The Railway Forum is an industry-wide body sponsored by and paid for by most of train operating companies (and including ATOC), the rolling stock leasing companies, Network Rail, London Underground, the Passenger Transport Executives and many manufacturing and infrastructure companies, as well as other businesses connected with the railways. In all we have some 50 members. Our key role is to act as a think tank, information exchange and point of contact for those committed to and interested in the rail industry.

GENERAL COMMENTS

  1.  The Railway Forum welcomes the improvements that have been made to the Bill compared to earlier versions. The draft Bill thus represents a significant step forward and provides a sensible platform for further debate. This is important given the complexity and emotion that often characterises the corporate manslaughter issue. In particular we welcome and support:

—  the recognition that the new offence is aimed at identifying organisational rather than individual liability; a distinction that has not always been clear in previous debate yet one that is crucially (and legally) separate;

—  the acknowledgement of the need to strike a balance between accurately identifying and punishing unsafe conduct and ensuring that businesses are not unduly burdened by legislation;

—  the requirement to set the Corporate Manslaughter offence within the context of existing health and safety legislation; and

—  the proposals relating to the Bill's coverage of public bodies, although further consideration of how this might impact public policy decisions in relation to safety may be required.

  2.  However we have a number concerns over certain aspects of the Bill and how they might be interpreted and implemented. These are expanded upon in more detail in the relevant sections below. In summary:

—  definition of "senior manager"—this is somewhat unclear. Whilst we accept that reaching a catch-all definition is effectively impossible, this is an issue that requires further consideration in the pre-legislative stage;

—  "gross breach"—similarly the definition of a "gross breach" requires further clarification; as currently drafted it is not clear whether a combination of some or all of the heads under Section 3 (2) need to exist to determine a gross breach. Further, Section 3 (4) suggests that non-statutory—and potentially subjective or unreliable—guidance could be considered in determining whether a gross breach has occurred;

—  concurrent trials—the Health and Safety at Work Act (HSWA) requires a reverse burden of proof (ie shouldered by the defendant organisation) whilst a corporate manslaughter offence would require the burden of proof to fall on the prosecution. Thus, we believe it would be inappropriate and unfair to run both offences concurrently; if an organisation is to be prosecuted for both offences then the trial for corporate manslaughter should precede any trial for health and safety offences;

—  remedial orders—whilst the power to order remedy of a gross breach is, in principle, accepted we are concerned that judges are unlikely to be in the best position to evaluate the wide range of issues to be considered in setting remedial orders. This is particularly pertinent given the often multi-causal characteristics of railway accidents where the need to understand the interaction of complex systems and human factors is paramount. Alternative arrangements in this area would therefore be preferable; and

—  corporate structures—we seek further clarification as to the extent to which parent companies could be sanctioned since there may be circumstances in which it is held that a parent company has a duty to individuals in a subsidiary (or to third parties engaged with it). The situation with regard to the duty owed by a contracting company to a third party affected by the actions of its contractor is similarly open to interpretation. This is particularly important given that the number of instances of such arrangements within the rail industry.

  3.  From a wider viewpoint the debate on public safety in recent times has had the unfortunate effect of increasing risk aversion within the railway industry.[3] In particular the prevalence of a "safety at any price" approach in many areas has had serious consequences, particularly with regard to industry performance and cost. Although great strides have been made by the industry to tackle this issue in the past few years, risk aversion remains a problem. The Corporate Manslaughter Bill can be a useful step forward in shaping this debate however care needs to be taken to ensure that it does not have the effect of encouraging further risk averse behaviour. This tends to occur when legislation or standards deriving from legislation become over complex and poorly defined and in particular where this leads to test cases that, though they may lead to acquittal, are seen to have a detrimental impact on individuals and their families.

  4.  As part of this process we therefore urge the Government to conduct a mature, wider public debate on safety policy in concert with these proposals. This debate must address in particular the basis for decisions on public policy and safety and what constitutes an acceptable level of risk.

COMMENTS ON THE CONSULTATION PAPER AND THE DRAFT BILL

The need for reform

  5.  The Railway Forum largely agrees with the assessment outlined in this section. The existing law as it stands does not enjoy general public confidence and the difficulties surrounding the "identification principle" mean that securing a prosecution is particularly problematic. Nonetheless the fact that only six of the 34 cases brought under corporate manslaughter since 1992 have resulted in a conviction does not, of itself, constitute a case for reform. In this context therefore it is important to ensure that any reform to the corporate manslaughter offence is not only effective in holding organisations to account but is also fair in the manner in which this is achieved. Only in these circumstances can the public have real confidence in the law and the unintended consequences of unclear and seemingly over-rigorous legislation on business be avoided.

The offence

  6.  The Railway Forum generally supports the proposals as outlined in this section and in particular the approach outlined at paragraph 14 of the consultation that "focuses on the arrangements and practices for carrying out the organisation's work rather than any immediate negligent act by an employee". However we do have some concerns regarding the exact nature of what constitutes a "senior manager" and these are expanded upon below.

The scope of the offence

  7.  The Railway Forum welcomes the acknowledgement that Crown immunity from the new offence would be inappropriate and supports the contention to extend the scope of the offence to cover the Crown based on the nature of the public service being undertaken.

  8.  Similarly we support the approach taken in identifying those areas that fall outside the scope, namely questions of public policy and prerogative. However we do not believe that the public policy exemption should be restricted solely to public authorities (as the Bill currently states it should). Private organisations, particularly utilities that oversee large networks (and that may be supported by Government), also make decisions involving public policy with regard to balancing competing public interests. In this sense then we believe that a public policy exemption should, for consistency with the overall scope of the offence as noted in paragraph 7 above, be based upon the nature of the policy decision rather than the type of organisation that takes it.

MANAGEMENT FAILURE BY SENIOR MANAGERS

  9.  We are somewhat concerned that the definition of a "senior manager" is unclear as currently drafted. Clearly a comprehensive, catch-all definition is effectively impossible to attain however the following questions are, we believe, worthy of further consideration:

—  what constitutes management of a "substantial part" of an organisation?

—  what does a "significant role" in such management entail?

  Whilst the intention behind these terms is described in the consultation this is not carried through into the drafting of the Bill. This is an issue on which we seek further clarification since it is clear that it is intended that the offence will take effect at a lower level than is currently the case (where a "controlling mind" needs to be identified). Furthermore whilst the UK railway industry is characterised by a wide range of organisations, large and small, employing widely varying management structures. In this context it is crucial that the basis for identifying "senior management" must be robust and flexible enough to cope with the spectrum of different management organisation.

  10.  We have a particular concern that test cases to clarify the scope of legislation are highly undesirable. Previous prosecutions that have occurred following accidents have had a significant and unwarranted impact on individuals and their families even if the outcome is an acquittal. We would therefore press for clarification at the earliest stage. An observation on our part is that businesses with a turnover of approx. £25 million and above tend to have formal hierarchies and senior management (along the lines that were possibly in the minds of the drafters if the Bill). Below that figure organisational structures tend to reflect a wider range of influences: family relationships, informal hierarchies based on friendship and a blurring of management with the workforce in tackling problems. We are not at all certain that this category of business easily fits into this model.

Gross Breach and Statutory Criteria

  11.  The Railway Forum supports the contention at paragraph 32 of the consultation that the offence should be reserved for the most serious management failings and that, as such, the threshold should be correspondingly high. In this context it supplements the already rigorous health and safety legislation and any extension of the corporate manslaughter offence into ground already covered by health and safety controls would, we believe, be counter-productive.

  12.  Whilst we welcome the addition of statutory criteria as a useful aid in the determination of whether or not a gross breach has occurred we nonetheless have some concerns in this area. In particular:

—  as currently drafted it is unclear whether some or all of the heads under Section 3 (2) are required to be present for guilt to be established. This is important since some of the heads may not be relevant to the particular circumstances of a case (eg Section 3 (2)(b)(iii)).

—  Section 3 (3) does not cover safety guidance from bodies that are not enforcing authorities. In the rail context this might preclude consideration of guidance from the Rail Safety and Standards Board (RSSB) that has a key role in safety and standard setting across the industry.

—  Section 3 (4) implies that a jury could be directed to consider non-statutory guidance on health and safety. It is quite possible that such guidance could be shown to be unreliable and/or subjective and as such could in fact be detrimental to safety.[4] The position of an organisation that (correctly) disregards guidance that can be shown to be detrimental to safety is therefore unclear.

  The Railway Forum submits that these issues are addressed through further analysis and debate with the aim of refining Section 3 of the Bill.

Corporations

  13.  As already noted above we have some difficulties with the proposals as regards the relationship between parent companies and their subsidiaries. In particular the analysis at paragraph 37 of the consultation infers that a parent company (as well as any subsidiary) would be liable to prosecution where it owed a duty of care. How this meshes with the existing principle of limited liability in respect of corporate structures is unclear. For example if a parent companies' management systems have significant influence over the actions of the subsidiary it might be argued that this might be sufficient to establish a duty of care. We believe this is an area of the Bill that requires further scrutiny.

The Crown

  14.  The Railway Forum supports the approach set out in this section subject to the comments made above at paragraphs 7 and 8.

Individuals

  15.  The Railway Forum fully supports the Government's intention to focus on reforming the way organisations are held to account and not individuals. The latter issue has often, misleadingly, characterised debate on corporate manslaughter and to pursue such an approach in this Bill would have serious implications for risk aversion.

Causation

  16.  Rail accidents are, by and large, a result of a whole host of inter-related factors encompassing technological, management, system and human failings. The current case law on multi-causal fatalities is unclear and as a consequence establishing whether a "senior management failure" was a "substantial cause" in such a situation is likely to prove problematic. We are therefore concerned that the Bill does not offer any further lead on such a key issue—particularly in relation to rail where single-cause fatal accidents are rare—and seek further clarification of this section of the Bill.

Sanctions

  17.  The Railway Forum supports the contention that the appropriate sanction for a corporate manslaughter offence is a financial one. However the proposal to enable a judge to order remedial action in the rare case of a gross breach requires careful examination. In both cases—setting fines and implementing remedial orders—we believe appropriate parameters need to be laid down.

  18.  With regard to fines this requires:

—  clear criteria on which to base fines for corporate manslaughter offences.

—  clarity with respect to the link between fines for corporate manslaughter offences and fines for health and safety offences as a result of the same incident.

  19.  With regard to remedial orders it is crucial that the context of any incident is taken into account. As already noted, fatal rail accidents tend to be multi-causal. In light of this great care needs to be taken setting remedial orders and the wide range of contributory elements must be considered and carefully assessed if the order is not to be counter-productive. As we have already highlighted at paragraph 12 with regard to statutory criteria, the risk of implementing inappropriate remedial measures to the overall detriment of safety is significant.

  20.  We are not convinced that Judges are best placed to carry out this process alone. However if this proposal is to be retained we suggest that the following supporting measures are put in place:

—  matters of expert judgement should be referred to a relevant authority (eg the Office of Rail Regulation); and

—  adequate mechanisms for appeal of the remedial order.

  21.  On the question of appropriate sanctions for public bodies we would argue that, although fines may be "recycled", they still send a powerful public message regarding the cost of failing to meet obligations. Similarly remedial orders could also be used innovatively to sanction public bodies and can better address particular systemic factors that may have contributed to the offence.

Risk aversion

  22.  We recognise that risk aversion is an intangible subject and that it is difficult to manage in legislative terms. It is however frequently an outcome when legislation or standards deriving from legislation become over complex and poorly defined. The situation is exacerbated if unclear legislation becomes the basis for test cases that, even though they may lead to acquittal, are seen to have a detrimental impact on individuals and their families. At present we think that much remains unclear and in such a situation it is worth considering a reverse test: can the scope of the new legislation be defined such that its key requirements can be readily understood by management at all levels?

  23.  In this context we also believe that the Government should begin to develop the wider debate with regard to public policy and safety. For the offence of corporate manslaughter to work most effectively it must be buttressed by a wider understanding of the decision-making process underlying safety policy and what constitute acceptable levels of risk across industry sectors. At present we see this as a debate that is in its infancy.

17 June 2005

4   See for example the recommendation arising from the Ladbroke Grove Inquiry to install roof hatches in trains. This was subsequently shown to have a detrimetal effect on safety. Back