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Health and Safety (Offences) Bill

My Lords, the Government very much welcome the introduction of the Bill by my noble friend Lord Grocott. I am delighted that he has decided to introduce and take forward these measures. I congratulate him on his comprehensive and detailed exposition of the terms and implications of the Bill. I also congratulate and thank the right honourable Member for Streatham, Keith Hill, for his skill and collaborative approach in successfully piloting the Bill through the Commons. He demonstrated a willingness to consult widely with a range of stakeholders, and to take on board the views and concerns of honourable Members. In short, his approach was exemplary. I am particularly pleased that there was strong cross-party consensus on the Bill in the other place. I place on record my thanks to the honourable Members for South West Bedfordshire, Andrew Selous, and Rochdale, Paul Rowen, for their proactive support. That has been reflected wholeheartedly by the Conservatives today—for which I thank the noble Lord, Lord Taylor—and, with some qualifications, by the noble Lord, Lord Addington. These proposals are entirely consistent with the Government’s health and safety strategy and the wider consideration of regulatory sanctions outlined in both the Hampton and Macrory reports. The Government are satisfied that the HSE, local authorities and other health and safety regulators are doing all that they can to bring successful health and safety prosecutions. However, the courts are presently prevented from imposing adequate and realistic penalties in some of the most serious health and safety cases. I stress that the Bill does not add to or change any of the existing duties on employers or individuals, nor does it create any new offences. Rather, it provides for changes to the current penalties regime for health and safety offences which were last changed in 1992. The HSE and other regulators prosecute when it is proportionate to do so: when failures to comply with the law are serious and when serious risks are not prevented. That is in line with HSE policy and the enforcement principles supported by the Government, which were helpfully outlined by my noble friend Lord Grocott. The proportionate approach is evident in the fact that all of the HSE’s activities—including inspections, of which there were some 60,000, and investigations—in 2006/07 resulted in it issuing 8,071 enforcement notices and 1,141 offences being prosecuted. The response to most breaches is advice and information. Nearly 80 per cent of the HSE’s prosecutions were completed in the lower courts. Those cases which are brought to the courts represent the most serious breaches of health and safety legislation where people have been unacceptably exposed to risk of serious harm. However, the lower courts are presently prevented in some of these more serious health and safety cases from imposing adequate penalties. Consequently, cases are delayed and court time wasted, where the lower courts refer cases to the higher court that they are otherwise competent to hear but for which they feel they lack adequate sentencing powers. In addition, there are cases of serious breaches where, even in the higher courts, it is not possible to impose a custodial sentence except in limited circumstances. I illustrate this by reference to deaths from carbon monoxide poisoning caused by gas appliances and flues which had not been properly installed or maintained. In 2006, Judge Roger Scott criticised current health and safety legislation after he was forced to free a gas fitter who put customers at risk from deadly carbon monoxide fumes. Branding Paul Regan ““dangerous””, the judge said: "““The family were put at risk of death by poisoning or explosion … I wouldn't 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””." The individual had admitted pretending to be a Corgi-registered fitter, carrying out work while not registered, and was fined £1,072 at Bradford Crown Court for four charges relating to the quality of work. This is clearly a situation that we must address, and the Bill does. The availability of stiffer sentences will strengthen the deterrent to others who might think that it is worth their while to continue to benefit from carrying out work that puts innocent people in danger. As my noble friend Lord Grocott explained earlier, the Bill will make imprisonment an option for the judiciary and the courts for a wider range of serious breaches of health and safety legislation. It will also help to address the mounting concern at the anti-deterrent effect of what many see as derisory penalties handed down by the courts. As my noble friend also said, as far back as 1998, the Court of Appeal identified that the general level of fines in health and safety cases was too low and gave examples of particular aggravating and mitigating factors which might be relevant when a court decided on a sentence. Aggravating factors included whether death resulted from the breach; whether the defendant failed to heed warnings, including, for example, previous HSE advice or action including improvement and prohibition notices; and whether the breach was deliberate with a view to profit or to save money. The Health and Safety Executive, local authorities and other health and safety regulators now ensure that the courts are made fully aware of these factors before sentencing, which has resulted in some improvements in the level of fines. However, health and safety fines are still generally lower than those imposed on companies by financial regulators for regulatory breaches and competition offences. It is important for social and economic reasons that breaches of financial and competition regulations are punished heavily, but it is also right that corporate health and safety crimes should attract more serious sanctions such as increased fines and, in the most serious cases, imprisonment. It is wrong that a relatively small number of businesses can gain a commercial advantage from putting the lives of their workers and members of the public at risk. Both the Hampton and Macrory reports recognise that the penalties handed down by the courts are not seen to reflect either the severity of the offence or the economic benefit a business has gained from its non-compliance. It is vital that the courts can reflect the growing condemnation that society reserves for businesses and individuals who profit or gain an advantage at the expense of other people’s health and safety. Extending the availability of imprisonment to most health and safety offences is expected to lead to a small increase in those sent to jail for health and safety offences. However, the most important effect is expected to be more effective deterrence, especially in relation to directors and managers whose influence in securing good health and safety is critical. Of course, it is for the courts to decide the appropriate penalty for the health and safety offences brought before them. By extending the maximum fine available to the lower courts to £20,000 for most health and safety offences, and by making imprisonment an option, the Bill would give the courts full scope to exercise their discretion and judgment in health and safety cases. Allowing the lower courts to have a wider range of sentencing powers for health and safety offences will also reduce the need for cases to be referred to the higher courts for sentencing. This will speed up the resolution of such cases, improving the delivery of justice, and will reduce court costs for both the defendant and the regulator. It will also free up time in the higher courts, improving the efficiency of the justice system. The extra deterrent effect of higher fines when an organisation has failed to meet the proper standards of health and safety will also provide a further driver for ensuring safe working practices. It will achieve this by focusing attention on the importance of good, sensible health and safety management which protects people in the workplace and those who might be affected by work activity. The Bill supports the majority of businesses in this country that take health and safety seriously in tackling those that seek to gain a competitive advantage by cutting corners on health and safety. The noble Earl, Lord Mar and Kellie, my noble friend Lord Berkeley and the noble Lord, Lord Addington, referred to corporate bodies. There is no prospect of a company being sent to prison. That cannot apply if the only entity being prosecuted is the corporation. Therefore, issues around a corporation having to cease trading simply do not arise. I make it absolutely clear for the record that if the corporate body alone is the subject of the prosecution, and the prosecution is successful, individuals cannot be dragged into serving a prison sentence in lieu of the corporation. If individuals are prosecuted in their own right—overwhelmingly, prosecutions involve corporate bodies—a custodial sentence may be relevant in extremis. However, a successful prosecution against a company cannot drag in imprisonment for individuals. I hope that I have addressed that point. Some noble Lords referred to the Bill’s engagement with the European Convention on Human Rights. This is a complex and detailed issue but one of crucial importance and I am grateful to have the opportunity to deal with it today. The convention point at issue is Article 6.2, which concerns the right to a fair trial and the presumption of innocence, and its relationship with Section 40 of the 1974 Act, which reverses the burden of proof on to the defendant when the offence is subject to the statutory qualification ““so far as is reasonably practicable””. The difficulty with any ““reverse burden of proof”” provision is that it is an inroad into the presumption of innocence enshrined in Article 6.2 of the convention. Section 40 of the 1974 Act was challenged in a prosecution conducted by the HSE in 2002 against a plant hire operator, David Janway Davies, for breach of Section 3(1) of the 1974 Act. The Court of Appeal ruled against Janway Davies, holding that the reverse legal burden of proof contained in Section 40 was compatible with the convention. The court's approach was to examine whether a fair balance had been struck between the fundamental right of the individual and the general interests of the community, it being for the state to justify an inroad into the presumption of innocence, "““which should not be greater than is necessary, justified and proportionate””." On the basis of this and other case law, the Government have looked carefully at the compatibility with human rights legislation. We consider that the proposals in the Bill, including the widened scope for custodial sentence, are reasonable and proportionate, and that Section 40 continues to represent a fair balance between the rights of the individual to a fair trial and the protection of life and limb from dangerous work practices. I should stress that, where Section 40 has an impact, there is first of all still an onus on the prosecution to show that there is a prima facie case, and the prosecutor would do so by referring to the reasonably practicable steps that an individual could have taken. My noble friend Lord Berkeley referred to the corporate manslaughter legislation. This concerns proceedings against corporations; it cannot be used against individuals. He also asked whether all industries were treated equally. They are, but I should point out that the maritime industry is covered by the Maritime and Coastguard Agency. He also referred to workplace transport, an issue about which he feels passionately. He is right to note that the police lead on the enforcement of road traffic legislation involving work-related road traffic accidents, for example where a sales rep has an accident while travelling between locations. However, the HSE will become involved in line with the work-related deaths protocol if the accident relates to a roadside work-related activity, for example construction. The HSE may also assist the police, and investigate, if wider issues arise from the management of work-related road safety. The noble Earl asked whether this was a hybrid Bill. The short answer to that is no. In the time available I shall not expand on that, but I am happy to write to him about it. The noble Lord, Lord Taylor, talked about deregulation. The Bill is not a deregulatory measure. However, the HSE has a better regulation framework, including reducing administrative burdens through reducing forms, providing sample risk assessments and bringing together sets of regulations, for example on construction. He also referred to myths. That is an important point because many of the stories recorded in the press, which are accepted as true, are no more than myths. The HSE has a very good ““myth of the month”” programme, which seeks to rebut these stories. Sometimes a regulator may be overexuberant and sometimes people hide behind the label of health and safety because they do not want to do something and it is easy to use it as an excuse. However, it is important that the wider health and safety community continues to rebut those myths because they cut away at what we need to do, which is to change hearts and minds about the importance of health and safety. The noble Lord, Lord Taylor, also mentioned financial penalties. If a company is prosecuted, it will pay the fine. If an individual is prosecuted, that individual could be fined. The noble Lord, Lord Addington, asked about interventions. This depends on the circumstances. However, he raises important issues of governance. These are not prescribed by legislation; this is about directors showing leadership on health and safety matters. The noble Lord said that people recognise health and safety only when it affects them directly. That is part of the challenge we need to take up to ensure that there is wider acceptance that health and safety legislation is a fundamental part of a civilised society. The 1974 Act has done much to help achieve that, but it is incumbent on us all to continue to send out that message. The Bill proposes a modest change to the Health and Safety at Work etc. Act 1974 and the Health and Safety at Work (Northern Ireland) Order 1978, both of which are widely accepted as huge steps forward and path-breaking measures not just in this country but in many others. As my noble friend said, this has the support of many stakeholders, including the Health and Safety Executive, the Health and Safety Executive for Northern Ireland, trade unions, industry, professional bodies and the public. The Government welcome the Bill. I again thank my noble friend and others for their hard work in bringing it this far.