Amendments Nos. 1 and 2 are related and will be discussed together.
Chemicals Bill 2008: Report and Final Stages.
I move amendment No. 1:
In page 8, line 33, to delete "service by such means;" and substitute the following:
"service by such means, provided that there is a facility for confirming receipt of electronic communication and that such receipt has been confirmed;".
Amendment No. 1, relating to the service of notice by electronic means, responds to the outcome of discussions on the amendment tabled by Deputy Penrose on Committee Stage and reflects the main principle of amendment No. 2, tabled by the Deputy. I am not inclined to accept the idea in amendment No. 2 that notices would have to be served on the double. It serves no great purpose.
The provision, as published in the Bill, requires that a person would agree to the service of notice by electronic means — the person is not compelled to do so. The proposed Government amendment provides for the need to ensure some form of proof of receipt if the option of electronic means of communication is exercised by the person. If there is no such proof of receipt, the option of electronic means of communications is not available.
I have tried to accommodate the issue raised by the Deputy on Committee Stage as best I could and I hope my provision meets his approval. We try to be accommodating at all times.
I thank the Minister of State for his effort. On Committee Stage, the Labour Party made the point that we are a long way from allowing legal notice to be served by e-mail alone. There is so much spam floating around on the Internet that it would be totally unreasonable to expect a person to have received a legal notice of obligation just because an e-mail was sent to him or her. We suggested that notice by some other method, such as post, should also be required. The Minister replied by stating the existing section 3(1)(e) applies only to persons who have agreed to receive communication by e-mail, as we know. However, this is no solution to the problem because there is no safeguard with regard to what constitutes such agreement. For example, ticking a box on a form or failing to do so could constitute agreement to receive legal notices by e-mail, even where a person is not fully aware of what he or she is agreeing to.
The Labour Party reworded its Committee Stage amendment in light of what the Minister of State said to provide for a facility to acknowledge receipt of an e-mail. This is a formula used in other legislation and ensures the e-mail has been read by the person to whom it was addressed. The Minister of State stated he would consider our proposal and has done so in some form or other. His response is not to the total satisfaction of the Labour Party. It must be borne in mind that there is a criminal sanction involved, or certainly a sanction of a sort that would bring itself to bear on individuals in respect of legal notices they may not have received. We wanted to ensure there is a facility for confirming receipt of notices. The Minister of State has tried to meet our demands in some form, but not to the extent we would have liked because we are very careful in this regard. However, it is a move in the right direction and I will therefore accept the Minister's proposition.
Amendments Nos. 3 and 4 are related and may be discussed together.
I move amendment No. 3:
In page 9, line 34, after "chemicals," to insert "and".
These are technical amendments to section 5(3)(b)(i) and section 5(3)(b)(ii) and they include the word “and” at the end of subparagraph (i), which was inadvertently excluded in the Government amendment accepted on Committee Stage, and delete the word “and” after subparagraph (ii), which was inadvertently included.
I move amendment No. 4:
In page 9, line 38, to delete "and".
Amendments Nos. 5 and 6 are related. The latter is an alternative to the former and they may be discussed together.
I move amendment No. 5:
In page 12, line 10, after "shall" to insert "publish on the internet and".
Amendment No. 5 responds to the outcome of the discussion on the amendment tabled by Deputy Penrose on Committee Stage and meets the principle of amendment No. 6, also tabled by the Deputy. It provides that any codes of practice published or approved by the Health and Safety Authority be published by it on the Internet.
I thank the Minister of State for meeting the objective set out in amendment No. 6 by way of his own amendment, No. 5. I will therefore withdraw the latter in favour of that of the Minister of State.
Amendments Nos. 7 and 11 are related and may be discussed together.
I move amendment No. 7:
In page 19, between lines 41 and 42, to insert the following:
"(11) Documents subject to legal professional privilege shall not be liable to production under this section.".
This matter has exercised my mind, but not because I am a barrister, and I have a view on it. The Minister of State has received advice contrary to mine and to my knowledge of the subject. I am not tabling this amendment to be awkward but to ensure the legislation is foolproof and not subject to challenge. I am concerned that it will not interfere with long-established practice with regard to the common law.
The provision I propose to include states, "Documents subject to legal professional privilege shall not be liable to production under this section". This would ensure the search taking place under the section would be constitutional. The Minister of State said on Committee Stage that this amendment was not necessary and that the wording was not used in other legislation. However, this is incorrect. I do not say this lightly because he has certainly tried to be accommodating and tries to meet us half way. Similar wording is used in many recent Acts, as in section 17 of the Irish Medicines Board (Miscellaneous Provisions) Act 2006, sections 96 and 131 of the Garda Síochána Act 2005 and section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004. I state reluctantly that the information given to us on Committee Stage by the Minister of State was incorrect. His advice that our amendment on Committee Stage would undermine other legislation is also incorrect in the context of what I have put forward. I ask him to reconsider the provision.
When the Minister of State said there was no such provision in other legislation, the Labour Party set about examining this. Section 17 of the Irish Medicines Board (Miscellaneous Provisions) Act 2006, sections 96 and 131 of the Garda Síochána Act 2005 and section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004 include provisions similar to the one I propose. Why can the Minister of State not accept it in the context of the other legislation?
The Deputy was doing his homework. I did not say there was no other legislation but pointed out the advice we received, that is, that these amendments are not necessary because the law relating to privilege exits in any case and because section 21 on evidence in proceedings, which was introduced by the Government on Committee Stage, provides in subsection (3) for any necessary reassurances that privilege applies. The question of legal privilege is a matter for the courts.
There is a strong corpus of legislation and considerable precedent in the context of privilege. The Government contends that what the Deputy proposes to include would undermine other legislative proposals in Acts that do not include the provision as proposed by him. For these reasons and on the advice of the Parliamentary Counsel, the inclusion of the Deputy's proposal would diminish the guidelines on privilege in the context of legislation already in the Statute Book.
It does not diminish the standing of legal professional privilege in the legislation I have outlined, which passed through this House. If my provision is included in three Acts passed in the past four years, how can the Minister make such an assertion? I am surprised by the advice of the Parliamentary Counsel in this regard. If the Parliamentary Counsel examined the legislation to which I refer, it would have noted the very provision I propose by way of my amendment. I am sure it does not undermine any legislation. Legal professional privilege is well-founded and one understands itsraison d’être. It is the court that ultimately decides what constitutes legal professional privilege but my provision would constitute a belt-and-braces protection for it. I cannot understand why there is such reluctance to accept a provision contained in other legislation.
I try to accommodate Members in every way possible. We asked the Parliamentary Counsel to reconsider this matter and it gave quite specific advice that the amendment should be rejected on the grounds I have outlined. If I included the provision in this Bill, it could undermine other Acts. Section 21(3) provides the necessary protections sought by the Deputy.
I know the Deputy feels strongly about this matter and is advocating a belt-and-braces approach, but we already have a good belt in section 21 and do not need the braces. On the basis of current legal advice, and regardless of the provisions contained in other legislation in the Statute Book, I urge the Deputy to withdraw his amendment.
On that basis, I concede reluctantly but hope this does not come back to haunt us.
Amendments Nos. 8 and 9 are related and may be discussed together.
I move amendment No. 8:
In page 27, line 9, to delete "may compile a list" and substitute "shall, each year, compile lists".
The proposed Government amendments respond to the outcome of the discussions in the amendment tabled by Deputy Varadkar on Committee Stage. The effect of the amendments would be to place an obligation on the Health and Safety Authority to publish the names of the persons convicted of an offence or in respect of whom a court order has been made.
In the interests of fairness, the Health and Safety Authority will have discretion as to the publication of names on whom prohibition orders have been issued. This discretion is appropriate as it recognises scenarios including that where the matter giving rise to the notice has subsequently been put right or the notice has subsequently been cancelled or withdrawn. I refer to the primary purpose of this legislation in respect of court orders or where a conviction has taken place and the Government stated it would consider this issue. It decided that a prohibition notice was a bridge too far as by the time a prohibition notice was served, the issue might have been resolved and further proceedings may not have been necessary. From that perspective, the Government considered this to be appropriate for court orders and for convictions themselves but not for prohibition.
I thank the Minister of State for amending the Bill and facilitating fully the intent of my original amendment.
I move amendment No. 9:
In page 27, to delete lines 18 to 20 and substitute the following:
"(2) The Authority shall, each year, cause any list referred to insubsection (1)(a) and (c) to be published in such manner as it considers appropriate.
(3) The Authority may, each year, cause any list referred to insubsection (1)(b) to be published in such manner as it considers appropriate.”.
I move amendment No. 10:
In page 27, between lines 34 and 35, to insert the following:
"26.—(1) An employer shall not penalise an employee for having formed an opinion of the kind referred to insection 25 and communicated it, whether in writing or otherwise, to a national authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the national authority concerned.
(2) In proceedings under this section before a rights commissioner or the Employment Appeals Tribunal in relation to a complaint thatsubsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.
(3) If a penalisation of an employee, in contravention ofsubsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation both under this section and under those Acts.
(4) An employee may present a complaint to a rights commissioner that his or her employer has contravenedsubsection (1) in relation to him or her and, if he or she does so, the commissioner shall-—
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, and
(b) give a decision in writing in relation to it and communicate the decision to the parties.
(5) A decision of a rights commissioner undersubsection (4) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to comply with subsection (1) and, for that purpose, require the employer to take specified steps;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
(6) For the purposes of this section—
(a) subsections (3) to (6) and subsection (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this section as they apply in relation to a complaint presented under subsection (1) of the said section 7, subject to the following modifications, namely—
(i) the deletion in subsection (3) of all the words from "if it is presented" to the end of that subsection and the substitution of "unless it is presented to him within the period of 12 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period, not exceeding 6 months from the expiration of the said period of 12 months, as the rights commissioner considers reasonable",
(ii) the substitution in subsection (6) of a reference to a decision for the reference to a recommendation, and
(iii) any other necessary modifications,
(b) sections 8, 9 and 10 of the Act of 1994 shall apply as they apply for the purposes of that Act, subject to the following modifications, namely—
(i) the substitution in those provisions of references to a decision for references to a recommendation, and
(ii) the substitution in section 9 of the Act of 1994 of—
(I) references to the Circuit Court for references to the District Court,
(II) the following subsection for subsection (3):
"(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.",
(III) any other necessary modifications.
(7) In this section—
"Act of 1994" means the Terms of Employment (Information) Act 1994;
"penalisation" includes any act or omission by an employer or a 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."
The proposed Government amendment, which will introduce a new section 26, responds to the principle of the amendment tabled by Deputy Varadkar on Committee Stage to provide for the protection of employees reporting breaches of the Act in good faith. It is a natural extension of section 25 of the Bill, which protects persons reporting breaches of the Act and this amendment will protect employees where they report any breaches of the Chemicals Bill, not necessarily related to workplace health and safety, to any national authority under the Bill. In essence this constitutes the inclusion of Deputy Varadkar's proposals on Committee Stage for what are commonly known as whistleblowers, and the protection thereof.
While I have little to say today, I again thank the Minister of State for including the amendment.
First, I thank the Deputies opposite for their contributions on Committee Stage. As I noted, the Government tried to facilitate their proposed amendments in every way possible. This Bill primarily is to ensure the implementation of the REACH directive. I also thank the departmental officials, who worked long and hard on this legislation. When it is enacted it should address many issues pertaining to how REACH regulations arising from EU directives will be enforced. Consequently, it should be of great benefit in ensuring one knows exactly what takes place in Ireland in respect of chemicals.
I urge the industry at large to buy into this and to start registration at an early stage. They should avoid getting into difficulties by not pre-registering before the end of the year. It is important that in whatever fora Members opposite, or anyone else, may have in which to speak on this issue, they should urge businesses that are involved in this industry to pre-register at an early stage to avoid subsequent difficulties. I again thank the departmental officials and Members opposite.
During the debate on the Lisbon treaty campaign, many arguments were thrown at Members, one of them being that 80% of our legislation now comes from Brussels. Members are aware this is completely untrue and the correct figure probably is more like 20%. Certainly, since I became a Member of this House, this has been the only item of legislation with which I have dealt that has origins in Brussels. It is a necessary item of legislation, which is highly relevant and beneficial to the environment, as well as to the health of the citizens. I am pleased Members were able to deal with it in such a rapid period. I thank the Minister of State and the officials involved for taking on board the principles of the amendments I tabled.
Were I to get the opportunity in future to address any meetings in the manner described by the Minister of State, I certainly would commend the new legislation in such a forum.
I concur with the previous sentiments and comments. This is a highly complex item of legislation that has its origins in EU directives and regulations. It will be important for the industry to embrace the thrust, content and objectives of the legislation. It will be to their benefit and enhancement to get in early in respect of the registration process. It is complex and was a difficult item of legislation for Members, as ordinary individuals, to try to comprehend to do their best——
There is nothing ordinary about the Deputy.
—— in respect of trying to table appropriate amendments in this regard. However, I thank the Minister of State for listening to Members. Opposition spokespersons hope their contributions will improve legislation and do not make them for point-scoring purposes. I thank the officials because obviously this was fairly difficult for them to get through. Obviously, there is a time constraint in this regard so the quicker it is enacted the better. All those involved in the industry — the chemical industry was raised in the past hour or so — should take careful note of what is involved. It is for the encouragement of everyone concerned that this legislation is enacted forthwith and that everyone takes cognisance of the thrust and objectives set out therein.