The Corporate Manslaughter Act: Is it working?
29 January 2014
Roger Bibbings, occupational health adviser at The Royal Society for the Prevention of Accidents (RoSPA), examines the impact so far of new corporate manslaughter legislation.
Many of those who campaigned for an important change in the law of manslaughter relating to companies may be feeling, like me, that it has failed, thus far, to reach expectations.
The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) was brought in to target large organisations for "corporate killing”, but by the end of last year, there had only been five successful prosecutions.
All of these have involved small companies, and in four of the prosecutions so far, guilty pleas have been entered and charges against individual senior managers or directors for manslaughter dropped.
For some reason, there seems to be barriers to the successful prosecution of large companies. CMCHA 2007 has been widely publicised and has got directors thinking but some are suggesting that its importance is now more symbolic than practical. Yet it has certainly underlined the key point that to lead health and safety successfully, directors have to do a whole lot more than simply sign off policies and budgets and engage suitably qualified health and safety professionals. They need personally to become immersed in some of the challenges of running a safe and healthy operation.
For the past 16 years, RoSPA has been campaigning for measures to strengthen director leadership of occupational safety and health. The reason we continue to feel so strongly about this is because we know from both research and our own experience that what actually keeps people safe at work is not just the particular preventive or protective measures that have to be put in place following risk assessment to safeguard people from specific hazards, but the policies, organisation and arrangements which together give organisational assurance that significant risks can be tackled on an on-going basis.
Directors and senior managers who do not prioritise health and safety and who fail to take action to enable their colleagues to manage safely, create conditions in which unsafe and unhealthy systems of work go unchallenged and people are damaged or killed as a result. Business leaders need to understand that people’s lives are in their hands.
There have been a number of attempts to change the law to impose positive duties on directors in relation to health and safety. The last attempt to reform the law was in the form of a Private Members Bill, put forward by Frank Doran MP in 2010. The Health and Safety Executive and the Institute of Directors have also produced important joint guidance on directors’ H&S responsibilities but the topic is still not really on the agenda in business schools.
While "corporate killing” is an offence of organisations rather than individuals, it is the acts and omissions of those in senior decision-making roles that form the case for the prosecution. Evidence suggests that Section 37 of the Health and Safety at Work Act 1974 is being used more in prosecutions under Sections 2 and 3 etc of HSWA, but only against directors in small organisations. So exactly how can CMCHA 2007 and Section 37 fit together in practice?
At the moment, this remains unclear, but needs to be kept under review as more CM cases are taken. The political challenge will come when (heaven forbid) there is another major accident involving simultaneous loss of life on a large scale in a major company. Will there be the determination to apply the CM doctrine?
Over a number of years, RoSPA supported the Centre for Corporate Accountability’s ultimately successful campaign to reform the law of manslaughter to enable organisations causing death by negligence to be found guilty of this offence without first having to identify a controlling mind. We have indicated our support in principle for Private Member’s Bills dealing with directors’ duties and disqualification. We have called for more severe penalties for directors found guilty of health and safety offences and we have argued consistently for compulsory re-education and remedial programmes for directors and their organisations. And where directors and senior managers, as employees, have failed to carry out their company’s health and safety policy, we also favour more prosecutions under Section 7 of the HSW Act.
But ultimately it is not enough simply to clarify the duties of directors in general terms. There is a need to highlight, in a transparent way, key elements of director leadership, including not just policy level decision-making and periodic performance review, but practical involvement of individual directors and senior managers in key aspects of health and safety management. In this sense, clarifying key elements of director OS&H competence is probably if not more important than tightening director liability.
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