Danger: capitalism at work

In his introduction to Blood in the Bank: Social and legal aspects of death at work by Gary Slapper (268pp Ashgate) American academic, anarchist-superstar Noam Chomsky execrates the unaccountable and deadly rule of corporations with powerful well-practised and passionate arguments. Chomsky’s preface contrasts with Slapper’s own text, which, with care, deliberateness and precision explores the complexities and the structures of the legal process of dealing with corporate manslaughter. The two styles, however, far from clashing, are complementary; as Slapper’s meticulous explication of the subject of death at work, and its relationship to the capitalist system, resolutely builds up to an impressive substantiation and justification for Chomsky’s resounding fusillade.

Slapper begins by going back to what a crime is and how criminal law came into being. This enables him to examine the practice of law as a whole, and to proceed on the basis that “it is reasonable to judge the system’s functioning: (i) by the extent it meets its aims . . . (ii) whether its policies have been formulated in accordance with its . . . accepted purposes”. He exposes the circularity of those stated aims and purposes, which summed up merely say “a crime is anything the state has chosen to criminalise” and then back it up with metaphysical flim-flam about social order and human nature. In place of this, Slapper deploys the materialist critique developed by Marx and Engels which sees law as “a code which generally sought to maintain the social and economic system” of its day.

Corporate culpability
Highlighting the divergence between ideals and reality is the way in which the law of manslaughter applies to death at work, and corporate culpability. In 1989 576 deaths were recorded as personal homicides, “the number of people killed at work during the same period was 517”, along with some 28,900 non-fatal injuries. Using Health and Safety Executive (HSE) reports and his own research and analysis of coroner’s court hearings, Slapper estimates that around 70 percent of deaths at work could have been prevented by due management care.

The modern test for manslaughter is that of “objective culpability”. If the accused can be shown to have taken an unnecessary risk, or have been indifferent to risk, resulting in a death then they could be culpable of manslaughter. Since for this to apply it is necessary to consider how far “conduct must depart from accepted standards to be characterised as criminal [it must be] supremely a jury question”. This means that manslaughter is a highly complex and nebulous crime, depending on the cultural expectations of juries. However, Slapper proposes that we can discern “an essence of criminal culpability” which can be applied to show whether death at work is manslaughter. He proposes three tests which could be applied to deaths at work to determine corporate liability: if an employer creates a situation of deadly risk; where the risk is serious and obvious; and where they decide to run that risk either choosing to ignore it, or attempt to avoid it in a negligent and incompetent manner.

The problem, though, lies in applying criminal law, which has traditionally dealt with individuals, to corporate entities. Initially, employers were utterly immune from prosecution, because it was deemed that their employees had willingly volunteered to undergo the work for their employer. However, the evolution of a duty of care both towards employees and the wider society has meant an end to that line of defence. Prosecution is still hampered, though, by the need to identify a criminal “mind”, a person to be held to account. In cases of failures by entire companies, proving one individual director to be guilty within the terms of the “controlling officer test” can be immensely difficult, especially as police would not usually exhaustively search through company records after an “accident”. In 1996 the Law Commission recommended that a change ought to be made, making it possible to prosecute companies for management failure, but the requirement for a controlling officer is still current. Thus, most legal action resulting from death at work comes under the aegis of Health and Safety regulative legislation rather than the more serious criminal law.

The Health and Safety Executive, however, “has severely restricted resources”, reflecting the lack of political priority given to its existence. Further, the HSE’s own policies mute its effectiveness, as it prefers to promote “negotiated compliance” with safety law rather than work as an outright enforcement agency, casting itself as the good angel sitting on the shoulders of corporations, whispering words of conscience. Even then, such negotiation is ranked sixth in the league of the HSE’s own priorities, with enforcement coming seventh.

Culture of capitalism
Beyond simple policy matters is the cultural view of death at work as an “accident”, which is the automatic presupposition of investigating authorities, a presupposition that downgrades the severity of the occurrence. Both police and juries are likely to react lightly towards the respectable management, who do not fit with their pre-conceptions of criminals, and so are less inclined to use their powers of discretion to pursue those cases, unless-as in one gruesome case with a cutting machine that is cited-the details are so gross as to fit with the traditional horrific and violent concepts of murder. Slapper attributes the ultimate causation of this cultural influence to the social conditions of capitalism. The result of the practice over corporate killing is to avoid “too serious a deterrent to the risk-taking that is part of competitive industry”. Capitalists must remain flexible enough to take risks that may brings greater rewards in the interest of profit.

This competitive aspect of capitalism also nullifies any real prospect of solving the problem through the law. As Slapper notes, the Indian authorities failed to prosecute the directors of Union Carbide for the Bhopal disaster (see Socialist Standard, December 1999), yet did manage to prosecute an elephant for trampling someone to death. “Attempts to deal effectively with cavalier attitudes to safety within one jurisdiction can only have a limited effect because, . . . then the problem is exported by capital . . . Like water running down a hill, capital follows the path of least resistance”. Global competition between regulators undermines effective control over working conditions.

Capital views safety as simply another cost to business, as is illustrated via the Ford Pinto case of 1977, where the firm decided the cost of paying law suits was cheaper than actually correcting a fault in their product. That this calculation was repeated in 1997 by Chrysler, and again in 1999 by General Motors, shows how this sort of problem is endemic to the market system. The problems do not end there as there are those who argue “that the burden of fines is inappropriately borne by shareholders”. Despite the fact that it is exactly the constant baying of the shareholders for profit that is the root cause in the system, they are not, and never can be, in any way personally responsible under the law.

Slapper’s book has been picked up on by the usual rag-tag band of reformists. George Monbiot referred to the book in his Guardian column, in which he concluded by calling for a change in the law. Monbiot neglects to mention, though, Slapper’s conclusion that it is the profit system that must go, to be replaced by non-market socialism, and that this can be the only solution to the problem. Likewise, Channel Four News asked for a soundbite on an item about death at work. Again, they failed to explore his radical, and entirely deductive conclusion. Gary Slapper’s book is a rewarding and informative read, that deserves to be known as more than simply a useful source of horrifying stories and statistics to back up calls for milk and water reforms.

PIK SMEET