The closing days of the recent parliamentary session saw home secretary John Reid roll out a new law and order agenda that could have been drafted by the Sun.
This included the abolition of automatic reduced sentences for a guilty plea, restrictions on parole, greater judicial discretion for sentencing “violent offenders” and new roles for victims in parole deliberations.
But on 21 July, just after this further authoritarian onslaught was launched, another announcement was made - the publication of a bill on corporate manslaughter.
This apparently honoured a longstanding commitment by Labour. Yet scrutiny of the bill calls into question whether it will mean much progress in holding companies to account for killing workers and members of the public.
This suspicion is reinforced by the fact that the bosses’ CBI organisation welcomed the new bill. Work kills tens of thousands a year.
Yet ten years after proposals for a new offence of corporate killing were published, and despite protracted campaigns by a whole series of groups, no law has yet been passed.
There have been a few successful prosecutions under the existing law (see below). Health and Safety Executive (HSE) has concluded that 70 percent of fatal injuries to workers are due to failures by employers.
No medium or large sized company, nor any of their directors or senior managers have ever been convicted of manslaughter. All convictions have involved the smallest firms.
Underlying this is a lack of political will on the part of governments which, in awe of private enterprise, simply refuse to accept that companies and their senior managers can be treated as “real” criminals.
The key technical obstacle lies in the principle of “identification”. This sets an impossibly complex test for establishing the organisation’s criminal culpability.
It is the need to identify an individual who can be said to constitute the controlling mind of the organisation, and then to show that she or he was grossly negligent, and aware of a serious and obvious risk of causing death.
In effect, application of the law is restricted to the smallest companies, where identification of “the corporation” with an individual can be established.
The very size and complexity of large organisations such as rail and track maintenance companies, ferry operators or multinational oil corporations have been key features in producing disaster.
Those same organisational features have made the identification of any controlling mind virtually impossible.
In 1996, the Law Commission, the body which proposes legal reform in England and Wales, proposed a new offence of corporate manslaughter.
This sought to overcome the problem of identification by linking the offence to “management failure” - “a failure to ensure safety in the management or organisation of the corporation’s activities”.
Reference to the collective entity “management” reflects more closely the ways in which corporations function - as a result of decisions and omissions of a group of directors and/or managers.
The proposals were a significant move towards holding companies to account in cases such as the sinking of the Herald of Free Enterprise in Zeebrugge harbour in 1987, killing 193 passengers and crew.
A case of manslaughter against P&O collapsed despite coroners’ verdicts of “unlawful killing” and notwithstanding the scathing judgement of the official inquiry into the “disaster”.
This said, “A full investigation into the circumstances of the disaster leads inexorably to the conclusion that the under-lying or cardinal faults lay higher up in the company.
“The board of directors did not appreciate their responsibility for the safe management of their ships... From top to bottom the body corporate was infected with the disease of sloppiness.”
When the Law Commission published its proposals, which also included recommendations for making it easier to prosecute directors and managers of companies that kill, Labour backed them vociferously.
The Labour government of 1997 committed itself to a new law. Nothing happened. In 2000, a consultation document was published. Nothing happened. Then a pledge for a new law was included in Labour’s 2001 general election manifesto.
After securing a second term, challenging companies that kill slipped down Labour’s agenda again. The home office sent out questionnaires in 2002 to representatives of the eight most dangerous industries.
With a sensitivity not extended to most affected by new legislation, those most likely to be prosecuted under the new law were asked how this possibility might impede their freedom to go about their business.
Labour secured the “Warwick Agreement” in July 2004. This sealed trade union support for the 2005 election campaign in exchange for commitments on various aspects of policy.
New Labour agreed (again) to legislate on corporate manslaughter, though proposals for any new legislation to facilitate prosecution of directors and managers had been dropped.
Cowering in the face of the profiteers
A draft bill was published in 2005 - but in a form that managed to undo much of what had been good about the Law Commission’s 1996 proposals.
The bill appeared to reintroduce the problem of identification by requiring that successful prosecutions link a “serious failure” within the company to “senior manager” level.
The Centre for Corporate Accountability observed that this narrow “senior manager” test would “undermine the entire purpose of the bill”.
The Regulatory Impact Statement that accompanied the bill estimated that the proposed law would lead to a “possible five extra prosecutions each year”.
When the bill was finally published in July of this year, it retained the “senior management” test, and still failed to include any provision for facilitating the prosecution of individual directors and senior managers.
The new law would only affect companies - and the likely handful of successful prosecutions that might follow would result only in a fine.
How did it take ten years to get to a law proposed to address a glaring injustice that ends up likely to do almost nothing about that injustice?
The government is not shy of being “tough on crime” - on one calculation, by 2005, eight years of New Labour government had seen more than 1,000 new criminal offences created.
Labour’s fixation is with “law and order” for the marginalised, the poor, the “socially excluded”, the young, the immigrant. And here’s the rub.
New Labour cowers in the face of doing anything that might even be seen to affect the insatiable desire to make profits while retaining immunity from accountability.
Corporations largely enjoy power without responsibility.
Will the new law be worth the long struggle of campaigners, victims and relatives’ groups, the Hazards movement and trade unions?
That depends upon the detail of the bill that makes it to parliament for a second reading in October.
But no law now likely to emerge will see corporate representatives in court on a regular basis.
The law will carry symbolic weight - demonstrating that corporations kill, they are real criminals and that they need to be held to account through criminal law.
It will do little to further that accountability.
When is a crime not a crime?
In October 2005, the Crown Prosecution Service (CPS) decided that manslaughter charges would not be brought over the 2002 Potters Bar rail crash in which seven died and 76 were hurt.
The CPS said there was not a “realistic prospect of conviction” of any individual or company for an offence of manslaughter by gross negligence. The crash was caused by a faulty set of points.
In 2004, Network Rail and Jarvis accepted responsibility for claims brought over the Potters Bar rail crash, to provide “comfort and assistance” to victims.
Two weeks earlier, Network Rail and Balfour Beatty were fined a total of £13.5 million for breaching health and safety regulations over the 2000 Hatfield train crash.
In that crash, four people died and 102 were injured when a train was derailed by a cracked section of track.
Balfour Beatty and five rail executives had also faced charges of corporate manslaughter but were formally cleared by the judge due to lack of evidence.
Each year in Britain:
- Over 600 people are killed in fatal work-related incidents reported to the HSE.
- The department of transport estimate that over 1,000 people die on the roads in incidents involving vehicles being driven as part of work.
- Hazards has calculated that up to 20 percent of deaths from Britain’s biggest killers, including heart disease and cancer are caused by work.
Total number of manslaughter convictions under the present laws
- 18 - incidents (involving at least one death) that have resulted in conviction
- 48 - deaths involved in these incidents
- 7 - companies convicted
- 12 - company directors convicted
- 7 - business owners convicted
Source: Centre for Corporate Accountability (covers period to 24 April 2006)
Steve Tombs is Professor of Sociology at Liverpool John Moores University and chair of the Centre for Corporate Accountability. For more information go to www.corporateaccountability.org