Faced with the prospect of a tough new corporate killing bill in the autumn, Norton Rose has done some research into how the construction industry expects to be affected
In July last year, Railtrack, Balfour Beatty, and six individuals were charged with corporate manslaughter for the Hatfield rail disaster, in which four people were killed and more than 100 injured. Although corporate manslaughter prosecutions have been possible since 1965, only a few cases have been successful and they were against small organisations. The Hatfield prosecutions mark a greater willingness on the part of the authorities to investigate and prosecute organisations for manslaughter.
The problem with bringing corporate manslaughter prosecutions has always been the difficulty of identifying a “controlling mind” in a corporation. Public perception, stimulated by outspoken politicians, is that “business is getting away with murder”. When the present government came into power in 1997, Jack Straw promised to tackle this perceived loophole in the law “so that people cannot be criminally negligent and allow innocent to people to go to their deaths and suffer no punishment”.
Seven years on and after several significant rail disasters, public pressure is increasing, yet the promised legislation is still pending. On 30 March Frank Doran MP introduced a “10-minute rule” bill (which is based on a draft bill prepared by the T&G union in 2003) on corporate killing. This is due to have a second reading today. It is unlikely to become law, but it has had the desired effect of prompting the government to take action.
On 29 April, Baroness Scotland said the government hoped to publish the draft bill before the end of the parliamentary session in October. The proposed “corporate killing” law will enable prosecutions to be brought against companies for fatalities they may have directly or indirectly caused. In this tougher climate, construction companies will have to face the fact that “any fatal accident could lead to prosecution of the board” (Gerard Forlin, barrister and editor of Corporate Liability: Work Related Deaths and Criminal Prosecutions, 2003).
But will the legislation and its threat to corporate reputations do anything to reduce fatalities? Earlier this year, Norton Rose conducted its own research, which showed that construction respondents were overwhelmingly concerned about the impact of a corporate killing charge on their reputations. Jarvis cited the risk to its reputation as the main reason for its withdrawal from the rail maintenance business.
However, the construction sector was one of the least likely to believe that a corporate killing law would have a big impact on their business, as many respondents felt they had been dealing with the issue of health and safety for some time and were more advanced than other sectors in their safety procedures. Similarly, most of the construction industry respondents felt that the legislation would have no impact on their company’s profitability.
Most of the industry said that they believed the Home Office when it said the legislation on corporate killing would mean nothing more than compliance with existing health and safety legislation. Even if that assumption is correct, businesses can expect to spend more time and effort in maintaining audit trails of the management procedures they have adopted to ensure safe working practices.
The construction industry was markedly unconfident about the ability of the Health and Safety Executive to carry out fair investigations, and expressed doubts about its ability to carry out investigations under corporate killing laws. That reaction may stem from the high-profile failure of HSE investigations and a perception that the HSE is more responsive to public pressure than the exigencies of justice.
Many respondents in the construction sector felt that the best way to ensure better safety standards in the industry was to implement a culture change from top to bottom by way of better management and further education.
In other words, a significant reduction in fatalities in the construction industry is more likely to be achieved by a transformation in personal rather than corporate responsibility. Reports of random blood testing at large sites, which revealed that up to 20% of operatives reporting for work were under the influence of drugs or alcohol, would appear to support that conclusion.
Christopher Hill is managing partner of solicitor Norton Rose’s construction and engineering group.