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imagine you're a contracts director and a site agent calls you saying he needs a few extra days to put shoring in a trench. Somehow it wasn't programmed in. You check your mental database and recall there is around 拢20,000 per day in outgoings on that job, and it carries a hefty penalty for every day it's late. But somebody's going to have to get into that trench to guide the pipes in. You check your mental database again. You reckon the average fine for breaking safety laws is around 拢7,000 where a fatality occurs. What are you going to do?

It is precisely this sort of arithmetic, which puts company profit ahead of human life, that prompted the Labour government to commit to some form of corporate manslaughter legislation at least since 2001, having made positive noises about it since 1997.

Five years on and as many promises later (see sidebar opposite), there is still no bill, only a stab at one, in the form of a draft released in March 2005 - and even that might be ditched, if press reports are accurate. But a significant development happened last December, when two select committees of MPs, one for the Home Office and one for Work and Pensions, released a joint report on the draft bill after months of hearing evidence from those (including construction employers and workers) whose lives and working practices would be profoundly affected by a corporate manslaughter law.

Newspapers focused on where the MPs' report criticised the draft bill, with "slamming" and "rapping" all round, but in reality the MPs cheered the bill on its way in all but a few of the most controversial clauses.

Also, despite conflicting party allegiances, MPs united in all their conclusions but one: the thorny issue of whether directors or senior managers ought to go to prison for corporate manslaughter. More on this later, but first, in order to see what a corporate manslaughter law would mean for construction companies, let's take a look what the MPs agreed on, to identify the biggest pressure points for the government.

The Senior Manager Test

The draft bill targets senior management failures as opposed to those occurring down the chain of command. This is to pinpoint truly corporate sins and not just local aberrations. Surprisingly, perhaps, lobby groups as divergent as the Centre for Corporate Accountability and the Confederation of British Industry (CBI) all thought this was a terrible idea.

The reasons varied. Many witnesses said that faced with a "senior manager test", any sensible company would start delegating responsibility for health and safety as far down the line as possible.

"The senior manager test would have the perverse effect of encouraging organisations to reduce the priority given to health and safety," MPs concluded in their report.

Another argument they found potent was that the test would re-introduce the very conundrum the bill was intended to resolve: namely, that under common law provisions for gross negligence, it's easier to get a camel through the eye of a needle than to prosecute a senior manager because (especially in construction) definitively identifying the person who is the "controlling mind" in a particular project or operation is next to impossible.

The legal beagles among the witnesses warned as well that barristers would have a heyday wrangling over who was, and who was not, a senior manager.

So MPs urged government to scrap the senior manager test and instead to base the offence on the broader concept of "management failure".

What did they suggest should be the test for this? Well, if a company has no suitable health and safety process, based for instance on HSE guidelines, codes of practice, or established industry norms, or is demonstrably slack in monitoring such a process, that, they felt, would not be a bad place to start.

Paltry penalties

What sickens those bereaved by corporate negligence, quite apart from the unlikelihood of a prosecution ever being successful, is the paltry penalties imposed when it is. The scenario described at the beginning of this article is an actual one, relayed to the committees by the general secretary of trade union UCATT, Alan Ritchie.

Justice, seen to be done, is a major reason why Labour began toying with a corporate manslaughter bill in the first place. While the draft bill stipulates unlimited fines, the MPs want harsher penalties because they fear that, unless pushed, judges will stick to current low fines for breaches of health and safety law.

So they recommended that the Sentencing Guidelines Council set fines as a proportion of a company's turnover, and at a greater level than financial misdemeanours (which can be 10% of turnover).

This will make companies take note. Last year Balfour Beatty was fined 拢10m for its role in the Hatfield train crash, which killed four people and injured 102. The fine resulted from its guilty plea under the Health and Safety at Work Act, since charges of gross negligence manslaughter were dropped. It was a landmark fine, but it represented less than 0.3% of the company's contracting turnover (around 拢3.8bn in 2004). If the fine had been 10%, the resulting 拢380m penalty would have wiped out the year's profits and caused the company serious grief in the City.

MPs did not stop there. They recommended full pre-sentence reports on convicted companies' financial health, and power for the courts to freeze assets to prevent companies hiding their ability to pay. Nor was that all. They wanted a wider package of sanctions to reflect the broad variety of cases likely to arise. These might include anything from making convicted companies pay compensation to families of victims without the usual recourse to civil courts. They suggested equity fines, in which the company creates shares, the dividends of which would go into a victim's account. They even mooted the idea of a corporate death sentence, or mandatory dissolution of a company. Overall, the MPs were gunning for sanctions that would make convicted companies truly wince.

Passing the buck

The highly subcontracted nature of construction has prevented successful gross negligence prosecutions against all but the smallest companies. Some witnesses wanted radical change. UCATT said that main contractors should be the only company liable to prosecution. But employers disagreed. A witness from the Construction Confederation said: "If a main contractor had carried out all the good practices and the subcontractor had just blatantly disregarded them, I do not see how you could hold the main contractor totally responsible."

MPs agreed. They did recommend that if it was unclear whether the death was caused by management failure in the main contractor or, say, an employment agency, it should be possible to prosecute both to discover whose fault it was. But they believed that main contractors should only be liable if the management failure was truly theirs.

More onerous manslaughter laws will lead to long-winded legal arguments and do nothing to prevent accidents

John Spanswick, chairman, MCG

"Anything more than this might encourage subcontracting companies... to ignore their health and safety responsibilities," they wrote.

No scapegoats, but...

The two committees were unanimous on every question except one: should directors or other senior managers be sent to prison for corporate manslaughter? The draft bill specifically excludes new criminal sanctions against individuals.

This issue has polarised debate from the very beginning. Workers and families of victims tend to say yes. The Communications Workers Union testified: "Ironically, directors and managers can be imprisoned for 鈥榗ooking the books' but not for killing workers and members of the public."

But employer groups such as the Construction Confederation are adamantly opposed on the grounds that this would be unfair and even counterproductive from a safety point of view. Echoing this position, Lord Justice Judge said:

"I think that it would be very difficult to persuade anybody to take on the responsibility of senior manager... if he were going to be liable to be found guilty of the inadequacy of the organisation as a whole."

In an interview with CM, John Spanswick, chairman of the Major Contractors Group and of Bovis Lend Lease, said that any law that targeted individuals would not help make the industry safer.

"If the government produces more onerous laws, big organisations just build their capability to defend themselves," he said. "You get long-winded legal arguments, and it does nothing to prevent accidents."

The committees reportedly divided along party lines, with Conservative MPs backing the government's stand against individual liability and Labour MPs balking, and calling for a return to the government's original vision of a law targeting individuals. The majority ruled and the final report recommended a novel provision of "secondary liability" for particular individuals where the investigation uncovered clear evidence of these people contributing to the management failure that led to the death. So the company would be convicted, but individuals could be convicted too.

MPs felt this provision would plug the hole created by the difficulty of prosecuting individuals under current gross negligence manslaughter laws. As for sentencing, MPs believed that, if convicted, individuals should face prison, but not for as many years as they would if found guilty of gross negligence manslaughter. Causing death by dangerous driving carries a maximum sentence of 14 years, and MPs felt that was a good comparison.

Will it matter?

MPs are eager for a corporate manslaughter bill. They urge the government to introduce it during the current session of parliament, which ends in November. But will their report influence the government, which, despite repeated promises, has seen fit to delay the bill for years?

Select committees are criticised for being weak, but in some cases they pack some punch, according to political scientist Martin Smith of the University of Sheffield. He points out that the committees help the government come to grips with technical matters (or legal, in this case) that are not political hot potatoes. Select committees may also wield power when they express broad, cross-party support, or when they are essentially adding their voices to a much wider public and parliamentary call for action.

It could be argued that nearly all these conditions exist in the case of the corporate manslaughter bill. Apart from wanting to scrap the "senior management test" and insisting on a return to some form of individual liability, many of the MPs' recommendations could be classed as corrections on finer points and advice on implementation.

However, Smith adds that if a select committee disputes a preference clearly stated by the government, the latter is unlikely to back down. It's a little ironic that the government's own MPs on the committees chose to oppose it on individual liability, which is the single most contentious issue in the bill, and the one that has probably caused the government to drag its heels for so long in the first place. These MPs may just have furnished the very reason for delaying it yet again.

It depends on whether a majority of Labour MPs are willing to fight over the issue and, if so, whether the government relishes that fight. Richard Whitaker, lecturer in politics at the University of Leicester, points out that Labour MPs have acquired a taste for rebellion.

"If the changes proposed by the committee gain the support of enough Labour backbenchers, then the report will have an effect as there are plenty of backbench Labour MPs who are prepared to vote against the government and who, having defeated it once over the anti-terrorism legislation, may see little reason not to do so again."

Reader in parliamentary government at Nottingham University and author of The Rebels, Philip Cowley believes that it all depends on what the Tories do.

"If the Conservatives are willing to vote for something (or to abstain), then the power of the Labour backbench is reduced. As many of them can rebel as they like, but the government will still get its way.

"I doubt that the Conservatives will support toughening up the bill, and so the pressure on the government to do so or to face a parliamentary defeat is significantly reduced.

I might be wrong about that, of course, especially given today's new super-cuddly Conservative party."