on workplace injuries. A Written Answer from the Government in another place confirmed that fatal accidents involving at-work vehicles are only included in the annual Health and Safety Executive publication if they involve a specific road-side activity. I hope the Minister will be able to clarify this further. The noble Lord, Lord Berkeley, pointed out his concerns here. I appreciate that many fatalities involving vehicles may occur where neither the worker nor the employer is at fault, but that is equally true of accidents on site. Is it not the case that employers have equal responsibility to ensure that work vehicles are safe, just like any other company-owned equipment, and that employees are suitably trained and licensed to drive? I quote from my own experience. In my business we have protocols for drivers, not just commercial goods drivers but sales people and others who use company cars and their own cars for work. It is important that this attitude is more general and properly perceived as being part and parcel of health and safety, not just at work. I would not want to end my speech on an unduly negative note. Health and safety is about creating an attitude of mind. In the February 1974 general election, the good people of Chesterfield chose to return not me but the noble Lord, Lord Varley—greatly, I am sure, to the advantage of both another place and this House; I have been doing my best to make up for that since. In the long journey since the Act of that year, attitudes have changed. The noble Lord, Lord Grocott, pointed out how dramatically the figures have changed and how the record of health and safety is revealed in the statistics. The overwhelming number of employers and employees are aware of safety in the workplace in a way in which they were not when that Act came in. Peeling posters gummed to the factory or warehouse wall have been replaced by proper, proactive management. The Bill assists that process, and I hope that we can recognise that it also gives a chance to lift a regulatory burden that may not now be as necessary as once it was. I thank the noble Lord for introducing the Bill.
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- 10:41
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The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton)Labour- Quote
- My Lords, the Government very much welcome the introduction of the Bill by my noble friend Lord Grocott. I am delighted that he has decided to introduce and take forward these measures. I congratulate him on his comprehensive and detailed exposition of the terms and implications of the Bill. I also congratulate and thank the right honourable Member for Streatham, Keith Hill, for his skill and collaborative approach in successfully piloting the Bill through the Commons. He demonstrated a willingness to consult widely with a range of stakeholders, and to take on board the views and concerns of honourable Members. In short, his approach was exemplary. I am particularly pleased that there was strong cross-party consensus on the Bill in the other place. I place on record my thanks to the honourable Members for South West Bedfordshire, Andrew Selous, and Rochdale, Paul Rowen, for their proactive support. That has been reflected wholeheartedly by the Conservatives today—for which I thank the noble Lord, Lord Taylor—and, with some qualifications, by the noble Lord, Lord Addington. These proposals are entirely consistent with the Government’s health and safety strategy and the wider consideration of regulatory sanctions outlined in both the Hampton and Macrory reports. The Government are satisfied that the HSE, local authorities and other health and safety regulators are doing all that they can to bring successful health and safety prosecutions. However, the courts are prevented from imposing adequate and realistic penalties in some of the most serious health and safety cases. I stress that the Bill does not add to or change any of the existing duties on employers or individuals, nor does it create any new offences. Rather, it provides for changes to the current penalties regime for health and safety offences which was last changed in 1992. The HSE and other regulators prosecute when it is proportionate to do so: when failures to comply with the law are serious and when serious risks are not prevented. That is in line with HSE policy and the enforcement principles supported by the Government, which were helpfully outlined by my noble friend Lord Grocott. The proportionate approach is evident in the fact that all of the HSE’s activities—including inspections, of which there were some 60,000, and investigations—in 2006-07 resulted in it issuing 8,071 enforcement notices and 1,141 offences being prosecuted. The response to most breaches is advice and information. Nearly 80 per cent of the HSE’s prosecutions were completed in the lower courts. Those cases which are brought to the courts represent the most serious breaches of health and safety legislation where people have been unacceptably exposed to risk of serious harm. However, the lower courts are presently prevented in some of these more serious health and safety cases from imposing adequate penalties. Consequently, cases are delayed and court time wasted, where the lower courts refer cases to the higher court that they are otherwise competent to hear but for which they feel they lack adequate sentencing powers. In addition, there are cases of serious breaches where, even in the higher courts, it is not possible to impose a custodial sentence except in limited circumstances. I illustrate this by reference to deaths from carbon monoxide poisoning caused by gas appliances and flues which had not been properly installed or maintained. In 2006, Judge Roger Scott criticised current health and safety legislation after he was forced to free a gas fitter who put customers at risk from deadly carbon monoxide fumes. Branding Paul Regan “dangerous”, the judge said: “The family were put at risk of death by poisoning or explosion … I wouldn't allow you within 150 miles of my house. You should go to prison for 18 months but as it is I can only fine you”. The individual had admitted pretending to be a Corgi-registered fitter, carrying out work while not registered, and was fined £1,072 at Bradford Crown Court for four charges relating to the quality of work. This is clearly a situation that we must address, and the Bill does. The availability of stiffer sentences will strengthen the deterrent to others who might think that it is worth their while to continue to benefit from carrying out work that puts innocent people in danger. As my noble friend Lord Grocott explained earlier, the Bill will make imprisonment an option for the judiciary and the courts for a wider range of serious breaches of health and safety legislation. It will also help to address the mounting concern at the anti-deterrent effect of what many see as derisory penalties handed down by the courts. As my noble friend also said, as far back as 1998, the Court of Appeal identified that the general level of fines in health and safety cases was too low and gave examples of particular aggravating and mitigating factors which might be relevant when a court decided on a sentence. Aggravating factors included whether death resulted from the breach; whether the defendant failed to heed warnings, including, for example, previous HSE advice or action including improvement and prohibition notices; and whether the breach was deliberate with a view to profit or to save money. The Health and Safety Executive, local authorities and other health and safety regulators now ensure that the courts are made fully aware of these factors before sentencing, which has resulted in some improvements in the level of fines. However, health and safety fines are still generally lower than those imposed on companies by financial regulators for regulatory breaches and competition offences. It is important for social and economic reasons that breaches of financial and competition regulations are punished heavily, but it is also right that corporate health and safety crimes should attract more serious sanctions such as increased fines and, in the most serious cases, imprisonment. It is wrong that a relatively small number of businesses can gain a commercial advantage from putting the lives of their workers and members of the public at risk. Both the Hampton and Macrory reports recognise that the penalties handed down by the courts are not seen to reflect either the severity of the offence or the economic benefit a business has gained from its non-compliance. It is vital that the courts can reflect the growing condemnation that society reserves for businesses and individuals who profit or gain an advantage at the expense of other people’s health and safety. Extending the availability of imprisonment to most health and safety offences is expected to lead to a small increase in those sent to jail for health and safety offences. However, the most important effect is expected to be more effective deterrence, especially in relation to directors and managers whose influence in securing good health and safety is critical. Of course, it is for the courts to decide the appropriate penalty for the health and safety offences brought before them. By extending the maximum fine available to the lower courts to £20,000 for most health and safety offences, and by making imprisonment an option, the Bill would give the courts full scope to exercise their discretion and judgment in health and safety cases. Allowing the lower courts to have a wider range of sentencing powers for health and safety offences will also reduce the need for cases to be referred to the higher courts for sentencing. This will speed up the resolution of such cases, improving the delivery of justice, and will reduce court costs for both the defendant and the regulator. It will also free up time in the higher courts, improving the efficiency of the justice system. The extra deterrent effect of higher fines when an organisation has failed to meet the proper standards of health and safety will also provide a further driver for ensuring safe working practices. It will achieve this by focusing attention on the importance of good, sensible health and safety management which protects people in the workplace and those who might be affected by work activity. The Bill supports the majority of businesses in this country that take health and safety seriously in tackling those that seek to gain a competitive advantage by cutting corners on health and safety. The noble Earl, Lord Mar and Kellie, my noble friend Lord Berkeley and the noble Lord, Lord Addington, referred to corporate bodies. There is no prospect of a company being sent to prison. That cannot apply if the only entity being prosecuted is the corporation. Therefore, issues around a corporation having to cease trading simply do not arise. I make it absolutely clear for the record that if the corporate body alone is the subject of the prosecution, and the prosecution is successful, individuals cannot be dragged into serving a prison sentence in lieu of the corporation. If individuals are prosecuted in their own right—overwhelmingly, prosecutions involve corporate bodies—a custodial sentence may be relevant in extremis. However, a successful prosecution against a company cannot drag in imprisonment for individuals. I hope that I have addressed that point. Some noble Lords referred to the Bill’s engagement with the European Convention on Human Rights. This is a complex and detailed issue but one of crucial importance and I am grateful to have the opportunity to deal with it today. The convention point at issue is Article 6.2, which concerns the right to a fair trial and the presumption of innocence, and its relationship with Section 40 of the 1974 Act, which reverses the burden of proof on to the defendant when the offence is subject to the statutory qualification “so far as is reasonably practicable”. The difficulty with any “reverse burden of proof” provision is that it is an inroad into the presumption of innocence enshrined in Article 6.2 of the convention. Section 40 of the 1974 Act was challenged in a prosecution conducted by the HSE in 2002 against a plant hire operator, David Janway Davies, for breach of Section 3(1) of the 1974 Act. The Court of Appeal ruled against Janway Davies, holding that the reverse legal burden of proof contained in Section 40 was compatible with the convention. The court's approach was to examine whether a fair balance had been struck between the fundamental right of the individual and the general interests of the community, it being for the state to justify an inroad into the presumption of innocence, “which should not be greater than is necessary, justified and proportionate”. On the basis of this and other case law, the Government have looked carefully at the compatibility with human rights legislation. We consider that the proposals in the Bill, including the widened scope for custodial sentence, are reasonable and proportionate, and that Section 40 continues to represent a fair balance between the rights of the individual to a fair trial and the protection of life and limb from dangerous work practices. I should stress that, where Section 40 has an impact, there is first of all still an onus on the prosecution to show that there is a prima facie case, and the prosecutor would do so by referring to the reasonably practicable steps that an individual could have taken. My noble friend Lord Berkeley referred to the corporate manslaughter legislation. This concerns proceedings against corporations; it cannot be used against individuals. He also asked whether all industries were treated equally. They are, but I should point out that the maritime industry is covered by the Maritime and Coastguard Agency. He also referred to workplace transport, an issue about which he feels passionately. He is right to note that the police lead on the enforcement of road traffic legislation involving work-related road traffic accidents, for example where a sales rep has an accident while travelling between locations. However, the HSE will become involved in line with the work-related deaths protocol if the accident relates to a roadside work-related activity, for example construction. The HSE may also assist the police, and investigate, if wider issues arise from the management of work-related road safety. The noble Earl asked whether this was a hybrid Bill. The short answer to that is no. In the time available I shall not expand on that, but I am happy to write to him about it. The noble Lord, Lord Taylor, talked about deregulation. The Bill is not a deregulatory measure. However, the HSE has a better regulation framework, including reducing administrative burdens through reducing forms, providing sample risk assessments and bringing together sets of regulations, for example on construction. He also referred to myths. That is an important point because many of the stories recorded in the press, which are accepted as true, are no more than myths. The HSE has a very good “myth of the month” programme, which seeks to rebut these stories. Sometimes a regulator may be overexuberant and sometimes people hide behind the label of health and safety because they do not want to do something and it is easy to use it as an excuse. However, it is important that the wider health and safety community continues to rebut those myths because they cut away at what we need to do, which is to change hearts and minds about the importance of health and safety. The noble Lord, Lord Taylor, also mentioned financial penalties. If a company is prosecuted, it will pay the fine. If an individual is prosecuted, that individual could be fined. The noble Lord, Lord Addington, asked about interventions. This depends on the circumstances. However, he raises important issues of governance. These are not prescribed by legislation; this is about directors showing leadership on health and safety matters. The noble Lord said that people recognise health and safety only when it affects them directly. That is part of the challenge we need to take up to ensure that there is wider acceptance that health and safety legislation is a fundamental part of a civilised society. The 1974 Act has done much to help achieve that, but it is incumbent on us all to continue to send out that message. The Bill proposes a modest change to the Health and Safety at Work etc. Act 1974 and the Health and Safety at Work (Northern Ireland) Order 1978, both of which are widely accepted as huge steps forward and path-breaking measures not just in this country but in many others. As my noble friend said, this has the support of many stakeholders, including the Health and Safety Executive, the Health and Safety Executive for Northern Ireland, trade unions, industry, professional bodies and the public. The Government welcome the Bill. I again thank my noble friend and others for their hard work in bringing it this far.
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- 10:51
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- Speaker
- Lord GrocottLabour
- Quote
- My Lords, I said in my opening speech, and meant it, that it was a pleasure for me to introduce the Bill in this House. That pleasure was reinforced by the contributions that we have heard. It was particularly reinforced by the fact that my noble friend on the Front Bench answered most of the difficult questions. This is a terrific arrangement: I introduce the Bill, and he answers the tricky questions. I agree with most of the comments made. It was reassuring to receive support for the Bill’s principles from everyone who contributed. I know where the noble Earl, Lord Mar and Kellie, and my noble friend Lord Berkeley are coming from, as they share my enthusiasm for the rail industry. I could not agree more with my noble friend’s comment that the railways get a very unfair press, particularly in relation to road transport. I declare an interest, in coming from at least three generations of railwaymen. Frustration is felt by employees in the railway industry, the vast majority of whom work phenomenally hard, including those whose front-line job is concerned with health and safety, those in signalling departments and others. It is grossly unfair to suggest that they are doing anything other than an extremely good job, and the overall record of safety on the railway proves that. I found myself wanting to say, “Hear, hear”, to the noble Lord, Lord Addington. He pleaded—which is how I felt two or three weeks ago when I picked this up—the absolute need for clarity in the legislative work that we do. I hope that, in the expositions that my noble friend and I have given, we have clarified some of the technicalities in the Bill. I had a sense that I might have one or two things in common with the noble Lord, Lord Taylor of Holbeach; I had not realised that parliamentary failure was one of them. I greatly enjoyed his contribution. He made the crucial point, which was valuable to hear from him as a businessman, that good businesses have absolutely nothing to fear from this legislation. It is the bad businesses that have things to worry about. I emphatically agree that, at the end of the day, we are looking for the right kind of culture, applied with that great skill of common sense. The most valued characteristic of all legislators is a good dose of common sense. You cannot get a degree in it but, my word, it is useful to have when we try to put through legislation. I am grateful for the support that I have received. On Question, Bill read a second time, and committed to a Committee of the Whole House.
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- 11:08
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