Holes in Scotland's corporate killing proposals

“Mind the gap”, goes the familiar safety warning over London Underground’s loudspeakers as passengers step down off the trains. Scottish justice minister Cathy Jamieson should bear that in mind as she studies in detail her expert group’s recently published proposals for new offences of corporate killing.

In fact, there is a whole series of gaps and inconsistencies in the proposals that could make them a disastrous burden on business, unworkable, or both.

The one already much commented on is the gulf that would be created between English and Scottish law if, as the group proposes, Scotland goes its own way in targeting not just organisations but also individuals.

Admittedly, it is hard to contradict the group’s argument that it would be problematic to import into Scots criminal law the English civil law concept of gross breach of a duty of care, on which the Home Office has based its own proposed new corporate manslaughter offence for England and Wales. Making an organisation liable instead for death through recklessness, and where it failed to put in appropriate health and safety policies and systems, is sensible and covers both those who were aware of the risks of their actions or lack of them, and those who ought to have been.

The majority in the group who backed creating offences varying substantially from that in the rest of the UK might well also argue that Scotland has the right to impose its own rules of behaviour on organisations residing in it. However, in so doing they overrode not only the concerns of the representatives from business – just two out of the 11 – over the impact of investment in Scotland, compounded by the proposal to make Scottish-based organisations liable for deaths resulting from their activities anywhere else in the world. They also disregarded the Health and Safety Executive’s own representative who raised the operational need for a consistent approach.

Indeed, the group left unaddressed the potential gap between whatever law is brought in and existing health and safety legislation, which is an area reserved to Westminster. This creates the real possibility that a company that through its recklessness kills one person would be prosecuted under the former, but if its recklessness “only” maimed hundreds it could only be prosecuted under legislation which the Scottish Parliament has no authority to amend.

Meanwhile, there would be no point in creating a new offence if it did not result in penalties different from those available under the Heath and Safety At Work Act which already include up to six months’ imprisonment for individuals as well as unlimited fines.

Corporate probation and the appointment of health and safety administrators, while the guilty organisation implements changes to prevent reoffending, are two of the few, truly new sanctions proposed by the group. Yet who is to oversee these links into the broader question raised by the group’s call for additional resources for the HSE to investigate the new offences, when this is outside the Scottish Executive’s remit? Another proposal, disqualifying an organisation from activities associated with the offending, could have an unfair impact on employees, shareholders and customers, a significant issue judges already have to bear in mind when imposing penalties. Yet this “spillover” effect did not stop the group proposing “equity fines” – requiring a guilty company to issue additional shares, diluting its value – even though that caused the New South Wales Law Reform Commission, when it recently considered a corporate manslaughter law, to reject them as an option

Of course, the proposed new offences for individual directors and senior managers might be considered the biggest deterrent against corporate killing. Causing death by recklessness was seen by the majority of the group as appropriate for cases falling short of culpable homicide and easier to prove. However, the question must be asked – as it was by a minority in the group – whether there should be a lower legal threshold against a person just because the death occurred in the workplace.

Admittedly, the group would limit the secondary offence when the organisation is already being prosecuted to directors and senior managers responsible for ensuring systems are in place and functioning properly. This, however, would take us no further forward than previous debates. In larger organisations all on the board could say they had no such direct responsibility, except the person to whom health and safety has been delegated – and who, as a result, would want to take on that role?

Meanwhile, as now, in small companies where division of responsibilities of this sort rarely exists, all directors could be liable and face imprisonment.

The report’s rationale seems to be principally driven by a political need to respond to anecdotal indications of “significant public dissatisfaction” with the number of prosecutions to date in Scotland. However, if evidence had been obtained from more than the unions, academics and others with their own public agendas who very much mirror the bulk of the group’s own membership - or at least more weight given to the warnings of the minority representation of business and the Health and Safety Executive itself - its gaps and inconsistencies might perhaps have been better addressed. We must wait for draft legislation to see if Ms Jamieson was in the end minded to mind them.