The Parliamentary Advisory Council for Transport Safety (PACTS) is a registered charity and associate Parliamentary group, advising and informing MPs and Peers on road, rail and air safety issues. Its charitable objective is "To protect human life through the promotion of transport safety for the public benefit".

  PACTS welcomes the opportunity to respond to the draft Bill. It also welcomes the decision by the Government to publish the Bill in draft form to ensure adequate pre-legislative scrutiny by Parliament. This relatively new approach towards the making of legislation allows for more considered law-making and for the eventual result to be better framed and more likely to succeed in the longer term.

  PACTS recognises that the proposal to establish a new offence of corporate manslaughter is a legitimate and appropriate response to a number of high profile events which were not accompanied by successful prosecutions. As the consultation paper points out, these have "given rise to public concern that the law is not delivering justice". The new offence is an attempt to satisfy this public concern.

  At the same time, PACTS wishes to point out that the prosecution of a case after the event is a recognition of failure. Long-term improvement in safety is more likely to be assisted by the comprehensive investigation of the background to an accident in order to prevent repetition and by developing a safety culture within an organisation. A charge of corporate manslaughter is an admission of failure; it is unlikely to improve the safety performance of a specific company.

  PACTS therefore welcomes the comment in the consultation document in paragraph 59 that "nothing in the Bill affects the role and powers of the independent accident investigation branches who undertake the investigation of air, marine and rail accidents". The work of these bodies is vital to help to improve the safety of transport and those who use or work in it. It is through their investigations that safety is most likely to be improved.

  This assurance, however, does not specifically cover the vexed issue of potential prejudice to subsequent criminal proceedings arising out of the publicity given to the findings of such investigations. In the case of the Watford Junction rail collision, although the Health and Safety Executive (as the predecessor of the RAIB in this role) carried out a technical investigation, its findings could not be released until after the conclusion of the trial of the driver held to be responsible. In the case of the Southall collision, which was deemed to be of sufficient seriousness to merit a full public inquiry, the start of this had to be deferred until the trial of both the train operating company and the driver had ended. Because proceedings against a number of railway officials charged with offences related to the Hatfield derailment are still under way, the final outcome of the HSE's investigations into that accident has still not been published.

  The difficulties here are that the provisions of the Contempt of Court Act come into effect as soon as any arrest has been made, irrespective of whether or not charges have been laid. This effectively silences any publication of evidence or more general comment which may be held to be capable of influencing a jury and therefore of prejudicing the right of any defendant to a fair trial. It is an important safeguard to ensure the objectivity of the criminal justice process but it has the potential greatly to hamper the equally important requirement to ensure that lessons learned from such events are speedily learned. It is likely that a charge of corporate manslaughter would be vigorously contested by any body against which it was brought and that the resulting trial would be protracted. PACTS is concerned to know whether and how the Government believes that the consequential suppression—for an indefinite period—of proper public knowledge of and comment on the causes and circumstances of the event giving rise to the trial can be avoided.

  PACTS recognises that one of the more difficult areas of the new offence will be the identification of those senior managers to whom the Act will apply. The two threshold tests that need to be passed, outlined in paragraphs 29 and 30, mean that a manager must make decisions about a substantial part of the organisation and that he must play a significant role within it. While accepting that the key issue is to ensure that those with suitable levels of expertise and responsibility are caught within the confines of the law, PACTS urges the Government to ensure that companies are not able to avoid due process by setting up complex management structures that reduce individual management responsibility.

  Clause 1 creates the offence with a punishment of an unlimited fine. While welcoming the proposal that an organisation can be found guilty of the new offence, PACTS believes that further clarification of the relationship between this clause and the comments in paragraph 48 that individuals "will remain liable for prosecution for individual offences" is necessary. Once the Bill receives Royal Assent, both companies and individual employees will be liable to prosecution for different offences with different punishments. PACTS would urge the Home Office to give further guidance on this package in due course.

  Clause 2 defines the position of "senior manager". PACTS would urge caution about the use of the word "substantial" on the face of the Bill. It appears highly likely that lawyers will spend some time debating the exact extent of responsibility. PACTS believes that government will need to give clear guidance as to the meaning of both "significant" and "substantial" in this context.

  PACTS welcomes the inclusion of statutory criteria for consideration by the jury. The wording of the relevant section of the Bill (3 (2) (b)), however, may be somewhat ambiguous. It is presumably the case that there must be evidence that senior managers were guilty of one or more of the three elements and not of all three. If the latter were to be the case, then the standard for proof of culpability would be extremely high.

  As a comment on Clause 12, PACTS recognises that it will always be the case that certain aspects of law-making have to be undertaken through secondary rather than primary legislation. This Bill is no different. However, it would be more appropriate if orders made under section 1(3) were by affirmative resolution of both Houses. This would mean that Parliament would have to make a positive decision about amendment to the Schedule to the Bill rather than by default as the draft currently stands. Decisions about the inclusion or exclusion of Government departments or agencies should be taken by Parliament in full knowledge of the facts.

  PACTS welcomes the opportunity to take part in this debate about a significant piece of legislation and looks forward to further opportunity to comment as the Bill makes its way through Parliament.