Corporate Manslaughter: Statements

The Minister for Justice and Equality, Deputy Charles Flanagan, cannot be here and sends his apologies. He has asked me to make a statement on his behalf in terms of the Corporate Manslaughter (No. 2) Bill that has been introduced by Senators Mark Daly, Robbie Gallagher and Lorraine Clifford-Lee. I thank the Senators for providing me with an opportunity to restate again the Government's approach to the draft legislation.

The Bill completed Second Stage in October 2016 and is based on a draft contained in the 2005 report by the Law Reform Commission on corporate killing. As Members will be aware, in each of its reports the Law Reform Commission publishes a draft Bill to translate its recommendations into draft legislation. It is the Minister's understanding that it is not expected that such Bills will be accepted without due consideration by the Attorney General and without appropriate amendments, whether from Government or Opposition. Each draft Bill requires careful consideration and generally much work. To the best of the Minister's knowledge, this has been the approach to such Bills to date. In saying this, he recognises the value of such draft Bills and also the excellent and valued contribution of the Law Reform Commission to public policy development through its reports.

The Bill sponsored by the Senators is almost identical to the draft Bill published by the Law Reform Commission in its report on corporate killing. As the House will know from the Second Stage debate, the Government did not oppose the Bill in principle but did highlight specific aspects of the Bill as drafted that would require greater consideration. The Government also highlighted that a range of Government amendments would be needed. Consequently, some of the sponsoring Senators met officials from my Deportment in March 2017. As the Minister understands it, the officials outlined the complex issues raised by the Bill and indicated that further legal advice would be sought. Expert legal advice was subsequently received and, essentially, confirmed that the Bill raised concerns that would need to be addressed.

The present Minister understands that the then Minister subsequently wrote to Senator Mark Daly in May 2017 explaining these legal concerns in detail and offered to facilitate a further meeting to progress the Bill.

I am sorry to interrupt the Minister of State. Are copies of the speech available to Senators?

I believe so. I thought they were with the ushers.

I will ask the ushers to circulate copies. I ask the Minister of State to please go ahead.

It might be worthwhile at this stage to summarise the key issues as outlined in a letter to Senator Mark Daly.

The Bill creates a new offence of corporate manslaughter and a new offence of grossly negligent manslaughter causing death. The expert legal advice confirmed that the following main issues would need to be clarified and addressed: the range of public bodies to which the Bill would apply; the range of unincorporated bodies to which the Bill would apply; the availability of appropriate defences and exemptions, with particular regard to work that necessarily involves a risk of death or serious injury, such as emergency services; and the threshold for the offences under the Bill.

The advice also raised particular issues on the proposed individual offence in section 3 of grossly negligent manslaughter causing death. One of the issues here is the extent to which the offence, which is focused on eliminating risk, should apply to circumstances where there is an unavoidable element of risk. The Minister understands that consultations across Departments have identified concerns that the proposed new offence could have unintended effects on services which inevitably involve a degree of risk. There is no doubt that persons guilty of serious wrongdoing should be held to account. We must, however, guard against unintended consequences where employees and volunteers are unduly exposed to criminal liability. For example, the Minister is advised that even the perception of potential liability to prosecution could have a chilling effect on the involvement of volunteers in some sectors. We must also try to ensure that there is no undue tension between prosecuting wrongdoing and encouraging, or indeed requiring, openness and candour.

It is important to remember, too, that there is already a common law offence of gross negligence manslaughter. In the neighbouring jurisdiction, when legislation on corporate manslaughter was enacted in 2007, it was decided not to enact an individual offence also but to rely on the common law offence. The Minister wants me to reiterate that the Government is ready and willing to work with the sponsoring Senators and the whole House in addressing the issues raised by the Bill. The Minister and I would like to repeat the offer of further engagement with officials, if Senators it would be helpful, and that we are open to other suggestions they may have. We do need to make progress on this important issue, but we also need to get it right to avoid what could be serious unintended consequences. That will involve some more work in analysing the issues involved and preparing amendments, but the Government is ready to continue this work with the sponsors of the Bill.

On behalf of the Minister, I once again thank the Senators for raising this important matter. The Minister and I look forward to seeing progress made on it.

I thank the Minister of State, Deputy David Stanton, for coming to the House.

The Bill is a result of the hepatitis C scandal. Out of the 1,700 women who were knowingly infected by contaminated blood products, 240 had haemophilia, of whom, to date, 112, or nearly half, have died. One could imagine of the 1,700 who were knowingly infected by they health service by contaminated blood products, that at least half of them are dead. In 2005 the Law Reform Commission produced a report, Report on Corporate Killing, LRC 77-2005, in which it recommended the introduction of the Corporate Manslaughter Bill. The Corporate Manslaughter (No. 2) Bill is long overdue, not just because of the hepatitis C scandal but also a litany of cases in which people died as a result of action or inaction, for example, the fire at the Stardust nightclub, in respect of which the families involved continue to be affected. Was there inaction? The answer is yes. Did things happen because of breaches of the fire code such as fire exits being locked? The answer is yes. The train crash near Cherryville junction in County Kildare in 1983 and at Buttevant, County Cork in 1980 were the result of serious mismanagement. The Whiddy Island disaster was the result of a decision taken by the owner of the Betelgeuse at board of management level not to renew longitudinal and codation protections for economic reasons. If the instruments had been in place, the accident would not have happened. The Irish Blood Transfusion Service and the Health and Safety Authority have a range of convictions but only in relation to accidents at work.

Let us bear in mind that the contentious section of the Corporate Manslaughter Bill is section 3 which I have read numerous times this week, but this is literally the Bill the Law Reform Commission produced in 2005 which contains an offence of grossly negligent management causing death. Section 3(a) refers to where management knew or ought reasonably to have known of the substantial risk of death or serious personal harm, failed to take reasonable efforts to eliminate that risk or that failure fell far below what could reasonably have been expected in the circumstances. Let me state what was included in the reply I received from the Department of Justice and Equality that a fear of prosecution could militate against the public interest by discouraging employees in certain sectors from being candid about mistakes and that the perception of potential liability to prosecution could have a chilling effect. Let us bear in mind that this is the reason the Department wanted section 3 to be removed.

The hepatitis C scandal occurred nearly 30 years ago when 1,700 people were knowingly infected. The person concerned knew that the product was contaminated. If it is of any comfort, we were not alone, as the same happened in France where people were knowingly infected with HIV and the government knew it. There was a trial, but it was a farce as nobody went to jail.

The response from the Department on the most critical section is that it actually could cause those who know not to act. We have seen that failure time and again, where people knew and did not act. Why did they not act? They simply did not care. There were economic consequences and as they were management, they did not act. If they did not act in the public interest, my argument is that section 3 should remain in full in the Bill, as recommended not by Fianna Fáil but by the Law Reform Commission because 1,700 people were given a death sentence when they were contaminated by the health service as a result of serious mismanagement. If people will not act in the public interest, they might act in their own because they would go to jail for up to 12 years because of their inaction or an omission. We have been unable to get the health service to act in the public interest. Senior management has failed time and again. It needs to be held to held to account, not by being fired but by being put in jail because it is putting women in their graves. Unfortunately, that has been seen to happen time and again.

I thank the Minister of State for taking this debate. I have huge sympathy for the Bill. For the past fortnight I have been speaking about political responsibility overshadowing those who took decisions that led to events such as the cervical cancer screening disaster, the hepatitis C scandal and various others in the past 25 to 30 years, with which we are familiar. There has been a doctrine since the 1940s, the Carltona principle whereby Civil Service officials speak with the voice of the Minister in charge of a Department, regardless of whether the Minister knows it. Most Members do not know that when they take ministerial office, they will not be informed of this. Officials take decisions. Some of the decisions taken in recent years were to try to cover up mistakes that had proved life threatening and cost people their lives. Time and again, we have heard calls for a Minister's head to be put on the chopping block. Why? When we have the Minister's head, they are gone and whoever made the decision to cover up is still there and carrying on in exactly the same way. That is the problem. I have spent 25 years of my life defending workers' rights and will stand four-square behind any worker who is trying to do a decent day's work for a decent day's pay, but for a person to knowingly cover up something, that is behaviour I cannot understand.

The fear expressed about the Corporate Manslaughter Bill 2016 is that it will kill off voluntarism. Like most young peopIe, I was in the Irish Red Cross and various other voluntary institutions when I was 12 or 13 years of age. I do not think the Bill sets out to catch some volunteer who rushes to the aid of a citizen. I appreciate that there might be a problem which should be ironed out as the legislation passes through the Oireachtas, but what we are looking at is the role of senior managers. Today there are calls for the head of Mr. Tony O'Brien, but will that get to the individual who covered up the scandal? Mr. O'Brien cannot have his finger on every pulse, although I do believe he should go. I have great sympathy for those in political life who carry the can for "Yes, Minister" officials who keep serious issues hidden from the public. For that reason and that reason only, there should be capacity to identify an individual.

When the individual is identified, that individual should be charged and there should be retribution. The public should be able to see that one cannot hide serious issues from them. One simply cannot do that. One has to be able to come forward as soon as something is recognised. If one does not come forward, that is no different from taking a knife and sticking it into the chest of a person who then dies. If someone is aware of something which will kill people and keeps it quiet, then he or she may as well be a murderer. That is my view for what it is worth.

We need to take our heads out of the sand. Corporate responsibility should go the whole way down the line. If something emerges it should be brought to the attention of senior management immediately and finish up on the desk of the Minister before it finishes up on the desk of the State Claims Agency which takes an extremely aggressive approach to everything that is ever brought in front of it.

I have sympathy the with the Bill and would love to hear what the Minister's Department would like to do to make it workable. I would like to be able to try to support that.

I, too, would like to commend Senator Mark Daly for bringing forward the Bill. I welcome the Minister of State to the House. It is very hard to argue with the motivation behind the Bill, especially given what we have seen over the past couple of weeks. What Senator Craughwell said is correct. Too often there is political accountability, and rightly so, but it is rare that there is accountability in terms of official Ireland. We all remember the issue of hepatitis C, which was a national scandal. Knowingly contaminating and killing people is totally wrong. In my view, there had to be accountability.

There are issues with the Bill and the Minister of State has outlined the concerns. He very forcefully concurred with the sentiments behind the Bill, as we all do. The role of the House is to scrutinise and improve Bills and make them workable. That happened with the Irish Sign Language Act, which Senator Daly successfully sponsored. There is no reason that should not happen with this Bill.

The Minister of State's reflections and concerns are genuinely held, given the professional advice available to him. The suggestion which has been made, namely, that there should be engagement between Senators Daly and the Minister of State's officials, as has happened successfully before, should happen.

It is absolutely correct to say that this is a recommendation of the Law Reform Commission. It does a superb job in identifying where we need to reform the law. When we and elements and organs within the State do wrong, there should be political accountability and accountability on the part of individuals when that wrong is deemed to have been done maliciously, knowingly and in a cavalier way which ultimately cost people their lives.

This is an important Bill. I am speaking in a personal capacity and have spoken with Fine Gael colleagues. We want to see the Bill progress. The debate here is important and I sincerely hope that following on from that there is high-level engagement between the Senator and the Minister of State's advisers and officials and the Bill comes back to the House in early course. I hope that we can get it passed by the House and moved to the Lower House and that it becomes law. Senator Daly was quite right when he said that until such time as there is the threat of jail, there will not be the type of accountability we want to see, which the public expects and the citizens of our country have a right to.

Gabhaim buíochas leis an Aire Stáit, atá anseo thar ceann an Aire Dlí agus Cirt agus Comhionannais.

I thank the Minister of State for taking the time on behalf of the Minister to be here for the debate. I had so much to print today I forgot to print my notes for this Bill. I ask him to excuse me for reading my notes from my iPad.

We are a high-tech Chamber.

We are a high-tech Chamber. It goes to show how busy we were this afternoon that I had so many notes to print and discuss.

For the past 15 years we in Sinn Féin have been urging the Government, and have supported previous attempts, to introduce such safeguards into the workplace, including in the form of a corporate manslaughter Bill tabled by my colleague, Deputy Jonathan O’Brien, in 2016. According to the Health and Safety Authority, 421 people lost their lives at work between 2008 and 2016. This huge loss of life should act as a call to action for the Government. There should be no further delay in this matter.

Hundreds of families are grieving the loss of their loved ones. The Government and employers owe it to those carrying the burden of that loss from the workplace to ensure that no more deaths due to deliberate neglect occur. Corporate killing, that is, death in the workplace as a result of employer indifference, needs to be put on a statutory footing. It is totally unacceptable that companies, through dereliction of their duty of care to those they employ, are endangering lives.

The sentiments I am expressing today would then apply to workplaces North and South. In the North, the Corporate Manslaughter and Corporate Homicide Act came into effect in 2007. Its first application occurred in a Belfast court in May 2012 and resulted in a firm being convicted of the death of an individual due to neglect. The firm in question was fined a considerable sum of money in respect of the death of its employee.

Safety in the workplace makes sense for workers and employers. It protects both. It is important to highlight that we too have a workers' memorial day to remember all those who have died. In remembering them, we are also saying that no more tragedies at work should occur as a result of deliberate negligence.

Health and safety in the workplace is not conditional on the ability of the employer to pay for it, nor should it be subject to a cost-benefit analysis. A price should not be placed on a worker’s life by an employer or the Government. In circumstances where an employer is responsible for an employee’s death, it is unacceptable that it is too difficult to hold the company to account and be made liable for that death, as outlined comprehensively by previous speakers.

As a bit of an aside, we need look no further than the Grenfell Tower fire in London last June and the devastation that appears to have been caused by a dereliction of duty on the part of Kensington and Chelsea London Borough Council, all in an apparent attempt to save costs. The official figure of those who lost their lives as a result was 71, although there is a general consensus that this figure is higher given that some people are unaccounted for. In citing that example we do not need to look very far. Senator Daly outlined some of the more well-known tragedies which have occurred closer to home.

It is clear, at least in my eyes, that the reason the people in Grenfell died was not because of some unfortunate tragedy but rather as a result of their perceived socioeconomic class. If this had been in another part of Kensington and if it had not social housing, we would still be outraged to this day. However, as these were, for the most part, welfare recipients, it has been swept under the carpet. As I said, we have seen similar devastation caused by fires closer to home at a halting site in Carrickmines and the apparent mismanagement on the part of the council to maintain the site to the point that it descended into a state of disrepair which caused, at least in part, the death of ten people, including children.

I do not make the accusation that this fits the definition of corporate manslaughter and understand that a case is being taken by the family as of very recently. I do not want to adjudicate on something that is before the courts. However, there is to this day an apparent lack of accountability or recourse in light of the deaths of these people.

The Law Reform Commission compiled a report on this very topic in 2005. The report contains two main recommendations. The first is that a new statutory criminal offence of corporate manslaughter should be enacted which would make an undertaking, such as a company, a public body or a partnership firm, responsible for a death arising from its gross negligence. The second key recommendation is that there should be an offence for senior managers of grossly negligent management causing death. A former Sinn Féin colleague, Arthur Morgan, produced a Bill on the back of this report, but unfortunately it lapsed. I hope the Government does not allow that to happen again this time.

It is not clear why it is failing in its duty of care to the working population in the introduction of a corporate manslaughter Bill. We can speculate about the motivation of employers when they oppose such legislation. If there is opposition from them, the Government must not be deflected from its primary responsibility in this important area. Sinn Féin believes a legal incentive is required to concentrate the minds of the Government and corporate bodies and would support the Bill were it to progress further. There should be no further delay in protecting workers' rights and their safety in the workplace. No person should ever have to go to work fearing that he or she will not return to his or her family owing to the incompetence of an employer.

I welcome the Minister of State, Deputy David Stanton. I have had the opportunity to read through his response twice and he makes many valid points. We must tread carefully and have regard to advice and the need to avoid litigation. I understand the advice of the Attorney General has been sought as there comes a point when we have to take professional advice. When we are put on notice, it is important that we heed the advice given. This is a complex issue.

I thank the Minister of State for the manner in which he set out the concerns of the Minister and the Department. I acknowledge that I do not detect any effort to stall this process. I also acknowledge the work of Senator Mark Daly on the issue, about which he is very passionate, as is evident every time he speaks about it. In the past two weeks we have heard many women give testimony and speak about terrible ordeals in relation to the cervical cancer screening programme and about the huge resistance of and lack of support from State agencies in response to what had been done to them. There are women who remain in the dark about their health, as do their families. This Bill would be of no consolation to them. At the end of the day, it is important that people be held to account. Every day both in this House and the Dáil I hear politicians bellyache about the need for accountability. Subject to due process, we must hold people to account and sanction those found to have done wrong. It is important that there be due process, but there must also be justice, particularly for victims. We must support them by putting a system of redress in place. Words are meaningless, as are a slap on the wrist and people saying they are sorry. We are tired of this; we need justice, the provision of support and sanctions. Ultimately, we must never be afraid to put people behind bars if they knowingly set out to inflict damage and suffering on others.

Rather than go into any great detail on the Bill, I want to share with Members a letter from the Irish Haemophilia Society addressed and sent to all councils on 9 March 2017 which I will also place in the public domain later. It states:

The Irish Haemophilia Society support the addition to Irish law of a provision or law on corporate manslaughter. The experience of our small community and of other groups affected by contaminated blood scandals in Ireland provides an example of the type of situation where such a law may be applicable. In Ireland, 1,700 people were Infected with Hepatitis C through blood and blood products supplied by the state. Of these 1700, 240 were people with haemophilia with the others being recipients of Anti D, blood transfusions or treatment for renal disease. Of the 240 people with haemophilia infected with Hepatitis C, 105 were also co-infected with HIV. To date, 112 of these 240 people with haemophilia have died including, in several cases, brothers or more than one member of the same extended family. This appalling tragedy resulted in a catalogue of human misery and despair which has been ongoing for the past 32 years. The contamination of the blood supply was the subject of two separate Tribunals of Inquiry - the FinIay Tribunal and the Lindsay Tribunal in 1997 and 2001, respectively. Following the Lindsay Tribunal, the Irish Haemophilia Society has worked proactively with the Doctors and the Department of Health in ensuring that we have a formal voice in policy and other decisions on treatment of haemophilia through a statutory National Haemophilia Council and a formal role in the selection of safe and effective medications for treatment of haemophilia. At the end of 2016, we were able to announce the effective eradication of Hepatitis C in our community through access to new treatments.

I beg the Acting Chairman's indulgence for one more minute because it is important that I quote the letter as is. It continues:

Those who survive with HIV or Hepatitis C in our community have endured a long struggle. We will never forget those who have died as a result of contaminated blood but a fitting memorial to them would be a law on corporate manslaughter. We must learn from history if we are not to repeat it. The report of the Tribunals and in particular the Finley Tribunal, catalogue a series of deliberate actions or inactions which resulted in the infection and death of many people. Despite requests from the relevant patient organisations, neither report was forwarded for consideration to the Director of Public Prosecutions, nor did any successful criminal prosecution take place of any individual. We must learn from this and ensure that the public in future are protected from malfeasance or deliberate actions, inactions or omissions which result in the death of individuals.

I am bearing with the Senator.

I do not want in any way to mislead the House. This is very important. The letter continues:

We are not seeking prosecution for simple errors or failure to foresee future threats. However, where actions, which result in death, were deliberately taken for financial gain or risks deliberately ignored to protect institutional reputation or events covered up to prevent disclosure, then there should be a remedy in criminal law.

I read the letter because it is very important. It says it all. I know that the Minister of State is committed to taking action. The sooner the Bill is progressed the better. While noting the advice about which the Minister of State cautioned, it is important that we move at speed, particularly in the light of what has happened in the past two weeks.

I thank Senator Mark Daly for his enormous work on and commitment to bringing foward this legislation.

I thank Senators for their contributions. I take the opportunity to acknowledge the presence of Senator Ian Marshall and congratulate him on his election to the House. I wish him well in his time here and look forward to working with him.

I welcome the opportunity to make a statement on this important issue of ensuring undertakings and the individuals who work for them that have been grossly negligent to a high degree resulting in a death are held accountable for their actions. Everybody who has contributed to the debate mentioned the Law Reform Commission and acknowledged the very good work it does. I would like to be associated with those remarks. Draft Bills from the Law Reform Commission will be accepted, but it is not expected that they would be accepted without due consideration by the Attorney General and appropriate amendments, whether from the Government or the Opposition. The Government cannot just accept such Bills and the Law Reform Commission does not expect it to do so. The Government did not and does not oppose this Bill. However, as stated, there are serious concerns that, as drafted, it could cause legal and practical difficulties which might militate against prosecutions. We must take the advice we receive very seriously. In addition, public services, emergency services, community and voluntary services could be unnecessarily and negatively affected, from the paramedic to the fire fighter, which would be to the detriment of the community. Therefore, we need to strike the right balance. We cannot disregard the advice we have received.

I agree with Senators that we must work together to find solutions that are acceptable to everyone in the context of the concerns raised about the Bill. I know that the Minister for Justice and Equality, Deputy Charles Flanagan, wants this to happen. I reiterate that there is already in place a common law offence of gross negligence manslaughter. In 2007, when the United Kingdom was legislating in this area, the common law offence was relied upon and law-makers opted not to enact an individual offence.

As I have said, the concerns outlined by the former Minister for Justice and Equality during the Second Stage debate on the Corporate Manslaughter (No. 2) Bill 2016 have been confirmed in further legal advices to the Government. As Senator Boyhan has said, the Bill in question deals with a very complex area of law. It needs to be amended. The Government has endeavoured to be constructive. We wish to engage and work with the sponsors of the Bill to find solutions that are acceptable to all so that we can make progress with it. I suggest that this should happen at the earliest possible date. I invite Senators to engage with us on this matter so that we can get the Bill into law, while taking account of the serious considerations and advices of the expert lawmakers we have engaged to advise us on this.

When is it proposed to sit again?

At 2.30 p.m. tomorrow.

The Seanad adjourned at 7.30 p.m. until 2.30 p.m. on Wednesday, 9 May 2018.