No jail, just a fine. under the new corporate manslaughter law, bosses can still pay blood money.
The bad news is that construction killed 14 people in the last six weeks. The good news (depending on your perspective) is we can be pretty sure that no one will be going to jail.

Under sustained pressure from MPs and industry, last month Home Secretary David Blunkett finally committed to publishing a draft corporate killing law this autumn. But the bill is watered down.

Companies can keep killing without fear if the government has its way. Back in 2000, the government favoured directors taking the rap. But last month the Home Office, promising a draft bill in Autumn, said: "The criminal liability of individual directors will not be targeted by the proposals."

All round the UK, captains of industry heaved huge sighs of relief. The Confederation of British Industry, which had been dead against the government's original plan, praised the back-peddling: "We are particularly pleased that the government has avoided the temptation to target individuals. Good health and safety practice comes from a shared responsibility across the workforce."

Doing fine
Construction Confederation health and safety director Andy Sneddon, welcoming the news, said that business had got its message through: "It's an indication that the government has listened to pretty sustained lobbying from ourselves, the CBI and others."

The proposed law will impose heavy fines on companies found guilty. But directors won't be paying with a prison sentence.

New Labour promoted a law for Corporate Killing in its 1997 and 2001 election manifestos. In 2000 it printed detailed proposals. Though the Law Commission had recommended against punishing individuals, the government said it would consider this option for two reasons. First, fines were not potent enough as a deterrent, particularly in wealthy companies. Second, it wouldn't stop negligent directors setting up new businesses and running them in the same way.

Up until 2002, the government's held firm. Then in September it wrote to the eight biggest culprits - including the number one killer, construction - to find out what the impact of revised legislation would be.

In this letter and the accompanying document there was no mention of directors being imprisoned. Yes, they could be found guilty of 'reckless killing' or 'killing by gross negligence', the proposed replacements for the existing charge of involuntary manslaughter. But there would be the same difficulties in making these individual charges stick as there are now: only directors of very small companies where total responsibility for safety can be proved are prosecuted. And even then successful prosecutions are few and far between. (see factfile, below)

What happens next?
So what can directors expect under the latest revision of the law? That their company will be prosecuted if management failures have caused death or deaths. This is the big difference from current law where, under the existing offence of 'Involuntary Manslaughter', companies cannot be prosecuted unless a responsible individual has been identified and prosecuted first. This can't happen with bigger firms.

What difference will it make? Not much. The HSE already fines firms for killing people. Supposedly there is the threat of stigma to a corporate reputation if a firm is labelled Corporate Killer, but killing is just part of doing business in construction. Theoretically, directors could be disqualified from managing firms again, but as directors have no specific health and safety duties, this never happens.

Construction in particular could get off lightly, due to the likely stipulation that in order to be guilty, management's conduct must "fall far below what can reasonably be expected of an undertaking in the circumstances". Construction companies will be benchmarked against other construction companies with respect to safety.

This will be something for the lawyers to get their teeth into. But it seems like it will be difficult to fall 'far below' standard practice. Most firms have regulations, PPE, method statements, maybe a safety manager or two. It's just that they don't stop people being killed.

So it's business as usual. Unless, that is, the Transport and General Workers' Union (TGWU) changes things. After the Corporate Killing bill failed to surface in the Queen's speech last year, the union decided it needed to push the government into action.

Two draft bills are central to the TGWU's campaign: one on Corporate Killing, the other on directors' duties with respect to health and safety. Campaign leader Pauline Doyle said: "We want to say to the government: 'Here you are, we have done the work for you.'"

It is the directors' duties bill which could turn out to be crucial. Its aim is to put a legal duty on company directors to make sure the company complies with health and safety law and will require the appointment of one director with responsibility for health and safety.

Blame culture
Business has never liked the idea of a health and safety director. The line from the Institute of Directors (IoD), which supports the latest version of corporate killing legislation, is that making one individual responsible would lead to a culture of scapegoating.

David Bergman, director of the Centre for Corporate Accountability says that this is not the intention. The health and safety director would have a duty to provide information to the board so that the whole board was responsible. This would allow existing legislation to be more effectively applied: the whole board could be found guilty of manslaughter and be sent down.

How likely is it that such a bill will ever make it through parliament? Not very. MP Ross Cranston presented a ten minute rule bill on directors' health and safety duties in March this year. This type of private member's bill usually serves to raise awareness in the House. Cranston's bill secured a first reading, but the limitations on parliamentary time mean that private members bills rarely become legislation.

As things stand, it is unlikely that a Corporate Killing law will come up before Parliament in the next term. TGWU want to hear it mentioned in the Queen's speech in October. Without that Blunkett's words are just words.

So, for the time being, the message is simple: keep on killing.

Last rights: the legal position

If the law stays the same:
  • Only small firms/directors prosecuted for ‘involuntary manslaughter’ due to requirement to prove ‘controlling mind’
  • There have been eight convictions of company directors; five convictions of companies; maximum prison sentence was three years (Source: Centre for Corporate Accountability www.corporateaccountability.org)
If government gets its way:
  • Companies can be prosecuted for ‘Corporate Killing’ if management failure causes death, and if management ‘falls far below what can be reasonably expected’
  • Directors are unlikely to be convicted of new manslaughter crimes of ‘reckless killing’ or ‘killing by gross carelessness’ -unless it’s a small company
If the TGWU gets its way:
  • Introduction of directors’ duties law will make the board collectively responsible for health and safety
  • It will be easier to prosecute directors for ‘reckless killing’ (maximum penalty life) or ‘killing by gross carelessness’ (maximum penalty seven years)