Corporate Manslaughter, Directors’ Duties and Safety Enforcement London, 19 November 2007

1. Corporate Manslaughter, Directors’ Duties and Safety EnforcementLondon, 19 November 2007 Responding to the Government’s Agenda Steve Tombs, Chair, CCA, and Prof. of Sociology, LJMU Steve Tombs

2. Responding to the Government’s Agenda 1. Corporate Manslaughter 2. Directors’ Duties 3. The New Regulatory Code 4. Enforcement Policy Statement 5. Some Conclusions: Law and Enforcement? Steve Tombs

3. Responding to the Government’s Agenda • Corporate Manslaughter Ten years on …. … positive aspects of the Act But limitations and omissions Steve Tombs

4. Responding to the Government’s Agenda 2. Directors’ Duties 29/10/07: New HSE Guidance, Leading Health and Safety at Work: “written by directors, for directors” Steve Tombs

5. Responding to the Government’s Agenda • breaks government promise of 2000 • ignores limited impact of 2001 voluntary guidance • ignores evidence of HSE’s own research • ignores health and safety gains and increased accountability that would follow legal change Steve Tombs

6. Responding to the Government’s Agenda 3. The New Regulatory Code … “A Charter for Corporate Criminals” ? Steve Tombs

7. Responding to the Government’s Agenda 3. The New Regulatory Code Section 8: Compliance and Enforcement Actions “The few businesses that persistently break regulations should be identified quickly and face proportionate and meaningful sanctions” Steve Tombs

8. Responding to the Government’s Agenda 3. The New Regulatory Code Section 8 “By facilitating compliance through a positive and proactive approach, regulators can achieve higher compliance rates and reduce the need for reactive enforcement actions.” Steve Tombs

9. Responding to the Government’s Agenda 3. The New Regulatory Code Section 8 “Regulators should seek to reward those regulated entities that have consistently achieved good levels of compliance through positive incentives, including lighter inspections and less onerous reporting requirements, where risk assessment justifies this.” Steve Tombs

10. Responding to the Government’s Agenda 3. The New Regulatory Code Section 8 “Regulators should also take account of the circumstances of small regulated entities, including any difficulties they may have in achieving compliance.” Steve Tombs

11. Responding to the Government’s Agenda 3. The New Regulatory Code Section 3: Economic Progress “Regulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection.” Steve Tombs

12. Responding to the Government’s Agenda 3. The New Regulatory Code Section 6: Inspections “Regulators should use only a small element of random inspection in their programme to test their risk methodologies.” Steve Tombs

13. Responding to the Government’s Agenda 3. The New Regulatory Code Para 1.3: A “constructive and preventative approach” ..that “help[s] and encourage[s] regulated entities to understand and meet regulatory requirements”. The investigation of work-related death and injury? Steve Tombs

14. Responding to the Government’s Agenda 4. Enforcement Policy Statement 2003-2006 review: EPS “fit for purpose” … • more enforcement off the agenda? Steve Tombs

15. Responding to the Government’s Agenda 4. Enforcement Policy Statement • HSE information base • HSE’s internal audit - should be prosecuting 3x as many cases - 16% of audited cases: over-lenient enforcement - no cases of “over-zealous” enforcement Steve Tombs

16. Responding to the Government’s Agenda 5. Some Conclusions: Law and Enforcement? Enforcement action: necessary, if not sufficient, condition of effective regulation Labour’s fixation with criminalisation … But: • seeking to prove itself as party of business • committed to most simplistic versions of ‘globalisation’ • a knee-jerk antipathy to regulation Steve Tombs