INTRODUCTION

  The Transport and General Workers Union (T&G) is the UK's largest industrial trades union with over 800,000 members working in every sector of the UK economy. We have long campaigned for effective legislation on corporate killing and for reform of the law to ensure that all employing organisations—public, private and voluntary, incorporated and unincorporated—and the individuals who own and manage them, can be held to account under the law.

  So, for example, in June 2003 we published the report "A hard day's work never killed anyone. Negligent bosses did" along with two draft bills on Corporate Killing and on Directors' Duties. And, in 2005, working alongside the construction union UCATT and a broad coalition of supporters both inside and outside of the House of Commons, we gave our full backing to Stephen Hepburn MP's Health and Safety (Directors' Duties) Bill.

  As a union with a long track record on this issue we warmly welcomed the Government's publication of a Draft Corporate Manslaughter Bill on the 23 March 2005 and are pleased to have the opportunity to respond to this consultation paper.

  It has been some eight years since this Labour Government promised legislation to reform the UK's much criticised corporate manslaughter laws. So, while we are pleased that a Draft Bill has now been published, we are all too aware that a draft bill is no guarantee of a final bill, let alone a guarantee of legislation on the statute books. Which is why we call on the Government to complete the draft scrutiny process without delay and to introduce a final bill into this Parliament as a matter of urgency.

  The reform of corporate manslaughter is, quite literally, a matter of life and death. Which is why we must not squander the valuable opportunity provided by the publication of this Draft Bill. We have to get this legislation right—because, if we don't, innocent people will lose their lives in preventable work-related fatal accidents and victims and their loved ones will be denied justice in the courts.

  And "getting the bill right" for the T&G means ensuring that corporate manslaughter law targets both corporate and individual guilt and that it covers every employing organisation. Having carefully studied its proposals we are dismayed that, in its current form, the Draft Bill fails on these key performance indicators. We have therefore outlined our concerns, comments and recommendations below.

SUMMARY OF CONCERNS

—  The Draft Bill focuses only on corporate liability and completely fails to address individual liability.

—  The Draft Bill fails to close the "justice gap" ie failure to hold negligent individuals to account under the law and reliance on fines as the punishment for corporate manslaughter denies justice to the victims of work-related deaths.

—  The Draft Bill will, according to its accompanying Regulatory Impact Assessment, only lead to an additional five prosecutions for corporate manslaughter each year.

—  The Draft Bill introduces a "senior managers" test that would open up a loophole through which negligent organisations could escape prosecution (ie by delegating health and safety management to non-senior managerial levels they would fall outside of the scope of the Bill and the reach of the law).

—  The Draft Bill introduces a "gross breach" test which will require juries, when assessing corporate liability, to consider whether senior managers knew or ought to have known that their organisation was in breach of health and safety legislation. However, this could be impossible for juries to establish as, under current law, there is no legal obligation on directors to ensure that their organisation is complying with health and safety law.

—  The Draft Bill introduces a "profit from failure test" that opens up a loophole through which negligent organisations could evade prosecution for corporate manslaughter (ie for corporate guilt to be established it would have to be proved that an organisation sought to profit from a failure that led to a work-related death).

—  The Draft Bill exempts from prosecution all decisions involving public policy. As, by definition, any decision by a Crown body could be argued to be a public policy decision, every Crown body could potentially escape prosecution for corporate manslaughter by invoking a "public policy defence".

—  The Draft Bill does not remove Crown Immunity for health and safety offences.

—  The Draft Bill fails to include all employing organisations within its scope (ie it excludes all unincorporated bodies and a large number of Crown bodies from its provisions).

—  The Draft Bill does not apply the new offence of corporate manslaughter to UK companies that cause deaths abroad.

—  The Draft Bill proposes a fines based penalty system rather than complementing corporate fines with a wider and more innovative range of penalties such as custodial sentences for individuals and probation orders for companies.

—  The Draft Bill has been published but, as yet, there is still no timetable for, nor specific details on the mechanics and structure of, the pre-legislative scrutiny process that it will undergo.

SUMMARY OF RECOMMENDATIONS

—  The scope of the Draft Bill should be widened to include individual liability. This could be achieved by:

(a)  allowing for individuals to be prosecuted for—and convicted of—aiding, abetting, counselling or procuring the offence of corporate manslaughter; and

(b)  introducing legally binding health and safety duties for company directors and their Crown body equivalents.

—  The Draft Bill must be amended so that work-related fatalities caused by failures at every level of management—not just at senior level—are admissible for use in the consideration of corporate liability for manslaughter.

—  The "profit from failure" test must be removed from the Draft Bill.

—  The "public policy" test must be removed from the Draft Bill.

—  Crown Immunity must be removed for health and safety offences.

—  The Draft Bill must be amended so that all employing organisations fall within its scope. This requires:

(a)  the removal of Crown and Parliamentary Immunity in a way which ensures that all Crown bodies including Parliament, government departments, government agencies, the prison service, regulatory agencies and the civil service are liable to prosecution for the offence of manslaughter; and

(b)  the extension of liability for the offence of manslaughter to unincorporated bodies.

—  The scope of the Draft Bill must be widened so that companies that cause deaths abroad are liable to prosecution for corporate manslaughter.

—  In order to encourage proactive health and safety management, provide a credible deterrent against negligence and deliver justice for victims the fines system proposed by the Draft Bill must be complemented by an innovative range of penalties, including custodial sentences.

—  The pre-legislative scrutiny of the Draft Bill must begin as a matter of urgency and a final Corporate Manslaughter Bill should be introduced into parliament at the very earliest opportunity.

WHY A NEW CORPORATE MANSLAUGHTER LAW IS NEEDED

  In our view preventable work-related deaths are being caused by fundamental health and safety shortcomings within private and public organisations and by negligence and irresponsibility on the part of those who run them.

  Evidence of this can be seen in data produced by the Health and Safety Commission (HSC) which shows that, on average, in the UK:

—  Each and every day of the week one person dies in a work-related incident

—  Each and every day of the week 16 people die from occupational cancers and illnesses

  And according to research by the Health and Safety Executive (HSE) 70% of all those work-related deaths are the direct result of management failures.

  However, not only is the current law failing to prevent work-related deaths, it is also failing to hold to account those who are responsible for manslaughter. Research by the Centre for Corporate Accountability shows that:

—  Only 11 company directors have ever been convicted of manslaughter following a work-related death.

  And, of those 11 convictions:

—  Only five directors have ever been imprisoned as a result of a work-related death and a manslaughter conviction.

—  Another five directors received suspended sentences for manslaughter.

—  And one director was given a community service order for manslaughter.

  We therefore believe that a new corporate manslaughter law is needed because work-related deaths are not being prevented, the guilty are not being held to account and justice is being denied.

DETAILED CONCERNS, COMMENTS AND RECOMMENDATIONS

  Below, and in the pages overleaf, the T&G have outlined in detail our key concerns and our thoughts, comments and recommendations in respect of the proposals set out in the Draft Bill.

THE BILL ONLY TARGETS CORPORATE LIABILITY

  The Bill only focuses on corporate liability and completely fails to address individual liability (for example, it does not introduce legally binding health and safety duties for company directors or for their Crown body equivalents). Individuals cannot even be charged with "aiding" or "abetting" an organisation that commits corporate manslaughter. In the words of the government, "the criminal liability of individual directors will not be affected by the proposals. Corporate manslaughter is an offence committed by organisations rather than individuals and will therefore carry a penalty of an unlimited fine rather than a custodial sentence."

  Consequently the Draft Bill will only make it a little easier to prosecute companies: it will not make it possible to prosecute and convict negligent directors who cause workplace deaths. However, it is those individuals directing and managing companies—and their crown body equivalents—who make workplaces safe or unsafe: not a legal entity know as "the company".

  The T&G have long campaigned for reform of the law so that an organisation can be prosecuted for corporate manslaughter without the need to prove guilt by reliance upon the identification of a negligent individual director or manager. But we have never ever argued that the two are mutually exclusive: instead we have said that, where individuals can be shown to be culpable they should be liable for prosecution, but that the inability to establish individual culpability—for example due to the complex management structure of a large organisation—should not mean that an organisation is able to escape prosecution for manslaughter.

  Therefore, while we recognise that the reforms to the offence of corporate manslaughter were always going to focus upon the conduct of the organisation, we are dismayed that the Government has declined the opportunity to develop any alternative mechanisms to deal with individual liability and the lack of accountability for company directors.

  Indeed, the failure to address these key issues appears to be a reversal of the Government's original position as outlined in its May 2000 consultation document "Reforming the law of involuntary manslaughter: the Government's proposals" which clearly stated: "the Government is therefore inclined to the view that action against individual directors or officers might be justified even in cases where a company found guilty of corporate killing could pay the fine imposed by the court and/or comply with a remedial order."

  We have serious concerns that, by focusing exclusively on corporate liability rather than complementing that focus with provisions designed to also cover individual liability, the Bill will do very little to encourage the proactive steps in the management of health and safety necessary to prevent work-related deaths.

  One means of dealing with the issue of individual liability would be to widen the scope of the Draft Bill so that an individual could be prosecuted for—and convicted of—aiding, abetting, counselling or procuring the offence of corporate manslaughter. Another means of bringing individual liability within the scope of the Draft Bill is to amend it so as to introduce legally binding health and safety obligations for directors (and also for their Crown body equivalents).

  The T&G believe that safety in the workplace—and indeed justice in the courts—requires responsibility in the boardroom. After all, there are no individuals within a company more important to ensuring safety in the workplace than directors: for example, company directors decide the level of resources that their company puts into health and safety; they decide the extent to which managers within their company prioritise health and safety; they decide whether or not their company is subject to proper health and safety audits; and they decide whether their company is proactive in identifying unsafe practices and how those practices can be changed.

  The crucial role of directors in the prevention of work-related fatalities has been highlighted by the Work and Pensions Committee. Having examined all of the evidence and interviewed all of the experts for its report into "The Work of the Health and Safety Commission and Executive", the Work and Pensions Committee concluded that the introduction of legally binding directors' duties on health and safety would "positively impact on the current levels of preventable workplace death."

  The T&G endorse this view which is why, working with a broad coalition of supporters both inside and outside of the House of Commons, we gave our full backing to Stephen Hepburn MP's recent Health and Safety (Directors' Duties) Bill. This Private Member's Bill had its Second Reading on 4 March 2005.

  Regretfully, even though the House voted in favour of the Bill by 28 votes to zero, failure to reach the requisite 40 votes' quorum meant that it was unable to proceed to Committee Stage. But, despite falling victim to parliamentary procedure, the "Hepburn Bill" on directors' health and safety duties did win the debate and it did win the vote.

  The T&G therefore call on the government to listen to the House of Commons on this issue and amend the Draft Corporate Manslaughter Bill to include a directors' duties provision. This could be achieved by including within the Draft Bill the following amendment:

T&G suggested amendment

  It is the duty of the directors of a company to take all reasonable steps to ensure that the company acts in accordance with the obligations imposed on it by the relevant statutory provisions (and any statutory provision that is specified in any schedule accompanying this Act); any regulations, orders or other instruments of a legislative character made or having effect under any provision so specified that relates to health and safety.

The Bill Fails to Close the "Justice Gap"

  Currently in the UK we have a situation in which at least one person is killed every day in a work-related accident, where 70% of those fatalities are directly attributable to failures by management, but where—as the conviction rates demonstrate—successful prosecutions for corporate manslaughter are difficult to secure at best and impossible to achieve at worst. Yet this Draft Bill will have a negligible impact in holding to account those responsible for work-related deaths because, as the Home Office's own "Regulatory Impact Assessment" admits, the proposals in this Draft Bill will only "lead to a possible five extra prosecutions per year".

  We had hoped that the long awaited Draft Bill would address the problems with existing law in securing convictions. We believe that existing law is fundamentally flawed because the absence of legally binding health and safety duties on directors makes it virtually impossible to prosecute negligent directors for manslaughter: this is evidenced by the fact that only five directors have ever been imprisoned as a result of a work-related death. Put simply, by failing to hold individual directors to account the current law has opened up a massive Justice Gap for the victims of work-related deaths.

  We are therefore disappointed that the Draft Bill fails to close this Justice Gap because, by only targeting corporate liability the Bill will simply rely on a fines based penalty system as it is impossible for a company to be sent to prison. But fines will never act as a credible deterrent, and fines imposed on companies can never deliver justice for the victims of manslaughter.

  In particular, fines will not unduly concern large companies, unless they are imposed at levels previously unheard of in this country—and this seems highly unlikely as the Government's Regulatory Impact Assessment estimates that the cost of defending prosecutions for all of UK industry will only be £2.5 million. In addition, fines will be of little deterrent value in respect of Crown bodies as the cost of meeting them will simply fall to the taxpayer. Ultimately it is not companies who kill—it is negligent directors. And that is why custodial sentences, rather than fines, are the only effective deterrent and the only means of delivering justice for the victims of corporate manslaughter.

  The Draft Bill has actually exacerbated the Justice Gap because, by not including provisions for legally binding directors' duties and individual liability the Bill leaves it entirely to a weak and unenforceable voluntary code to encourage responsibility on the part of individual directors. The Health and Safety Commission (HSC) published voluntary guidance on directors' duties in July 2001. But research commissioned by the Health and Safety Executive (HSE) into the effectiveness of the HSC code shows that it is failing to prevent injuries and deaths because it is failing to change either the behaviour of directors or the culture of the boardroom in any meaningful way.

  Since the HSC voluntary code was introduced:

—  The board of directors of one third of large firms have not assumed any responsibility for ensuring their companies operate safely.

—  Fewer than half of all boards ever discuss health and safety.

—  And two thirds of all company boards have failed to appoint a health and safety director as recommended by the code.

  In addition, even if every company and every director complied with the voluntary code:

—  No negligent director can be held accountable under a voluntary code.

—  No negligent director can be arrested and charged under a voluntary code.

—  No negligent director can be prosecuted or convicted under a voluntary code.

—  And no victim of workplace injury or death can receive justice under a voluntary code.

  Only the law can do all of these things and, in this respect, the Draft Bill is very much a missed opportunity.

THE "SENIOR MANAGERS" TEST

  The Bill introduces a new basis for establishing corporate liability that requires consideration only of the "senior managers" of an organisation, rather than managers at all levels. The Bill defines a person as a "senior manager" of an organisation if he or she "plays a significant role in the making of decisions about how the whole or a substantial part of its activities are to be managed or organized, or he or she plays a significant role in the actual managing or organising of the whole or a substantial part of those activities".

  The definition of who is a senior manager is very narrow. So, for example, managers controlling a large construction site belonging to a particular company—which itself controls many other such sites—may well not be considered a `senior manager' within the terms of the Bill. The T&G are concerned that the Bill encourages reduced supervision of directors and other senior company officers and increased delegation to managers at a more operational level. As a result organisations could escape manslaughter prosecution (ie if a death is the result of neglect by an individual who is not a senior manager then the company will not be able to be prosecuted for this offence).

  In addition, while the Draft Bill proposes a move away from the current problematic "directing mind" test in corporate manslaughter prosecutions, we have concerns that the use of terms such as "senior manager" and "significant role" over at least a "substantial" part of an organisation's activities are likely to pose similar problems in relation to gathering evidence in large companies—as well as in Crown bodies—to those which faced under the current law and the "directing mind" test—hence the admission by the Home Office that it only expects an additional five prosecutions for corporate manslaughter each year.

  The "senior managers" test would also enshrine in law the principle that one death caused by negligence is more worthy of justice in the courts than another. And that's because, as the government admit in the Regulatory Impact Assessment "not every death will give rise to liability to the new offence, even where a health and safety requirement has been breached and a death occurs . . .. For example, the cause of death may be the responsibility of direct managers, rather than a failure at senior management level" In other words, deaths caused by negligent direct management will not qualify for prosecution: the only deaths that will be prosecuted for corporate manslaughter are those arising out of failures by senior management.

  The Draft Bill must be amended so that work-related fatalities caused by failures at every level of management—not just at senior level—are admissible for use in the consideration of corporate liability for manslaughter.

  The T&G therefore believe that the "senior managers" test—and the definition of a senior manager—should be replaced by a simple "management failure" test: this could best be achieved by deleting sub-sections (1) and (2) in Clause 1 together with all of Clause 2 in the Draft Bill and including in their place the clause below:

T&G suggested amendment

  "A corporation is guilty of corporate manslaughter if:

(a)  a management failure by the corporation is the cause or one of the causes of a person's death; and

(b)  that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.

  For the purposes of the sub-sections above:

(a)  there is a management failure by a corporation if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities; and

(b)  such a failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual.

The "Gross Breach" Test

  In order for an organisation to be found guilty of the offence of corporate manslaughter a death must have occurred as a result of a failure by senior managers that "amounts to a gross breach of a relevant duty of care." Moreover, in deciding upon whether or not this particular test has been met a jury must consider whether or not senior managers:

(a)  knew or ought to have known that the organisation was failing to comply with any relevant health and safety legislation or guidance; and

(b)  were aware, or ought to have been aware, of the risk of death or serious harm posed by the failure to comply

  While the T&G believe that failure to comply with health and safety legislation, or indeed a failure to be aware of the risks associated with such non-compliance, should certainly be grounds for prosecution for corporate manslaughter we are concerned that this particular test will be all but impossible to meet in actual court cases. And that is because, as the law currently stands, company directors have no legally binding duties in respect of health and safety.

  So, since there is no obligation for directors to be informed of the health and safety performance of the company, it will be easy under this Draft Bill for directors to argue that they were unaware of failures—or the implications of such failures—within the company. In other words, because a director has no explicit legal obligation to ensure that their company is complying with health and safety law it will virtually be impossible for a jury to conclude that he or she knew or ought to have known that their organisation was failing to do so. The end result will be that prosecutions will fail through lack of evidence in respect of this crucial test.

  The T&G would therefore argue that the only way in which the "gross breach" test can be made to work is if it is complemented by the introduction of legally binding health and safety duties for company directors and their Crown body equivalents.

The "Profit from Failure" Test

  In their assessment of the "gross breach" test a jury must also consider another legal test imposed by the Draft Bill: namely that, for, an organisation to be found guilty of corporate manslaughter, the jury must be persuaded that there is sufficient proof to demonstrates that senior managers "sought to cause the organisation to profit from that failure" (ie to profit from a failure to comply with any relevant health and safety legislation or guidance that led to a death of a person, or persons, to whom the organisation owed a duty of care).

  The T&G are concerned that this test opens up a potential legal loophole for negligent organisations: evidence would be extremely difficult to obtain and the absence of such evidence will be used by organisations to show that their conduct was not grossly negligent. Furthermore, we are unclear as to how this requirement would impact upon juries assessing organisations that do not have a profit motive—such as those delivering public services.

  We can see an argument for allowing courts—once they have passed a guilty verdict and are determining the penalty to be imposed—to consider whether the offence of corporate manslaughter was further compounded by the fact that a company was deliberately negligent in order to make a profit or to gain some sort of benefit. But using the issue of profit to help determine a criminal penalty is very different from using the issue of profit to determine whether a company is guilty in the first place. We therefore believe that, in respect of its use as a means for determining corporate liability, the "profit from failure" test must be removed.

Crown Immunity—Public Policy Test

  We are concerned that the Draft Bill opens up a legal loophole by exempting from prosecution any decision involving public policy. Arguably, a case can be made that any and every decision made by a Crown body involves, by definition, public policy—ergo all Crown body decisions, and the subsequent actions arising out of those decisions, could be exempt from prosecution.

  Moreover, although these exclusions are most likely to apply to Crown bodies, under the proposals set out in the Draft Bill they can also apply to private companies (eg some prisons are operated by private companies).

  The Draft Bill states that a prosecution can only take place if there is a "relevant' duty of care". However, by exempting from prosecution any decision involving public policy, the Draft Bill would enshrine in law the principle that a public body does not owe a duty of care to those who may be affected by its public policy decision-making. The T&G therefore believe that this public policy test should be removed.

Crown Immunity—Health and Safety Offences

  The Draft Bill does not remove Crown Immunity for health and safety offences. If Crown bodies are to be incentivised to proactively manage health and safety in order to prevent work-related fatalities then their immunity from prosecution for basic health and safety breaches must be removed.

Failure to Include all Employing Organisations

  The T&G are dismayed that the Draft Bill fails to include all employing organisations within its scope (ie by excluding all unincorporated bodies—eg schools, building societies, trade unions— and by excluding a large number of Crown bodies eg the armed forces and the prison service).

  In fact, the decision to exclude unincorporated bodies appears to be a "u-turn" from the Government's previous position on this matter: in its Home Office Consultation document on its original corporate manslaughter proposals, the Government declared that it did not wish "to create artificial barriers between incorporated and non-incorporated bodies." Consequently the Government stated that any new corporate manslaughter offence "should apply to all undertakings rather than just corporations." We agree.

  In our view any organisation—regardless of whether it is a private company, an unincorporated body or a Crown body—can cause risk to its workers and to members of the public. Therefore, if a corporate manslaughter law is to be effective then it must apply to every employing organisation, including unincorporated bodies and all Crown bodies.

  If the negligence or recklessness of a Crown body or unincorporated body—and, their equivalent of a company director/manager—leads to a workplace fatality, then that body, together with that culpable individual, should surely be liable to prosecution for corporate manslaughter in the same way that a company and a company director should be liable to prosecution if, through their negligence or recklessness, somebody loses their life in a work-related incident.

  The T&G are also concerned that by leaving in place the current immunity from prosecution enjoyed by Crown bodies, Parliament and unincorporated bodies the Draft Bill will leave well over half a million workers, as well as the millions of ordinary citizens who come into contact with these various organisations, beyond the protection of the law. Furthermore, we believe that, by preventing criminal prosecutions for manslaughter, these blanket immunities also deny justice to the victims of work-related fatalities.

  We also believe that the failure of the Draft Bill to include all employing organisations within its scope breaches human rights legislation. According to human rights lawyers at Matrix Chambers, Crown bodies and unincorporated bodies need to be included in any new corporate manslaughter law in order for the Government to avoid being in violation of its human rights obligations under the European Convention on Human Rights. This legal advice was given jointly by Tim Owen QC, Murray Hunt and Danny Friedman in December of 2003.

  They stated that if any new offence of corporate manslaughter was restricted to incorporated bodies or subject to a defence of Crown Immunity, "it is in our view inevitable that the UK will, sooner or later, be found to be in breach of the procedural obligation in Article 2 and/or the obligation to provide effective remedies under Article 13, in the circumstances of a particular case."

  Consequently the T&G believe that a new corporate manslaughter law must apply to all employing organisations—private, voluntary and public. The Draft Bill must therefore remove Crown and Parliamentary Immunity so that all Crown bodies including Parliament, government departments, government agencies, the prison service, regulatory agencies and the civil service, can be liable to prosecution for the offence of manslaughter. The Draft Bill should also ensure that unincorporated bodies are liable to prosecution for the offence of manslaughter.

  We would therefore suggest that the Draft Bill be amended to include the following definitions:

T&G suggested amendment

  "For the purposes of this Act an "organisation includes:

(a)  any body corporate wherever constituted but does not include a corporate sole. A body corporate includes a Crown body. A Crown body means a body which is a servant or agent of the Crown and includes a government department; and

(b)  any other undertaking. An undertaking means any unincorporated body which undertakes any trade, business or profession or any other activity providing employment and includes a Crown body.

UK Companies and Deaths Abroad

  The T&G are disappointed that the Draft Bill does not apply the new offence of corporate manslaughter to UK companies that cause deaths abroad. Among the arguments that the Government has used for this exclusion are that there would be practicable difficulties in prosecuting UK companies committing corporate manslaughter abroad; and that it would not be appropriate to extend jurisdiction because that would amount to the exporting of UK laws.

  The T&G reject those arguments and believe that jurisdiction for corporate manslaughter can and should be extended because:

(a)  Individuals who commit homicide abroad and companies that commit corruption abroad can be prosecuted by UK courts. Failure to extend jurisdiction in respect of corporate manslaughter would therefore create a legal inconsistency.

(b)  Allowing UK courts to prosecute UK companies when the offence is committed abroad would not have the effect of exporting our laws as it would only affect companies registered in the UK—it would not impose obligations on companies or citizens of other countries.

(c)  Unless jurisdiction is extended the new offence of corporate manslaughter would have no deterrent value for UK companies operating overseas. In other words, there would be no incentive for such companies to improve or maintain acceptable standards of health and safety in the activities they conduct abroad.

  The T&G therefore call on the Government to widen the scope of the Draft so that companies that cause deaths abroad are liable to prosecution for corporate manslaughter.

Penalties

  As we have stated in our comments concerning the "justice gap", fines alone will fail to encourage organisations to properly manage health and safety; fines will not provide a credible deterrent to the negligent and the reckless; and fines will never deliver justice for the victims of work-related deaths.

  The T&G are clear in our view that encouragement, deterrence and justice can only be delivered if fines for guilty organisations run parallel with custodial sentences for guilty individuals. However, we also recognise that organisations cannot, by definition, be sent to prison. Consequently, alongside custodial sentences for individuals and fines for organisations there should be a much wider range of "corporate/organisational" penalties. For example:

—  Corporate Probation orders ie organisations found guilty of corporate manslaughter could be "put on probation" so that further breeches of the law could be monitored and dealt with harshly.

—  Punitive damages ie in addition to fining guilty organisations courts should be able to punish those organisations further by awarding substantial damages to the relatives, partners and/or loved ones of the victims of corporate manslaughter.

—  Equity stakeholdings ie where publicly quoted companies have been convicted the Government could take, as a penalty, an equity stake in that company in the form of shares: this would allow the Government—through the appropriate regulatory body—to influence the company's development and its management of health and safety.

—  Disqualification ie use of the existing powers to disqualify directors for breaches of health and safety laws needs to be the rule, rather than the exception as it is now (eg research by the T&G and the Centre for Corporate Accountability found that between April 2002 and March 2004 some 620 people were killed and 60,177 people suffered major injuries at the workplace yet not one single director was disqualified as a result of these deaths and injuries). The law must ensure that those who are so negligent that their employees lose their lives are never allowed to become repeat offenders.

—  Negative advertising ie organisations found guilty of corporate manslaughter could be "named and shamed" in prominent adverts that they themselves are forced to pay for.

The Pre-Legislative Scrutiny Process

  The Draft Bill will be subjected to pre-legislative parliamentary scrutiny. However, we are concerned that, as yet, there has been no decision as to the type of committee to be set up to consider the Bill, who will serve on that committee or how long it will take to consider and comment on the Bill.

  In addition to—and arguably far more valuable than—this particular Home Office consultation the pre-legislative scrutiny process is a crucial means of tapping into, and making best use of, the knowledge, expertise and advice of key stakeholders, interested organisations and individuals. Therefore, in view of the fact the Government promised actual legislation on corporate manslaughter seven years ago, we would call upon them to ensure that Parliament scrutinises the Draft Bill as a matter of urgency and to introduce a final Corporate Manslaughter Bill into parliament at the very earliest opportunity. We would also urge the Government to work constructively with the devolved bodies so that there is early action to introduce corporate manslaughter legislation in Scotland and in Northern Ireland.

CONCLUSIONS

  At best, this Draft Bill may make it a little easier to bring prosecutions against large companies and organisations. But, as the Government's own research indicates, at most, that may amount to no more than five extra prosecutions each year. What the research neglects to do is to estimate how many of those prosecutions will result in successful convictions.

  Our fear is that the answer to that question is "very few". And that's because, unfortunately, in seeking to replace the problematic "directing mind" test, the Draft Bill proposes a number of new tests—from the senior mangers test, to the profit from failure test to the public policy test. We believe that these new legal tests open up so many legal loopholes that convictions will be as hard, or perhaps even harder, to obtain then at present.

  The Bill also fails to ensure that every employing organisation is covered: unincorporated bodies are excluded from its scope and the provisions relating to Crown mean that, not only is Crown Immunity merely partially lifted, but every Crown body could potentially take advantage of a public policy defence in order to escape prosecution. If a new corporate manslaughter law is to be effective then it must apply to every employing organisation

  Arguably though, this Draft Bill's greatest weakness is its complete failure to tackle individual liability. We have always argued that organisations don't kill people—those who own and run them do. If any corporate manslaughter law is to be effective then it must do three things: it must prevent fatal accidents by providing a credible deterrent; it must hold the guilty to account; and it must ensure justice for the victims of negligence. And, in each case, that requires the law to target guilty individuals, as well as guilty organisations. Sadly, the Draft Bill completely ignores individual liability by focusing entirely on corporate liability.

  The T&G believe that, in its current form, this Draft Bill is a missed opportunity. As a minimum, it must be amended so as to ensure that corporate and individual liability are covered and that all Crown bodies and unincorporated bodies are brought within its scope. We look forward to continuing to contribute to the debate on this Bill as it progresses through the draft scrutiny process in Parliament. We also look forward to the speedy publication of a final bill that recognises, and puts right, the faults and weaknesses we have identified in the Draft Bill.