House of Commons
|Session 2007 - 08|
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General Committee Debates
Health and Safety (Offences)
Health and Safety (Offences) Bill
The Committee consisted of the following Members:
Chris Shaw, Committee Clerk
attended the Committee
Public Bill Committee
Wednesday 26 March 2008
[Mr. Greg Pope in the Chair]
The Chairman: Before we begin our consideration of the Bill, I have a couple of announcements to make. First, Members may remove their jackets if they so wish during Committee proceedings. Secondly, I remind Members to switch phones, pagers and BlackBerries to silent during meetings of the Committee. I also remind Members that adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments.
Health and safety offences: mode of trial and maximum penalty
Question proposed, That the clause stand part of the Bill.
After section 33 of the Health and Safety at Work etc Act 1974, there is inserted
(1) The level of the fine imposed, subject to the maximum stipulated in Schedule 3A, shall be determined by, amongst other relevant considerations, the financial assets and income of the person or employer concerned.
(2) The maximum fines in Schedule 3A shall, by order made by statutory instrument, be increased, on 1st January, annually by the increase in the general level of earnings for the year to the previous 31st March..
Keith Hill (Streatham) (Lab): Before going on to make detailed remarks about the Bill, may I say that I am almost speechless with pleasure at the thought of serving under your chairmanship, Mr. Pope? I retain my original awe at the concept and appearance of Chairmen of Committees from those days in 1992 when we entered Parliament together, and I am certain that you will preside over our deliberations with magisterial impartiality, notwithstanding the fact that you are one of my oldest and closest friends in the House of Commons.
Clause 1 is by far the most important of the three clauses in this short Bill, because it brings in schedule 1, as well as schedules 2 and 3, which replace the penalty provisions of section 33(1A) to (4) of the Health and Safety at Work etc. Act 1974, and also sets out the mode of trial and maximum penalties for health and safety offences listed in section 33(1)(a) to (o) and for offences under existing statutory provisions where no other penalty is specified.
Perhaps I might take this opportunity to set out how the Bill changes the present arrangements, and the background to the changes. I shall also say a few words
Three changes to the present arrangements are set out in the Bill. First, the maximum fine that may be imposed by the lower courts is raised to £20,000 for most offences. Secondly, imprisonment becomes an option for most health and safety offences in both the lower and the higher courts. Thirdly, two further offences become triable in either the lower or the higher courts.
The Bill increases the sanctions available for offences under the 1974 Act. The call for increased sentencing under health and safety at work legislation has two origins. Over the years, there have been repeated expressions of frustration by the courts at their inability to impose custodial sentences for health and safety offences. Secondly, wide consensus has developed among all interested partiesstakeholders, as they are now knownthat tougher sentences are required.
That consensus emerged from 1999 to 2000 in the consultations leading up to the publication in June 2000 of the Revitalising health and safety strategy statement by the former Department of the Environment, Transport and the Regions. Paragraph XIX of annexe A to the document states:
The question of what penalties should be faced by those who breach health and safety law received the highest number of responses. The overwhelming message was that the current level of penalties is inadequate (only 7 per cent. considered the current system to be satisfactory).
Indeed, paragraph 59 in the main part of the strategy statement announces a measure with proposals for higher and lower court fines and the wider availability of imprisonment as the Governments response to the consultation.
That measure has been introduced five times in different forms. Naturally I am hoping that this will be fifth time lucky. Clearly, the Bill is supported by the Government, and by the Health and Safety Commission and by the Health and Safety Executive, both of which have maintained their belief in new or enhanced sanctions over a period of years. More recently, the Bills purposes of toughening up the sanctions available under legislation has received support from two reports prepared for the Government: the Hampton report entitled Reducing administrative burdens: effective inspection and enforcement, which was published in March 2005; and the successor Macrory report entitled Regulatory Justice: Making Sanctions Effective, which was published in November 2006. There has remained wide acceptance of the case for tough penalties.
I acknowledge that both the Engineering Employers Federationthe manufacturers organisationand the CBI have reservations about the custodial aspects of the Bill, but I detect a fairly wide measure of support for its principles. In its note on the Bill, the EEF states that its members
support the principle of serious penalties for serious offences,
and the CBI note states that it
supports the principle behind this Bill to bring penalties for breaches of specific duties to safeguard health and safety in line with general duties, and to bring the penalty framework for health and safety offences in line with other offences.
I am grateful for that support. The CBI is right on both counts. One effect of the Bill will be to bring the maximum fines under the health and safety legislation into line with those already available under comparable regulatory legislationfor example, environmental and food safety legislation. A second effect will be to increase the maximum fine in the lower courts for specific breaches of regulations from £5,000 to £20,000, which is the level available for breaches of general duties under sections 2 to 6 of the Act and on the reasonable grounds that such breaches may be just as serious as breaches of general duties.
Let me make a further point about the reasonableness of the provisions. The maximum fine of £20,000 does not go beyond the limit set as long ago as 1992, under the Offshore Safety Act 1992. In addition, the new maximum of £20,000 is not sought for all offencesspecifically not those committed by individuals, which will continue to be subject to the maximum in the standard scale of charges. Let me also point out that, while the Bill raises the fines imposable in the lower courts for most health and safety offences, there are no changes in the higher court fine, which is unlimited.
The purpose of the higher fines is more effective deterrence. As Philip Hampton recognises in his report, to deter irresponsible behaviour and to encourage compliance with the law, penalties need to be high enough to eliminate the gain from breaking the law. He states the general position thus:
Illegal operators have incentives to undercut honest businesses, partly because penalties are low absolutely, but more worryingly because penalties imposed often do not reflect the commercial advantage a business has gained from non-compliance.
Philip Hampton has no doubt about the inadequacy of current penalties under the Health and Safety at Work etc. Act 1974:
In 2003-04, the Health and Safety Executive prosecuted 1,756 cases, with an average fine on conviction of £4,036 in magistrates courts, and £33,036 in Crown Courts. The deterrent effect of such fines is likely to be low. For any company other than the smallest, a £5,000 fine is likely to be an insignificant sum.
That is why recommendation 6 of the Hampton report states that maximum fines in the magistrates courts should be increased and, under recommendation 7, fine levels should take account of the economic benefit gained, which is what we are doing under the Bill.
It is in the context of the expectation of higher fines and more effective deterrence that I turn to new clause 1 and proposed new section 33A(1) of the 1974 Act. Although I expect the courts to impose higher fines generally as a result of the Bill, I would not expect them to be so high as to ruin an offending company. However, I have no doubt that, in some cases, the risks created and the injury or damage to health will be so great as to justify such a course of action, but that will be rare.
As for the financial assets and income of the person or employer concerned, the consultation paper on the sentencing guidelines for the Corporate Manslaughter and Corporate Homicide Act 2007 states:
It is common practice for an organisation to supply its accounts to the court in order to demonstrate its ability to pay a fine for an offence under the HSWA, as otherwise the court is entitled to assume that the organisation can pay any fine it chooses to impose.
With regard to an individual, not a company, the court is under a duty to inquire into his or her financial circumstances before fixing the amount of the fine. Moreover, in order to obtain information about the financial circumstances of a defendant who is an individual, the court has the power to make a financial circumstances order, requiring the defendant to give that information to the court. I expect the courts to impose a fine that, in their opinion, reflects the totality of the offence, taking into account all relevant details, including the financial circumstances of the defendant.
With regard to corporate defendants, I expect the approach to be that set out by the Court of Appeal in Regina v. F. Howe & Son (Engineers) Ltd. in 1999:
The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it, but also to its shareholders.
The court stated that a fine should not, in general, be so large as to imperil the defendants continued trading. However, there might be exceptional circumstances in which a defendant ought not to be in business. The court has to look at the whole sumfine and costthat it has ordered the defendant to pay and to consider the impact of that sum. That seems characteristic of the reasonableness and proportionality of the approach adopted in health and safety cases both by the courts and the prosecutors over the years, and I expect it to continue. I hope that I have reassured the hon. Member for South-West Bedfordshire (Andrew Selous), and that he will not press his new clause to a Division.
New clause 1 would insert proposed new section 33A(2) into the 1974 Act. The provision deals with the annual uprating of fines with which I feel an instinctive sympathy, but I cannot support it for two reasons. First, it is about primary legislation about which I obviously cannot make any commitments and, secondly, it is important to recognise that the new higher levels of fine proposed under the Bill represent far more than a simple uprating in line with inflation. They represent a statement by Parliament that we are now ready to see a step change in the direction of tougher enforcement in health and safety offences, as a simple uprating in line with inflation would put the maximum fine imposable by the lower court at £6,500. The Bill will increase it to £20,000, which is a qualitative as well as a quantitative change. It is in line with the strong consensus in favour of tougher sanctions represented by earlier consultation on Revitalising health and safety and reflected subsequently in the Hampton and Macrory reports.
Andrew Selous (South-West Bedfordshire) (Con): I am puzzled by what the right hon. Gentleman said about proposed new section 33A(2) limiting the increase in fines to £6,500. The intention behind the proposal was to index the higher sum of £20,000 in the Bill so that we do not have to come back to Parliament to uprate the figure in years to come. That was certainly the intention. If I did not make it clear, I apologise to the right hon. Gentleman.
Keith Hill: I am grateful to the hon. Gentleman, and I absolutely take his point. Although I have some instinctive sympathy with the proposal, I am unable to
Andrew George (St. Ives) (LD): I assume that the right hon. Gentleman wishes his Bill to be inflation-proof, or would rather that in years to come, we do not have to revisit the merits of having this legislation in the first place. Surely, it would be advantageous if such an amendment could be introduced to make this legislation inflation-proof. Is the right hon. Gentleman telling the Committee that he is not able to accept the new clause for some procedural reason that the rest of us do not follow?
Keith Hill: I am grateful to the hon. Gentleman for his intervention. Let me say in passing that I am grateful to hon. Members from all constituencies for their attendance at this Committee. Let me get that on the record in the event that I do not have the opportunity to say it later.
Let me reiterate the point that although I completely sympathise with the notion that we need to uprate fines in line with inflationand I reiterate my surprise that changes have not been made to fines for some 15 years, including fines under the wider criminal justice systemsuch a move is a matter for primary legislation to which I cannot make a commitment in this Bill. However, if my hon. Friend the Minister wishes to elucidate the matter further, I would be delighted to accept a reappraisal.
The Parliamentary Under-Secretary of State for Work and Pensions (Mrs. Anne McGuire): Given what my right hon. Friend said about an inflation-linked approach, does he accept that by setting the limit at £20,000, it sets a fine level that would not become inadequate for a considerable distance in future? It would be very unusual if we incorporated into the Bill something that inflation-linked the fine. Most other Actsprobably all other Actsset fines at a fixed level, at a fixed point in time, so the provision would put this Bill outwith the normal procedure for setting fine limits.
Keith Hill: I am grateful to my hon. Friend, who puts the measures into context by telling us how successive Governments have approached the issue of setting fine levels and of operating fines over a period.
Mr. Jim Devine (Livingston) (Lab): I have listened to the arguments. If £20,000 is the limit today, and if my right hon. Friend has attempted to take five Bills
Keith Hill: Again, I am exceptionally grateful to my hon. Friend for his intervention. He reflects the Committees general frustration at the approach to such matters, but it is a matter of the Governments response on these cases. If at a future date it becomes necessary to intervene further on the level of fines for health and safety offences, I am certain that my hon. Friend will be happy to pick up the baton that I now metaphorically deposit in his hand. As he knows, I shall not be here to take up such matters in future Parliaments.
Mr. John Heppell (Nottingham, East) (Lab): I understand why hon. Members want the fine to be inflation-linked, but the administration could be an awful burden, and it could be difficult to achieve clarity. It is easy for people to understand a summary penalty of £20,000. If it were linked to inflation, it could become £20,100 next year, and then £20,220. It would change every year, and the silly situation would be that people would not know what the top-level fine is. It is much more sensible and much less of an administrative burden to leave it as it is.
Keith Hill: I am grateful to my hon. Friend, another of my oldest and closest friends in the House, for coming to my rescue. I thank him for his wise words, which I hope will at least offer some explanation and satisfaction to the Committee.
I shall conclude my observations on new clause 1. I was explaining why the levels of fines represent a qualitative change in our approach to penalties for health and safety offences. In fact, that reflects an inclination, which has grown in the courts, both higher and lower, to impose higher fines over time. For example, in 1990-91, the average fine per conviction, excluding fines over £100,000, stood at £728. By 2006-07, it had risen to £8,723 for both courts. By my calculation, that is an eightfold real-cost increase that is way beyond inflation levels.
The Bill provides scope for yet higher penalties specifically by raising the maximum available to the lower courts, where the great majority of health and safety cases continue to be prosecuted. Having said that, the hon. Member for South-West Bedfordshire made the tempting offer of an annual uprating, but I am content to resist the proposal for all the reasons given.
Andrew Selous: It is a pleasure to serve under your chairmanship again, Mr. Pope. I am pleased that the Bill is being considered in Committee, and I am grateful for the collegiate way in which the right hon. Member for Streatham has talked to me, and no doubt to other hon. Members, in getting the Bill this far. I am grateful for his comments on new clause 1, and I shall deal first with that before coming, if you will allow me, Mr. Pope, to a range of issues on clause stand part. Clause 1 is the guts of the Bill, and we need clarification on some important issues of the Bills application.
I am reassured by what the right hon. Gentleman said about proposed new section 33A(1). He referred to the sentencing guidelines on the Corporate Manslaughter and Corporate Homicide Act 2007, and the way in which courts take into account the financial ability of a business or individual to pay a fine. I hope that that will provide similar reassurance about the way in which fines are levied in relation to this legislation.
I hope also that the cost to the business of rectifying the deficiency that caused the health and safety breach will be taken into account. Paying a fine is one thingwe all accept the reason for fines and their importance as a deterrentbut we must remember that the first and most important thing that the business needs to do is to buy and install the necessary safety apparatus, such as railings or harnesses, to ensure that its workers are safe. When the right hon. Gentleman replies to the debate, will he say something about courts taking into account the cost of rectifying the relevant deficiency, as well as the ability of the business to pay the fine?
I listened with interest to the comments on my proposed new section 33A(2), and I sense that I am sailing against a wall of some impenetrability in trying to do something quite reasonable and sensible. It seems as though I am simply being told, We dont do it that way in Parliament. I think it a good and sensible idea, but I sense that I shall have to hoist the white flag here and now, as I am not going to get far. However, I put down a marker to the Minister: I do not think that saying, We dont do it in other Bills, so it would be wrong to do it here is a real reason. There is merit in my proposal, and it might be right to do it both here and elsewhere. Money has a real value, and inflation destroys the value of money over time. As the hon. Member for Livingston, who obviously studied his economics carefully at school, rightly told the Committee, £20,000 will not be worth what it is now in several years time.
I flag this as a general issue: what is the most efficient way to ensure that we are not all coming back to debate endless statutory instruments on simple annual upratings? We should ensure that, when Parliament sets a fine, it maintains its real value over time. That is all I seek to do. I shall not press the new clause to a Division. We have debated this issue, and if other hon. Members want to return to it on Report, or in another place, they have the option of doing so.
Moving to the stand part debate on clause 1, hon. Members will have before them copies of new clause 2. I assure you that I shall not discuss that new clause in detail, Mr. Pope, as it has not been selected for debate. I understand from my conversations with those in the House who help Opposition Members that it was not selected because of proposed new section 33B(1), but that proposed new section 33B(2) would have been selectable if it had been tabled on its own.
Proposed new section 33B(2) raises a general issue that applies to clause 1: I should like to know why we are seeking to impose a penalty of imprisonment for nine offences for which it was not a penalty before. Eagle-eyed members of the Committee might spot that the reasons given in paragraphs (a) to (d) come directly from the regulatory impact assessment of the Bill. At paragraph 30 on page 5, the RIA states:
Imprisonment is likely to continue to be confined to health and safety cases which would be likely to cause public outrage.
Then it lists four examples. It refers to cases involving recklessness about the possibility of serious harm; deception intended to undermine enforcement; deliberately creating serious risks with a view to profit; and serious neglect leading to major injury or death.
I do not think that any member of the Committee would quibble with any of those four reasons for allowing a prison sentence to be imposed, but the fact is that under the bald legislationit will be the law if the Bill completes all its stagesit will also be possible to impose a prison sentence on summary conviction for much lesser offences. We are talking about a prison sentence being imposed by a magistrates court, without a jury. For example, it would be possible to send someone to prison for the failure to display a health and safety poster. I am not saying for a moment that the courts have gone down that route in the past.
Since 2005, there have been, I believe, only six cases in which people have been sent to prison for health and safety offences, as I am sure the right hon. Gentleman and the Minister will rightly point out, so the rate is running at about two cases a year. However, given that we are widening the scope of the offences for which people can be sent to prison, it is very important that we have a reassurance that the courts will proportionately and properly use the power that they have asked for and that we will give to them. That is what was behind the part of new clause 2 that would have been in order if it had been tabled on its own. Thank you for letting me explain that in detail, Mr. Pope.
A further issue has been raised with me by one of the outside interest groups that have commented on the Bill. It relates to the general issue of imprisonment on conviction for a health and safety offence of a body corporate. Clearly, if a body corporate is found guilty of a health and safety offence, we cannot send the company to prison; we have to send an individual. The question, particularly in respect of a large company, is whom we send and whether we are certain that we have the right person.
Let me give an example. A large engineering company has a director of health and safety on its board. I am talking about a named board director, a main board director, who has overall responsibility for health and safety. That individual has been absolutely upright and honourable in the course of his or her duties and has moved heaven and earth, within that business, to ensure that health and safety have top priority. Underneath that individual director, down the line of management, an individual manager has gone to extraordinary lengths to conceal his or her dereliction of duty in not taking health and safety seriously and behaving properly. The individual director could not reasonably have done more than he or she did to ensure that health and safety legislation was properly enforced throughout the business, but an individual manager had been deceptive in covering up breaches of health and safety.
Will the main board directorwho is perhaps the person in the newspaper headlines, the person who comes to national attention after a major health and safety incidentbe imprisoned, even though they may have done all that they reasonably could have done to prevent a health and safety offence? How will we be
The regulatory impact assessment refers hon. Members to the Health and Safety Commissions excellent enforcement policy statementI do not know whether other hon. Members have read itwhich contains reassuring phrases about proportionality. On page 6, that document says that offences
should be proportionate to any risks to health and safety, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of the law.
We all want to see that. The RIA also refers to a document called Enforcement Concordat, published some years ago by the then Department of Trade and Industry, which mentions the importance of proportionality in sentencing and says, on page 26:
in some instances the circumstances of an infringement and the enforcement bodys own policy will mean that prosecution is a disproportionate form of action to deal with the matter.
Hon. Members are referred to general reassurance in those two current documents. I am pleased that those two documents offer reassurance on proportionality.
The right hon. Gentleman mentioned in his earlier remarks the sentencing guidelines on the Corporate Manslaughter and Corporate Homicide Act 2007. The Engineering Employers Federationthe right hon. Gentleman has already commented with approval on his dealings with the EEFhas requested sentencing guidelines to be given to judges and magistrates to ensure that proportionality, which is crucial, is tied down, so that those who have genuine worries about the application of the Bill can be properly reassured.
It is worth commenting in passing, as the right hon. Gentleman did in his speech on Second Reading, on a possible breach of the European convention on human rights in terms of the Bills imposing imprisonment on the basis of the reverse burden of proof, which is different from the general presumption in English law, where people are presumed innocent and it is up to the prosecution to prove that they are guilty. Under the Bill, on an allegation of an offence, where a duty of care is owed and where the matters were within the personal control of the individual, there is a reverse burden of proof. The explanatory notes helpfully go into some detail, on page 4, on this issue.
I am not a lawyer. I hope that the Government have taken the best legal advice available to them on this point, because the legal commentI will not say advicethat has been passed to me from outside organisations has expressed surprise about this issue, and perhaps further assurance could be given. From my point of view, the explanatory notes are reasonable and sensible. However, it would be useful if the right hon. Gentleman or the Minister, when she replies, reassured the Committee about how the process will work in the British legal system, in respect of the European Convention on human rights.
In conclusion, I ask the right hon. Gentleman in particular to respond to the call for sentencing guidelines from the Engineering Employers Federation and others. He paid tribute to the EEFs motives and
Andrew George: It is a pleasure to serve under your chairmanship, Mr. Pope. I was conscious that anyone looking at the Bill superficially might fear that it was simply an extension of the nanny state and another means of adding to overcrowded prisons through legislation. The right hon. Gentlemans opening remarks will have reassured people that this is a sensible measure, and I support it. I entirely endorse the contribution of the hon. Member for South-West Bedfordshire and new clause 1. I am disappointed that he suggested he would wave a white flag on the inflation linking in proposed new section 33A(2). I still do not entirely understand why the right hon. Gentleman and the Minister in her earlier intervention gave the impression that that would not be acceptable on this or on any other occasion on which legislation might be introduced.
At the moment, we live in relatively economically benign circumstances, thanks to Liberal Democrat policy: the Government adopted in 1997 the copyrighted Liberal Democrat manifesto commitment to create an independent Bank of England, which has created the framework for the present settled economic circumstances. If that were not the case, we would not have Zimbabwe-style inflation, but we would to need to revisit this issue regularly. It seems absurd that the upper limit of many of the fines that might be imposed under such legislation need to be revisited regularly. Given the current situation, perhaps we can be relaxed over a 15-year period. As the hon. Member for Livingston said in his intervention, it may take five or six attempts before we can revisit the issue once again. Who knows how small an impact that might have relative to the effects of inflation over time.
The Minister argued that it would seem inappropriate to take account of inflation because that is not done in respect of other legislation. Just because the same mistake has been made in other legislation does not mean that we need to perpetuate that approach, which I think is fallacious in any case. The hon. Member for Nottingham, East said that it would be unfair if those who committed an offence did not know what fine might be imposed on them and that it might be £150 more than they expected. That is a rather weak defence.
The point that I was trying to make was that in reality, the £20,000 limit would remain, because the courts would not impose a fine of £20,300; the following year, it would be £20,450. It would almost certainly not be the case that the clerks in court would start working out percentage rises each year after the legislation was passed. It would be much more sensible to have a round figure, so that people and the courts would know what it was. There would be much greater clarity than the notion of it going up by inflation.
Andrew George: I am sure that that is right, and that common sense would prevail. There must be a way of finessing the arrangement so that we would not have to offer small-change answers and provide for the constant regularising of the bureaucracy surrounding minor amendments to the fines. Over a period of time, those figures could be rounded up without bringing the matter back to Parliament. I am disappointed that we cannot use this as an opportunity to look again at the concept of inflation-linking such a fine base, particularly when considering maximum fine levels. Other than that, I endorse the remarks made by the hon. Member for South-West Bedfordshire.
Dr. Alasdair McDonnell (Belfast, South) (SDLP): Like other hon. Members, I would like to express my sense of privilege and pleasure in serving on the Committee.
I shall be brief, as much has already been said, and many considerations covered. However, this matter is extremely important, particularly to those who have suffered as a consequence of health and safety failures. I am concerned that the Bill affects only England, Scotland and Wales, and I question why it has not been extended to Northern Ireland, or why Northern Ireland is exempt, because there are serious problems with health and safety failures there.
There was a particularly bad accident in the last couple of weeks, in which scaffolding and a new building collapsed. Concrete was being poured on to the top floor, and the whole thing collapsed in a concertina effect through the building. Six building workers were trapped and seriously injured underneath it all. Someone must be responsible. Luckily, none of those people died, although they were badly injured and still have not recovered.
Perhaps I should have tabled an amendment, but I am keen that the Bill should be extended to include the safety of our building workers and others in Northern Ireland. It is an extremely important issue, and we do not want a lower standard of health and safety than is enjoyed in the UK generally.
Mr. Robert Syms (Poole) (Con): May I first declare an interest as a director of a family building and property business?
I broadly welcome the Bill. From what we have heard today, the vast majority of employers in this country are responsible. In fact, there are relatively few prosecutions. We should all be thankful for that, because, as the hon. Member for Belfast, South mentioned, the consequences of injury are not only physical pain, but economic dislocation for many of the people who are affected. We have all seen such examples in our constituencies. In my experience as an employer, it was not necessarily employers who had difficulty, as sometimes it was long-term workers who were trying to persuade them of the benefits of changing the way in which they worked.
As the right hon. Member for Streatham said, it is time for a step change, not least because there has been a major change in the work force, with 600,000-odd people from eastern Europe coming in. That raises all sorts of other matters, and I hope that I am not straying too far from clause 1. It is appropriate not only for the legislation to be passed, but for the Health
I broadly welcome the Bill and the £20,000 upper limit. I have a few concerns about sentencing, to which my hon. Friend the Member for South-West Bedfordshire referred. That problem could be overcome by giving guidelines to lower courts, as the Engineering Employers Federation proposes. It is important to use a higher level of fine to publicise the requirements so that people have another look at how they are doing things. That will show the many millions of people who work in the UK that they must do everything in their power to deliver a safe workplace, because anything else is unacceptable.
Mrs. McGuire: Like other hon. Members, I should like to say that it is a pleasure to serve under your chairmanship, Mr. Pope. Having served alongside you shoulder to shoulder in the Government Whips Office, I now have a more interesting relationship with you in this context this morning. I also add my congratulations to my right hon. Friend on being the fifth and, I hope, the first successful promoter of such a Bill. We certainly have great hopes that it will become an Act, and I thank him for piloting it through.
It is obviously not my responsibility to reply to the debate, as that honour falls to my right hon. Friend, but I want to pick up on a couple of issues that have been raised and are appropriate for me to deal with as the Minister. The hon. Member for South-West Bedfordshire, as usual, drew some exaggerated examples, but I know that he often exaggerates to make a point, so I will clarify a couple of them. He raised the spectre of an individual being imprisoned for failing to display a health and safety poster. I hope that the Committee accepts that the Health and Safety Commission has a targeted and proportionate enforcement policy, and therefore a case would not be taken against a director for failing to display such a poster. In addition, the sentencing guidelines would indicate a small fine for failure to display important health and safety posters. I appreciate that the hon. Gentleman often uses such exaggerated examples to illustrate his point, and I hope that that explanation gives him some confidence.
The hon. Gentleman also raised the issue of ECHR compatibility. I am sure that both he and my right hon. Friend will have confidence that, as part of the clearing for the Bill, the LP Committee and the Governments legal advisors looked carefully at the compatibility with human rights legislation and advised us that the proposals are acceptable. That is set out in the explanatory notes, and that is why the Government support the Bill.
Mrs. McGuire: It is the Legislative Programming Committeemy apologies for using its shortened name.
I want to set the issue of fines into some sort of context, which will link with a number of comments that have been made. As my right hon. Friend indicated in his contribution, if the maximum fine had kept pace with inflation, there would have been a 30 per cent. increase from the £5,000 that was set in 1992. Over those 15 years, we had five years of Conservative Government in which the stability of the economy was not quite as great as it has been in the past 10 years, thanks to Labours stable economic policy. If the fine were to keep pace with inflation, which only rose by 30 per cent. during that period, I estimate that it would take roughly 50 to 60 years before it reached the £20,000 figure. That should answer the question asked by the hon. Member for St. Ives. I estimate that even my hon. Friend the Member for Livingston would probably not be here to take up the baton that my right hon. Friend so generously gave him earlier in the debate.
The ceiling on the fine has been pitched so far ahead that it will more than keep up with any inflationary pressures, and it will certainly keep up with the benign stability that we in government anticipate for the next 50 years under a Labour Administration. I hope that that gives some comfort to the hon. Member for St. Ives. He will not be here after two or three years, trying to ensure that the fine keeps up with inflation. I know that he is a young man, but I suggest generously to him that it might be his successors successor who would be here to consider that.
This is an excellent Bill, and as had been mentioned, this clause is the core of the measure. Once again, I offer the Governments support to my right hon. Friend in pursuing this legislation.
Keith Hill: Let me again express my gratitude to all hon. Members for their attendance and contributions. I shall consider the speeches we have heard in reverse order, and conclude by looking in wider terms at the issue of custodial sentences because I recognise that that is a serious issue. I am grateful to my hon. Friend the Minister for her remarks on human rights, specifically on the European convention on human rights.
On the reverse burden of proof, which was raised in the note by Network Rail on the Bill, may I tell the hon. Member for South-West Bedfordshire that the Government have taken the best advice. There is a detailed explanation in the explanatory memorandum and I am content that, as far as possible, the measure is ECHR-proof. I am grateful to my hon. Friend the Minister for her observations on the inflationary aspects of the measure. For one moment of deep anxiety, I thought that we were teetering on the brink of a breakdown of consensus, but she drew back from the precipice and made an excellent point about the way in which, in relation to the level of fines, the legislation will keep up with inflationary pressures for many years to come. It has always been my experience of Committee that issues are picked up completely out of the blue, acquire a life of their own, and dominate proceedings. I certainly never imagined that inflation-proofing, however good an idea it is, would acquire such significance. However, I hope that we have offered an adequacy of explanation for why the new clause should not be included in the Bill.
I am grateful to the hon. Member for Poole, who is an old adversary in Committee. Over many years, we faced each other in Standing Committee as Minister and shadow Minister, and dealt with a succession of measures. He is a metaphorical adversary, but he is also a friend. I welcome his support for the Bill. I was interested in his comment that sometimes employers might find it difficult to persuade long-term employees of the desirability of making changes. In preparation for the Bill, I took the opportunity to read the Second Reading of the Health and Safety at Work, etc. Bill in 1974. It makes fascinating reading. The Bill was introduced by Michael Foot, and it was Willie Whitelaw who replied to it. In fact, most of the legislation had been prepared by the preceding Conservative Administration. The new Labour Government added the provision for trade union health and safety representatives, which is a first-class idea that has stood the test of time and on which there is consensus. Interestingly, there was no Division on the Bill on Second Reading.
I take the point about accession state workers, and I accept the case for a publicity campaign on the Bills provisions, if they are enacted. The Government, the HSE and employers organisationsif I can say so, from my conversations with themwould be keen to do that. The hon. Member for Poole mentioned sentencing guidelines, and I shall discuss those in due course. I welcome the support of my hon. Friend the Member for Belfast, South. I was interested in his suggestion that the measure which, as reserved legislation applies to Scotland and Wales as well as to England, should be extended to Northern Ireland. I undertake to make the most vigorous representations possible to secure such an extension, which I am sure would be welcomed by all parties in the House.
I am grateful to the hon. Member for St. Ives for his intervention, specifically for his recognition that this is not a nanny-state Billwe talked about that outwith the confines of the Committee. Let me reiterate that the measure introduces no new regulations and no new compliance costs, and it will penalise only the lawbreaker. Indeed, there is a theory that greater deterrence can promote a lighter-touch inspection regime. I have already dealt with the hon. Gentlemans point about inflation-linking, which has received adequate ventilation in Committee.
I turn now to the intervention by the hon. Member for South-West Bedfordshire, about whether the level of fines take into account the cost of rectifying the deficiency that has been identified. I can do no better than return once more to the judgement of the Court of Appeal in the case of Howe in 1999, which stated that
a fine should not, in general, be so large as to imperil the defendants continued trading.
There may be exceptional cases in which a defendant ought not to be in business. Let me offer the Committee reassurance by saying that Howe constitutes part of the sentencing guidelines issued to the higher courts under health and safety legislation. I will come to that point in due course. I hope that that reassures the hon. Gentleman.
In my concluding remarks I will deal with the prosecution of individuals and how we know that we have the right culprit, as it were. However, let me end
The family were put at risk of death by poisoning or explosion. I wouldnt allow you within 150 miles of my house. You should go to prison for 18 months but as it is I can only fine you.
In 1999, a judge complained about his inability to imprison two so-called company directors for employing children illegally in an asbestos-stripping contract. In the circumstances, all that he could do was give the pair a community service sentence. The Bill would make imprisonment available as a sentence for illegal child employment in factories. In 1996, following a methane gas explosion at a coal mine, in which two workmen were badly burnt, the mine manager was found guilty on five counts concerning the management of the mine, ventilation and explosives use. The judge expressed surprise that fines were the only penalty available considering the seriousness of the offences. There are cases going back to 1994, in which judges have, on occasion, invited Parliament to consider the possibility of making custodial sentences available more widely.
I do not claim that there have been many occasions on which the courts have expressed frustration about the absence of custodial sentences for health and safety offences, but there have been enough to justify extending the provision. The regulatory impact assessment accompanying the Bill,, to which the hon. Member for South-West Bedfordshire alluded, draws attention to the infrequency with which individuals are prosecuted for health and safety offences. It records that between 2005 and early 2008, only six people have been sent to prison for health and safety offences. Our expectation is that that might double to three or four a year if the Bill is enacted.
A certain amount of attention has been directed towards the extension of the imprisonment sanction to the lower courts. In one briefing, that was described as a denial of the right to jury trial. However, lower courts may already impose a custodial sentence for failing to comply with an improvement or prohibition notice, a court remedy order or a number of offshore offences. The option of imprisonment is available under other regulatory legislation, including the Environmental Protection Act 1990, the Water Resources Act 1991 and the Food Safety Act 1990. I share my hon. Friend the Ministers slight irritation at the suggestion in another briefing that the option of imprisonment would apply to a failure to display a health and safety notice, because that discounts the extraordinary restraint and focus that the HSE already adopts in its approach to prosecutions.
It is true, as the hon. Member for South-West Bedfordshire said, that the number of prosecutions that the HSE has undertaken is very small, but they relate to the most serious offences for which criminal proceedings are found to be in the public interest. The health and safety inspectorate operates to very strict guidelines in its approach to investigation and prosecution, and they are set out in the Health and Safety Commissions enforcement policy statement. The hon. Gentleman referred to it, and it sets out five principles of enforcement: proportionality, which means relating enforcement action to risk; targeting, which means focusing on activities where risks are greatest and hazards least controlled; consistency; transparency, and accountability.
The statement also sets out the criteria to be applied when bringing prosecutions, beginning with the need to exercise discretion and identify factors such as death resulting from a breach of legislation; reckless disregard of health and safety requirements; significant risk or persistent and significant poor compliance; failure to comply with an improvement or prohibition notice or the repetition of a breach that was subject to a formal caution; the supply of false information or an intention to deceive; the obstruction of inspectors in the course of their duty; and even assault.
On the prosecution of individualsan issue raised by the hon. Member for South-West Bedfordshirehow does one know that one has the right culprit? The enforcement guidelines state that prosecutions should proceed when the breaches that I mentioned have occurred and when investigation reveals that the offence was committed with the consent or connivance of the individual, or as a result of neglect on their part. The enforcement statementparagraph 41says that, subject to the rigorous criteria for bringing a prosecution that I have mentioned,
enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy.
In other words, the enforcement statement encourages a punctilious examination of where the responsibility lies in the chain of command. We should recognise the almost restrictivecertainly weightyconsiderations upon which prosecutions are mounted. I also point out to the hon. Gentleman that it is not only the health and safety inspectors, but the courts that exercise strict criteria in the approach to custodial sentences. The Powers of Criminal Courts (Sentencing) Act 2000 stipulates that a court may not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and others associated with it were so serious that only such a sentence could be justified. It is my firm view and expectation that imprisonment under the Bill, if enacted, is likely to continue to be confined only to such cases as are likelyas the regulatory impact assessment puts itto cause public outrage.
Nevertheless, I recognise the concerns expressed about the extension of the option of imprisonment in the Bill. I want to suggest to the Committee and
My understanding is that the Sentencing Guidelines Council is already minded to do further work on environmental and regulatory offences when it comes to review its work programme for 2008-09. With regard to magistrates courts, sentencing guidelines already include guidance on health and safety offences, but I understand that the Sentencing Guidance Council has recently reviewed the whole guidelines package and consulted on proposed amendments with a view to issuing a revision in August. I also understand that the HSE and the Office of the Rail Regulator are due to meet the council in April, to discuss the guidelines in more detail. With regard to the higher courts, general guidelines exist that cover health and safety cases such as the 1999 Howe judgment, which I have mentioned.
As will be well known, the Sentencing Advisory Panel has recently consulted on sentencing for the offence of corporate manslaughter and for health and safety offences involving death, with a view to advising the Sentencing Guidelines Council, and the resulting draft guidelines are due in the autumn. It would be extremely timely therefore if the attention of the council were to be drawn to the new provisions of the Bill and if the council were requested to issue guidelines on the Bill, assuming that it will be enacted and possibly incorporated in the work already going on. I give a commitment to approach both the council and the Secretary of State for his support in that matter, and I hope that I can rely upon the Minister for her sympathetic consideration of the proposal. I hope that I have answered all the questions asked by hon. Members in their interventions, and I commend clause 1 to the Committee.
Andrew Selous: I am grateful to the right hon. Gentleman and to the Minister for their replies in what has been a useful debate and for all the contributions that we have heard. I do not intend to press new clause 1 to a vote, as I have been reassured by what the right hon. Gentleman has said about proposed new section 33A(1). With regard to proposed new section 33A(2), we seem to be in a situation that reminds me of how, when I was a Territorial soldier in an artillery regiment many years ago, we had an expression of shooting plus and minus at the target. It now seems that we have perhaps shot some way forward from where we would
I am grateful to the right hon. Gentleman for giving me some reassurance about the admittedly unusual situation that I put to him, but it nevertheless could occur in a large company, so it was about ensuring that one gets the right person. What he put on the record was important and shows the wider purpose of this part of parliamentary scrutiny, and those who are concerned about such matters can be reassured by what he said.
I am particularly grateful to the right hon. Gentleman for his wish and suggestion that the Sentencing Guidelines Council should be asked to look at this legislation, and I ask him and the Minister to keep the Committee and Parliament informed of the progress of those negotiations. In an ideal world, the Sentencing Guidelines Council would come up with its pronouncements at the point at which the Bill became law, so that we would have the whole package, with complete clarity and the important reassurance that several hon. Members mentioned the need for. I am genuinely grateful to the right hon. Gentleman for that offer, as it is just the sort of thing that the Committee is here to achieve, and I am pleased to have got that. Having listened to the debate, I will not press new clause 1.
Question put and agreed to.
Clause 1 ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
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