DRAFT CORPORATE-killing legislation to be debated in parliament today would have made no practical difference to the four major railway disasters since 1997 had it already been in place, a study for RMT by Britain’s biggest trade-union law firm reveals today.
The ‘corporate manslaughter’ label is the only achievement the government can claim if the Corporate Manslaughter and Corporate Homicide Bill passes unamended, according to Thompsons Solicitors, which adds that the bill marks a ‘significant retreat’ from the government’s policy on the issue.
For the Southall, Ladbroke Grove, Hatfield and Potters Bar crashes, which killed a total of 49 and injured approaching 700 people, the draft law would have made no practical difference in sanctions or establishing individual accountability, the law firm says.
Rather, the bill expressly prevents individuals being held to account, provides a ‘glaring loophole’ for companies to establish complex corporate structures to avoid liability and would encourage companies to shift responsibility for health and safety to more junior managers.
RMT general secretary Bob Crow has forwarded the report to Labour MPs, urging them to support amendments that would prevent the bill becoming a wasted opportunity.
‘We have waited patiently for nearly a decade for the government to keep its promise of a proper corporate-killing law,’ Bob Crow said today.
‘To have any effect such a law would expect employers to take workers’ health and safety far more seriously, and would put those whose negligence caused unnecessary deaths in the dock and potentially behind bars.
‘If this bill is passed as it stands it will achieve neither.
‘If the law is to achieve any real purpose it is essential that company directors have specific health and safety responsibilities and stand to be held accountable if their failure to observe them results in death,’ Bob Crow said.
The Executive Summary of the Thompson’s report says the following.
‘The Corporate Manslaughter and Corporate Homicide Bill is currently proceeding through Parliament. The Bill, as currently drafted, abolishes the common law offence of Corporate Manslaughter and replaces it with a statutory offence. Sanctions are unlimited fines and remedial orders. There is no individual liability for directors or senior managers under the Bill such that no person will be imprisoned under this legislation.
‘This paper considers what practical differences the Bill will make with particular reference to how the Bill would have applied to the major railway disasters of recent years.
‘We conclude:
• The Government has stepped back from its position in 2000 which was the most progressive it has been on this issue. The present Bill represents a significant retreat from that position in a number of respects.
• The Government has performed a complete U-turn on two key issues. The Bill does not apply to unincorporated bodies such as partnerships, whatever their size. On individual liability, Clause 16 expressly prevents this so that there is no personal liability for directors or senior managers under the Bill. Therefore, no person will be imprisoned under this legislation.
• There is a glaring loophole in the Bill in that companies can establish complex corporate structures using subsidiary companies to avoid any liability on the parent.
• The “senior management” test will continue to cause difficulties and has already resulted in many companies pushing down health and safety matters to more junior managers to avoid liability under the Bill.
• Ultimately, the corporate manslaughter label is the only achievement the Government can claim. No new sanctions will apply to the new offence and it will be far harder to secure a conviction for corporate manslaughter than for the existing health and safety offences. The only real difference will be the label.
• On sanctions, it is clear that whilst prosecutions would now arise for corporate manslaughter, the sanctions would be no greater and indeed are more restricted than under health and safety legislation. In addition, with the senior management test, precisely the sort of companies who do not have an adequate safety culture are already taking steps to avoid possible prosecution by pushing health and safety down to more junior managers. This is having the opposite effect of the Government’s stated intention that board’s should take greater responsibility for health and safety matters.
•In respect of the railway disasters which are the subject of this paper, from Southall in 1997 to Potters Bar in 2002, the Bill as currently drafted would make no difference in terms of sanctions. Bereaved families and injury victims are unlikely to consider it adequate that the only positive outcome of the Bill would be the ability to secure a manslaughter conviction and attach that label to companies guilty of gross corporate negligence.’
The Introduction to the report states: ‘The Corporate Manslaughter and Corporate Homicide Bill is currently proceeding through Parliament. The Bill passed a second reading on 10th October 2006 and the Standing Committee debates concluded on 31st October 2006.
‘The Bill, as currently drafted, abolishes the common law offence of Corporate Manslaughter and replaces it with a statutory offence. Sanctions are unlimited fines and remedial orders. There is no individual liability for directors or senior managers under the Bill such that no person will be imprisoned under this legislation. Prosecution of offences will be the responsibility of the Crown Prosecution Service.
‘This paper considers how the Bill would have applied to the major railway disasters of recent years if it had been in operation when they occurred, to ascertain whether the Bill will make any practical difference in the prevention of such incidents and the prosecution of those responsible.’
Four major rail disasters from 1997-2006 figure in the report.
It states the ‘Southall rail disaster occurred at Southall East Junction on 19th September 1997 when a high speed train from Swansea to London Paddington operated by Great Western Trains collided with a freight train operated by English Welsh and Scottish Railways which was crossing to Southall yard. 7 died and there were 139 injuries.
‘The underlying causes of the accident were the failure of Great Western Trains’ maintenance systems to identify and repair an automatic warning system fault on the high speed train, the failure of Railtrack to put in place rules to prevent normal running of a train with the automatic warning system isolated and the failure of Great Western Trains to manage the automatic train protection pilot scheme.
‘The corporate manslaughter prosecution against Great Western Trains failed. They were fined £1.5 million for an offence under the Health and Safety at Work Act 1974.’
The Ladbroke Grove disaster.
The report states: ‘On 5th October 1999 a commuter passenger train operated by Thames Trains passed a red signal at Ladbroke Grove and collided with a high speed passenger train operated by Great Western Trains. There were 31 fatalities and over 400 persons injured.
‘The underlying causes of the accident were deficiencies in the route training of the driver, poor sighting of a signal and a failure by Railtrack to respond to numerous previous SPADs (signals passed at danger).
‘The Ladbroke Grove Public Inquiry under Lord Cullen took place during 2000 and the two reports published in 2001 made 163 recommendations. Railtrack were blamed for “institutional paralysis” and failures which were “serious and persistent” and “lamentable” leading to the disaster.
‘The report of a separate Public Inquiry into train protection systems was published in 2000 and included 39 recommendations.
‘Thames Trains were prosecuted for offences under the Health and Safety at Work Act 1974 concerning failures in respect of driver training. They were fined £2m.
‘Railtrack’s successor Network Rail, was also prosecuted under the 1974 Act. On 31st October 2006 Network Rail pleaded guilty to charges which included an obscured signal and failures in respect of signal visibility. The charges also alleged a failure to ensure a signals sighting committee met after 6 signals passed at danger between 1996 and 1998 and a failure to conduct any adequate risk assessment or investigations following the SPADs. The matter has been adjourned for a further hearing on 18th December 2006 at Blackfriars Crown Court when Network Rail will confirm in writing the full basis of its guilty plea.
Hatfield
‘On 17th October 2000 a high speed train from Kings Cross to Leeds operated by Great North Eastern Railways de-railed on passing over a section of broken rail south of Hatfield station in Hertfordshire. There were 4 fatalities and 70 persons injured.
‘The immediate cause of the accident was the fracture and subsequent fragmentation of the rail due to the presence of multiple and pre-existing fatigue cracks. The underlying causes were the failure by Balfour Beatty Rail Maintenance Limited to effectively manage the inspection and maintenance of the rail and Railtrack’s failure to manage effectively the work of Balfour Beatty and to implement an effective rail renewal operation at the scene of the accident.
‘Manslaughter charges were brought against Network Rail as successors to Railtrack, Balfour Beatty and 6 managers from both companies. Those 6 managers and a further 6 were charged with breaches of the Health and Safety at Work Act 1974 as were Balfour Beatty and Network Rail.
‘The manslaughter charges were dismissed. Balfour Beatty had pleaded guilty to a health and safety charge relating to the derailment. They were fined £10m but this was subsequently reduced on appeal to £7.5m. Network Rail was found guilty of health and safety charges and was fined £3.5m. 5 individual Defendants facing health and safety charges were found not guilty.
Potters Bar
‘On 10th May 2002 a Kings Cross to Kings Lynn inter-city train operated by Great North Eastern Railways de-railed on passing over points on the approach to Potters Bar station. There were 7 fatalities and over 70 injured.
‘The immediate cause of the accident was the failure of the points causing them to move whilst the train was passing over them. An underlying cause was that the points were poorly maintained and out of adjustment. Whilst it has not yet been clearly established for certain how they came to be in this condition, the maintenance staff employed by Jarvis had received no specific training in the installation and maintenance of adjustable stretchers bars which was a key feature of these type of points. The reason for the lack of any training programme was a failure to produce a procedure for the installation of such equipment despite a stated intention by British Rail to do so back in 1993.
‘The Crown Prosecution Service have announced that there is insufficient evidence to pursue manslaughter charges against any individual company. However, charges under the Health and Safety at Work Act 1974 are still being considered and a decision will be taken after the Coroner’s Inquest to be held in 2007 as an enhanced Inquest with a High Court Judge sitting as Coroner.’