Safety, Health and Welfare at Work Bill 2004: Report Stage (Resumed).

Debate resumed on amendment No. 16:
In page 23, to delete lines 32 to 36.
—(Deputy Morgan).

We had a long debate on 23 February on the related amendments Nos. 16, 17, 18 and 36 which deal with section 13(1)(c). In response to questions raised by Deputies, I pointed out that the provisions in this section will only come into play after regulations have been put in place. I also emphasised my intention to have the Health and Safety Authority prepare draft regulations in consultation with the social partners and other interested bodies. Moreover, I undertook that when a reasonable draft is prepared, I will bring it before the Joint Committee on Enterprise and Small Business for its consideration.

Deputy Howlin has spoken twice on this amendment. I call Deputy Morgan to conclude the debate.

I have raised concerns about this section on Committee and Report Stages. It is essential that we recap briefly on this because it is a fundamentally important aspect of the Bill. Section 13(1)(c) deals with a very grey area and a number of questions remain unanswered. For example, what level of alcohol or other drug will be accepted within a person’s system? Will it be some or none? What categories of employees will be subject to testing? There is no indication whether only those employed in sectors where safety is critical will be affected.

The section does not deal with the term "reasonable suspicion". Earlier in this debate, I observed that gardaí testing motorists for alcohol consumption under the provisions of the Road Traffic Act 2002 must apply a requirement of reasonable suspicion. Nothing similar is required under the terms of this section. Are the tests designed to identify alcohol or drug use or alcohol or drug effect? I understand some drugs which may have been consumed very recently, perhaps even on the same day, may not show up in tests. Correspondingly, a person who has taken an illegal substance some weeks before testing may receive a positive result, as we are aware from recent incidents in the sporting world.

I cited Part 9 of the Railway Safety Bill 2001 as an indication of the type of provision my party would like to see in this Bill to offer some measure of safety to employees. Will the Minister of State insert an amendment to include a requirement regarding the term "reasonable suspicion"? The absence of such a basic provision demonstrates the flawed nature of this section.

The Minister of State referred to a commitment to introduce regulation. I accept his word that the provisions of 13(1)(c) will not be implemented until such regulations are in place. However, it is a fundamental problem that the regulations will be drawn up by the Department and Deputies will have no opportunity to amend them. An even greater difficulty is that notwithstanding the Minister of State’s commitment, we must consider the possibility of a Cabinet reshuffle in the future.

The Minister for Enterprise, Trade and Employment is bound to be demoted.

What might happen if one of the headcases in Government were transferred to this Department? One can only imagine the consequences if the Minister for Justice, Equality and Law Reform were let loose on section 13(1)(c). It does not bear thinking about the level of hassle that unfortunate employees could be subjected to under such conditions.

I have fundamental reservations about section 13(1)(c) for the reasons outlined. We have already covered this ground on Committee Stages and during the Report Stage debate on the last occasion. I hope the Minister of State will delete this section until he has had a proper opportunity to consider the regulation he has committed to bring forward. In other jurisdictions, particularly the United States, significant volumes of regulations are in place in advance of legislation or are produced in tandem with legislation. This affords legislators an opportunity to be more sure-footed in considering the issue at hand. This is a significant matter and the section should be deleted so we may be afforded a proper opportunity to establish what is involved.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 63; Níl, 47.

  • Ahern, Bertie.
  • Ahern, Noel.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Carey, Pat.
  • Carty, John.
  • Cassidy, Donie.
  • Cowen, Brian.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • de Valera, Síle.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Dennehy, John.
  • Ellis, John.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Glennon, Jim.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Michael.
  • Wallace, Dan.
  • Wilkinson, Ollie.
  • Woods, Michael.

Níl

  • Allen, Bernard.
  • Breen, James.
  • Broughan, Thomas P.
  • Burton, Joan.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Crowe, Seán.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Gormley, John.
  • Gregory, Tony.
  • Healy, Seamus.
  • Higgins, Joe.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lynch, Kathleen.
  • McEntee, Shane.
  • McGrath, Finian.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Moynihan-Cronin, Breeda.
  • Murphy, Catherine.
  • Murphy, Gerard.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Dowd, Fergus.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Quinn, Ruairi.
  • Rabbitte, Pat.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Shortall, Róisín.
  • Stanton, David.
  • Timmins, Billy.
  • Upton, Mary.
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Ó Snodaigh and Kehoe.
Question declared carried.
Amendment declared lost.
Amendment No. 17 not moved.

I move amendment No. 18:

In page 24, between lines 22 and 23, to insert the following:

"(2) (a) Subsection (1)(c) shall apply only to such categories of employee and in such circumstances as are prescribed by regulations made by the Minister,

(b) regulations made under this subsection shall not be made unless a draft thereof has been approved by both Houses of the Oireachtas.”.

Amendment put and declared lost.
Amendment No. 19 not moved.

I move amendment No. 20:

In page 28, between lines 29 and 30, to insert the following:

"(2) An employer shall not be required to appoint a competent person undersubsection (1) in respect of the employment by the employer of a person whose sole or principal function is to perform domestic duties in or in connection with the employer’s place of residence or as part of the employer’s household.”.

A number of sections draw a distinction between domestic and non-domestic workplaces. I am grateful to the Minister for providing a briefing note in justification of the section subsequent to our Committee Stage deliberations. The Civil Service is determined to justify the unjustifiable with regard to this matter. I mention this in respect of justifying refusal of the amendment the Minister put forward.

The appointment of safety officers under section 18 is a provision that should only have relevance to a non-domestic workplace, and the amendment is designed to make this clear. On Committee Stage, the Minister said the original version of the amendment could mean health boards that employ district nurses for home visits, and other similar examples, could avoid the obligations of this section. I have therefore changed the wording to make it clear that we are referring only to the employment of home workers where the home owner is the employer. Under the provisions of the Bill as it stands, if one hires anau pair to work in one’s house, one must appoint a safety officer under section 18. That is somewhat eccentric.

In his useful and helpful briefing note, the Minister states that a domestic premises could become a place of work in either of two circumstances. In one case, the person residing there might carry on work of some sort, such as farming or teleworking. For this purpose, he or she may need to call on the services of a competent person to either advise or identify hazards and safety risks, etc. Does this mean that if somebody at home decides to do some telemarketing, telepolling or work on the census he or she must appoint a safety officer to carry out an audit in his or her house?

I am in favour of health and safety but some sense must be applied. There must be limitations to the reasonable intrusion of the State. Trundling legislation into the private dwelling cannot be justified without a compelling reason and I do not see one either in the Minister's notes or in his argument on Committee Stage. The amendment makes it clear that where there is justifiable need for the appointment of a safety officer such a person should be appointed. However, the appointment is not justified when it represents a patent encumbrance and a situation where red tape has gone mad.

The Joint Oireachtas Committee on Enterprise and Small Business has had discussions with regard to placement of burdens on anybody with a spark of entrepreneurship. They will collapse under the weight of regulations and we will kill off the spirit of entrepreneurship if we are not careful. A simple principle should apply. There must at least be a reasonable justification if not a compelling reason to place any obligation on an employer or citizen. I am at a loss to find a compelling reason either in the Minister's briefing note or in his contribution on Committee Stage. I ask him to be independent in this matter and not simply stick to the wording because it was in the original draft of the Bill. He should take the legislative responsibility of this House at face value and allow for a reasonable proposal from this side of the House to be put into effect. I hope he will accept the amendment.

I agree with Deputy Howlin. We live in an era of such political correctness, definitions and interpretations that a full-time judge would be required to determine what is meant by certain proposed and existing legislation. There is a grave danger that some of the improvements deemed necessary will not improve things. They may in fact become a burden. The points made by Deputy Howlin are accurate and relevant in this sense. There is nothing more to be gained by adding another layer of bureaucracy on top of several existing layers.

Surely the purpose of the exercise is to ensure that health and safety procedures are applied and enforced. However, there will always be situations for which one cannot legislate in every circumstance. Parliamentary Counsel will say they must cover every situation in so far as it is possible and that may be the case. However, a realistic appraisal of a situation must be undertaken before one can reasonably argue one way or another. The extension of bureaucracy into every conceivable area is not in the interests of health and safety and every circumstance cannot be covered.

A burdensome regulatory framework that is patently irrelevant to their circumstances could inhibit the self-employed. The weight of such legislation would act as a barrier to them commencing employment because they would be liable to inspection. That is not the intention of the legislation and therefore I support the amendment.

I acknowledge that Deputy Howlin's amendment differs from that proposed on Committee Stage and excludes the areas about which I expressed concern on that occasion. Concerns were expressed with regard to health and safety provisions in domestic situations when the Bill was published almost a year ago. Unfortunately, more cases have been brought to our attention in the interim period. Considerable worry has been expressed regarding the treatment of domestic workers in domestic situations, in particular those who are foreign nationals.

What about health and safety?

The concern about health and safety prompted the initial inclusion of this provision. There are possibilities, for example, regarding electrical installations, gas installations etc. Unfortunately, in a very small number of cases employers clearly have little regard for their employees, particularly if those employees are foreign nationals. This House would send a very poor signal if we were to exclude the necessity for any employer, including domestic employers, to have in place the same health and safety requirements as in any other workplace. In situations of some kind of danger it does not seem unduly onerous that a competent person should prepare the risk assessment, safety statement or code of practice on safety. Indeed, this is not required under the Bill where fewer than three workers are employed. Excluding domestic workers from the general provisions applying to all other employees would send a very negative signal and therefore I am not minded to accept the amendment.

The empire never gives in. It is unreasonable to impose the requirement to have a competent person under section 18(1) to identify the hazards in the place of work on a person who hires someone for a few hours each week to do the ironing. Most people will not do this because they will not be aware of the requirement and are not employers in the sense that people understand. A rule of thumb is that the basic law of reasonableness should apply to any legislation this House passes. The Minister of State is a very sound and reasonable person. It is unreasonable to try to extend health and safety legislation into the domestic household. Obviously every household should ensure that, for example, the wiring is appropriate to avoid the risk of electrocution. A person who hires someone for a few hours to look after the children should not need to carry out an audit of the sharp knives or ensure that the tiles in the kitchen are sufficiently non-slip. I am sure the departmental officials would agree with this because it is just not reasonable in the average household. The more we err on that side of unreasonableness——

For the clarification of the Chair, is the Deputy replying?

I hope the Minister of State will respond to this, following which I might get a final opportunity to speak.

The Deputy is replying.

I am not replying to the debate. I presume the Minister of State will have a chance to speak after me if I do not exercise that right.

The Minister of State may only speak for two minutes if the Deputy confines himself to two minutes.

I will confine myself to a sentence. We have an obligation not to bring the law into disrepute. The major issues fall with the smaller issues and people only focus on the minor issues that are patent overkill. This is to the detriment of the important legislation we are enacting.

While the Deputy is right about the majority of employers, considerable evidence suggests that a small group of employers, including some who employ foreign workers for domestic duties, have little regard for the law across a range of areas, including the minimum wage and health and safety issues. Therefore I am not disposed to accept the amendment. The Deputy is also right that large groups have not complied with elements of the 1989 Act. In recent years we have seen considerable evidence that more of them are at least preparing a risk assessment, which is the minimum required for anybody in a position of engaging an employee to do any kind of work. In view of our experience and the complaints we have received, excluding the domestic workplace from basic health and safety requirements would send a very negative signal.

It seems ludicrous to me. Presumably it will be necessary to have prepared a risk assessment before the plumber is called. It would be rather awkward if a pipe bursts and no risk assessment has been completed.

If hot water comes out, it could be fun.

As the person might be flooded, the poor plumber might be in more danger by the time the assessment is completed. Perhaps a plumber or washing machine repair engineer might refuse to enter the house without seeing the risk assessment. It is ludicrous.

The Minister of State should not provoke me by mentioning the treatment of non-national workers. While I have not heard of complaints about health and safety issues, I have certainly heard complaints about exploitation. If the Minister of State provided adequate inspectors to enforce existing regulations, he would do a greater service in the protection of the welfare of migrant workers.

This kind of provision will be highlighted as a sign of the nanny state gone mad. It will bring legislation into disrepute and ultimately will undermine the body of important legislation we are introducing. We need to tread very carefully when we cross the domestic doorstep. We are too prepared to enter the domestic household and assert regulations. While some provisions are necessary, this is a step too far. I am deeply disappointed that the Minister of State seems embedded in his view and is unable to even accept my amendment which I modified for Report Stage.

Amendment put and declared lost.

I move amendment No. 21:

In page 30, line 39, after "annually" to insert ", upon commencing employment".

This is a very straightforward amendment, which is loaded with common sense, as are all my amendments. Section 20(3) states:

(3) Every employer shall bring the safety statement, in a form, manner and, as appropriate, language that is reasonably likely to be understood, to the attention of—

(a) his or her employees, at least annually and, at any other time, following its amendment in accordance with this section.

This is acceptable up to a point. However, if a person commences employment two to three weeks after an employer has met all his or her obligations under this section, the employer would be unlikely to revisit the safety statement for another year. Under those circumstances the new employee would need to remain employed for in excess of 11 months without the benefit of having the safety statement communicated to him or her in the appropriate manner. My amendment is the essence of reasonableness, common sense and good practice. What guarantees does a new employee have that he or she would be made aware of the safety statement in the circumstances I have just outlined? Such an employee working in a heavy engineering company would be employed for in excess of 11 months without the benefits of being advised of the statement, which is not good practice and does not make common sense. My amendment would ensure that the safety statement would need to be brought to the attention of any new employee.

I accept that the spirit of the amendment would clarify the situation somewhat. The advice of the Parliamentary Counsel was that while the amendment would be a useful clarification, the text would require redrafting if I were to accept it.

My intention is to bring forward an amendment which deals with the point made by Deputy Morgan in the Seanad.

I thank the Minister for his words and for recognising the amendment's merit. I therefore withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 32, to delete lines 5 to 11.

I wish to hear the Minister of State's response.

We had a very long debate on this issue on Committee Stage and among the points I made was that a health hazard identified by a risk assessment is the only situation where the employer is required to put health surveillance in place and only if it is sought by the employees. That is basically the provision which the amendment seeks to have deleted. In view of this provision's importance, I am not prepared to agree to its deletion.

Deputy Hogan made a strong case on Committee Stage. Section 22 states:

(1) Every employer shall ensure that health surveillance appropriate to the risks of safety, health and welfare that may be incurred at the place of work identified by the risk assessment under section 19, is made available to his or her employees.

(2) Subsection 1 is without prejudice to any more specific requirement for health surveillance which may be in force under the relevant statutory provisions.

The Minister of State might recall that on Committee Stage there was some debate as to what constituted health surveillance. I have a briefing note on the points I raised at the time. Has the Minister of State had a chance to consider further the points made by Deputy Hogan on Committee Stage as to what constitutes health surveillance? What is his view?

Employees, for reasons of medical confidentiality, have the option of refusing health surveillance. However, we had much discussion on the subject on Committee Stage and there were a number of instances where it might be necessary to make the health surveillance available to employees. To answer Deputy Howlin's question, monitoring would be carried out by an occupational health nurse or occupational medical physician. As I have already stated, this would only occur in situations where hazards had already been noted in the risk assessment statement.

Amendment, by leave, withdrawn.

Amendments Nos. 23 to 27, inclusive, are related and can be taken together. Is that agreed?

They are not related to the extent that they should be taken together. Can they be taken separately?

Yes, if the Deputy feels strongly about the point.

I feel similarly. A number of these——

It is not a problem. The amendments will be taken separately.

I move amendment No. 23:

In page 36, to delete lines 43 to 46.

Unfortunately, the notes in my possession refer to all the amendments together, so forgive me if I repeat some of them as we proceed. The amendments propose changes to the section on protection against dismissal and penalisation. We had a substantial debate on this matter and it is extremely important that the protections provided for in the legislation as it is stands be maintained. This is why I do not accept this amendment. Amendment No. 23 in particular would weaken considerably the provisions in question if it were to be accepted as would amendment No. 24. Amendment No. 25 would extend the examples of penalisation set out in section 27(1). I apologise, I had forgotten that we are taking the amendments separately.

I do not have the benefit of prior participation in the debate on the subject, but I want the Minister to shed some more light on it. How do the amendments which he wished to take together weaken the legislation in general? I would have thought they merely tidy up the section with a view to making it more even-handed and fair-minded in the determination of the legislation's intended purpose.

The provision would remove section 27(1). In this section, penalisation includes any act or omission by an employer or person acting on behalf of an employer that affects to his or her detriment, an employee with respect to any term or condition of his or her employment. It seems to be a fundamental requirement of the act in this particular area, that an action by an employee regarding health and safety issues ought not to result in their penalisation.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 24:

In page 36, to delete lines 47 and 48 and substitute the following:

"(2) In this section, "penalisation" means—".

I want to hear the Minister of State's comments.

This amendment seeks to delete lines 47 and 48 on page 36 and to substitute "in this section ‘penalisation' means". The legislative framework covering protection against dismissal and penalisation contained in section 27 and later sections is similar to that in other worker protection legislation. This amendment and amendment No. 22, if accepted, would considerably weaken the provision in question. Under the Unfair Dismissals Acts, for example, the employer would have a defence if actions taken to ensure the employee's safety were taken in compliance with requirements under health and safety laws and that would clearly undermine the effect of the entire provision.

Amendment, by leave, withdrawn.

I move amendment No. 25:

In page 37, between lines 9 and 10, to insert the following:

"(f) harassment by way of abuse of any provision contained in this Act.”.

This amendment would offer some protection to employees from any malicious employers who, for example, chose to abuse the provisions for the testing of alcohol and intoxicants. Given that workers are already considerably exposed to potential abuse under the provisions of 13(c), to which we have just lost an amendment, it is reasonable for the Minister to accept this amendment. I doubt if any of the social partners would have qualms about hauling a malicious employer over the coals for abusing the provisions of section 13(c). There are five paragraphs in section 27 and they all relate to employees and how they may be dealt with. However, there is nothing to deal with the issue of malicious employers. This straightforward amendment is reasonable as it would do so. We now know, as never before, that malicious employers exist. We have seen what has happened in Gama Construction, Irish Ferries and a host of others.

Without a provision like this which gives some balance to section 13(c), employees will be dangerously exposed to malicious employers. Therefore, I ask the Minister of State to see this amendment, which cannot be argued against, as reasonable.

I understand Deputy Morgan's intention with regard to this amendment. However, among the provisions in subsection (1) are "anything that affects the employee to his or her detriment". That definition covers harassment. If one stipulates that the terms "harassment" and "bullying" must be included in the Bill, one could find arguments for including a range of other terms as well. Including the term "harassment" does not appear to strengthen the provisions of the Bill in this section, particularly in view of the provisions at section 27(1).

I accept there are some general protections afforded to employees in subsection (1) but they are insufficiently specific. This amendment gives a very specific balance to the Bill, in particular to section 13(c). I accept the generality of subsection (1) and do not mean to criticise it, except to say that it is insufficiently specific with regard to something as broad as section 13(c). It is essential to include this kind of specificity in the Bill to deal with wayward employers. We have certainly seen enough wayward employers in recent times and their determination to ride roughshod over employees generally warrants affording some kind of specific protection to employees. I am not referring to the overwhelming majority of employers who have their employees’ best welfare at heart. I am referring to a hard core element, such as the employers I referred to earlier and others who have no regard for their employees.

The terms "coercion" and "intimidation" are already specified in section 27(2)(e). All the provisions which are specified lend themselves readily to being understood. I do not agree with Deputy Morgan that the inclusion of the term “harassment” would lend itself either to clarity regarding the provisions or to strengthening the provisions of the section. It would have the opposite effect.

We are going nowhere with this amendment. I thought that including the term "harassment" would have been quite specific and clear and that the Bill required that level of clarity. The Minister of State disagrees with my argument so we must rest the matter.

Amendment put and declared lost.

I move amendment No. 26:

In page 37, line 27, to delete "danger" and substitute "circumstances".

The Minister of State and I once stood in front of a classroom teaching plain English. A very straightforward argument regarding this amendment was made on Committee Stage. I am amused at the briefing note the Minister of State sent me. Subsection (3) (f) reads:

subject tosubsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

This subsection is one of the defined areas where an employer shall not penalise or threaten a penalisation against an employee. Plain English tells me that "in circumstances of danger" should be followed by "where the circumstances of danger" or "where the circumstances" persisted. I thought the Minister of State was convinced of this on Committee Stage because he said he would recheck it with the parliamentary draftsman. A serious rechecking obviously took place because the Minister of State now states that it is necessary to specify that the Oireachtas means dangerous circumstances and not other circumstances. He argues that to use the word circumstances instead of danger would dilute the message of the section. I concede that this is not an extremely important issue but plain English should be used in any enactment of the Oireachtas. "In circumstances of danger" should be followed by "while those circumstances persist, refusing to return should not be penalised". The subsection should not contain "where the danger persisted" because it is circumstances of danger rather than dangers that are the subject of the subsection. Circumstances of danger are quite different from dangers because the circumstances that give rise to danger might continue to exist. It is an important point of plain English. If the circumstances of danger require someone to leave his or her workplace, he or she cannot be penalised for that. Where those circumstances continue, the employee cannot be penalised for refusing to return. The meaning of the subsection is changed if "danger" is used in the second sub-clause instead of "circumstances of danger".

It is an extremely important issue because I can see an employer insisting that an employee return to his or her workplace because there is no danger present when the circumstances that gave rise to that danger are still in existence. The Minister of State argues for not diluting the message, which should be said to the cumann in Mayo. However, I do not see its relevance here. The Minister of State would show a degree of logic, as well as that much rarer quality in a Minister of State, independence, by accepting the amendment, which patently makes sense.

Deputy Howlin is quite correct in suspecting that the schoolmaster in me had a particular view regarding syntax and grammar when he presented the original amendment. Another thing I have learned along the way is that syntax and grammar do not necessarily cut it when it comes to legal matters. I did what I undertook to do on Committee Stage and referred the Bill to the Parliamentary Counsel, who was wedded to the word "danger" rather than "circumstances of danger" in this section.

Why did the Parliamentary Counsel not put the word in the first clause?

I have also learned that it is generally very foolish not to accept legal advice in these situations. In the circumstances, I do not think it would be sensible to accept the change proposed by Deputy Howlin, notwithstanding my view on the grammar.

Notwithstanding the Minister of State's reluctance to depart from legal advice, I am sure he is aware of the maxim that approximately 50% of such advice is ill-founded. I mean no disrespect to the parliamentary or departmental legal advisers but it is no harm to, on occasion, pose questions on the basis put forward by Deputy Howlin. There is no dilution of the thrust——

Of the message.

——of the message or of the Bill. This does not undermine anything. I am reminded of arguments over the years about whether to insert the word "shall" or "may". This amounts to old-fashioned jargon. In one instance, the word "shall" simply means that a person shall do something while, in another, the term "may" means that he or she he may or may not do it. I do not see this amendment as a diminishing of the content of the Bill or the thrust of this particular section in any way.

I am concerned that legal opinion was sought. I have a healthy respect for such opinion but I have no qualms about challenging it. Unfortunately, we have had to do so in the past. It might not do any harm if the Minister were to re-examine this and proof it against all eventualities, with a view to determining whether accepting the amendment might be a good choice.

I can accept bad English if it serves a purpose but can the Minister of State state that my analysis is not wrong and that the circumstances of danger could persist without triggering the danger in the second clause? That is what this debate hinges on. The term "circumstances of danger" is quite different from "danger persisting". If it were not so, the Minister of State would have included the word "danger" in the first clause. The circumstances of danger could still be persisting but the employee in the Minister of State's drafting would be deprived of the protection of the section because the employer would insist that no danger, as defined by someone else, persisted. If this is the case, there is a real difficulty with the Minister of State's drafting and I want his clear attention and assurance on this point.

Deputy Durkan will be pleased to know that we will be dealing with a "may or shall" amendment in the not too distant future.

I was reading ahead.

I take umbrage with——

To address Deputy Howlin's question, it is no harm that all the provisions of subsection (3)(f) are subject to subsection (6), which states:

In determining whether the steps which an employee took or proposed to take were appropriate, account should be taken of all the circumstances and the means and advice available to him or her at the relevant time.

That is of no help.

It may well have been what led the Parliamentary Counsel to give the advice on preferring the word "danger" to that of "circumstance" in line 27.

Does the Minister of State see the difficulty in what I am outlining?

I do and my difficulty is that, were I to accept this amendment in opposition to the legal advice, I might be placing an employee at a disadvantage should the matter be challenged in the courts.

I do not understand it.

Despite my view on the grammar, I accept that the term "while the danger persisted" seems clearer and more definite than that of "while the circumstances persisted".

No. The circumstances that caused the employee to leave his or her place of work could still be extant. However, someone could argue there was no real danger and that the employee would not have the protection of the section.

Except that all of this is informed by section 6——

Subsection (6).

I apologise. It is informed by subsection (6), to which I have already referred. This deals with the circumstantial requirement — if not the grammatical requirement — that Deputy Howlin is proposing to include in line 27. The inclusion of the term "danger" there and the word "circumstances" in the other deals with both concerns.

I have said all I can on this amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 27:

In page 37, between lines 31 and 32, to insert the following:

"(4) An employer shall not be deemed to have penalised an employer where it is established that any of the actions taken insubsection (2) were—

(a) in order to guarantee the employee’s safety,

(b) taken for commercial reasons; or,

(c) taken for other reasons unconnected with the conduct or actions of the employee.”.

This is somewhat similar to the previous amendment in the sense of what it deals with. There seems to be an error where the amendment states "An employer shall not be deemed to have penalised an employer". I presume this should read "penalised an employee".

There is a valid case in respect of the new subsection (4)(a) put forward in the amendment. There may be a determination by an employer who has responsibility to take an action, which may not be seen to be fair at the time, in order to guarantee an employee’s safety. It may not be possible to explain the reasons for such a determination. For example, there may be other matters internal to the organisation to which reference cannot be made. To ensure that there are no abuses under this heading, the section referred to by Deputy Howlin and other sections should address this.

The term "taken for commercial reasons" is used in paragraph (b) of the amendment. In certain circumstances, the person deemed to be the employer may have to take decisions for commercial reasons beyond his or her control without falling foul of this section.

I do not have the benefit of Deputy Hogan's thoughts on the final part of the amendment but I suspect it has a number of meanings, such as actions or impending actions in other areas or developments of which the employer may know in advance and to the employee seems unfair. This amendment takes one issue with another and highlights the typing error. I wish to know the Minister of State's views of it.

Deputy Durkan is correct in that the second "employer" should read "employee". It would not be appropriate to override protection against dismissal and penalisation in the case of actions taken by the employer for commercial reasons, which deals with paragraphs (b) and (c).

In respect of the proposed new subsection (4)(a), the employer would have a defence under the Unfair Dismissals (Amendment) Act 1993 if actions taken to ensure the employee’s safety were taken in compliance with requirements under health and safety laws. Provision in this regard is already made in section 27(2)(a).

Amendment put and declared lost.

I move amendment No. 28:

In page 41, line 14, to delete "Act" and substitute "section".

This is one of the drafting amendments I tabled.

Under section 1 the Minister is empowered to commence various sections of the Bill at different times. That is a normal provision. The problem with section 32 is that it states the National Authority for Occupational Safety and Health shall continue in being and shall from the commencement of this Act be known as the Health and Safety Authority. However, it should be from the commencement of this section. Some sections of legislation take years to come into effect, if ever. I remember dealing with the intoxicating liquor legislation several years ago, a section of which has still not commenced. There is other legislation, sections of which have been commenced over a decade or more after enactment.

It is logical that for the purposes of maintaining the National Authority for Occupational Health and Safety and bringing into being the new authority being established by this Bill, it should be a stand alone section which may be commenced by ministerial decision in accordance with section 1 with which we already dealt on Committee and Report Stages. In defending this provision and in rejecting my amendment on Committee Stage, I recall that the Minister of State was most unconvincing. I hope he has had time to reflect and accept the logic of what I propose.

I sought advice, which I undertook to do on Committee Stage.

From the same fellow.

From the same person. I am advised that the appropriate provision is that the commencement order should state "the Act" because that is what is done elsewhere. However, I confirm that it is intended to commence this section as soon as possible.

How can one commence the section when it states "the Act"?

The commencement order states "the Act". I am advised that is the appropriate way to deal with bringing the Act into operation even where some sections are excluded for the time being. It is consistent, therefore, with such language that this section also refers to the commencement of the Act. I can confirm that this section will be among the first to be commenced.

On this occasion I will have to accept the legal advice. Generally, I have very good legal advice available to me on these matters and I have been told that the more correct phrase, as logic would indicate, would be to refer to the section as opposed to the Act. However, the Minister of State has given an assurance that he is not hampered in any way from commencing this section immediately following the enactment of the legislation. With that reassurance, I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 41, line 14, after "as" to insert the following:

"an tÚdarás Sláinte agus Sábháilteachta, or, in the English language,".

As I said on Committee Stage, I am sure the Minister of State will have no difficulty accepting that the Irish version of the new authority, an tÚdarás Sláinte agus Sábháilteachta, should be officially recognised in the Bill. It would be shattering to the core if the inheritor of the legacy of de Valera would do anything other than accept this amendment.

I am not empowered to accept the amendment since I did not accept amendment No. 1.

Amendment put and declared lost.

Amendments Nos. 31, 32, 63 and 64 are related to amendment No. 30. Amendment No. 32 is an alternative to amendment No. 31. Amendments Nos. 63 and 64 are cognate. Amendments Nos. 30 to 32, inclusive, and 63 and 64 may be taken together.

It makes sense to take some of those amendments together.

I think I will be able to explain why.

As we are on Report Stage, if it becomes apparent that we need to disentangle one of these amendments, will the Leas-Cheann Comhairle give us some leeway?

The Deputy can move to recommit the amendment.

Otherwise, we will have to disentangle every conjoined amendment.

I move amendment No. 30:

In page 44, line 35, to delete "12" and substitute "11".

Amendments Nos. 30, 63 and 64 in my name are all technical and arise following my acceptance of the proposal Deputy Howlin made that the chief executive officer be excluded from the board of the authority. Amendments Nos. 31 and 32 in the names of Deputies Howlin and Morgan refer to gender balance.

I welcome the acceptance of good governance practice that the chief executive will not be a voting member of the authority. The separation of operational control from governance is a good thing and should be reflected in all legislation which I believe will increasingly happen. I have no difficulty with the consequent knock-on amendments that necessitates.

In regard to the composition of the authority, my amendment No. 31 states that the Minister should ensure not less than 40% of the members of the authority shall be women and not less than 40% shall be men. For more than a decade, there have been standing Government instructions that public bodies be required to have gender equity. The 40% threshold for men and women is the norm that has been followed, I think, by every Government since the establishment of the former Department of Equality and Law Reform in 1993. The fact we have not achieved that balance more than a decade later is quite alarming. The fact we are required to include a specific provision in each enactment to achieve this balance is also disappointing. A decade later, achieving gender balance should be automatic.

In the past, there was a view that it was not possible to get suitable women candidates for certain types of boards. That is baloney and bunkum. There is no board which cannot have gender balance. I have not heard the Minister's current view on this amendment but I hope he will accept it as he accepted my previous one on structure.

Deputy Morgan wants to go one step further and have absolute gender balance with which I have no difficulty. He wants to ensure that not less than 50% of members of the authority should be women. That does not give one gender balance because on that basis, 100% of members of the authority could be women. I remember appointing a board which was very imbalanced in favour of women and there was an equality check on it. The notion that at least 40% of members of the authority should comprise both genders is the correct way to go and I hope the Minister of State accepts the amendment.

In terms of good practice, I acknowledge the Minister of State's amendment to remove the chief executive officer from the board. That is a welcome move and is helpful to the Bill. It is not like me to be mischievous and to try to up the ante in regard to the 50%. If that impression has been created, let it rest lightly with the Minister of State. I am not opposed to Deputy Howlin's amendment requiring a 40% minimum of both genders in terms of board membership. However, it is important we try to up the ante to achieve these things. It is Government policy to achieve 40% membership by women. Either of these amendments would ensure it is not an aspirational target but one which must be met. That would significantly strengthen the Bill. I hope the Minister of State is prepared to accept one or other of the amendments. It would be helpful if he were to do so.

I support the points made by the previous speakers. These amendments are progressive. In this era, it is natural to expect that gender balance would be achieved is so far as is possible in all circumstances. As Deputy Howlin said, the 40% target leaves sufficient scope for eventualities which may arise in certain cases, whereas it might not be possible to meet the requirement in this respect if it were laid down too precisely. The Minister of State acknowledged this by virtue of introducing amendments, consequent on the previous discussion. The amendments are progressive and I support them.

There have been two developments since the Committee Stage debate on this matter. One is that I nominated a new board which, when this Bill is enacted, will have 43.66% female representation. Such representation is smaller at present because the last position will only come into play when the Bill is passed. Members who were present for the Committee Stage debate will remember one of the difficulties in meeting this requirement was that there are nominating bodies to this board as there are to a great many boards.

They should be asked to nominate women.

There was no requirement that they supply the names of men and women. Since 21 April, however, the Minister of State, Deputy Fahey, has, with the agreement of the Government, announced that in future nominating bodies will be required to give the names of men and women.

Requested or required?

Required. The note I have been given states:

The Government has decided that from now on, nominating bodies must put forward both male and female options for those appointments to State Boards where they are the responsible authority. The Government will then choose from among nominees so as to ensure that the 40% minimum representation from both genders is achieved.

There have been those two developments which I am sure Members would accept are positive.

The Minister of State will, therefore, have no difficulty in accepting all the amendments.

It would be better if provisions of this nature applied across boards rather than specifically to this board. There is not much more that I could have done than to exceed the 40% target. I welcome the Government decision in regard to other boards.

I welcome the requirement for nominating bodies to nominate a panel. At least if there is position open and they nominate a man and a woman, it will ensure that there can be gender equity. As long as that provision is arbitrary and not required in legislation, the 40% target will not be met.

I thank the Minister of State for his briefing note but it reveals a mindset that I thought had disappeared. I do not know whether he knows what the civil servants are saying in his name. His briefing note states "The Minister's position is that he will encourage equal gender representation bearing in mind the availability of qualified people for the job". There is the catch that I have heard for more than a decade. The implication is that it is a great idea but we will not get women who are qualified. That is the mindset revealed in his briefing note, pure and simple, but I do not believe that is the mindset of the Minister of State, regardless of whatever words are put in his mouth by way of a briefing note.

The Minister said that when he appoints the 12th nominee, the total number of women on the board will be five. I say this in light of the fact that it will have a female representation of 43.66%. That is according to a mathematical formula which I have not calculated but which I take as being correct, based on the assumption that those who drafted the Minister of State's briefing note are able to count. If he can provide gender equity now, he can do it in perpetuity and we can insert a provision in the legislation to require that to be done. That would put paid to the old notion of one having to bear in mind the availability of qualified people for the job, as if there is any conceivable job on a board where there could not be a gender balance. That is the reasoning and the mindset that has prevented us from having equal numbers of men and women on State boards for a very long time.

There is a statutory requirement for gender equity in place for a decade or more in most Scandinavian countries. If one stood up in a parliament in a Scandinavian country and uttered that sort of old blather, one would not get out alive. It is time we stopped paying lip service to these issues. If we are serious about this matter, we would include the requirement in this statute. The Minister of State should take the brave decision, which I would applaud, and say that I am right. He should indicate that he will bite this bullet, include the requirement in the legislation and require what he is doing voluntarily to be part of the norm from now on.

I am disposed to praise the Minister of State yet again for his appointment of in excess of 40% of women to the board. However, I am reluctant to do so in case I get him sacked. I remind him of my earlier point that there are a few people in Cabinet who are, to say the least, wayward, if not bordering on the lunatic. Lunatics. Imagine the position if one of them came to the Chamber at this point. The Minister of State has the opportunity to cement in the legislation his disposition in terms of gender balance and some kind of equality representation on the board, going forward, by accepting one or other of these amendments. I am as well disposed to the first amendment dealing with this issue as I am to the second. The Minister of State should pay not attention to the note from whoever drafted it or from whatever section of Government it came. He should insert one of these amendments and that would be the job done for all time. We will not be worried about the Minister, Deputy McDowell, or any of the other head cases.

All three Deputies will be well aware that no notice whatever was taken of the fact that there is in excess of 40% of female representation on the new board. In a sense, that makes the point Deputy Howlin has been arguing that it is an area where we have not been as strong as we should have been. However, I welcome the announcement by the Minister of State, Deputy Fahey, and that is the appropriate way to proceed in regard to Government policy. It ought to come from the Department with responsibility for equality issues. I have done as much as can be reasonably expected in appointing a board that meets the 40% requirement. I am not disposed to changing the provision in the Bill.

Amendment agreed to.

I move amendment No. 31:

In page 44, between lines 45 and 46, to insert the following:

"(3) The Minister shall ensure that not less than 40 per cent of the members of the Authority shall be women and not less than 40 per cent shall be men.".

Amendment put.
The Dáil divided: Tá, 41; Níl, 56.

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Broughan, Thomas P.
  • Burton, Joan.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Crowe, Seán.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Gormley, John.
  • Gregory, Tony.
  • Healy, Seamus.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Lynch, Kathleen.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Paul.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Moynihan-Cronin, Breeda.
  • Murphy, Catherine.
  • Murphy, Gerard.
  • Ó Caoláin, Caoimhghín.
  • O’Dowd, Fergus.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Eamon.
  • Shortall, Róisín.
  • Stanton, David.
  • Timmins, Billy.
  • Upton, Mary.

Níl

  • Ahern, Michael.
  • Ardagh, Seán.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Carey, Pat.
  • Carty, John.
  • Cassidy, Donie.
  • Cowen, Brian.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Dempsey, Tony.
  • Dennehy, John.
  • Ellis, John.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Glennon, Jim.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Brendan.
  • Wallace, Dan.
  • Woods, Michael.
Tellers: Tá, Deputies Broughan and Kehoe; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.

I move amendment No. 32:

In page 44, between lines 45 and 46, to insert the following:

"(3) The Minister shall ensure that not less that 50 per cent of the members of the Authority shall be women.".

Amendment put and declared lost.

I move amendment No. 33:

In page 47, between lines 5 and 6, to insert the following:

"(3) A disclosure under this section orsection 42 shall be recorded in a register together with particulars of any interest of members of the Authority or persons to whom section 42 applies, and the register shall be available to public inspection during office hours.”.

This amendment provides a mechanism for public information on the interests and any potential conflicts of interest of the staff of the authority. As I explained in some detail on Committee Stage, it simply replicates the sort of disclosure required under the Standards in Public Office Act in respect of a variety of senior public servants and Members of the Oireachtas.

It should be the norm to have a mechanism to allow the public to assure itself that there is no potential for conflicts of interest. I hope the Minister of State has had time to reflect on this amendment since Committee Stage and that he will accept it.

I have considered the amendment in the interim and, as Deputies will be aware, under the Ethics in Public Office Act 1995 Members of both Houses are required to make a disclosure which is subsequently made public. I am not prepared to allow the Health and Safety Authority to be the only public body that must make public a register of its members' interests.

The Minister of State could start a trend. That the provision has not applied to other bodies does not mean he cannot consider setting a precedent. Reassurance should be offered regarding any authorities to which we give fairly substantial legislative powers to enforce in the name of the people and in respect of which people are concerned that there be no arbitrary decision-making, vested interests or conflicts of interest. This should be achieved using the same mechanisms we have enshrined in legislation for Members of the Houses of the Oireachtas and senior public servants. I do not know why these could not apply to all aspects of administration that impact so greatly on people's lives. I include the Health and Safety Authority in this regard.

The Minister of State's contention that the Health and Safety Authority should not be subject to the requirement because no other body is subject to it is not compelling. There should be a reason. If he is convinced that the sort of disclosure I advocate should not be made, I would like to hear his argument therefor.

The collegiality that exists on this side of the House should be added to. I fully agree with the points made by Deputy Howlin. His amendment would lead to improvement. That the legislation does not apply in certain other cases is not necessarily a good basis on which to refuse to accept his amendment. This area of legislation can be much more sensitive than other areas of legislation and the extent to which interests may be of importance in one way or another may only become known in certain circumstances that arise as time passes.

Having said that, I do not see the harm in the amendment. It can only improve the Bill. I have not heard any statement by the Minister of State, other than the reference to other bodies, which indicates the amendment would in any way weaken, damage or bring the legislation into disrepute.

If I were to accept the amendment, the Health and Safety Authority would be the only body to which the requirement would apply and, therefore, I would be creating an anomaly. If the point made by Deputy Howlin is correct and his argument is sustainable, his objective should be achieved by way of an amendment to the Ethics in Public Office Act 1995. That opportunity will undoubtedly arise in the House because, as Deputy Durkan implied, considerable pressure is being applied in this area. It is appropriate to address the matter in this way rather than by making a provision that makes one body anomalous.

Amendment put and declared lost.

I move amendment No. 34:

In page 49, line 15, to delete "may" and substitute "shall".

Section 45 of the Bill states:

In each year there may be paid to the Authority out of moneys provided by the Oireachtas a grant or grants of such amount or amounts as the Minister, with the consent of the Minister for Finance, determines for the purposes of expenditure by the Authority in performing its functions.

The main flaw in the area of health and safety is that of underfunding, particularly regarding inspectors. The use of the word "may" will not change anything. If we are to effect change, we should strengthen the Bill by replacing "may" with "shall". We need to strengthen the Bill significantly in this regard and my amendment will do exactly that.

I hope the Minister of State will not employ comments made by Deputy Durkan to rebut me because one may recall he had a fairly negative view on this subject some time ago. I was disappointed that I was not somewhat closer to him such that I could have nudged him or winked at him to indicate I was tabling this amendment. However, I hope the Minister of State will accept it because it will strengthen the provisions in this area. They certainly require strengthening.

This amendment seeks to oblige rather than enable the Government to pay moneys to the Health and Safety Authority. However, it is a matter for the Oireachtas to vote on the Estimates each year. The amendment, if accepted, would represent an improper incursion into the powers of the Oireachtas.

God forbid that the Government would do that.

I have no problem agreeing with my colleague on this matter because——

The Mullingar accord.

Absolutely. The effects of the Mullingar accord are spreading. The only problem is that it used to be the fashion to apply the word "may" in all circumstances. It is in this regard that I have had a dispute. In some circumstances, the word "may" is useful in legislation. In other circumstances, however, the word "shall" can be stronger, as is intended in this case. Deputy Morgan's point is good. We have often noted that various organisations and bodies are underfunded. I do not want to engage in a budgetary review at this point but I can think of several organisations that are underfunded at present. Deputy Morgan's amendment is quite appropriate in the circumstances under discussion.

I thank Deputy Durkan for his support and I noted his reference to the Mullingar accord. We must bring the Deputy a bit closer and perhaps we can have an Ardee accord. The Minister of State said this amendment would represent an intrusion on the Oireachtas. On many occasions, a good intrusion is exactly what the Oireachtas needs. This is one such occasion. What better way is there of strengthening an area that needs it? This is the Oireachtas. That is what the amendment is about.

There is no reason this amendment cannot be accepted. It would place a significant onus on the person who accounts to the Minister for Finance to provide for an area in respect of which such a provision is needed. Without this, the section is inadequate. This is the Minister of State's opportunity to go for broke and make a name for himself. To judge by the contributions so far, he will have support from all of us.

Section 45 (1) states "In each year there may be paid to the Authority out of moneys provided by the Oireachtas a grant or grants". It is an enabling provision and if it were not there the money could not be paid. Whether one uses the word "may" or that of "shall" does not have any effect because the section also states that it is "of such amount or amounts as the Minister, with the consent of the Minister for Finance, determines for the purposes of expenditure by the Authority in performing its functions".

The words "may" or "shall" have no impact on the amount because the Minister determines the amount, with the consent of the Minister for Finance. This provision enables the payment of moneys to the authority. That is all that is required in this instance.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 35:

In page 51 to delete lines 23 to 26.

This is an insidious little section which states:

In the performance of his or her duties under this section andsection 50, the Chief Executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

The chief executive of the Health and Safety Authority could not, for example, have any view, even if he or she had no inspectors or had a totally inadequate number of inspectors to police these provisions. He or she is not allowed question, or have an opinion on, any matter of policy, although he or she is the chief executive of an important national body charged with upholding legislation on health and safety.

This section is frequently inserted in Bills of this nature. It is an attack on free expression, democracy and on the rights of people to comment on Government policy in order to improve it. I propose that we remove the gag.

This is a mechanism for public interest and information and it is quite wrong that the chief executive should be prevented from commenting on the merits of any Government policy, the utterances of a Minister or the merits of the objectives of such a policy. I hope Minister of State sees that this old provision, which has been grafted on to Bills as a matter of form for many years, is no longer appropriate in an era when people expect the chief executives of public bodies to express their views forcefully.

It is important that an Oireachtas committee be able to summon the chief executive to give an honest appraisal of Government policy, if the Oireachtas so wishes. In the debate on the previous amendment, the Minister of State was concerned to protect the rights of the Oireachtas. Will he again assert the rights of the Oireachtas to allow it to summon the chief executive of the authority to comment on anything the chief executive deems appropriate? He or she should be able to do that, without hindrance, in a public forum dealing with IBEC, the trade unions or anybody else. It is quite wrong for the Government to impose this type of gag.

I agree with Deputy Howlin and regard it as ironic that this straightjacket should be imposed under the guise of allowing the Oireachtas have discretion. The Oireachtas does not have discretion. Government has discretion and introduces all the rules that affect the Oireachtas, including those for the running of this House. The Oireachtas merely rubber stamps these matters because there is no system by which Members on the Government benches may vote freely to determine the absolute independence of the Oireachtas.

I fully support Deputy Howlin's points. It may be necessary in front of a committee or whatever for a chief executive or some other accounting officer to criticise or dispute the views held by Government or by a Minister. We saw an example of that in the past week when there was a clear conflict of evidence between a Minister and a senior officer. In this instance, action is being taken to ensure that a person making any such statement is quickly put offside.

That is a dangerous precedent and an example of retrograde thinking. The Minister of State should consider its implications carefully. It creates a double-lock for those instances when a Minister answers an issue we have raised by saying he has no responsibility to the House, that it is the function of the chief executive of the Health and Safety Authority. The section increases the Minister's power. He or she does not have to answer to the House on issues that fall within the ambit of the Health and Safety Authority and can muzzle the authority in regard to any criticism or perceived criticism that may issue from it.

I urge the Minister of State to take account of the points raised in Deputy Howlin's amendment and reconsider the section.

What would be the consequences for a chief executive officer coming before an Oireachtas committee where he or she is expected to answer honestly a question put by the committee? If the opinion of the chief executive officer happened to be at variance with the policy of the Government of the day — which is an important qualification — what would be the consequences for the chief executive who gave his or her honest opinion to that committee or perhaps to a tribunal of inquiry established outside the Oireachtas? Would that chief executive be in breach of the terms of this legislation? What would be the consequences for that chief executive if he or she did not, or refused to, answer honestly? Would the chair of a tribunal, for example, have the authority to direct that the chief executive be imprisoned? Which would have precedence in such circumstances?

What is wrong with criticism? If we accept this situation, we will move towards a totalitarian system. I commend Deputy Howlin's amendment and strongly support it because this section harks back to the Victorian era.

I support Deputy Howlin's amendment. In many areas it is impossible to know what is Government policy or opinion. In some instances, there might be two or three different opinions. To gag someone against commenting on Government opinion is to impose an unfair burden on that person because it would be impossible for anyone to divine what is Government policy, much less comment on it.

Debate adjourned.