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Last Updated: Saturday, 23 April, 2005, 11:21 GMT 12:21 UK
Law change delay 'could backfire'
By Jake Molloy
General secretary of the OILC union

Jake Molloy
Jake Molloy believes a delay in Scotland is unnecessary
The main defect of the Corporate Manslaughter Bill is its failure to consider the criminal liability of company directors.

The OILC is of the view that death at work caused by carelessness and negligence will remain a mundane part of industrial life until those exercising ultimate boardroom power know that they could be held accountable for the maladministration of safety in their company.

It is true that reforms to the offence of corporate manslaughter in England and Wales must in the first instance focus upon the conduct of the organisation rather than the individual.

The government's intention is to remove the obstacles presently making it extremely difficult to bring manslaughter charges against companies.

However, the government has declined in the consultation document to offer any alternative mechanisms to deal with the lack of accountability for company directors - despite admitting that this was a major concern in its original consultation document back in 2000.

Public consultation

The dilution of this central tenet of Labour policy on corporate accountability (included in two pre-election manifestos within the past decade) is a cop-out, and one that is about to be replicated in the Scottish jurisdiction.

The Scottish Executive has put on hold its public consultation pending the outcome of the English exercise.

To achieve this it has used the device of a "panel of experts" which will be appointed to consider the particularities of the Scottish legal system prior to the Scottish public being invited to offer its views.

If the delay is indeed a deliberate ploy to keep the Scottish process one step behind and, therefore, trailing in the legislative footsteps of Westminster, it potentially could backfire on Labour's Scottish apparatchiks.

Offshore platform
The OILC represents offshore workers

Even with the fairest wind the change in English law is unlikely to take effect much before the first or second quarters of 2006, probably later.

Whatever form it takes the legislation will certainly not include any new provisions for the criminal prosecution of individual directors. The bill makes that absolutely clear.

The delayed Scottish political and consultative processes must eventually catch up and conceivably, in terms of substance, could overtake the English process.

The potential for divergent Scottish and English legal positions on corporate killing, so far as directors' responsibilities are concerned, might be realised - precisely the very situation the Scottish Executive is trying to head off.

Holyrood elections

The chronology is interesting; the politics even more so. Depending partly on progress made by the "panel of experts", the yet-to-be-drafted Scottish bill is very unlikely to be ready for public consultation in what remains of 2005.

Consultation, if commenced in 2006, would likely extend to late 2006 or into 2007 - thereby encroaching on the Holyrood elections due in May 2007.

The Scottish National Party, the Scottish Socialist Party, the Greens and the Liberal Democrats, each express views on the criminal liability of company directors not dissimilar to those held by the OILC.

Pre-election position-taking, or a significantly rearranged political disposition in the Scottish Parliament after the election, might yet see the issue of directors' culpability, killed off in the Westminster Bill, resurrected in Scotland.

A law of unintended consequences?
23 Apr 05 |  Scotland

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