This amendment proposes to delete the provision that the CEO of the HSA shall not question or have an opinion on the merits of any Government policy when appearing before an Oireachtas committee. It is not proposed to accept this amendment. As Members are aware, the Minister has overall political responsibility for the operation of the authority. Clearly, the amendment, if accepted, could place the CEO in an invidious position. It only refers to policy matters. It is quite in order for the CEO, or indeed the board, to comment on the issue of resources or other matters. It is quite a narrow provision in section 49(2) relating to policy and objectives of such policy, not to resources and related matters.
Safety, Health and Welfare at Work Bill 2004: Report Stage (Resumed) and Final Stage.
Debate resumed on amendment No. 35:
In page 51, to delete lines 23 to 26.
—(Deputy Howlin).
This is just a standard gagging provision that Ministers put into legislation. It is healthy that a robust parliamentary scrutiny scheme has been developed through the committees of the Oireachtas, where a CEO can answer truthfully on policy issues. The robustness of a particular view may be tested in this way. The Minister of State should accept the amendment, remove the gag and allow freedom of expression to be given, not only to the CEO of this particular authority, but to every board as regards policy matters. It is important in any statutory body but even more important in one where policy governs health and welfare and where lives and the well-being of citizens are at stake. I do not see why there should be an embargo on the chief executive officer expressing a view on policy.
Deputy Howlin is quite right in saying that this provision is in most legislation of this type, and is there for a good reason. I certainly intend to maintain it in this legislation because——
The Minister of State could be a pathfinder.
——it only refers to policy matters and not to issues such as resources. A reasonable point was made by a number of Deputies on the last occasion, and that is something the CEO or the board could raise before an Oireachtas committee or in any circumstances. In any event, there are at least three sections of the Bill which require the authority to give the Minister a briefing relating to the performance of his functions, prepare the three-year plan and so on. There are a number of provisions, therefore, where this legislation requires the CEO and the board to make particular information available.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 36 in the name of Deputy Howlin has been discussed with amendment No. 16.
I move amendment No. 36:
In page 56, after line 43, to insert the following:
"(2) Regulations for the purposes of section 13(1)(c) shall not be made unless a draft thereof has been approved by both Houses of the Oireachtas.”.
Amendment put and declared lost.
Amendments Nos. 37 and 56 are related and will be taken together. Is that agreed? Agreed.
I move amendment No. 37:
In page 58, between lines 25 and 26, to insert the following:
"(10) Regulations under this section may not create an indictable offence.".
There was some discussion on this matter on Committee Stage. Amendment No. 37 simply states that regulations under this section may not create an indictable offence. Amendment No. 56 is related. The purpose of the amendment, as I explained on Committee Stages, is to reflect the provision of the European Communities Act 1972, which was recently emphasised by the Supreme Court in the case of Browne v. the Minister for the Marine. This is to the effect that regulations implementing an EU directive should not create an indictable offence.
The upshot of section 78(3) as worded seems to be that the Minister cannot create an indictable offence by regulations for the purposes of the European Communities Act, but he is reserving the right to do so under this legislation, to give effect to EU law. That undermines the 1972 Act in a sideways action. The policy of the 1972 Act is that regulations to give effect to EU law should not create an indictable offence. That should be done by primary statute law brought before the Houses of the Oireachtas so that it is not a secondary legislation issue for a Minister to decide whether to create a new indictable offence under Irish law. My legal advice is that the import of the Minister of State's unwillingness to accept this amendment is to undermine that principle.
Deputy Howlin raised this issue on Committee Stage and mentioned the case of Browne v. the Minister for the Marine, which arose in relation to the 1972 Act. My understand is that the finding of the court in that regard was that there was no provision for an indictable offence under the 1972 Act. In the provision, as proposed in the Bill, such indictable offences will be created in accordance with the EU directive. In circumstances where the primary legislation provides for indictable offences, it differs from the 1972 Act, which did not make provision for such offences. I am advised that in these circumstances it is appropriate, and indeed lawful, to provide for indictable offences by regulation.
As the Deputy is aware, the duties set out in the Bill are framework in nature and many of the more specific rules are set in regulations. These more specific rules apply to the construction industry, for instance, as regards proper scaffolding, and deaths on building sites may be traced back to failure in this regard. Other issues covered under regulations which could result in death or serious injury include unsafe conditions in the workplace, unsafe machinery and so on. They can only be provided for under regulation. I am advised that where there is provision for indictable offences, difficulties such as those which arose in the Browne v. the Minister for the Marine case relating to the 1972 Act would not arise.
The Minister of State is making my case. He is undermining the principle enunciated in the 1972 Act, which is not to create indictable offences by way of regulation or secondary legislation. I have no argument with the creation of such offences, but it should be done in statue law by bringing a Bill before the Houses in the normal way. It should not be open to the Minister to create indictable offences through secondary legislation. The Minister of State is agreeing with my analysis that he is now undermining the de facto position that it is not policy to create indictable offences in this fashion. This is a serious matter. If the Minister of State needs further legal briefing on it he can reserve his position now and I will not press it. It can be for consideration in the Seanad.
Arising from the point the Deputy made on Committee Stage, we went back for further legal advice. This advice was that where the Bill implements EU law and provides for indictable offences, it is appropriate to provide for them by regulation subsequently. Previously, it would have been done under the provisions of the 1972 Act. That was found to be deficient in the case of Browne v. Minister for the Marine as it relied on the 1972 Act for subsequent legislation. In this legislation, we make it clear that we are implementing EU law and providing for indictable offences simultaneously.
I am not satisfied. I now understand the Minister of State's explanation, but I do not agree with the approach as a matter of general policy.
Amendment put and declared lost.
I move amendment No. 38:
In page 63, line 25, to delete "paragraph (r)” and substitute “paragraph (q)”.
This is a technical amendment to correct a drafting error.
Amendment agreed to.
Amendments Nos. 39 and 46 are related and may be taken together.
I move amendment No. 39:
In page 63, between lines 31 and 32, to insert the following:
"(2) Documents subject to legal professional privilege shall not be liable to production under this section.".
When I put this to the Minister of State on Committee Stage, he undertook to consider it further for Report Stage. Subsequent to that, he sent me a briefing note, which, I must confess, is rather convincing. On that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 40 to 42, inclusive, 44 and 45 are related and will be taken together.
I move amendment No. 40:
In page 68, line 36, after "the" where it secondly occurs to insert "Circuit Court or".
The idea of this amendment and the related amendments is to confer a jurisdiction on the Circuit Court to these proceedings to save legal costs.
We also discussed this on Committee Stage and I was strongly of the view that the current system works particularly well. The deterrent element of having the matter before the High Court is of some value and it should be retained, although I accept that the Deputy made a number of strong points in favour of the amendment. However, these cases are only taken in extreme urgency and danger when the Health and Safety Authority has failed to get the cooperation of an employer. In the circumstances, it should occur at the level of the High Court.
The Minister of State again sent me a briefing note subsequent to the debate on Committee Stage and I am very grateful to him for it. I am less convinced by his detailed arguments this time than I was for the last amendment. He is of the view that the hierarchical scheme for enforcement, set out in the Bill, requires the High Court to be the appropriate judicial authority for these indictments. I will not win the argument so I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 41 and 42 not moved.
I move amendment No. 43:
In page 69, line 39, to delete "an accident in Irish waters" and substitute "a marine casualty".
The amendment is proposed for clarification on the advice of the Department of Communications, Marine and Natural Resources. The new wording will clarify the responsibility for investigation in accidents to Irish ships that are not in Irish waters, which remains with the marine casualty investigation board and not with the Health and Safety Authority.
Amendment agreed to.
Amendments Nos. 44 and 45 not moved.
I move amendment No. 46:
In page 70, between lines 21 and 22, to insert the following:
"(2) Information subject to legal professional privilege shall not be liable to production under this section.".
This deals with the issue of legal professional privilege. In his briefing note, the Minister of State made a reasonable case so I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 71, line 24, to delete "in" and substitute "on".
This amendment also corrects a drafting error.
Amendment agreed to.
I move amendment No. 48:
In page 75, between lines 12 and 13, to insert the following:
"(9) Where the affairs or activities of an undertaking are managed or organised in a way that fails to ensure that the health and safety of persons liable to be affected (including employees) is not thereby threatened, and where such failure amounts to conduct falling far below the standard of care and attention it is reasonable in the circumstances to expect would be paid to ensuring that the health and safety of such persons is not so threatened, and where such failure is the cause or one of the causes of the death of a person (notwithstanding that the immediate cause of the person's death is the act or omission of another person), the undertaking (and any director or manager of the undertaking whose recklessness or gross negligence contributed to or caused the failure) shall be guilty of manslaughter.".
This is an important amendment and I have raised this issue throughout the debate on this legislation. My intent in this new subsection is to create an offence of corporate manslaughter. This was encompassed in a Private Members' Bill published by Deputy Rabbitte in 2001. There is a strong case for express statutory provision for the offence of corporate manslaughter. It is being examined by the Law Reform Commission and has been trenchantly supported by the trade union movement over the years. Despite reasonably good legislation, which we have before the enactment of this provision, we will have better legislation after the enactment of this provision.
However, there has still been an extraordinary rise in the number of fatalities. There has been a 40% increase in the number of workplace deaths in the first four months of this year. County Wexford was one of the four black spots in the country. There were three deaths in Wexford, three deaths in a number of other counties and four deaths in Cork. It really is very worrying.
The two biggest black spots for death in the work place are still in construction and in agriculture. It behoves us to do two things. First, we must enact the strongest legislation possible, consistent with practicalities. We must make it clearly known that negligence that puts people in mortal peril is a grievous offence. Where someone loses his or her life through employer negligence, the offence of corporate manslaughter will be committed. The other responsibility is to ensure that when we enact the legislation, we have adequate resources in place to ensure that it is enforced. While I welcome the Minister's announcement of the increase of labour inspectors, their numbers are woefully inadequate to provide the safety checks that a workforce of more than 2 million requires.
As the House will be aware, this issue is being dealt with in another forum by the Law Reform Commission which has already reported on it and which is in the process of preparing another report. I understand the commission held a public seminar in late 2004 and that its further report is awaited and may be completed before the end of the year. In the absence of a definitive position from the Law Reform Commission adopted by Government, it would be premature to accept Deputy Howlin's amendment to this legislation. I believe the impact of the Law Reform Commission report will be felt across a range of people and issues.
I agree with Deputy Howlin with regard to the 40% increase in fatalities in the workplace in the earlier part of this year. Heretofore there had been an encouraging decrease in the numbers killed. The figures for the earlier part of this year are very worrying.
I sympathise with the position outlined by the Minister of State in terms of the definitive proposals to be brought forward by the Law Reform Commission. However, in the absence of the recommendations, I am disposed to supporting Deputy Howlin's amendment. I take on board the Minister of State's point that we should see what the Law Reform Commission will bring forward, but in the absence of any concrete proposal I feel I ought to support Deputy Howlin.
We know the view of the Law Reform Commission from its first report, which recommended the creation of such an offence. What we are waiting for now is the detail. We have a responsibility as legislators to legislate. Since the Law Reform Commission is of the view that we should have such an offence, the trade union movement is strongly of that view and most citizens would agree that negligence to such an extent that a worker dies in the place of work is a serious offence, I feel there is public support for my proposal.
God knows when we will have another vehicle to put this legislation in place. We do not know whether it will be two, three or ten years before another health and safety Bill is before the House. We have one now and we know it is right to do this. All we need from the Law Reform Commission is its attitude to the detail of the offence. It behoves us as legislators to provide that detail. We do not need the Law Reform Commission to draft legislation in many areas. The Minister of State should seize the moment, he should seize this opportunity to send a signal, particularly in the backdrop of the significant rise in fatalities.
The Deputies know there are far stronger provisions with regard to the responsibilities of management and directors in this legislation than in the previous legislation, which was acknowledged on Committee Stage. In the circumstances, as we have received the initial Law Reform Commission discussion document and, having heard submissions, it is preparing its final document, it would be premature to accept this amendment.
There is no point in dividing the House on it. Will the Minister of State give me an assurance that once the details of the Law Reform Commission's proposals are known, he will come back speedily to the House with legislative proposals in that regard?
I have every confidence that when the report is prepared, a Government position will be adopted on it which will have an impact across a range of legislation.
Amendment put and declared lost.
I move amendment No. 49:
In page 75, to delete lines 25 to 27.
This proposal to delete lines 25 to 27 is related to the amendment with which we have just dealt. The Bill creates a new offence of causing personal injury, including death, through contravening the Act. That is welcome because the wording of the existing legislation, the 1989 Act, is defective. However, section 77(9)(b)(ii) creates an opt-out in the case of personal injury, but not death. The injury must be “directly” caused by the contravention. That is not logical. I believe an offence of causing injury or death by means of contravening the Act is committed whether the injury is caused directly or indirectly. Accordingly, I propose to delete the opt-out clause in section 77(9)(b)(ii).
The intent of the provision which Deputy Howlin seeks to have deleted is that a provision would be made where account would be taken of where workers had pre-existing conditions or illnesses. A number of provisions in the Bill cater more than adequately for what Deputy Howlin seeks. Section 10(1)(c) requires the employer to take account of workers’ capabilities in assigning work to be carried out. This is very important in the case of somebody who has a pre-existing condition, for example, asthma or back injury. This is an important provision of the Bill.
Employees also have duties in this regard under sections 13(1)(a) and (d). This provision is a protection for both employees and employers. The Bill is better for the inclusion of the provision as it relates only to pre-existing conditions or illnesses.
I disagree with the Minister of State. I think it weakens the provision. However, there is no point in taking up time fighting it. I press the amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 50:
In page 75, after line 53, to insert the following:
"(11) A person who—
(a) contravenes any of the relevant statutory provisions by doing otherwise than under the authority of a licence issued by the Authority or, a person prescribed under section 33, something for the doing of which, such a licence is necessary under the relevant statutory provisions, or
(b) contravenes a term of or a condition or a restriction attached to any such licence as is mentioned in paragraph (a),
shall be guilty of an offence.".
This amendment proposes to insert a new subsection 11 and I am optimistic the Minister of State will accept this amendment. The purpose of the amendment, I am advised, is to correct a drafting problem with the relationship between section 77, which is the offensive section, and section 78, the penalty section. Section 78 is intended to create penalties for the offences created by section 77 and other parts of the Bill. However, it goes on to penalise certain conduct which is not specifically made an offence by section 77. My amendment proposes to remove those provisions from section 78 — they are currently contained in section 78(2)(b) and (c) — and insert them in what I have been advised is their proper place in section 77.
Following discussion on Committee Stage I sought further advice on this from the parliamentary counsel. I have been advised that the provisions for penalties in section 78(2)(b) and (c) already deal expressly with breaches or non-compliance with conditions of a licence, which is what I think Deputy Howlin is saying. My advice is that they are as effective in section 78 and they achieve what Deputy Howlin seeks where they are.
I am not convinced. I think it is a case of the parliamentary draftsmen deciding to stick with what they have. My proposal would improve the Bill, but the Minister of State is not of a mind to accept it.
Amendment, by leave, withdrawn.
Amendments Nos. 51 to 55, inclusive, are related. Amendment No. 54 is an alternative to amendment No. 53. We will take the amendments together.
May I ask that the amendments be taken seriatim?
We will proceed with amendment No. 51.
I move amendment No. 51:
In page 76, lines 11 to 25, to delete all words from and including "section" in line 11 down to and including "paragraph (b)” in line 25 and substitute the following:
"this Act or under section 39(17)(e) of the Redundancy Payments Act 1967 as applied to this Act by section 29(7)”.
The purpose of this amendment is twofold. It is linked to the amendment I have just discussed. It is a drafting amendment to ensure that section 77 creates an offence and section 78 provides the punishment. Second, I seek to provide for the maximum available penalty, including imprisonment, for all offences under the Act. Section 78(1) provides only for a fine for offences mentioned in section 29(4)(e) or section 77(1). A number of the offences such as failure to make a risk assessment could be serious and may have serious implications for workers and warrant a significant penalty, including imprisonment. The Bill provides for the soft option of a fine for such offences of not more than €3,000. That is inadequate in all circumstances.
The amendment seeks to amalgamate the provision of sections 78(1) and 78(2) so that all offences, regardless of their seriousness, can be prosecuted summarily or on indictment. The section distinguishes between lesser offences, which do not give rise to a likelihood of employees being injured or killed at work, and the more serious offences, about which I agree with Deputy Howlin, which give rise to the likelihood of much more serious injury. The section further provides that lesser offences can only be prosecuted summarily and will not attract a prison sentence. Given the nature of the lesser offences, that is reasonable. They do not warrant a larger fine or imprisonment because distinguishing between the seriousness of offences is important in the context of health and safety requirements.
I seek provision for a decision in each case on what is appropriate so that it would be open to the prosecuting authority to seek a higher penalty, which would be available to the court to impose. A number of the offences encompassed by the lesser model proposed by the Minister of State where the fine could be not more than €3,000 could involve a serious omission, including the failure to make a risk assessment, which could result in serious harm to workers. In those circumstances, a fine of not more than €3,000 is inadequate.
We are unlikely to reach agreement on the duration of sentences and the size of fines. I was pleased, however, that a hefty fine was imposed in court earlier. I understand the Deputy's point but it is important that offences that are not likely to lead to injury or death should be distinguished from other offences if only to point up the seriousness of the offences that would attract a prison sentence or a substantial fine, as in any other case. The discretion allowed under this provision is warranted.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 52:
In page 76, line 27, to delete "6" and substitute "12".
The purpose of the amendment is to increase the maximum punishment for summary offences from six to 12 months to reflect the seriousness of the offences.
We had a long discussion in this regard on Committee Stage. The deterrent value of the maximum prison sentence of six months is as great as the 12 months proposed by the Deputy. It points up the seriousness of the offences in these cases. It is a sufficient deterrent, which was arrived at long before I became involved with the legislation following a great deal of discussion with various interest groups. Six months is a reasonable provision.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 53:
In page 76, line 30, to delete "€3,000,000" and substitute "€10,000,000".
The sum of €3 million could be little more than arse pocket money to some multinational corporations, which have a turnover of several billion euro.
Is that unparliamentary language?
The Chair would prefer milder language.
Back pocket money. The fine does not represent a proper deterrent. I do not know that the courts will employ it but I would prefer to give them the option of imposing a significant fine in these cases. The courts should be given that strength because if disciplinary proceedings are brought against these corporations and compensation sought, that is the way it should be done.
My amendment No. 54 is related. A maximum penalty of €3 million could be too low in calamitous cases involving multiple deaths caused by absolute negligence on the part of a major multinational or large conglomerate. The formula I propose is a maximum penalty of €3 million or 10% of the annual turnover of the defendant as ascertained by the court, whichever is the greater, so that companies with a multi-billion euro turnover could face a hefty fine. Such a range of penalties should be considered by the Minister of State and it should be available to the courts so that appropriate action could be taken against companies that are completely derelict. I do not envisage this provision being used very often, if ever, but the capacity should be there so that we are not stuck when we are shocked by negligence and feel the maximum penalty available to a court is wholly inadequate in the circumstances. The formula I propose will address that shortcoming.
It must be borne in mind that in all cases prosecution of a number of offences is sought and it is open to the court to impose the maximum fine on each offence. The practice in recent times is for fines to be imposed on each of the breaches of which a company is found guilty. The maximum penalty of €3 million is not necessarily the highest amount a company may be required to pay in fines in particular circumstances. I like the idea of giving the court discretion. A fine of €3 million on each offence in cases where five or six charges are brought against the largest companies is a considerable deterrent. The figure was arrived at following considerable consideration by Government. It is reasonable and it will send the message that needs to be sent in the legislation.
The Minister of State made a reasonable point but my difficulty is that multinational corporations can afford modern day Perry Masons or whizz kid defence lawyers and the prosecution of all the offences often does not succeed. If the prosecution of only one offence succeeds, the court should at least have the opportunity to impose a significant fine on the defendant. Whizz kid lawyers in other jurisdictions have brought legal argument to bear and it has become more difficult to secure a conviction on all counts. If a conviction can be secured reasonably quickly for one offence, the court should have the option to impose such a punishment. That would be a significant deterrent as well as a punishment and it should be available to the courts.
In my earlier reply I neglected Deputy Howlin's amendment which proposes a penalty of 10% of turnover. While initially this seemed attractive, I was advised that companies, as we are all aware, have wonderful ways of having various types of sub-companies, and it could be an onerous task to discover which company is employing who at a particular time and establish the turnover of that specific company. I am taken by the principle of linking the penalty to the capacity of the company to pay, which is what Deputy Morgan also stated with regard to large companies. Having considered all the arguments, and particularly having examined the number of successful prosecutions possible under the new legislation, I can assure Deputy Morgan that there will be successful prosecutions in many cases. Having considered this carefully since Committee Stage, in any case, I can envisage that €3 million is a substantial penalty that is likely to work as well as any other amount as a deterrent and seems entirely appropriate in these circumstances.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 54:
In page 76, line 30, after "€3,000,000" to insert the following:
"or 10 per cent of the annual turnover of the defendant as ascertained by the court concerned, whichever is greater,".
The Minister has already responded to this, but his argument that the existence of sub-companies would mean the turnover would not be significant is addressed by the fact that it is €3 million or 10% of the turnover, whichever is greater. Where the turnover is less than €3 million, then the Minister's figure of €3 million is available to the court, so that argument does not hold water.
The ability to pay is an issue, as it is with speeding fines which were not a real deterrent to people driving souped-up Jaguars who did not mind paying €50 on the spot fines, and I say that as the Minister who introduced them. They were a real deterrent to somebody for whom €50 represented a significant chunk of his or her weekly salary. For some companies €3 million is not a significant sum. Only by relating it to the capacity of the company to pay, which is its turnover, will we have a significant deterrent that makes a large company focus on and have regard for the law.
I am aware that the amendment refers to 10% of the annual turnover or €3 million, whichever is greater, but it seems that the companies that might not be particularly deterred by a maximum of €3 million are those which are by far more likely to have a myriad of companies and sub-companies and the least likely to be caught by what the Deputy proposes. It would also involve a significant amount of work for the courts, which it would not be reasonable to impose on them, and in the circumstances €3 million is the better option.
Amendment put and declared lost.
I move amendment No. 55:
In page 76, line 31, to delete "2" and substitute "10".
The purpose of the amendment is to increase the maximum period of imprisonment on conviction on indictment from two to ten years. Given that some of the offences could involve the loss of life of workers, two years is a ridiculously low period of imprisonment. It seems to value life cheaply.
We are not calling for ten-year sentences in all cases. It is a question of providing the courts with the option, and it is important that the courts should have the power to impose a heavier sentence than two years where appropriate. That facility should be provided.
The amendment seeks to increase the maximum prison sentence from two years to ten. The package of penalties provided for in the Bill has resulted from consideration of the range of offences covered in section 77 and has met with a broad welcome from most of the interest groups. Since Committee Stage I have examined the provisions in other legislation and in general the principle is that where an offence is committed arising from a deliberate act or an act of gross negligence and recklessness, legislation provides for higher sentences. It is not in the employer's or anybody's interest that such would be the case in a place of work. On balance, the exercise carried out at an earlier stage of the Bill's preparation which came up with the two-year maximum sentence for each charge seems reasonable, particularly when compared with the provisions in other legislation.
I cannot agree with the Minister of State that where gross negligence results in the loss of life, it is appropriate that the penalty is two years. If I recall, gross negligence in a car resulting in death carries a penalty of at least double that, if not a higher penalty. Why should an employer who is reckless to the extent that somebody loses his or her life face a maximum penalty of two years?
I understand that other legislation generally refers to two years, but when was that legislation couched? Is it time for us to increase it? Perhaps instead of examining earlier legislation we should consider what the current situation requires, which is what this amendment does.
There are provisions for up to ten years of imprisonment under other legislation but in general, the principle appears to be that it applies in cases of deliberate recklessness and that would not seem to be——
Is driving causing death an analogous offence?
That is case under section 53(2)(a) of the Road Traffic Act where the word “deliberate” is used. In workplace circumstances it seems that would not be the situation.
It could be.
Perhaps it could be. Almost anything could be but the type of recklessness and deliberate recklessness which is adjudged to warrant a much longer sentence would not apply in the circumstances provided for in this Bill. In light of the careful deliberation given to the penalties provided for in this legislation and since I know how much work was put in by so many people, I am reluctant to change this.
The Minister of State's last comment undermines the work of this House. Where does it leave us as legislators if predetermined consultations with parties outside this House determine the law and we cannot have an open debate to convince the Minister? That undermines this House and the work of Opposition Members who are elected to make law in the name of the people. I ask the Minister of State to come to this debate with an open mind and have less regard for the predetermined consultations than for the Members of the House.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 56 not moved.
I move amendment No. 57:
In page 78, line 28, to delete "an" and substitute "at".
This is another technical amendment to correct a drafting error.
Amendment agreed to.
I move amendment No. 58:
In page 80, line 51, to delete ", by leave of that Court".
This is a simple but important amendment. There was a series of measures in recent Bills that have come before the Houses to restrict the right of appeal. There is no necessity for the High Court to give an order to appeal to the Supreme Court and inserting the requirement for leave of the court is inappropriate. The Minister of State said on Committee Stage that it is the usual practice but I have checked and am advised it is false and that the general rule is that there is a right of appeal to the Supreme Court. Exceptions to that rule are the exception and not the usual practice. The Minister of State was wrong in saying that what he is inserting into the Bill is the norm. He is breaking the norm where the right of appeal to the Supreme Court generally falls to be the case. I have rechecked that since Committee Stage to ensure my advice was right.
I am advised that it is only in cases of points of law that appeals are made from the High Court to the Supreme Court. I regret if I gave the Deputy the impression on Committee Stage that it is universally the case but it is very commonly the case and there are a number of examples of that. Section 38(5) of the Aviation Regulation Act 2001, section 44(6) of the Teaching Council Act 2001 and section 84(2) of the Industrial Designs Act 2001 make a similar provision. It is not unusual, therefore. My understanding is that it relates to court protocols on matters of this kind and it is the strong view of the Parliamentary Counsel that it is the case.
Amendment, by leave, withdrawn.
I move amendment No. 59:
In page 81, line 24, to delete "2003" and substitute "2004".
This is a drafting amendment to update the referencing because the Road Traffic Act 2004 has been enacted since we started discussion on this legislation.
Amendment agreed to.
Amendment No. 61 is related to amendment No. 60 and it is proposed to discuss the two amendments together.
I move amendment No. 60:
In page 82, line 13, to delete "No. 18 of 1987".
These are drafting amendments designed to reflect the fact that there is also an Act of 1995 amending the 1987 Act which should also be repealed. The Minister of State said on Committee Stage that this amendment was not correct and that an order was made in 1995. I checked that and my information is that the Minister of State is wrong. The Act is the Energy (Miscellaneous Provisions) Act 1995, section 30(4) refers. The reference is to a citation introduced by section 30(4) of the Energy (Miscellaneous Provisions) Act 1995.
Deputy Howlin is correct in regard to both amendments Nos. 60 and 61. If I argued against the point being made on Committee Stage, I was wrong but that was the advice available to me at that time. I accept amendments Nos. 60 and 61.
Amendment agreed to.
I move amendment No. 61:
In page 82, lines 13 and 14, to delete "Act 1987" and substitute "Acts 1987 and 1995".
Amendment agreed to.
I move amendment No. 62:
In page 85, line 35, to delete "this".
This is another technical amendment to correct a drafting error.
Amendment agreed to.
I move amendment No. 63:
In page 85, line 39, to delete "other than the Chief Executive".
This amendment arises from the decision on Committee Stage not to appoint a chief executive officer to the board of the Health and Safety Authority.
Amendment agreed to.
I move amendment No. 64:
In page 85, line 47, to delete ", other than the Chief Executive,".
This amendment is required for the same reason.
It is welcome.
Amendment agreed to.
I move amendment No. 65:
In page 88, line 45, after "matters" to insert "referred to in that section".
This is a drafting amendment. I am advised that it is incorrect to say that the Minister may make regulations in respect of any matters. They must be matters for the purposes related to section 58. We had some tautology in this debate. We have amended the amendments since Committee Stage to reflect the point the Minister of State made that the matters are ones to which section 58 relates. The amendment is now fairly watertight and I am sure the Minister of State will accept it.
Section 58(1) already sets out the parameters within which the regulations may be made under this Act. The parameters are that the regulations relating to any matter referred to in this Act or prescribed or to be prescribed are for the purposes of giving full effect to the Act or are in respect of any of the matters in Schedule 7. Given the clarity in section 58, it appears to cover what Deputy Howlin is trying to achieve in Schedule 7. That is my advice in that regard.
I will not argue with the Minister. I believe he is wrong but I will withdraw the amendment since he trenchantly opposed my view on a number of issues that he has now relented upon. If I had another go, I might win the argument but I will not put it tonight.
Amendment, by leave, withdrawn.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Members who have participated in the debates, particularly the Opposition spokespersons who tabled many amendments and put me through my paces on Committee and Report Stages. They took a genuine interest in the Bill and I tried to respond by accepting amendments I felt would improve the legislation. I do not take the view that it is the job of Government in these circumstances to reject every amendment that comes before it and come up with something similar from the Government side. Occasionally, the drafting requires that that be the case but I greatly appreciate the interest taken by Members on Second Stage and particularly on Committee and Report Stages. We will have a better Bill for that reason.
I hope to bring the Bill before the Seanad in the next week or two. At that stage there may be other amendments with which I will be required to come back to this House. One or two issues were raised on Report Stage that I intend to re-examine. I also want to thank the officials in the Department and all the people involved in making submissions on the Bill. The point was made that when work is done outside the House, it can occasionally appear to cut across the work of the Oireachtas, but it would be a mistake to ignore the fine contributions made from outside the House at an earlier stage. In some instances I have gone with them, in others I have not. Ultimately, the success of the Bill will depend on changing the existing mindset. I look forward to working with the Health and Safety Authority to ensure the Bill makes a substantial contribution, which is necessary in light of the figures for death and injuries for the earlier part of this year.
I thank the Minister of State for his comments. I am sure Opposition Deputies will do so also. A very useful innovation in my experience was the written responses to amendments tabled on Committee Stage to enable the logic of the Minister of State's argument be digested in advance of Report Stage. I commend that to the House for other Ministers to copy.
I want to raise two brief issues. We will have a very robust and modern legislative framework to improve health and safety, which is clearly required with the backdrop of the 40% rise in fatalities in the workplace in the first four months of this year. All the legislation will be worthless, however, if we do not put in place an enforcement regime that will provide adequate labour inspectors to ensure compliance with the law.
Unfortunately, that has not been the experience to date. I thank the Minister of State and his officials for the open way in which they dealt with Opposition amendments.
I remarked previously about predetermined views in the House. Despite that they are, by and large, very worthwhile, we often undermine ourselves in the way we approach partnership arrangements. We should work as an Oireachtas to incorporate initiatives in the House and hold the relevant debates at committee meetings attended by outside experts. If we fail to continue to make the Oireachtas the most relevant forum for debates on legislation, we will undermine the democratic process over time.
I apologise that my colleague, Deputy Hogan, was unable to attend this afternoon. Like Deputy Howlin, I hope the passage of the legislation will help to save lives in the workplace, especially at industrial and farm facilities. I hope also the Minister of State will consider the view that extra inspectors are required to enforce the Bill's provisions. As his constituency colleague, I commend the Minister of State, Deputy Killeen, on how well he has handled his second Bill.
I thank the Minister of State for taking on board a number of amendments in contravention of some of the long-standing traditions of the House which I am still learning. I hope to goodness I never come to terms with those traditions with which I want to wrestle for as long as I possibly can. It was fair play of the Minister of State. I assure him that when my colleagues and I assume his position, we will do likewise.
Question put and agreed to.