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Health and Safety (Offences) Bill

Volume 704: debated on Friday 10 October 2008

Read a third time.

My Lords, I beg to move that this Bill do now pass. I am aware that this stage of the proceedings is normally perfunctory, or at least very brief. It will be pretty brief today, but given that there are one or two other people who want to speak, I hope that the House will allow the Bill to be slightly differently treated this time. It is three months since we last debated it and, quite properly, one or two issues have been raised, particularly by the noble Lords, Lord Bradshaw and Lord Taylor of Holbeach, that need a response on the record from the Government. These days I cannot do that, and the job falls to my very good friend, the noble Lord, Lord McKenzie, who will provide the necessary explanations and reassurances in a few minutes.

As this is the last chance I will have to say anything on the Bill, let me give special thanks to the noble Lords, Lord Bradshaw and Lord Taylor of Holbeach, on the Opposition Front Benches. It has been very pleasing that the basic consensus that existed when the original Health and Safety at Work etc. Act 1974 was passed—I have read those debates and there was an agreement across the parties but not on the details—has also applied during the passage of this small but important Bill.

I thank my very good friend, the right honourable Keith Hill, who was lucky in the ballot in the Commons, which is more than most of us achieve, and selected this important topic. He has followed our proceedings and advised me throughout. I also thank my noble friend Lord McKenzie. This is a wonderful system—I have the glory of introducing the Second Reading and he has the job of answering the difficult questions, which is an arrangement I would like to see applied more frequently. It also falls to me to thank the hard-working Bill team, officials in the Department for Work and Pensions.

It has been my pleasure to be involved in this Bill. It has kept me busy and out of mischief, and I have pleasure in formally moving that it do now pass.

Moved, That the Bill do now pass.—(Lord Grocott).

My Lords, this is not a time for long speeches except perhaps from the Minister. It is indeed a pleasure for us on these Benches to welcome the Bill at Third Reading. At Second Reading, I expressed, as the noble Lord, Lord Grocott, said, some aspects of concern with the Bill, reflecting the anxieties of a number of organisations about its implications. We talked in particular of the provisions for imprisonment and the reverse burden of proof. I am pleased that the Minister has been able to fulfil his commitment at the time and am grateful for his courtesy in advising me of the reassurances he proposes to give today. It has meant that we have been able to maintain, as the noble Lord, Lord Grocott, has said, the cross-party support that health and safety legislation has always enjoyed in the past.

This will be a very satisfying day for Mr Keith Hill, who nurtured this Bill, and for my friend Mr Andrew Selous, who gave it his support on behalf of the Opposition in another place. I am sure that the noble Lord, Lord Grocott, will be very pleased that he is seeing this Private Member’s Bill safely through to enactment. I congratulate him, and wish the Bill well.

My Lords, I do not want to prolong this but simply want to thank the Minister for all the co-operation we have had. I add my congratulations to the noble Lord, Lord Grocott, and to Mr Keith Hill in another place. He and I are very old colleagues.

My Lords, the Government wholeheartedly support this important Private Member’s Bill, and I thank my noble friend Lord Grocott for his work in taking this measure forward in the House and for consulting noble Lords on their concerns. This he has done with commendable skill, building on the excellent work of the right honourable Member for Streatham, Keith Hill, who successfully piloted the Bill through the other place.

As my noble friend has said, an important aspect of the Bill has been the strong cross-party consensus on its principles, both here and in the other place. This consensus is to be welcomed, especially on health and safety matters. I thank the noble Lords, Lord Taylor of Holbeach and Lord Bradshaw, for their constructive engagement with these matters.

Some business organisations have expressed concern over the Bill’s provisions to make imprisonment of individuals an option for a wider range of breaches of health and safety legislation than at present. There is also concern over the European Convention on Human Rights and the reverse burden of proof. While I understand these concerns, I want to underline that the Bill does not add to or change existing health and safety requirements and duties on individuals and businesses. I can also confirm that the health and safety regulators are not changing their prosecution policy on individuals as a result of the Bill.

Under health and safety law since 1974, imprisonment has always been available in the lower courts for failure to comply with an improvement or prohibition notice or court remedy order and offshore offences and, in the higher courts only, for failure to comply with licensing requirements, explosives provisions or disclosure of information in breach of the Act. However, there is a history going back to the mid-1990s of judges expressing discontent in exceptional cases but being unable to impose jail sentences for especially blameworthy health and safety offences committed by individuals. Imprisonment is already widely available under regulatory legislation. These arrangements have worked well and without objection for many years. I have no reason to believe that imprisonment would be used more often for health and safety offences than for these other regulatory offences.

There are important safeguards in place, such as the strict guidelines laid down in the Code for Crown Prosecutors, the HSE enforcement policy statement and other documents. The HSE and other health and safety regulators expect that, in the public interest, a prosecution should be brought only where very serious circumstances applied, such as where death was a result of the breach of legislation, where there had been reckless disregard of health and safety requirements, where there had been repeated breaches which gave rise to significant risk, or where there had been persistent and significant poor compliance. Following these rigorous tests, there is the trial process and the right of individuals to have their cases heard before a jury.

In addition, the Sentencing Guidelines Council in England and Wales issues guidelines to encourage consistent and proportionate sentencing by the courts. The right honourable Keith Hill MP has approached the council on updating its guidelines, and it has indicated that it will review its programme in the event of the Bill becoming law. I am also concerned that the courts have up-to-date advice, and I can therefore tell the House today that I am writing to the council on behalf of the Government to ensure that, if the Bill is successful, this work is taken forward as a matter of urgency. Moreover, I shall stress the important point that imprisonment should be reserved for the most serious matters, and the expectation is that these matters will generally be concluded in the higher courts.

I turn briefly to the reverse burden of proof, which I dealt with in some detail at Second Reading. I shall remind the House of the key points.

The Bill’s proposed changes raise an important issue in relation to Article 6 of the European Convention on Human Rights, but only for individuals and not for companies or organisations. The main concern is in relation to Section 40 of the 1974 Act, which imposes a reverse burden of proof on defendants, but only where the duty giving rise to the offence for which they have been accused is subject to the statutory qualification,

“so far as is reasonably practicable”.

Section 40 of the 1974 Act was challenged in a prosecution conducted by the HSE in 2002 against a plant hire operator, David Janway Davies, for a breach of Section 3 of the Act. Janway Davies appealed against conviction on the ground that Section 40 was incompatible with Article 6.2 of the European Convention on Human Rights. The Court of Appeal ruled against Janway Davies, holding that the reverse legal burden of proof in Section 40 was compatible with the convention. The court’s approach was to examine whether a “fair balance” had been struck between the fundamental right of the individual and the general interests of the community, it being for the state to justify an inroad into the presumption of innocence,

“which should not be greater than is necessary, justified and proportionate”.

The Government’s view on the Bill’s proposed changes is that where the reverse burden of proof has an impact, there is first of all still an onus on the prosecution to show that there is a prima facie case, and the prosecutor may refer to the reasonably practicable steps that an individual could have taken—a process termed advance rebuttal. The facts relied on in support of a defence will in any event be within the knowledge of the defendant.

On the basis of this and other case law, the Government consider that the proposals in the Bill, including the widened scope for custodial sentences, are reasonable and proportionate, and that Section 40 continues to represent a fair balance between the rights of the individual to a fair trial and the protection of life and limb from dangerous work practices.

This Bill proposes a small but important change to the Health and Safety at Work etc. Act 1974 and the Health and Safety at Work (Northern Ireland) Order 1978. These pieces of legislation have been widely accepted as a huge step forward and a path-breaking measure, not just in the UK but also in many other countries.

I add my thanks to those already offered to the Bill team who supported the noble Lord, Lord Grocott, in this matter. Good employers and diligent managers and directors have nothing to fear from the Bill, indeed they have much to gain as it tackles the commercial advantage that unscrupulous businesses gain from non-compliance. The Government welcome the Bill and I therefore commend it to the House.

On Question, Bill passed.