By Jake Molloy
General secretary of the OILC union
As we anticipated two or three years back, Scotland is to be aligned with England and Wales with respect to corporate killing legislation.
Jake Molloy wants sentencing options explored fully
If this occurs without any distinctly Scottish aspects to the new legislation, there is likely to be little or no difference to the appalling levels of death at work in Scotland.
After all, if a new corporate killing statute offers only unlimited fines as punishment, what will be achieved?
Magistrates and sheriffs already have this financial penalty available to them.
The requirement for distinctly Scottish aspects to the legislation is derived from the fact that here in Scotland employees are half as likely again as colleagues elsewhere in Great Britain to be killed at work.
Moreover, those responsible are twice as likely to escape the legal consequences.
The long-standing Scottish anomaly appears not to disconcert the politicians too much as nothing specifically designed to tackle it appears to be forthcoming.
Yet the deterrent effect of possible criminalisation would surely focus minds in the boardrooms and result in less death in Scottish workplaces, onshore and offshore.
The Scottish Executive has indicated it will consider whether there is a need to strengthen the law here in Scotland, we would argue this is essential.
This legislation is therefore an opportunity not to be missed to develop innovative sentencing options. Corporate probation is one such.
A company could agree to a programme of internal reform, management re-education and external oversight and in exchange would earn a discount on its fine when the external auditor assured the court that the necessary corporate remedies had been achieved.
Other possibilities include suspension without pay of senior managers, prohibition of director's bonuses, share options, pensions etc.
Where the legislation could have the greatest impact is in the sensitive area of reputation management. Criminalisation could in an afternoon destroy a reputation for excellence nurtured over decades.
There has been talk of using the supply chain to induce good health and safety performance.
Managers of major companies know that their corporate reputation for effective and safe delivery is as much in the hands of the contractors they bring on board as it is with their own endeavours.
The OILC represents offshore workers
The government has previously signalled its intention that, for all its major procurement contracts, it will set a good example and buy only from suppliers who have proved that they comply with UK health and safety legislation and who have in place satisfactory health and safety procedures and practices.
We could then see a situation where doing business with a firm that has a criminal conviction for unlawful killing would be out of the question until such times as rehabilitation is satisfactorily completed.
The potential for loss of business on this scale may frighten the board more than the prospect of a peppercorn fine such as the £900,000 paid by Shell last year for the deaths of two workers on the Brent Bravo platform.
The fine sounds impressive until it is realised it is the equivalent of a few pence to someone on an average salary.
Perhaps an alternative to the fine, using one of the innovative sentencing options referred to, would have been the Government/Scottish Executive using the supply chain to induce good practice by informing Shell that UK PLC may consider using an alternative contractor to extract the nations offshore hydrocarbons.
The government in England and Wales and the Scottish Executive in particular ought to set up a commission to explore sentencing options fully as part of the proposed new regime.