§ 4.3 p.m.
§ The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Ullswater.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Chairman of Committees in the Chair.]
§ Clause 1 [Application of Part I of 1974 Act for offshore purposes]:1417
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord McCarthy
As we made clear on Second Reading, we generally support the Bill's purposes; nevertheless, we have a number of criticisms to make and it is convenient to make some of the more serious ones now in relation to Clause 1. The purpose of the Bill, as the Minister said on Second Reading, is the prevention of accidents offshore based upon an acceptance of Lord Cullen's proposals.
The Minister then said, at col. 658 of Hansard of 11th November, 1991:The Government immediately accepted all 106 recommendations",of the Cullen Report.
In opposing the clause, we say that the face of the Bill does not reflect that commitment; that the Bill is a narrow Bill which deals merely with those aspects of Lord Cullen's report which dealt with safety; that there are a number of Lord Cullen's recommendations which do not find themselves in the Bill; and that we should like to see the Government make certain commitments, if not that they can be put in the Bill, that they will follow in the near future.
When the Bill was going into Committee we sought to make a number of amendments. We wanted to move amendments dealing with safety and, in particular, with safety committees. We wanted to follow through Lord Cullen's recommendations, in particular, recommendations 27, 30 and 31. We tabled amendments attempting to do something about that. Recommendation 27 states:The regulatory body, operators and contractors should support and encourage the involvement of the offshore work force in safety. In particular, first line supervisors should involve their workforce teams in everyday safety".We do not find provisions in the Bill which we consider deal with that recommendation.
Just as importantly, recommendation 30 states:Safety representatives should be protected against victimisation by a provision similar to Sec 58(i) (b) of the Employment Protection (Consolidation) Act 1978".We do not see that provision in the Bill. It is true that the Minister said that at a convenient time in the future the Government intend to legislate to that effect; but we do not see why the Government could not frame a Bill which would have enabled that provision to be included.
Finally, in relation to Lord Cullen's recommendations, recommendation 31 states:The Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989 should be modified to the effect that the training of safety representatives should be determined and paid for by the operator".Again, the Minister told us that the matter was subject to review; but we have no time span for that review. There is no sense of urgency. Safety representatives are not protected against victimisation. The safety committees have not been modified to the effect that the training of safety representatives shall be determined and paid for by the operators. There is nothing in the Bill to deal with the support, encouragement and involvement of the offshore workforce in safety matters. Therefore, we ask the Government what are their intentions in the immediate future.
1418 We know that we cannot amend the Bill. We know that, even if we change the Bill's Long Title. We have been told that the Bill in its present context is essentially a Bill about safety, and that to do the things we want to do, it would become a Bill not just about safety, but about safety and employment.
We ask the Minister to tell us now what the Government intend to do about those other matters, which are connected to safety but which have an employment context.
Perhaps I may raise one issue to which I ask the noble Viscount to address himself. We were told that one of our amendments was not possible because of the Long Title of the Bill. It was to deal with the situation where a worker feels that he or she is working in unsafe conditions. The issue is whether in that circumstance a worker can refuse to work as an individual and if that constitutes a breach of contract which justifies dismissal. If that is lawful, we also wish to know whether workers as a group could also refuse to work in what is regarded as unsafe conditions. Let us suppose that when workers decide not to work as a group that action is regarded in some sense as a strike or withdrawal of labour designed to put pressure on an employer. Is that safe from the legal point of view or does it constitute the kind of action which could be said to be the subject of a fair dismissal?
In another place on 20th March, the Minister of State claimed in Committee, at col. 391:It is unlawful to work in unsafe conditions and does not constitute industrial action".That is the Government's position. The Minister of State went on to say that,a simple refusal to work in unsafe conditions does not constitute industrial action".We consider that that does not fit with recent case law. I refer to Power Packing Case Makers v. Faust 1983 and Wilkins v. Cochrane 1984. We say that those cases put into very considerable doubt the position from the point of view of the courts as to whether it is lawful simply to refuse to work in unsafe conditions and whether that might not constitute industrial action.
Therefore, we are asking the Government that should they do nothing about the Bill and the clause now, they will undertake—if they are fortunate enough to survive long enough—to implement their present proposals for further legislation as embodied in the Green Paper on further industrial relations reform. Perhaps they will also say whether they are telling us here today that they are going to put these matters into a future employment Bill. I ask the noble Viscount to tell the Committee whether the Government will do something about the three recommendations in the Cullen Report which are not included, and in particular that they will do something about clarifying the position as to whether or not it is lawful or unlawful to work in unsafe conditions. It is on that basis that we oppose Clause 1 of the Bill.
§ Lord Rochester
At Second Reading I said that on these Benches our general attitude to the Bill was one of support in so far as the Bill followed the recommendations of the Cullen Report on the Piper Alpha disaster. Therefore, it may seem strange at 1419 Committee stage for me to start by supporting the noble Lord, Lord McCarthy, in opposing the Question that Clause 1 should stand part of the Bill. The explanation is straightforward: in my view the Bill does not go far enough in implementing Lord Cullen's recommendations and this is my only opportunity in Committee to say so.
At Second Reading, like other noble Lords, I drew particular attention to the recommendations concerning safety committees and representatives to which the noble Lord, Lord McCarthy, has already referred. Lord Cullen stressed the value of a safety committee system as a means of providing for new ideas and solutions to be brought forward and for passing verbatim and uncensored safety comments up the management line. He also said that the system helps to enforce the principle that each employee is responsible for his own safety and for that of his fellow workers.
I agree with Lord Cullen's conclusion that employee representatives on these committees need not be drawn from trade unions, but in my view it is essential to ensure that all employees are involved in the promotion of safety at work. At Second Reading I said that I should like to see some reference to that matter in the Bill and that I might wish to return to it in Committee. It appears that this is the only chance I have to do that. As the noble Viscount, Lord Ullswater, told us earlier, provision for the appointment of safety representatives in Committee is made by regulations under the Mineral Workings (Offshore Installations) Act and the whole question of their effectiveness is now subject to review. Meanwhile, there is no opportunity to pursue that matter further and that I regret.
Similar considerations apply to Lord Cullen's recommendation that safety representatives should be protected against victimisation, which is another point already mentioned by the noble Lord, Lord McCarthy. We are told that the Government intend to amend employment protection legislation to ensure that any representative who has been dismissed or otherwise victimised can gain redress through an industrial tribunal. But such legislation falls outside the scope of the present Bill because it deals only with safety matters and not with employment issues. The matter of victimisation is to be dealt with only when a suitable legislative vehicle presents itself, and that, too, I regret.
At Second Reading I also drew attention to the statement in the Explanatory and Financial Memorandum that there would be no increase in public expenditure or manpower in consequence of the Bill. I questioned how far, if that were so, the resources available to the Health and Safety Commission, particularly as regards the number of inspectors, would be sufficient to enable the Health and Safety Executive fully to implement Lord Cullen's recommendations.
I take this opportunity to thank the noble Viscount for his helpful letter to me explaining what I should have realised before; that in practical terms the transfer of responsibility for offshore safety and of staff from the Department of Energy to the HSE has 1420 already taken place and that the resources available to the commission have been increased to cover the other tasks recommended by Lord Cullen. That has certainly relieved me of one anxiety. But I continue to regret that, despite the enormous risks that are run by those who have to take part in offshore operations, the opportunity has not been taken to deal in the Bill with any of Lord Cullen's recommendations concerning the employment aspects of safety offshore. I therefore agree with the noble Lord, Lord McCarthy, that Clause 1 of the Bill is quite inadequate in that respect.
§ 4.15 p.m.
§ Viscount Ullswater
I am disappointed that we need to debate whether Clause 1 should stand part of this Bill. At Second Reading I thought that it had been welcomed by both the noble Lord, Lord McCarthy, and then by the noble Lord, Lord Rochester. An amendment such as this to remove Clause 1 would have the effect of wrecking the entire Bill. I understand the concerns of both noble Lords about victimisation and other anxieties and I shall deal with those matters shortly.
Clause 1 is the key provision of the Bill. It paves the way for one of the vital recommendations of Lord Cullen—the reform and enhancement of existing offshore health and safety legislation. It is an essential step towards the creation of the "goal setting" regulatory regime set out by Lord Cullen. It is not the intention of this Bill to implement all of Lord Cullen's recommendations. This Bill deals with the technical legal measures necessary for the development of the new legal framework which will apply to offshore health and safety. Without this clause the process of reform cannot begin. The Government are committed to implementing all of Lord Cullen's recommendations. This will take time but this clause and this Bill is essential to the overall process. On this ground alone I commend the clause to your Lordships.
I now need to deal with the issue of victimisation. I reiterate that there is no question of Lord Cullen's recommendation on victimisation being ignored. The Government have accepted it. We have accepted all the recommendations of Lord Cullen's outstanding report. The current Bill is not the right place to implement this particular recommendation. That is because the Bill is an enabling measure confined to health and safety. It is not concerned with employment issues. We intend to amend employment protection legislation to implement both Lord Cullen's recommendation and the requirements of a European directive called the framework directive.
Perhaps I can explain our intentions for implementing the recommendation and the relevant provisions of the framework directive. The directive has to be implemented by the end of 1992. It requires that certain employees with specific health and safety functions or other workers who take action in the face of imminent danger should not be victimised for taking such action. We intend to ensure that such employees will be able to complain to an industrial tribunal if they are dismissed or suffer other victimisation by their employer for carrying out their 1421 health and safety duties. Extending those provisions offshore, as it is our intention to do, will fulfil Lord Cullen's recommendation.
So the Government's commitment cannot be questioned. We will implement those measures just as soon as a suitable legislative vehicle is available. Even under current legislation, anyone who is qualified to make a complaint of unfair dismissal to an industrial tribunal would already have a very strong case if he or she were dismissed for making justified complaints about health and safety risks.
Of course it would be quite unacceptable if employees were victimised for pursuing justified fears. As I have said before, victimisation of workers who raise safety concerns is completely unacceptable to the Government and to the HSE. It undermines the objective of increased safety awareness. If there is any evidence of intimidation taking place, HSE will look into it: the name and address of an offshore inspector is displayed on every offshore installation and anonymity is guaranteed if requested.
The noble Lord also asked about safety committees and the workforce involvement. The safety cases in preparation at the moment will require safety management systems which will involve the workforce. The regulations for those are in hand. There is a timetable by which they must be presented to the Health and Safety Executive and I believe that that is the proper way to deal with it. At Second Reading, the noble Lord, Lord Rochester, mentioned safety committees, and I believe I sought to concern myself with that. I do not believe that changes can be made to the 1989 safety representatives and safety committee regulations under the Health and Safety at Work etc. Act until the Bill is enacted, making the regulations statutory provisions. It would not be appropriate to make detailed provision in the Bill while the review which I announced is being carried out. Changes could be made under the Mineral Workings (Offshore Installations) Act in advance of the Act being made part of the "existing statutory provisions." However, it will not be appropriate to amend the regulations while that review is under way. It will be more appropriate to make any changes to the regulations as part of a wider reform of legislation.
In conclusion therefore it is essential to maintaining and improving offshore safety standards that the clause stands in the Bill. I hope that the reassurances I have given to your Lordships on victimisation and other matters are sufficient and that the clause will stand.
§ Lord McCarthy
We are naturally disappointed with the Minister's response. He said that he was surprised that we needed to debate the Bill. I cannot understand why. Most of the points were raised in passing in speeches made from this side of the House at Second Reading. We made criticisms of the Bill. We said that it was not implementing all aspects of the Cullen Report, although the Government said and said repeatedly that they accept all those recommendations. We must ask ourselves why the Government chose to implement some of the recommendations and not others. Why do they come forward with some of the recommendations—to a considerable degree as a 1422 matter of urgency—and yet allow others to be left until there is an appropriate Bill on industrial relations? The Minister now says others can be left until the Government decide what to do in regard to the framework directive, which they must consider before the end of 1992.
Why are some of the recommendations left out of the Bill? There is no necessity for that. The Minister said that it is an enabling Bill. But it does not have to be an enabling Bill. God did not decide that it should be an enabling Bill; the Government decided. God did not decide that it should deal with safety and not employment; the Government decided. It was possible for the Government to give us a Bill which carried out every recommendation that Lord Cullen put forward. Of course, further legislation may be needed. When the Government get round to dealing with the framework directive there will need to be further legislation. But that is no reason for the Bill to be narrowed in the way that it is. We see no reason for that.
Of course we shall not divide because we are in favour of what is on the face of the Bill. We wish at this stage to protest. We may come back in some other way on Report.
§ On Question, Clause 1 agreed to.
§ Clauses 2 and 3 agreed to.
§ Clause 4 [Increased penalties under Part I]
§ Baroness Turner of Camden moved Amendment No. 1:
§ Page 4, line 42, leave out ("(g) or (o)").
The noble Baroness said: Amendment No. 1 is a probing amendment. I am not certain what the Government intended in drafting this specific section of the Bill. When we look at the line which we seek to amend, we see that it deals with penalties and offences. It says,
A person guilty of an offence under subsection (1) (g) or (o) above shall be liable",
and then it spells out the penalties. Subsections (1) (g) or (o) take us to Section 33 of the Health and Safety at Work etc. Act, to which they refer.
When we look at Section 33 we see that it not only consists of the provisions in (g) or (o). Paragraph (g) says that it is an offence for a person,
to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal)".
Paragraph (o) says,
to fail to comply with an order made by a court under section 42".
When we look at the section as a whole we see a number of other important provisions relating to offences. For example, under paragraph (h) it is an offence,
intentionally to obstruct an inspector in the exercise or performance of his powers or duties".
Paragraph (k) says,
to make a statement which he knows to be false or recklessly to make a statement which is false where the statement is made (i) in purported compliance with a requirement to furnish any information imposed by or under any of the relevant statutory provisions; or (ii) for the purpose of obtaining the issue of a document under any of the relevant statutory provisions to himself or another person".
§ Paragraph (I) refers to an offence intenionally to make a false entry in any register; subsection (m) refers to an offence where there is an intention to deceive, to forge or use a document issued or authorised to be issued and so on. Paragraph (n) refers to falsely pretending to be an inspector.
§ The purpose of the amendment is to ask the Government why it was felt necessary simply to refer to paragraphs (g) and (o) of Section 33 when there are all those other provisions of the section which relate to serious offences and which may apply equally under the Bill. It is for the purpose of asking those question that we tabled the amendment. I beg to move.
§ 4.30 p.m.
§ Viscount Ullswater
I think that Members of the Committee should be clear that the effect of this amendment will make every offence in Section 33(1) of the Health and Safety at Work etc. Act 1974 liable on summary conviction to a penalty of £20,000 or a term of imprisonment of not more than six months, or both. On conviction on indictment, those offences would be liable to imprisonment for up to two years or an unlimited fine or both.
Perhaps I may state at the outset that the introduction of Clause 4 of the Bill gives a clear signal that the Government are keen to see penalties exacted which match the seriousness of health and safety offences. But the proposed amendment would extend the penalties to almost every health and safety offence without discrimination. The Government oppose it for the following reasons.
First, on a technical point as drafted, the amendment would be inconsistent with Clause 4(2) of the Bill which provides for different penalties for breaches of Sections 2 to 6 of the Health and Safety at Work etc. Act. I understand that the intention of the amendment is to extend the higher penalties across the board. Secondly, the Government believe that their proposals to fix the penalty to suit the crime is just about right. There are three strands to this policy.
The first strand is that as a result of the Criminal Justice Act 1991 magistrates' statutory maximum power to fine for all offences on summary conviction will be raised to £5,000. The legislation will also allow magistrates to refer companies to Crown Courts, with unlimited powers to fine, for any offence which they consider requires a penalty beyond their powers. I believe that these changes will be welcomed. However, the Government are not convinced that they go far enough. When considering the need for high penalties, we believe that the Government must be concerned to ensure that the punishment fits the crime.
As the second strand of the penalties policy, we have ensured in the Bill that the harshest penalties are reserved for those companies which knowingly break health and safety legislation by flouting notices or remedy orders. Doing so endangers both employees and the general public. Therefore, the punishment must reflect that fact.
The third strand is that the Government are proposing, in addition, to give magistrates the power to impose fines of up to £20,000 for breaches of the core health and safety duties on employers, occupiers, 1424 manufacturers and suppliers under Sections 2 to 6 of the Health and Safety at Work etc. Act. About 25 per cent. of all health and safety cases are taken under those sections. The higher penalties will, therefore, bite. As I said before, if magistrates consider a fine of £20,000 to be insufficient then, for offences triable either way, they will be able to refer both individuals and companies to a higher court where fines are unlimited. I must emphasise the fact that it is for the courts to determine punishment within the framework set by the Government. In setting that framework, the Government must indicate which are he more serious offences. We believe that we have got this about right.
The third reason we oppose the amendment is that there are a number of offences which it would cover but which the Government do not consider suitable for these higher penalties. For example, the proposed amendment would extend the higher penalties to breaches of health and safety duties by employees under Section 7 and to any person, including a member of the public, who interferes with something provided to maintain health and safety standards under Section 8. The Government do not wish to subject the employees or the public to such stringent penalties. That would not further the aim of ensuring that business takes its health and safety responsibilities seriously.
Finally, we oppose the amendment because it would apply the higher penalties to offences which are triable only summarily in a magistrates' court. The reason for that is that they are not considered particularly serious and do not of themselves necessarily prejudice health and safety. Such offences include, for example, obstructing an inspector. Again, it is important to fit the punishment to the crime. Very few people are prosecuted for these offences. The cases are dealt with satisfactorily in the magistrates' courts.
I believe that the division of the cases in Section 33(1) is already catered for by further subsections of that section. It is just that we need to put in the increased penalties where necessary—that is, where we consider they are required—rather than putting in the blanket provision of the higher penalty for every offence. I can assure Members of the Committee that the Government have every intention of dealing firmly with those who commit health and safety offences. For the reasons I have outlined, we do not think that the amendment is safe. In the light of that explanation, I hope that the noble Baroness will feel able to withdraw the amendment.
§ Lord McCarthy
The noble Viscount has made an effective case against the amendment which we wish to advance on the grounds that it would produce a blanket provision. However, it does not seem to me that his case is one which applies to the Bill as it stands. Of the 15 or so different paragraphs under this section of the Health and Safety at Work etc. Act, the Government are covering only two. It is possible that the remaining 13 are not all equally heinous and do not all need the increased penalties. However, there is still some mystery as to why the Government have picked the two in question. If I understood the noble Viscount correctly, he said that the essence of the argument, for the most part, is that the provision in 1425 the Bill would get at people who deliberately violate notices. I should have thought that paragraph (c) of the 1974 Act which deals with contravening the terms of a licence was very close to that situation. Similarly, I believe that other items in that list also come very close to that; for example, contravening a notice in relation to paragraph (i).
Surely it is a very serious matter when an employer fails to discharge his responsibilities under Section 2 of the 1974 Act—that is, the positive general provision; in other words the one covered by paragraph (a). Some of those offences are directly related to a quite determined and intentional obstruction of inspectors. It seems to me that they should be covered. For example, paragraph (d) refers to the intentional obstruction of a "any person". Such a person could be an inspector. Moreover, paragraph (f) refers to preventing someone going to an inspector. There is also paragraph (h) which refers to the intentional obstruction of "an inspector"; paragraph (k) which refers to false statements; paragraph (1) which deals with false entries; paragraph (m) which deals with forgery; and paragraph (n) which refers to the actual impersonation of an inspector. Surely the latter is a very serious offence which should be covered by any reasonable improvement in penalties.
The Minister may say that the courts do not need all these powers. But, of course, if they do not need them all they will not use them. It is a question of which way we want to slant the legislation and whether we want to ensure that the courts at least have the powers that they need. If they decide they want to impose a low fine in such cases where someone has impersonated an inspector, that is a matter for them. But surely the courts should have rather more freedom and discretion as regards some of those very serious examples than they are given by the Bill at present.
§ Viscount Ullswater
The noble Lord put forward a good case. However, he continues to make the case that there should be a blanket maximum fine available for every offence. If he looks at Section 33(2) of the 1974 Act, he will see that some of the offences in the list to which he referred—that is, (d), (f), (h) and (n)—were selected for summary conviction only and that the maximum penalty under that subsection is £400. Those are the offences that I sought to indicate to the noble Lord will now be subject to a penalty of £5,000. Similarly, other cases which become triable either way—for example, (a), (b), (c), (g) and (i), and so on—would become subject to the increased fines that the Offshore Safety Bill now seeks to impose.
Therefore, returning to my original argument, we believe that the penalties should fit the crime. We are not seeking to change the difference in the penalties in this way; we are seeking to increase the penalties in the way that we suggested we need to do in accordance with the seriousness of the case in question.
§ Baroness Turner of Camden
I thank the noble Viscount for his explanation. I said when I moved the amendment that it was a probing amendment because we wanted to find out what was in the Government's mind in limiting this section of the Bill simply to paragraphs (o) and (g) in Section 33 of the Health and 1426 Safety at Work etc. Act. The Minister has explained what is in the Government's mind and I must emphasise that it was not our intention that this should be treated as a blanket set of provisions. I am interested in what he has said. We will look closely at what the noble Viscount has said and we might be able to come back with an amendment at Report stage, in view of the explanation that we have had. It seems to me, as my noble friend has already mentioned, that there are some provisions in Section 33 that qualify for the kinds of penalties envisaged in the Bill. Certainly some of these offences seem to us to be serious. My noble friend has dealt with them and I shall not go over them again, but we shall consider what has been said and see what further action we can take. We do not feel happy simply limiting this part of the Bill to the provisions of Section 33 paragraphs (o) and (g). We think that something else might possibly be done and we shall have another attempt on Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Baroness Turner of Camden
I gave notice of my intention to oppose the Question that Clause 4 stand part of the Bill because, as has already been stated, we on this side of the Committee are not very happy about the narrow scope of the Bill. In our view, the Government have missed an opportunity to implement in full the recommendations made by Lord Cullen.
In drafting so narrow a Bill some important aspects of safety have been left out altogether, and that has already been referred to by my noble friend Lord McCarthy and the noble Lord, Lord Rochester: namely, the part played by the employers themselves. Lord Cullen repeatedly referred to the necessity of establishing what he called a safety culture, the kind of atmosphere and environment where cutting corners is simply not on the cards, and absolute priority is given to health and safety issues.
The necessity for this was established beyond doubt in the inquiry into the terrible Piper Alpha disaster. It is even more necessary in the kind of industry where there are inherent dangers and where the failure to produce the necessary cultural awareness involving everyone can have terrible and tragic results. Lord Cullen made it clear that the responsibility for the creation of a safety culture begins at the very top. Responsibility should clearly rest there. With this in view, we originally drafted amendments designed to pin down the responsibility and to ensure that the directors of a company, in the event of deaths or injuries occurring as a result of negligence, could be held personally accountable and even, in sufficiently serious circumstances, face charges of manslaughter.
I have to say that in view of the narrow scope of the Bill this amendment was not regarded as procedurally correct, and we were not able to proceed further with it. Therefore the only way in which we can again protest that the Bill has been too narrowly drawn is to oppose the Question that Clause 4 shall stand part of the Bill.
1427 We believe that the clause should specifically state that where an offence has been committed by a body corporate there should be a presumption that it was attributable to the neglect by any director whose functions included responsibility for safety. We believe that it is necessary to pin down responsibility and to do so at the highest possible level. We wanted an opportunity to do that. I said earlier that because the Bill was so narrowly drawn we were unable to do so and we could not proceed with an amendment along the lines that I have indicated. That does not mean to say that we are at all happy about the situation. For that reason it seemed to us that the best way to express this unhappiness was to oppose the Question that Clause 4 should stand part of the Bill.
§ 4.45 p.m.
§ Viscount Ullswater
I believe that the discussion that we have just had on the proposed amendment went to the root of the purpose of this particular clause. I must say that I remain convinced that the approach adopted by the Government in this clause is the right one. Our position is that the level of penalties should reflect the seriousness of the offence. As I have said before, it is the responsibility of the courts to set the level of penalties within the framework defined by the Government. This clause helps to define that framework by making it clear which offences are considered to be the most serious. For example, a breach of the main general duties laid down in the Act in Sections 2 to 6 often indicates serious or long-term shortcomings in the way that health and safety is managed and operated in a company, rather than a one-off failure on the part of management.
As a result, these offences will attract a maximum fine of £20,000 in a magistrates' court—a level which is in line with the penalties for the most serious offences laid down in the Environmental Protection Act 1990 and the Food Safety Act 1990. A breach of a prohibition or an improvement notice is the result of an employer deliberately flouting instructions given by an inspector, and that is particularly serious in the case of a prohibition notice which will have been issued immediately to stop something which has the potential to cause serious injury. In those cases the option of imprisonment is considered appropriate. Of course if magistrates consider that the penalties available to them are insufficient they are free to refer cases to the Crown Courts, where unlimited fines are available and imprisonment is also available for the most serious offences.
The Government take a very serious view of those who commit health and safety offences. This clause takes an important step in demonstrating that view and I hope that your Lordships will accept my assurances on this and will therefore feel able to accept this important clause as part of the Bill.
§ Baroness Turner of Camden
Again, I thank the Minister for what he has said. I have particularly noted his reference to the freedom of magistrates to refer cases to the Crown Court if they felt that very serious cases were involved. Nevertheless, I still feel 1428 rather strongly that the Bill does not adequately reflect the recommendations of Lord Cullen. We still feel very strongly about that on this side of the Committee. As I said earlier, the object of opposing Clause 4 was to give us the opportunity of expressing on the Floor of the Committee our general dissatisfaction with the way in which the Government have proceeded in this matter. It is not my intention to press this to a vote because, as the Committee will know, we support what is on the face of the Bill. Our main contention is that it does not go nearly far enough and therefore does not do the job that we originally hoped it would. which was to give effect in full to the recommendations of Lord Cullen. However, having said that, my noble friends and I do not wish to take this further.
§ Clause 4 agreed to.
§ Baroness Turner of Camden moved Amendment No. 2:
§ After Clause 4, insert the following new clause:
§ ("Disqualification of Directors
There shall be added to section 2(1) of the Company Directors Disqualification Act 1986, the words—
or where he is convicted of such an offence under Part I of the Health and Safety at Work Act 1974 or the Offshore Oil Act 1991".").
§ The noble Baroness said: When the Bill was debated on Second Reading I commented that, while the directors of a company could be disqualified from holding office if found guilty of a fiduciary misdemeanour, that sanction would not be applied if the company of which they were directors was guilty of negligence or breach of regulations and if such negligence or breach led to the death or injury of employees or members of the public. The Minister replied that that could indeed be done already under existing law, and he has indicated how that could be done again this afternoon. He has said that if a person is guilty of a criminal offence he or she can be disqualified. However, I cannot recollect that this has ever been done in a case where there has been a serious accident attributable to negligence. The Minister may have some knowledge of it but I certainly have not. I still take the view that it would be quite a powerful disincentive given that other sanctions are not available to us under the Bill.
§ We have been told that the Bill, concerned as it is with offshore safety, is a technical Bill and therefore anything touching upon employee protection cannot be included. I believe that is extremely odd bearing in mind that safety is of itself largely about employee protection in that employees are the people mostly and continuously at risk.
§ However, when it comes to penalties it is possible to do something even within the confines of this narrow Bill. Increasing the fines to £20,000 is not that much of a penalty for a multi-million-pound company. It is true that prison sentences are allowed for under the Bill, but they may not involve those at the top of the company who have responsibility for its general policies and the particular company philosophy which will carry on down through the company. As Lord Cullen made very clear, a safety culture starts at the top. I believe that it should be clearly stated in the Bill that there is a possibility of disqualification of 1429 directors as part of a penalty. That would introduce a measure of personal accountability at the very top of the company. In some respects that is even more important than increasing the financial penalty. I hope that the Minister will be prepared to consider this as a possibility.
§ Viscount Ullswater
The Government cannot support the amendment. In a moment I shall indicate not only why they cannot support it, but why they think it is unnecessary. First, I should like to correct the impression that I believe the noble Baroness gave the Committee a moment ago that the £20,000 fine was in some way a maximum fine for the most serious categories of offence. When talking of Clause 4 I have sought to indicate that if cases are referred to the Crown Court that court will have the ability to impose unlimited fines for particularly serious offences. It would be wrong for the noble Baroness to go away with the belief that the £20,000 fine was the maximum.
To return to the particular amendment, the main reason why the Government oppose the amendment is that they believe it is unnecessary or perhaps even counter-productive. It is unnecessary because in our view Section 2 of the Company Directors Disqualification Act 1986 is capable of applying to health and safety matters. That Act provides for the court to make a disqualification order against a person convicted of an indictable offence connected with the promotion, formation, management or liquidation of a company. We believe that the potential scope of Section 2(1) of that Act is very broad and that "management" includes the management of health and safety. However, I should point out that in practice those powers are unlikely to have much effect on improving health and safety standards, largely because the opportunity for using the disqualification option has been and will always be very limited.
It is one of the strengths of the Health and Safety at Work etc. Act that it defines offences in broad terms and imposes inescapable duties on employers. That said and despite the best endeavours of the Health and Safety Executive, it will always be relatively difficult to prove health and safety charges against individual directors, and because of those difficulties there will always be fewer successful convictions of individuals compared with those against companies. Added to that, in some of those cases where a successful conviction has been obtained against an individual director the court may decide that disqualification would serve no useful purpose.
Finally, I mentioned our view that the amendment could be counter-productive. By that I meant that the proposed text could have the effect of narrowing the scope of Section 2(1) of the Company Directors Disqualification Act 1986 which currently we can construe very broadly. There is a danger that in seeking to define the circumstances in which Section 2(1) applies, the courts will interpret the section as applying only to those specified circumstances and none other. I am sure that that is not what the noble Baroness intends. Therefore, I hope that, bearing in mind what I have said, she will agree to withdraw the amendment.
§ Baroness Turner of Camden
I thank the Minister for his explanation of the Government's point of view on the amendment and also note what he says about £20,000 not being the maximum. We were anxious to write in somewhere on the face of the Bill an element of personal accountability, and we felt that unless we saw something like that in the Bill it would not be sufficiently apparent from the text. The Government say that they believe the amendment to be unnecessary and that the text we propose could result in limiting the scope of the current powers under the Company Disqualification Act. Of course we would not like to do that. What we want to do is take the amendment away and think about it again. We are very anxious to get an element of personal accountability written into the clause dealing with penalties. That might prove rather difficult, but as the Bill now stands we believe that it does not have the necessary accountability which ought to be there.
Having said that, I propose to withdraw the amendment at this stage and we will look at it again on Report.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Directions for preserving security of petroleum and petroleum products]:
§ Lord McCarthy moved Amendment No. 3:
§ Page 5, line 18, at end insert ("consistent with the health and safety of persons employed or working at those places of work.").
The noble Lord said: The object of this amendment is twofold. First, in some ways it is a probing amendment because we want the Government to tell us the intention, meaning and need behind Clause 5 which at present is not absolutely clear to us. Secondly, the amendment is designed to reassure and underpin because the words of the amendment suggest that the provisions of Clause 5 should be,
consistent with the health and safety of persons employed or working at those places of work".
§ In other words, if the provisions of Clause 5 are to stand they should not operate in such a way that they undermine the basic objectives of the Bill which are to secure the health and safety of persons employed or working in those places of work.
§ On the face of the Bill, the Government provide us in the Explanatory and Financial Memorandum with an explanation of the reasons for Clause 5. It transpires that the clause is about security. It enables the Secretary of State after consultation to give directions to operators of offshore installations, terminals and so on for the purpose of preserving their security, which I take to mean the security of the operators. It will require those operators to comply with such directions notwithstanding other duties imposed upon them; in other words, the inference is that if what is demanded from the point of view of security sets at risk what is required for the health and safety of persons employed or working at those places of work it will be expected that operators will not have regard to problems of health and safety but will make as their primary concern problems of security.
§ The explanatory memorandum tells us that the Secretary of State will lay any such directions before both Houses of Parliament unless in his opinion 1431 disclosure will be against the interests of national security. We are not talking about the security of the operators or the employers; we are now talking about national security. The memorandum goes on to talk about the "commercial interest of any individual". So, all of a sudden, the concern is for individuals. Sometimes it is the nation, sometimes the operator and sometimes the individual, but in all circumstances, in the interests of the security of all those different groups, it appears to me that one can set aside the health and safety of persons employed or working at those places of work.
In the Second Reading debate the Minister told us a little more about what the Government want Clause 5 for and what might happen. He said at col. 663 of Hansard for 14th November:
Directions could be general or specific … General directions might reflect a warning that the industry faced a particular threat";
We wonder what kind of threat that is,
or they might address some widespread shortcoming"—
A shortcoming is not a threat or need not be a threat—
which had been brought to light".
Brought to light by whom?
Specific directions might be given to an individual operator if the Secretary of State came to the conclusion that there were particular shortcomings in security measures at the site which needed to be rectified … Arrangements already exist to give advice to operators on the measures necessary to protect the site adequately".
So we are not quite certain what it is needed for.
I hope that your Lordships will understand if I do not go into too much detail on what those arrangements or measures may be".
§ We confess that we are now totally and utterly confused. What is this security that has to be protected? We are told that it is done in other circumstances; that it is done in telecommunications, electricity, water. That leads us to ask a number of questions. For example, in the first place, what are these insecurities that are regularly uncovered in telecommunications, electricity and water that require those provisions in the Bills? What are the other duties that have to be overridden in those cases? Has it involved health and safety? What are the concrete circumstances where the content of such a direction and even its existence cannot be laid before Parliament because to do so would prejudice "national security"—which is a very high minded thing—or "commercial interests"—which is not necessarily quite such a high minded thing.
§ What can this regulation be that preserves security? In any case, why should it set aside the basic purpose of the Bill? Our amendment seeks to ensure that it does not do so. I beg to move.
§ 5 p.m.
§ Lord Rochester
I have put my name to this amendment and I support it. I have little to add to what the noble Lord, Lord McCarthy, said; but I have approached the matter in a rather different way from him. This is how I see it. It may be said that it is self-evident that the Secretary of State should give directions for preserving the security of petroleum and petroleum products. That is how this section of the 1432 Bill is headed. But he may do that only in so far as the directions are consistent with the health and safety of the employees who are affected.
In paragraph 18.47 of the Cullen Report under the heading "Organising for safety", Lord Cullen says:To ensure that the safety philosophy becomes a tangible safety programme there must be defined organisational responsibilities for safety; and each part of the organisation has to be set and held accountable for safety objectives … safety has to be a prime objective of on-going operations".In my view, the Government should not be immune from the primacy of that objective. Their organisational responsibility for health and safety should accordingly be made evident on the face of the Bill by means of words such as those proposed in the amendment.
It may be that the precise way in which this responsibility should be included in Clause 5 could be improved on. I hold no brief for the amendment's wording and perhaps neither does the noble Lord, Lord McCarthy. However, its underlying principle is clear and I support it.
§ Viscount Ullswater
By and large, security measures at oil and gas installations on and offshore are fully adequate. The Government share the credit for this with the industry because under existing arrangements operators receive advice on security measures from government specialists. However, the Government can at present only advise; they cannot insist that operators follow the advice which is given. Individual operators respond as they see fit. This has not given rise to a serious or widespread concern about security. As I said, standards are generally adequate; but under the circumstances it would be surprising if standards did not vary between sites so that some were very good while at others there was room for improvement.
The noble Lord, Lord McCarthy, asked me what kind of security features we were considering. I do not wish to go into too much detail, but with, for example, the erection of security fences there could be a perceived threat. The removal of car parks beside certain key buildings could be considered to be a security precaution, not only for the security of supply but also for the security of those people working on the site.
It would be right to say that subsections (1) and (2) of Clause 5 require the Secretary of State to consult with the Health and Safety Executive before issuing any direction—because that is what the clause does—in the interests of security. Before giving its view, the Executive will consider whether the security recommendations might in any way affect health and safety measures at the site. The Secretary of State would not in practice issue directions unless he was satisfied that they would not prejudice health and safety.
This safeguard is itself a second line of defence because when the security advisers inspect the sites, they too are required to have regard to any health and safety implications arising from their proposals. There is ample opportunity for such matters to be raised in discussions with the operating company before the advisers formally report their recommendations.
I believe that the noble Lord sees something in this which is not there and that recommendations would be made or would be considered which would put at 1433 risk the health and safety of those working on the site. It is not only for the security of the supply itself but for the health and safety of those working on the site that this consultation exercise should take place. Therefore, I ask the noble Lord to withdraw the amendment.
§ Lord McCarthy
I suppose that reply is what one calls the unnecessary reply. It is not that it is a bad amendment, but that it is happening already. The trouble with such a reply is that it does not leave us with any reason why it should not be put on the face of the Bill in order to reassure people. The Minister tells us that on the whole there are not many problems. He says that security is normally, usually, fully adequate. But he says—and I thank him for this and I am beginning to see what the clause is about—"The problem is that we can't do more than advise; sometimes we want to compel". I say, "Yes, all right, fair enough. Let us suggest that the Government are quite justified in having a clause of this kind in the Bill. What is now unclear is clear. But what has it to do with safety?" I have asked for examples. I may have missed them because it is five o'clock in the afternoon; but I heard two. It is more mystifying than ever.
The Minister gave me a list: the erection of fences. I cannot see how the erection of a fence for the sake of security has much to do with safety. He mentioned the removal of car parks, and I suppose one might trip over a notice. But the examples he gave me reinforced my view that there is no earthly reason why the Government should not accept our amendment. Then the Minister said, "Of course, you don't need the amendment because I happen to know that there are all kinds of people, including inspectors who have been given instructions that whatever they do as regards security, they must not in any way infringe the fundamental health and safety purposes of the Bill". That may well be true, in which case why can it not appear on the face of the Bill? We think our proposal is eminently reasonable and we shall divide the Committee on it.
§ Viscount Ullswater
Before the noble Lord takes that action, I wish to make a few more comments in the hope of persuading him not to do so. I should explain that it may be decided to move car parks away from key buildings to remove a known specific threat from a terrorist organisation. Such action would remove the risk of a bomb being planted near to a key site. Such action is very much in the health and safety interests of those working on the site.
In practice the amendment could cause problems. Given the matter at issue, it is highly desirable that once a direction has been issued it should be clear and authoritative. The amendment would give rise to the possibility of arguments over interpretation. Those may be seized by a recalcitrant operator to delay implementation of a direction.
The amendment could have the effect of exposing directions to challenge in the courts on the grounds that they were inconsistent with health and safety. Such a situation could be undesirable and could give a reluctant operator a further opportunity to cause 1434 difficulties. I hope the noble Lord has listened carefully to those additional remarks and that he will see fit to withdraw the amendment.
§ Lord McCarthy
The Minister digs a bigger and bigger pit for himself. He now says there may be a conflict in this matter although he does not put forward a concrete case. The example he suggested of car parks and terrorists does not constitute a concrete case. The Minister has said there may be cases where it would be desirable to make directions for security reasons but that such directions could lead to a challenge in the courts on the grounds of health and safety. That is a totally different argument to the argument the Minister used before. If he is saying there is a conflict here, I am more determined than ever that our provision should appear on the face of the Bill.
§ Viscount Ullswater
I do not wish to intervene too many times. I merely wish to point out that there can be two areas where directives need to be imposed. One of those areas may concern purely security matters to prevent terrorism and sabotage. The other area where directives need to be imposed may concern purely health and safety matters. If directives need to be imposed to prevent terrorism, the Health and Safety Executive will be fully consulted on the implications of imposing them.
§ Lord McCarthy
We now appear to be reverting to the first argument the Minister used. Whichever argument is used, my answer is the same. We shall divide the Committee.
§ 5.13 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 70; Not-Contents, 86.1435
|Division No. 2|
|Addington, L.||Hirshfield, L.|
|Airedale, L.||Holme of Cheltenham, L.|
|Ardwick, L.||Houghton of Sowerby, L.|
|Aylestone, L.||Howie of Troon, L.|
|Beaumont of Whitley, L.||Hughes, L.|
|Birk, B.||Jay, L.|
|Blackstone, B.||Jeger, B.|
|Bonham-Carter, L.||Jenkins of Putney, L.|
|Callaghan of Cardiff, L.||Judd, L.|
|Carmichael of Kelvingrove, L.||Kagan, L.|
|Carter, L.||Kennet, L.|
|Cledwyn of Penrhos, L.||Kirkwood, L.|
|Clinton-Davis, L.||Lockwood, B.|
|David, B.||Longford, E.|
|Dean of Beswick, L.||Lovell-Davis, L.|
|Desai, L. [Teller.]||McCarthy, L.|
|Donaldson of Kingsbridge, L.||Mclntosh of Haringey, L.|
|Donoughue, L.||Mackie of Benshie, L.|
|Dormand of Easington, L.||Mallalieu, B.|
|Ewart-Biggs, B.||Molloy, L.|
|Ezra, L.||Morris of Castle Morris, L.|
|Falkender, B.||Peston, L.|
|Gallacher, L.||Pitt of Hampstead, L.|
|Graham of Edmonton, L. [Teller.]||Prys-Davies, L.|
|Hampton, L.||Richard, L.|
|Hanworth, V.||Ritchie of Dundee, L.|
|Harris of Greenwich, L.||Rochester, L.|
|Hilton of Eggardon, B.||Russell, E.|
|Seear, B.||White, B.|
|Stoddart of Swindon, L.||Williams of Elvel, L.|
|Strabolgi, L.||Willis, L.|
|Tordoff, L.||Wilson of Rievaulx, L.|
|Turner of Camden, B.||Winchilsea and Nottingham, E|
|Underhill, L.||Young of Dartington, L.|
|Wallace of Coslany, L.|
|Abinger, L.||Howe, E.|
|Aldington, L.||Hylton-Foster, B.|
|Alexander of Tunis, E.||Jellicoe, E.|
|Allenby of Megiddo, V.||Killearn, L.|
|Arran, E.||Kinnoull, E.|
|Ashbourne, L.||Kitchener, E.|
|Astor, V.||Knollys, V.|
|Auckland, L.||Lauderdale, E.|
|Balfour, E.||Liverpool, E.|
|Beloff, L.||Lloyd of Hampstead, L.|
|Belstead, L.||Mackay of Ardbrecknish, L.|
|Birdwood, L.||Mackay of Clashfern, L.|
|Blatch, B.||Macleod of Borve, B.|
|Boyd-Carpenter, L.||Marlesford, L.|
|Brabazon of Tara, L.||Merrivale, L.|
|Brougham and Vaux, L.||Mersey, V.|
|Butterfield, L.||Middleton, L.|
|Butterworth, L.||Morris, L.|
|Caldecote, V.||Mottistone, L.|
|Campbell of Alloway, L.||Mountevans, L.|
|Campbell of Croy, L.||Munster, E.|
|Carnegy of Lour, B.||Murton of Lindisfarne, L.|
|Cavendish of Furness, L.||Nelson, E.|
|Cockfield, L.||O'Cathain, B.|
|Coleraine, L.||Onslow, E.|
|Colwyn, L.||Orkney, E.|
|Constantine of Stanmore, L.||Oxfuird, V.|
|Crathorne, L.||Park of Monmouth, B.|
|Davidson, V. [Teller.]||Pearson of Rannoch, L.|
|De Freyne, L.||Pennock, L.|
|Denham, L.||Pym, L.|
|Denton of Wakefield, B.||Rankeillour, L.|
|Downshire, M.||Renwick, L.|
|Elliot of Harwood, B.||Salisbury, M.|
|Elliott of Morpeth, L.||Sanderson of Bowden, L.|
|Gardner of Parkes, B.||Savile, L.|
|Hailsham of Saint Marylebone, L.||Strathcarron, L.|
|Strathmore and Kinghorne, E|
|Harvington, L.||Trumpington, B.|
|Haslam, L.||Ullswater, V.|
|Henley, L.||Vaux of Harrowden, L.|
|Hesketh, L. [Teller.]||Vivian, L.|
|Hives, L.||Waddington, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.20 p.m.
§ Clause 5 agreed to.
§ Remaining clauses agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported without amendment.