Health and Safety (Directors Duties) Bill

Speech by Malcolm Bruce delivered to UK parliament on Fri 4th Mar 2005

Health and Safety (Directors Duties) Bill

Second reading debate, 04.03.2005

Malcolm Bruce: I support the Bill, although I am concerned about one or two aspects of it. I shall share with the House my direct experience of accidents in which liability was established but prosecution of individuals was not possible under existing law.

In my constituency, there are many workplace accidents for which there is no directors' liability. I have in mind accidents on farms involving self-employed

farmers. In the past 18 months, a farmer in my village managed to get on the wrong side of a bale of hay—one of the rolled-up bales, which weigh about a tonne. It started to roll and he—foolishly, but probably impulsively—tried to stop it and was killed.

Today in my village the funeral takes place of a 10-year-old boy who died in another completely unforeseen farm accident, albeit it was not a workplace accident. The boy was rolling snowballs on his friend's father's farm and a quarter-tonne snowball rolled down the hill on top of him, killing him instantly.

No one can be held responsible for such accidents—they cannot be foreseen. We cannot eliminate all accidents, but there are some accidents that raise clear issues that the Bill is designed to address.

Many of my constituents work in the offshore oil and gas industry, in which, regrettably, accidents do happen. I do not suggest that the industry has an appalling safety record or a bad safety culture—quite the contrary. I can hardly recall a meeting with the directors and operational heads of any of the significant North sea operators in which safety has not been raised by the management and directors themselves, anxious to assure us that the safety culture is something that matters offshore. None the less, accidents happen.

The case that I intend to set out is an example of extremely bad business practice, which led to the company's being liquidated, but not before someone had lost his life.

I agree entirely that good businesses and good business practices promote safety. Such companies have nothing to fear from the Bill, but in some cases good business practice does not apply, and negligence—wilful or otherwise—is a significant contributory factor in loss of life.

The Cullen inquiry into the Piper Alpha disaster examined various possibilities, including the Norwegian option, but decided, rightly, to propose an alternative regime, which has since been enacted in the UK.

The Norwegians had tried to establish an extremely complicated legal framework to force everyone engaged in the operation of a platform to follow, in effect, a tick list, but the evidence showed that that did not produce as good a result as making the operator responsible for the safety case of its installation and for satisfying the Health and Safety Executive on how it was making the installation safe and what its procedures were. That was better than imposing a framework on operators, because they knew better than anyone where accidents were likely to occur and where risk was present. It was felt that engagement between companies and the HSE to produce an acceptable safety case was likely to lead to a better outcome, and experience suggests that that approach has been vindicated, although accidents have not been eliminated entirely.

One case encapsulates one of my points of concern about—not opposition to—the Bill. I agree with the approach of creating a general responsibility, rather than imposing specific restrictions. My concern centres not on that general responsibility, but on the role of the health and safety information director. I shall share with the House the specific constituency case that, more than anything else, makes me believe that a Bill of this sort is necessary.

A knackery in my constituency was for many years run by a company called Dundas Brothers. I cannot think of a year, or perhaps even a month, of the 22 years in which I have been an MP when I have not been engaged in correspondence with constituents who were concerned about the plant—the offensive way in which it was operated, the dreadful smells, which spread for miles, and the general incompetence, appalling negligence and wilful mismanagement that characterised the company. In the past 12 months, the company has gone into liquidation. As far as I am concerned, it is a happy event.

One of the problems is that no one really likes talking about knackeries—they are not mentioned in polite company—but they are an essential component of farming. Our farming industry has suffered some appalling traumas in recent years: first, there was BSE, the consequences of which were devastating to my constituency; then, there was foot and mouth disease. No cases of foot and mouth and no significant incidence of BSE were seen in my constituency, but being a beef-rearing constituency, it suffered all the consequences of the regulations and impositions that flowed from those dreadful problems, including the over-30-month scheme.

Unfortunately, there was a clash between the urgent need for rendering capacity and the company's health and safety duties. I had numerous consultations with council officials and the Scottish Environment Protection Agency, who more or less acknowledged that the plant was not fit to operate. If they closed it, however, they were not sure where rendering could take place, because there was not any alternative capacity.

Against that background, a teenage boy—I cannot recollect whether he had just left school—began work in the knackery yard. On his first or second day of employment, he climbed on to a forklift truck, even though he had never operated one before, and managed to start it. Tragically, it toppled on top of him, killing him. The plant was relatively small, and the case is unavoidable—people responsible for that plant should never have allowed circumstances to develop in which a boy could behave in that fashion. There is no justification for their conduct, and although I do not have the report with me, I have paraphrased the words of the sheriff who dealt with the case. In the sheriff court, as in the lower court, the maximum penalty is a fine of £20,000, and that was imposed on the company. The sheriff regretted deeply that he did not have greater powers to impose a much more severe penalty.

Unsurprisingly, the boy's parents came to see me. I supported their representations to the procurator fiscal to ensure that a prosecution was brought, but equally, when they came to see me afterwards, I accepted their argument that this was not justice. The fine was not adequate and was not an acceptable maximum penalty for their son's loss of life. A criminal prosecution of a director should have been pursued.

Interestingly, the evidence in the briefing notes suggests that there have been few prosecutions—indeed, there have been only one or two. None of the authorities in the case that I have outlined believed that a prosecution would succeed. I cannot think of anything more extreme than that case, but clearly there have been such circumstances for prosecutions to be successful.

The principle of requiring directors to have a general responsibility is a good one. I agree, however, that we must determine what that means. Clearly, we must address the apprehension among directors that they could be held liable for something that takes place far from them and about which they could not possibly know. I would like an assurance that the Bill would not make them accountable for such things.

In most cases accidents are investigated by health and safety officials, and in Scotland, if appropriate, there is a fatal accident inquiry. As a general rule, lessons are learned, but there is not a demand for a criminal prosecution. Officials look at what happened, what procedure was applicable and why it was not followed.

The vast majority of directors and companies would, I hope, act responsibly. My experience post-Piper Alpha is that that culture is strong in the oil and gas industry, and I do not think that anyone wants a queue of cases in which directors are prosecuted and brought to court.

The primary objective is to create an awareness mechanism to reduce the number of accidents, not to increase the number of prosecutions.

Nevertheless, unfortunately the worst practices may occur in medium-sized companies. They do not have the advantage of extensive training and corporate culture, but they should be aware of their responsibilities. They should be made aware that legally, if there is a serious or fatal accident in their company, they may be held liable, so they must ensure that they keep abreast of current practices in management techniques and operations.

If general responsibility for health and safety could lead to criminal liability, directors need guidance about what that means. The Bill therefore requires directors to inform themselves about health and safety practices and to take all reasonable steps to satisfy themselves that they know what they are. If there are any problems, they should support remedial action. In those circumstances, they should be able to satisfy the Crown Prosecution Service and others that they have followed all the relevant procedures and taken reasonable action, so a criminal prosecution is not justified.

I accept the argument that the health and safety information director should be charged with informing other board members about health and safety issues. There is a danger of undermining the main purpose of the Bill, which is to make all the directors responsible for health and safety, collectively and individually.