I warned you about all this more than two years ago. But the idea sprung up well before.
Do you remember the walkway at Ramsgate that collapsed? Remember the Zeebrugge sinking, Southall, Paddington, the King's Cross fire? They killed. And when folk yelled for a corporate head on a plate, answer came there none. The problem was finding the manager who caused the disaster. And the bigger the company, the bigger the problem. You really cannot blame the top man personally if he is part of a team, even if he is its leader. But the little firm, the one-man band, is much more easily nailed. We can do him for manslaughter, even put him in prison. We did that to the bloke who ran the Lyme Bay canoeing school after four teenagers drowned as a result of his bad management. He got three years.
Blunkett is on the warpath now. He wants the big bad boys. He wants to bring in The Bad Managers Act 2003. No, that is not the intended name, that is my title. Blunkett says, "There is public concern at the criminal law's lack of success in convicting companies of manslaughter where a death has occurred due to gross negligence by the organisation as a whole."
Do you see what he wants? His act will not ask who in the firm made a bad decision, it will not call upon what the lawyers call the "identification doctrine"; instead it will look at the end result – a death – then work backwards along the links in the chain to see if it can find bad management. No need to point the finger at an individual, just haul the whole company into court.
The offence is corporate killing. The rationale is this: if management falls far below what can reasonably be expected for an organisation of this type, and it has caused death, the offence is committed.
Imagine that you are a design-and-build contractor and you sublet some of the design. Answer me this: if your company places a design subcontract with an unqualified person and the design is so duff that a bit falls off and kills, will the company that placed the order without checking the qualifications of the incompetent design subcontractor be in line for a criminal conviction?
Surely it must be bad management not to check – to say nothing of the company that took on the design when it did not have qualified designers. And if, in your construction work, you chose a product without checking whether the public might be endangered, is that bad management? Go further, if I crash my car into a bridge that has no safety barrier, is the local authority guilty if it ought to have known that a barrier ought to have been constructed? The corporate killing bill is not about the immediate cause of death only; it is all about distant cause. It is says that managers should foresee the consequence of their decisions, perhaps years later. And, another thought, will it be bad management to place a contract with an organisation that has a criminal record? Will the "contract placer" be directed to the crown court?
The Bad Managers Act requires not just manufacturers, builders and suppliers to think ahead; it goes for schools, trade unions, charities, local authorities and government departments. This bill is also not only about bad management causing the death of an employee. It is about causing the death of anyone.
Blunkett is half right in all this. He is a politician; punishing the corporate body will make a victim's family feel a little better. But if the home secretary thinks it will prevent bad management, think on. Politicians are bad managers; they wouldn't know what to do about managing to provide better managers. Will bad government come within the act? Of course not.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on email@example.com.