MR DAVID BERGMAN AND DR GARY SLAPPER

TUESDAY 2 NOVEMBER 1999

  220. That is not the basis on which the conversation is being carried out.
  (Dr Slapper) I am sorry. Mr Donohoe was saying if there was a greater focus.

  221. He was asking if that is not the reason why you are prosecuting this particular case, which I think is quite a valid question to ask.
  (Mr Bergman) Can I just take you up on the point you have made. In fact, it is a waste of time for the Health and Safety Executive inspector to be involved in organising the prosecution case, it is a job for lawyers.

  Mr Donohoe: I had this job as a trade union official who took more industrial cases than any lawyer ever did in Scotland and was more successful than any of them. I do not accept that lawyers are better placed in these kinds of courts.

  222. Shocking advertising.
  (Mr Bergman) This is not "these kinds of courts", this is ordinary courts of the land, the criminal justice system and the criminal law. That is really important to recognise.

  223. Could I press you on this one. Who prosecuted in the case of the Southall train disaster?
  (Mr Bergman) That was an initial prosecution by the Crown Prosecution Service and then when that prosecution failed, the Health and Safety Executive undertook the prosecution.

  224. They hired lawyers?
  (Mr Bergman) Because it went to the Crown Court they hired lawyers, exactly.

  225. I understand where the gentlemen are coming from, Chairman, but, quite frankly, if you are up against high powered lawyers, as you would have been in the case of Southall because of the enormous sums of money involved, you would want the best possible brief and perhaps someone in the Health and Safety Executive could not have done it. Are you suggesting that there should be a Health and Safety Prosecution Service for instance?
  (Mr Bergman) I think one should look at the way the Environment Agency does it. It is quite a parallel organisation and it is a new organisation that has taken on modern ways. They have their own internal expert lawyers who undertake the prosecutions and they are prosecutors within the Environment Agency. In very important cases they go to the Crown Prosecution Service but basically they have their expert lawyers in house. That means that they do the prosecutions which they are expert at.

  Chairman: I would not press this too hard because the Committee is about to look at the Environment Agency and I am not totally convinced that the Committee is impressed with their prosecution record.

  226. Can I just ask a nice sympathetic question of you. How should the law be changed to enhance corporate accountability?
  (Mr Bergman) There are a number of important changes that are possible. The first key change that we would argue for is for the law to be changed to impose safety duties upon directors. At the moment safety duties are imposed upon employers who are generally companies. That allows directors to escape accountability and also not to have clear responsibility for safety. Ensuring that just as directors have fiduciary duties and financial duties that they also have very clear cut safety duties, that is one thing. The second thing is an amendment to the Health and Safety at Work Act. We talked about the possibility of imprisonment. At the moment if a director is prosecuted, and as our evidence shows between 1996-98 of 47,000 major injuries and 500 deaths not one director or manager was prosecuted, if they were prosecuted and convicted the law does not allow them to be imprisoned unless they committed four particular technical offences like breaching a prohibition notice or using explosives. Under the normal offence that they would be prosecuted for they could not be imprisoned. We believe that as with the environment legislation and other regulatory legislation there ought to be the power to imprison. Secondly, there needs to be change to the principle underlying the law of corporate manslaughter. That has already been discussed in terms of whether or not there should be a new offence of corporate killing. The Law Commission produced a report in 1995, the Government said that it was going to enact that legislation. There are possibilities that it may be in the Queen's Speech, I do not know. Clearly there needs to be reform to the law of corporate manslaughter so that it is easier to prosecute a company for manslaughter. Then there are a number of sentencing reforms that we would argue for. The need to have proportionate fining is one. That would mean that the fines are clearly proportionate to the wealth of the company. In brief those are the sorts of reforms that we are interested in.

  227. So you would want a fine to the company, not to the individual?
  (Mr Bergman) We believe that when an investigation takes place there should be an investigation into the conduct of the company. If there is evidence discovered which allows for a prosecution against the company the company should be prosecuted. When there is evidence against the director or the senior manager then the director or senior manager should be prosecuted, as is allowed under the current law. The appropriate sentences should be imposed depending upon whether the company or the director has been found guilty and convicted.

  228. You would jail directors and maybe even foremen in companies if they were held responsible, it would not necessarily be the director of the company, would it?
  (Mr Bergman) I missed that, sorry.

  229. Responsibility passes right down the chain as far as the health and safety statute is concerned. How far down the line do you go, to the foreman, to the charge hand in terms of the person who goes to jail? If they are found to be culpable are they the ones who go to jail, are they the ones who are fined?
  (Mr Bergman) I think Dr Slapper has a comment but just to comment on that. First of all, we think it is very important that clear cut safety duties are placed upon directors so that investigators start at the top of the company and they discover whether the director has carried out his or her responsibilities properly. Occasionally you get situations where, for example in a train crash, at first instance it looks as though the train driver might have been the cause of the disaster. In a situation where that takes place and where that worker has been placed in dangerous conditions by poor management of the company we do not think that it should be in the public interest for that worker to be prosecuted.

  230. You advocate a naming and shaming policy to highlight companies that have a very bad safety record. Can you explain how this would work?
  (Mr Bergman) As you know, the Environment Agency started a naming and shaming campaign earlier this year. They did that through the use of fines. Basically they added up all the fines that were imposed upon different companies and they did the top ten. We do not think that is necessarily the right way to go about it. We think the way it should work is by looking at the number of offences that are committed by a company or a corporate group committed in a period of one year or a five year period. That would be one way in which a naming and shaming policy could work. Each year you would produce the ten companies that had been convicted of the most health and safety offences.

  231. So it would be the number of convictions rather than the seriousness of the convictions that you would be measuring?
  (Mr Bergman) You could make it even more precise. It is difficult to do because the health and safety offences themselves do not distinguish between the seriousness. Obviously if a company is being prosecuted for manslaughter and another company is being prosecuted for health and safety offences you can grade them but generally all health and safety offences are of equal importance.

  232. Would you envisage naming and shaming individuals within those corporations?
  (Mr Bergman) That is not our policy, no.

  233. Finally, do you have a league table in mind already after your four or five months in operation and would you like to name the companies who are in the top ten currently?
  (Mr Bergman) We have not done that. You may be aware that the Channel 4 Dispatches programme did try to do that over a ten year period. The corporate group that had the most convictions over a ten year period was Tarmac plc. I am sure that I could give you the information on the other ten.

  Mr Brake: I would like that.

  234. Briefly on this, in any league table it is only going to be 30 per cent accurate, is it not, because you told us earlier that 70 per cent of things go unprosecuted?
  (Mr Bergman) It is difficult to work out an objective test. It seems to us that convictions, where a company has been convicted of a criminal offence, is an objective test. You could also do a league table of prohibition notices and improvement notices. Those are other options. We do think it is important that the Health and Safety Executive does have a naming and shaming policy because it has an impact upon deterrence. If I can just quote, in an Environment Agency report from its press officer to the Environment Agency's Board, it said: "What is particularly striking is the extent of broadcast coverage, both nationally and regionally, which is probably the greatest media impact the Agency has achieved in a single story". That was the result of their naming and shaming policy. They thought it was very effective and I think the Health and Safety Executive would also find it is very effective.

  235. Could I take you back to your main thesis and that is accountability of directors of a company. Could I ask you if you feel that the Health and Safety Executive pay enough attention to the way companies deploy staff? Not what is written on a piece of paper in terms of their conditions of service or how they must manage machinery, but in all the duties that staff have to do and their hours of operation in doing it? My problem with you is you seem to be looking toward prosecution, what about a preventative role here in addressing the responsibilities of the company directors? Do you think there is a serious flaw there in the work of the Health and Safety Executive, and if there is how could it examine companies and really look at this issue?
  (Mr Bergman) I just have to say that I accept that prevention is absolutely key but I have no particular expertise in that area so I do not think that I can give you an answer.

  236. How do you think that the record of reporting accidents to the Health and Safety Executive could be improved?
  (Mr Bergman) I think that it is another scandal, if I can just use that word. As you know, only 40 per cent of major injuries that actually do take place are reported to the Health and Safety Executive. Although there are a number of other ways that could ensure that those numbers are significantly increased, they are not being used.

  237. What are those ways?
  (Mr Bergman) At the moment the obligation is on the employer to report the injury to the Health and Safety Executive. Obviously the company, although they are legally obliged, has a vested interest in not reporting that injury to the Health and Safety Executive. The Health and Safety Executive should be encouraging workers, trade unions, lawyers, doctors, maybe insurance companies, I do not know how that would work out, all other bodies within civil society who could ensure that injuries are reported to the Health and Safety Executive rather than simply relying on employers.

  238. Can you explain why the Health and Safety Executive's enforcement seems to be so very patchy in different parts of the country?
  (Dr Slapper) The evidence that I have garnered and looked at suggests that difference is attributable to resources and the way that they are deployed locally, so there would be varying roles and the centrally determined policy within the Executive, the way that translates to action within any given field team, varies and also varies according to the nature of what it is that is being investigated. Some parts of human work are easier to investigate and to determine the cause of an accident than others. In certain parts of agriculture, for example, it is easier physically and it takes less time to go to a site and to determine the cause than in some much more complicated parts of work areas.

  239. Are you saying that it is basically left up to the regional directors or area directors rather than have guidance from the centre?
  (Dr Slapper) There is guidance but in translating that into action operational decisions are made which account for that variation.