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House of Lords

Friday, 4 July 2008.

The House met at ten o'clock: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Southwell and Nottingham.

Health and Safety (Offences) Bill

Lord Grocott: My Lords, I beg to move that this Bill be now read a second time.

This is a Private Member’s Bill from the other House on the subject of health and safety at work and it is a privilege for me to have been asked to present it. It goes without saying that I could not single-handedly have presented the material that I shall be giving to the House and I need to give out one or two words of thanks. The first goes to my right honourable and very good friend Keith Hill, who piloted the Bill through the Commons. He was lucky enough to win a ballot for a Private Member’s Bill, which few of us were able to do. Secondly, I thank my noble and good friend Lord McKenzie of Luton who, as well as being the Minister who will be speaking later, is the lead Minister for health and safety at work. It is nice to have the lead Minister in our House. I also thank his officials and the staff at the Health and Safety Executive who did all the work. I hope I am not being premature in thanking the opposition parties. The Conservatives and the Liberal Democrats were very supportive in the Commons and I feel that may be the case today. There has almost always been all-party support for health and safety legislation.

Let me begin with a word or two about the parent Act. One of the things I have enjoyed about this operation has been reading the speeches made during the passage of the Health and Safety at Work etc. Act 1974, which was introduced by that short Government between February and October 1974. Many positive contributions were made in the Commons at that time by people whose names may be familiar. I can call them by their real names as they were at the time. There were contributions from Jeff Rooker, Tom King and Giles Radice; and it would not be proper legislation without a supportive contribution from the noble Earl, Lord Ferrers, in this House. It has been a nice trip down memory lane. My only regret is that the people of Lichfield and Tamworth decided in February of that year not to send me to the House of Commons and so I was not able to do anything about it myself.

In its 34 years, the Health and Safety at Work etc. Act has experienced minor amendments from time to time, and this Bill is one such amendment. The Act has been added to by many regulations but its substance—that is to say, the structures, duties, offences and the approach to safety in the workplace that it established—has remained intact and has stood the test of time. The standards of culture that it enshrines have been sustained by the Health and Safety Executive, a body of high national and international repute, and

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by the highly respected role played by environmental health officers who enforce health and safety in offices, shops and similar premises at local level.

The record of the 1974 Act speaks for itself. Between 1974 and 2007, the number of fatal injuries to employees fell by 73 per cent; the number of reported non-fatal injuries fell by 70 per cent. Between 1974 and 2007, the rate of injuries per 100,000 employees fell by a huge 76 per cent, and Britain had the lowest rate of fatal injuries in the European Union in 2003, which is the most recent year for which figures are available. The EU average was 2.5 fatalities per 100,000 workers; the figure in the UK was 1.1.

So what are the reasons for the Bill? Why is it necessary to increase the penalties as the Bill seeks to do? There are three principal reasons: first, to update the penalties so that, in simple, layman’s terms, the penalties match the offence; secondly, to provide for more effective deterrence; and, thirdly, to establish greater efficiency in the dispensation of justice.

On tougher penalties, there is a well-established view that the fines available under health and safety legislation are inadequate. As long ago as 1998, the Court of Appeal judged that the health and safety fines being imposed were too low. In the consultation leading up to the Government’s publication of their strategy statement, Revitalising Health and Safety, in June 2000, the overwhelming view of consultees was that the general level of penalties imposed by the courts was inadequate. Only 7 per cent considered that the existing framework for penalties was satisfactory. In 2005, Philip Hampton, in his report for the Treasury on regulation and enforcement, noted that the existing maximum fine of £5,000 for a breach of a regulation was an insignificant sum for most businesses. The point was reiterated in 2006 by Professor Macrory in his regulatory justice report.

On the option of imprisonment, there is a history going back to the mid-1990s of judges expressing discontent at being unable to impose jail sentences for the most severe health and safety offences. Examples include prosecutions involving illegally employing children to help with the removal of asbestos and the fabrication of test certificates for cranes where the offences were carried out with the consent of the company director. In practice, of course, because health and safety failures typically result from a chain of decisions rather than from one person’s action, it is likely to remain the case that the prosecution of individuals for health and safety offences will be very infrequent. Nevertheless, I believe that the courts are right to call for the availability of the penalty of imprisonment for the most serious offences.

The second reason for higher penalties is for more effective deterrence. If we are to deter irresponsible behaviour and encourage compliance with the law, penalties need to be high enough to eliminate the gain from breaking the law. Philip Hampton puts the general principle, and this is the message to good businesses, which are of course in the majority:

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Hampton had no doubt about the inadequacy of the penalties under the 1974 Act. He said:

That is why Recommendation 6 of the Hampton review was that maximum fines in the magistrates’ court should be increased and Recommendation 7 was that fine levels should take account of the economic benefit gained. The Bill will implement those recommendations.

The third reason for these changes is the need for greater efficiency in the court system. There is little doubt that at present the lower courts will often refer the most serious cases, which they are otherwise quite competent to hear and judge, to the higher courts because they feel that they do not have adequate sentencing powers. Typically, that could cover cases taken under regulations governing asbestos, gas safety or construction. Consequently, court cases are delayed, court time is wasted and the more valuable time of the higher courts is used up unnecessarily. By extending the £20,000 maximum fine to the lower courts and making imprisonment an option, more cases will be resolved in the lower courts and justice will be administered more efficiently.

The Bill had not only cross-party support in the Commons but widespread support for its principles from a range of people, including employer organisations, trade unions and professional bodies such as the Institution of Occupational Safety and Health and the Health and Safety Lawyers’ Association. The support for the principles of the Bill is very welcome, but I know that there have been some concerns about the option of imprisonment, which the Bill extends. I hope that I can offer some reassurance.

First, imprisonment is widely available under other regulatory legislation, including the Environmental Protection Act 1990, the Food Safety Act 1990 and the Water Resources Act 1991. It is helpful to note that these arrangements seem to have worked well, without objection, for many years. More importantly, I should highlight the strict guidelines which are observed by the regulators in their approach to the prosecution of health and safety offences. The document which they work to is the Health and SafetyCommission’s Enforcement Policy Statement. Paragraph 39, which I recommend to anyone in doubt about this, makes it clear that prosecutions should be in the public interest and where one or more of a list of circumstances apply. These include where,

These are very strict considerations about very serious matters. Prosecutions are not undertaken lightly.

However, I recognise the concern that has been expressed about the extension of the option of imprisonment. My right honourable friend Keith Hill

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recently approached the Sentencing Guidelines Council with a view to its issuing fresh guidelines to the courts in response to the Bill’s provisions. The Sentencing Guidelines Council has responded positively, indicating that it has identified these offences for inclusion in its work programme and will review that programme in the event of the Bill becoming law.

Now to the Bill’s provisions; it will, as the Long Title states:

The Bill comprises three clauses and four schedules; this is the technical bit, but it will not take a moment. Clause 1 brings in Schedules 1 and 2, which respectively replace the penalty provisions of subsections (1A) to (4) of Section 33 of the Health and Safety at Work etc. Act 1974 and paragraphs (1A) to (5) of the Health and Safety at Work (Northern Ireland) Order 1978. The schedules also set out the mode of trial and maximum penalties for the health and safety offences listed in the 1974 Act and paragraphs of the 1978 order. Clause 2 introduces Schedules 3 and 4, which deal with consequential amendments and repeals respectively.

We always try to follow the principle of conveying to the House anything we know which is relevant, even if it is not yet official. In that respect, I understand that the Delegated Powers and Regulatory Reform Committee will publish its comments on Clauses 2(2) to 2(6) next week, and some change may be necessary in Committee. I fully recognise the crucial nature of the work of the Delegated Powers and Regulatory Reform Committee, but I am absolutely confident that we shall be able to satisfy it on those provisions.

Clause 3 sets out the Short Title, commencement and extent of the Bill. As the Explanatory Notes and other notes indicate, the Bill has no significant implications for public expenditure—it would not dare to do that at the moment—or public sector manpower. It creates no new regulatory requirements, and no new compliance costs arise for those obeying the law. However, the Bill engages with the European Convention on Human Rights, which I shall mention briefly in a moment.

I turn to the changes set out in Schedules 1 and 2. The schedules list the new proposed penalties at each level of court hearing. They set out three changes to the present arrangements. First, they raise the maximum fine that may be imposed in the lower courts to £20,000 for most health and safety offences. The higher court fines remain unlimited. At present, the lower courts are able to fine up to a maximum of £20,000 for breaches of general duties to safeguard people’s health and safety. The current maximum penalty for specific breaches is a £5,000 fine, but such breaches may be just as serious as breaches of general duties. Specific breaches include, for example, those of asbestos and construction regulations. The Bill would extend the £20,000 lower court maximum to offences that typically have created risk directly or indirectly, or actual injury, damage to health or death. The £20,000 maximum is extended also to offences, for example, that undermine the ability of enforcers to investigate what may be serious health and safety offences.

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The second change to present arrangements is set out in the schedules and would make imprisonment an option for most health and safety offences in both the lower and the higher courts. At present, imprisonment is an option only in certain cases. In the lower courts, it is an option only for failure to comply with an improvement or prohibition notice, or with a court remedy order, and for offshore offences. In the higher courts, it is an option only for failure to comply with licensing arrangements or explosives provisions, or disclosures in breach of the Act. Those are all serious offences. However, the Bill will extend the option of a custodial sentence to other offences; for example, where the illegal removal of asbestos has exposed people to serious risk. It is my expectation that imprisonment will continue to occur only in the most serious cases and that there will be only a minimal increase in the number of offenders going to prison, which currently is three or four a year.

The third change to present arrangements would make two offences which are currently triable only in the lower courts either-way offences, like most health and safety offences, so that they would be triable in either the lower or the higher courts. These offences are, first, under Section 20 of the Act, the contravening of any requirement imposed by an inspector—for example, to give information for an investigation or to leave premises undisturbed after an incident—and, secondly, preventing another person appearing before an inspector or answering his or her questions. Under the Bill, those offences can in future attract the tougher penalties available in the higher courts.

Finally, I shall say a word on the Bill’s engagement with the European Convention on Human Rights. The courts have already held that the burden imposed by Section 40 of the 1974 Act is compatible with the convention. The question is whether the Bill increases the likelihood of a successful European Convention on Human Rights challenge by introducing the option of imprisonment for an offence to which the reverse burden of proof applies. My advice is that such a provision can be compatible with Article 6.2 of the convention if it is justified on the basis that is reasonable and proportionate and does no more than is absolutely necessary to accomplish the aims of the statute. Those points are made in paragraphs 20 and 21 of the Explanatory Notes, and I know that my noble friend Lord McKenzie will address the matter in his speech a little later.

The United Kingdom is a world leader in health and safety, but we must always strive to do better. Last year, employees in Britain suffered nearly 230 work-related deaths, nearly 30,000 major injuries and well over 100,000 lesser injuries that kept them off work. Of course, it is not only employees whom the legislation seeks to protect but members of the public who suffer death or injury at workplaces. In 2006-07, more than 120 members of the general public were killed, and nearly 17,500 reported injuries. I hope that this short Bill will play its part in our striving to do better. Its purposes are clear: to punish the criminally negligent who put life and limb in danger in the workplace, to deter those who are tempted to cut costs by breaking the health and safety law, and to render faster and

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more efficient justice. The Bill seeks to do all this with no new regulatory requirements or new compliance costs in any sector, and I commend it to the House.

Moved, That the Bill be now read a second time.—(Lord Grocott.)

10.25 am

The Earl of Mar and Kellie: My Lords, it is always difficult to be seen as criticising health and safety at work or anywhere else, but the Bill raises some questions. I am mindful of the 20th anniversary of the Piper Alpha disaster and the start of the plastics factory disaster inquiry in Maryhill in Glasgow.

The noble Lord, Lord Grocott, has brought forward this challenging Bill and explained it well. In this short intervention, I shall raise seven points in the Bill which I do not fully understand, or at least did not do so before I heard the noble Lord’s explanation.

First, the Bill seems to be a hybrid between regulatory and criminal legislation. That may not necessarily be a bad thing. Secondly, the Bill proposes the use of a reverse burden of proof; that is, guilty until proved innocent. I have read that this reverse burden of proof has up till now been used only for regulatory rather than criminal offences. Thirdly, the Bill allows for the imprisonment of the body corporate, but it is not at all clear about how the human representatives of the body corporate will be chosen. How will they be selected? This reminds me of the wretched whipping boy supplied to take the punishment of the youthful King James VI in George Buchanan’s schoolroom. Fourthly, I can see considerable impact on minute-takers and pressure on them after each meeting to establish and record who had reservations about each corporate decision. Fifthly, is there not a better reality for corporate imprisonment? Rather than directors or senior staff being imprisoned, is not corporate loss of liberty in fact suspension from trading? Does the Bill not attempt to dismantle the concept of a separate legal persona for businesses? Sixthly, Network Rail has suggested amendments which reduce the imprisonable to those who are personally and identifiably guilty. Seventhly, Network Rail also points out that, without such clarification, someone who had not attended the trial could be imprisoned—a sort of contracted blame-taker.

Will the Government support the Bill? I look forward to hearing that my worries about it are ill founded. At this moment, I fear that it will promote risk aversion.

10.28 am

Lord Berkeley: My Lords, I congratulate my noble friend Lord Grocott on moving the Bill, because it is an important addition to health and safety at work legislation and to the Corporate Manslaughter Act that we debated a year or two ago. I also congratulate my right honourable friend Keith Hill, who, in addition to starting this Bill in the other place, has the undying gratitude of the whole rail freight industry—I am chairman of the Rail Freight Group—for introducing an amendment to the Railways Act 1993, which was the privatisation Act, stating that the Government and the regulator had a duty to promote freight as well as passengers. He deserved a lot of credit for that. This

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Bill is a good sequel to that legislation because it affects the railways. However, it affects many other parts of industry as well. I certainly agree with my noble friend, who said that the penalties should be seen to be changing behaviour and should be a deterrent. It is the usual story that those who do it right have nothing to fear and those who do not need to be dealt with.

I have two issues to discuss. First, there is the issue of the Health and Safety Executive treating all industries fairly. The other is the corporate manslaughter issue that the noble Earl, Lord Mar and Kellie, raised. It is essential that the HSE is seen to treat all industries equally across modes, be they roads, railways, the building industry, ports, or offshore oil. It is disappointing in some ways that the maritime sector is not covered, so that the terrible accident involving the “Bowbelle” is not part of the HSE’s remit. Whether it should be is not something for this Bill.

One issue that worries me is that the railways are still seen to be a high-risk industry, along with offshore oil and a few others, whereas the roads are not. My noble friend in his excellent opening remarks cited 230 work-related deaths, in which the HSE had been involved in prosecutions, and 120 other members of the public who had died. That figure is much too high, although, as he said, it is probably lower than in many other member states; but you can then compare that with around 3,000 road deaths every year. I know that the number is coming down, which is a great tribute to our colleagues in the Department for Transport, but 3,000 is still very high. A significant proportion of those deaths are defined as being “at work”. Of course, the road maintenance and construction people are clearly at work, but a large proportion of drivers are at work. Whether it is 30 per cent or 40 per cent we can debate, but certainly most heavy-goods vehicle drivers and white van drivers are at work.

In recent years, the HSE has made more effort to prosecute people and companies that allow their employees to work particularly long hours, and I hope that that will continue. Even 25 per cent of the 3,000 road deaths each year is still a great deal higher than the figures that my noble friend quoted in other industries. It is very important, from the public perception angle, that the HSE really has a go at road fatalities. I know, as a result of previous debates that we have had here, that the usual explanation for not doing more has been that it is up to the police. Then one finds that it is not a primary duty of the police to do this, so the consequence is that nobody does it. That is a great shame. I hope that my noble friend the Minister can give me some comfort that this will continue to change. It has changed—that has started—but there is still quite a long way to go.

The other issue is corporate manslaughter and going to jail. As the noble Earl, Lord Mar and Kellie, said, it is difficult to send a company to jail. I am not sure where we ended up with the corporate manslaughter debate and whether government agencies are included in the provisions. Whether Highways Agency directors would go to jail if they did something that justified a prosecution is an interesting idea. As a colleague said to me before this debate, it would be even more surprising

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if the Prison Service was convicted and went to its own jails, which I am sure is unlikely to happen, because somebody would arrange for it not to happen.

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