Check Against Delivery Speech by Ian Tasker STUC Assistant Secretary Health and Safety Holyrood Conference on Corporate Homicide
As far as we are concerned this conference should have been more appropriately entitled, Corporate Homicide, It is time to make employers accountable.
Since 2000, three years after the incoming Labour Government first promised to introduce corporate killing legislation 117 Scottish workers have been killed in work related accidents. In addition 35 self employed and 48 members of the public have lost their lives in incidents investigated by the Health and Safety Executive.
We should also remember that Scotland witnessed the most appalling tragedy in 1988 when 167 people lost their lives in the Piper Alpha disaster and not a single charge was brought against the company or any individual with management responsibility, this was despite Lord Cullen heavily criticising safety procedures on the rig.
We have also witnessed the highest ever fine following conviction of a health and safety offence imposed on Transco following the deaths of the Findlay family in a horrific tragedy in Karen's constituency.
More recently nine workers lost their lives in an incident at the ICL/Stockline plant in Glasgow the investigation of which is still ongoing.
If we also consider the thousands of workers who have lost their lives as a result of negligent exposure to asbestos by their employers and an, as yet unidentifiable number of work related road deaths, our record in work related deaths is at best unenviable and we would contend a national disgrace.
Despite this appalling record not one corporation or single individual has been convicted of culpable homicide following any deaths caused by their own negligence or omissions.
This is why we need not only new legislation, but effective legislation.
There would have been a public outcry, and rightly so, if so many cases had not been prosecuted following any involuntary death in any other part of our society, but this does not happen in relation to work related deaths.
Trade unions have been at the forefront of campaigning for effective corporate killing legislation both in Scotland and in England and Wales.
It is of grave concern to trade unionists that the Government despite their promises in 1997 continually failed to deliver on its commitments to introduce legislation and when they do, it excludes individual liability and still retains a test equally as confusing as that of identifying the "controlling mind".
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The STUC and our affiliated organisation have worked with our lawyers, Thompsons, for many years and on many issues but most recently their assistance and advice on the ineffectiveness of the Westminster proposals led to their appointment on the Panel of Experts as an STUC nominee and this has been invaluable.
Why do we believe the panel's recommendations are right for Scotland?
I would also add that I do not intend to cover all the recommendations but give the STUC view on key proposals.
In Scotland our basis of culpability is recklessness, focusing in what the employer knew or ought to have known, as opposed to the stricter test of gross negligence in England and Wales.
The STUC also had concerns with the Home Office Draft Bill in that it focuses only on failures of "senior managers" a test just as ambiguous as the the "controlling mind" test and we fear that this would continue to provide corporations the opportunity to delegate the responsibility down to any non- senior management level and thus avoiding liability.
This is unacceptable to the STUC and our affiliates and we welcome the recommendation of the panel that any proposed legislation should focus on failure by management at any appropriate level, reflecting the reality that health and safety decisions are taken by lower management and on no account should potential prosecutions fail simply because senior management can delegate the blame for health and safety failures to those who are untouchable in law.
Trade Unions would also welcome any legislation that switches the onus of proof regarding management failure to the employer.
Why should this not be the case?
Responsible employers who have proper health and safety management systems in place should have every confidence that they would be able to establish lack of recklessness on their part.
The STUC also believes that it is absolutely ludicrous that Directors of companies, the major decision makers within organisations who decide whether their organisation invests in health and safety or pay a higher dividend to shareholders, are not held accountable when they chose to line the pockets of investors as opposed to protecting their workforce.
The STUC believe that it is incredible that if a Director of a company defrauds the Government, shareholders or commits an offence under the Companies Act 1985 they can be held personally liable and imprisoned. It is absurd that this liability does not extend to work related deaths and we would hope that
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this is not an indication of the value the Westminster Government places on the lives of workers.
If an individual director's conduct causes an employee to be killed, why should they not be prosecuted?
The Panel of Experts recommendations also suggest that crown immunity from prosecution should end and should include all employers including unincorporated bodies.
Finally, and perhaps most interestingly, the recommendations include proposals for an innovative range of sentences such as equity fines corporate probation or administration and, where necessary, imprisonment of culpable management irrespective of the size of the organisation.
Flexibility of penalties could help to assist companies improve their health and safety, protect employment and ensure, through imposition of equity fines, that large financial penalties imposed on organisations are not passed directly on to consumers or clients.
We would also support that in cases where a large fine could impact on the viability of the company and threaten jobs, the appointment of an administrator to overview and improve the organisations health and safety performance would protect employment.
Why should we settle for the Westminster proposals, as the Institute of Directors appear to suggest we have to do when both the Home Office Select Committee and the Department of Pensions Select Committee are saying they require to be strengthened?
As far as unions are concerned two bad laws do not make a good one, if Westminster's law is inadequate why should both be inadequate.
The Home Office and Department of Work and Pensions Select Committees have made a number of key recommendations for changes in their legislation, many of which if accepted would go most of the way towards the uniformity with the Scottish recommendations that employers and their lawyers appear to desire so strongly.
We would draw attention to the report of these committees, and in particular paragraph 259 where they concede that it is inevitable that there will be differences in the law of corporate manslaughter and corporate homicide reflecting differences in the legal regimes.
The Committees state in this report that the Government should be doing all it can to ensure that there is as little variation as possible, going on to say that the recommendations contained in their joint report would bring the Government's Draft Bill closer to the reforms proposed by the Scottish Expert Group.
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The Select Committee have, therefore, recognised the views of the majority of the Executive Panel of Experts that alignment need not be on the basis of the Westminster proposals and should be secondary to getting the law right for Scotland, a commitment the STUC received from the Justice Minister in the early stages of this process, which we welcomed. The report then goes on to say that the amendments they are recommending provide a useful basis for comparable, if slightly different legislation in the different jurisdictions.
Here is the latest position regarding England and Wales as reported on the 20 December
The Select Committees have made recommendations that the Government to consider and we would hope accept, they have suggested a number of improvements including;
Amending the Bill to ensure individual directors can be prosecuted. Extension of the Crown Immunity provision to cover more crown bodies including the army when not in the field of combat. Changing the ambiguous senior management identification test to one of management failure. Extending the jurisdiction of the offence to cover deaths in other parts of the United Kingdom, with a view to further extending the jurisdiction to cover deaths in other European countries in the future. A wider range of innovative sanctions against companies.
In Scotland we should be proud that the debate in Westminster has been influenced by the work of the Panel of Experts appointed by Cathy Jamieson on the 15 April this year.
The Scottish Parliament has not been afraid to introduce innovative legislation designed to protect our citizens since it's inception and this particular legislation is needed now, more than ever with Scottish workplace fatalities increasing.
This view hardly seems to support the view of business that have already attacked the panels recommendations as leading to draconian legislation and it would be unfair to have different laws in Scotland.
Another argument being pedalled by the Institute of Directors, as recently as Sunday is that companies will either, leave Scotland or in the case of inward investment, stay away.
This same argument has been used to fight proposals for the introduction of a minimum wage and the implementation of the working hours directive and the reality is that these occurrences do not arise.
This flight of capital has not been witnessed in the Australian Capital Territories or in Canada that both introduced legislation with many of the provisions the panel of experts has recommended.
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The Institute of Directors could not, or chose not to, support this theory, with strong evidence in their article in the Sunday Herald.
Indeed, we would argue that if a company does not wish to come to Scotland as a result of any piece of so called draconian legislation designed to protect workers we do not went them. Neither should foreign companies be given tax payers money to relocate here if they disregard the health and safety legislation existing in their own country.
I would also say that the comments of David Watt that fatal accidents in the workplace are more likely to be attributable to alcohol than corrupt or homicidal actions of employers totally unbelievable.
We find these comments absolutely disgraceful, cannot appear to be substantiated and are a gross insult to the memories of the hundreds of workers killed in workplace tragedies throughout Britain every year.
The fact is that workplace accidents are generally caused by poor health and safety management and training. I am sorry but my understanding is that this is the responsibility of employers and this should be driven at boardroom level and it should be their legal responsibility.
The Scottish recommendations ensure that responsible employers need not fear new legislation.
Our view is the article on Sunday is the latest piece of unbalanced reporting of the facts and we find it surprising that the updated situation in relation to the Draft Bill covering England and Wales was omitted and we would ask David to explain why.
Doing nothing is not an option, the Westminster Draft Bill, with the prospect of only five additional prosecutions a year, amounts to the same; it does little to protect workers or their families.
It is a great disappointment to the STUC that Gavin Clelland, who lost his son on Piper Alpha did not live long enough to witness where we are today following years of tireless campaigning to ensure other Scottish citizens do not suffer the same injustice as the families of all those killed in the piper alpha tragedy had to endure.
This injustice gas to stop and stop now.
We support the recommendations of the panel of experts and welcome the joint report from the two influential cross party select committees, made up of elected MPs answerable to their constituents.
The only group left out in the cold at the moment appear to be the employers and their arguments are spurious.
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We need Scottish specific legislation that protects Scottish workers and if Westminster wishes to align with us? All the better.
Thank you.