In May 2000, the UK government published its proposals to reform the law on involuntary manslaughter. It was widely expected that legislation would follow fairly quickly.
The highlight of the proposals was a new corporate killing offence to hold companies to account where death was caused by management failure. This was defined as conduct falling far below what could reasonably be expected in the circumstances. The new offence would apply to all businesses and undertakings in the UK (about 3.5m overall). The proposals also sought views on introducing a greater deterrent in the form of a new criminal offence (punishable by imprisonment) for individuals who had substantially contributed to the management failure.
The consultation period ended in September 2000, and the Government received over 160 submissions. Since then it has gone strangely quiet, considering the momentum that had built up behind the initiative. Politicians had been lining up to endorse the need to protect people from the kind of corporate recklessness evidenced by the Zeebrugge disaster, where the inquiry judge had found the company "infected from top to bottom with a disease of sloppiness".
The Home Office is giving no indication when legislation may be expected, with the Minister for Criminal Justice, Sentencing and Law Reform, Keith Bradley, admitting last July that he could not say exactly when a final decision would be announced. There are several possible reasons for the hiatus. Contrasting influences are at work, with some pushing in the direction of early legislation and some pulling against.
Firstly, the introduction of a new corporate killing offence was a 2001 manifesto commitment. Keith Bradley has stated in parliament: "We aim to honour that commitment". This suggests that it is a question of when the new offence will come to pass, rather than if.
Secondly, if public opinion was in favour of reform before the publication of the government's proposals, then recent events have done little to diminish it. Outrage at failure to successfully prosecute corporate manslaughter charges like the Herald of Free Enterprise (187 cases of unlawful killing), Kings Cross Fire (31 dead), and the Clapham rail crash (35 dead, 500 injured), was referenced in the government's proposals. More recently, the Director of Public Prosecutions and trade unions have renewed their calls for new legislation after the conclusion of two workplace death cases. Costain and Yarn were fined £250,000 after a collapsed gantry killed four workers. In a separate case Euromin and its director were cleared of manslaughter after a 24 year old was crushed to death.
Despite the head of steam behind the proposals for reform, there is some influential opposition. One important dissenting voice belongs to the Confederation of British Industry (CBI), which states on its website: 'The Home Office consulted on the proposed offence of corporate killing where a corporation's conduct for workplace deaths falls far below what could have been reasonably expected... The CBI endorses corporate responsibility but the Home Office package will not achieve this'.
The CBI feels that the proposals are unfair on business and that the way forward should build on, current health and safety legislation.
Meanwhile the government's speculation about an additional criminal offence (with imprisonment as a possible penalty) for those who have 'substantially contributed' to the corporate killing, appears to have opened up a can of worms. 'It will come as no surprise that that was probably the most contentious part of the consultation paper.'(1) 'Concerns about this element of the package include worries that putting directors in the dock might not provide much incentive for businesses to take corrective action, as well as fears that the suggestion undermines the principle that that the offence of corporate killing should hold to account not individuals, but companies as a whole.'(2) There are clearly important issues to be decided in this respect.
A question of balance
Although not much may appear to have happened over the last year since the publication of the proposals, there has been a noticeable change in tone. The Government's proposals highlighted the pressing need for reform, the unacceptability of corporate recklessness that cost lives and the importance of strong deterrents and fearsome penalties. Now the language sounds more moderate.
Recent noises from the Government stress the need to balance peoples' safety with the entrepreneurial nature of business: 'Too strict a test of liability might lead ... conscientious enterprises to question whether to continue supplying goods or services that attract risk.'(3) They emphasise the importance of careful and detailed consideration of issues and underline the imperative to 'get it right before we proceed to legislate.'
What does all this mean? It still looks as if reform is inevitable. We do not know when the new offence will be introduced, but it is certainly not as imminent as it seemed a year ago!
(1) House of Commons Hansard Debates for 10 July 2001. (2) Ibid. Ross Cranston MP (3) Ibid. Keith Bradley MP
Simon Housego is product development manager, AIG Europe, E-mail: firstname.lastname@example.org