The Home Office is busy working on a new corporate killing law that will dramatically up the stakes on safety. It's vital that they get it right
On 16 November last year, I wrote about the planned corporate killing law. I support such a law, provided that it reflects former home secretary Jack Straw's two declared intentions: that it should catch those directors who "fall far below the standards which could reasonably be expected in the circumstances" and that it should not drive conscientious firms out of business by making them so risk-averse that they close down in despair.

This will be a criminal law, with penalties stretching to life imprisonment. Such a law must be fair and rigorous. Sloppy performance over safety cannot be tolerated. But it must also be clear. When I pointed out some of the issues that could arise, I was criticised in another publication by a TUC senior official for evading responsibility or seeking loopholes. I was doing no such thing. I spent 18 years as a legislator, including service on the committee of the Health and Safety at Work Act 1974. I have seen too many laws that did not work properly because their specific implications had not been thought through.

The Home Office is now working out the details of the law. Here are some construction issues which need consideration:

  • Who is to define the vital standards for construction "below which one must not fall?"

    Sir John Egan's Strategic Forum is considering a shake-up of construction safety regulations, possibly involving the end of planning supervisors or changes to the Construction (Design and Management) Regulations. Any corporate killing law will need to take account of such changes. Will the new standards for construction be incorporated within the new law? Will the law be able to take account of new construction industry requirements when the Health and Safety Executive updates them in future years?

    Laws, writs, fines, and jail are necessary as a back-up to decent standards and any new law will have my support

  • What efforts will be made to persuade clients that construction safety should be a ringfenced tender item? Safety is not an on-cost, still less something to be subject to economies when pricing a job or seeking to deliver it. But some clients regard safety as none of their concern. Some industry practitioners do treat safety as just another item in a highly competitive bidding environment. Clients can stamp that bad practice out by insisting that safety be ringfenced and clearly identified in bids and method statements. Will the government take a lead in its own projects?

  • The CDM regulations lay specific duties on clients, designers and contractors to produce safety plans. Will any failure by clients or designers be a potential defence for contractors?

  • How will the duty of care be passed down the supply chain? Yes, everyone must be fully involved in taking proper care, but it is not enough, in criminal law, to say "everyone is responsible". Some construction activities on site can have many layers of subcontract delivery.

    Suppose, tragically, that a self-employed man working for a labour agency is killed. There had been a proper site safety induction and responsible supervision, but a terrible accident still occurred. Will the main contractor, the lead subcontractor or the labour agency be criminally liable? Under the criminal law, you cannot prosecute "everyone". You have to establish clear lines of responsibility if a judge is to allow a jury to convict specific individuals. A corporate killing law prosecutes directors or managers, not just corporate entities.