Amendments Nos. 1 to 3, inclusive, and No. 7 will be grouped for the purposes of debate.
Chemicals Bill 2008: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 6, subsection (1), between lines 5 and 6, to insert the following:
""Act of 1972" means the European Communities Act 1972;".
Amendments Nos. 1 to 3, inclusive, are technical amendments to section 2 proposed by the Parliamentary Counsel. Consequential amendment No. 7, which is a technical amendment, adds a new subsection (3)(d) to ensure the national authority provisions in the Bill would apply to all competent authorities for regulations to be made under the Bill concerning the control of major accident hazards under the Seveso directive. This amendment avoids having to repeat this provision of the Bill in the Seveso regulations to be made when the Bill is enacted.
Amendment agreed to.
I move amendment No. 2:
In page 6, subsection (1), line 23, to delete "European Communities Act 1972" and substitute "Act of 1972".
Amendment agreed to
I move amendment No. 3:
In page 7, to delete lines 3 to 7 and substitute the following:
""national authority" means-
(a) a designated national authority in the State under section 8(1),
(b) a competent authority in the State under section 8(2) or 8(3), or
(c) a person prescribed in accordance with section 5(3);”.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 4:
In page 8, subsection (1)(e), line 31, after “means” to insert the following:
"provided the notice is also served by one of the other ways specified in this subsection".
We are a considerable distance from allowing a legal notice to be served by e-mail alone. There is so much spam floating around the Internet that it would be totally unreasonable to expect a person to have a legal notice of obligation just because an e-mail was sent to that person. Notice by some other method, for example, by post, should also be required. This is something of a personal hobby horse of mine because I am not the most technologically literate person in the country. When information is sent to me, I believe strongly that a hard copy should be delivered. We must pay particular attention to ensure this is an option. It might serve the Legislature well in the future.
While I do not want to hold up the Bill, we should not just depend on serving legal notices in this way. It has not been the practice to date and I do not believe it is meant in the Bill. I ask that this amendment, which would help the legislation, be accepted.
There are several other means of serving notice. It would be up to the individual to agree whether electronic means would be sufficient for serving notice. Is the Deputy implying some form of receipt should be available if notice was served electronically?
It is important. Perhaps this is a personal view but I am not totally alone on this. There should be some other form when serving notice by e-mail to make sure it has been received. What happens if there is a virus?
The person is not compelled to accept notice by electronic means. It is up to the person to agree whether to accept it in this way. There are many other ways of serving the notice listed in the section, including delivery to the address at which the person ordinarily resides. Also, this could be duplicitous.
I appreciate that.
The letter is still the legal system of transmission of any message to any person or from one company to another. We have not yet legislated for e-mails to be a legal means, as I understand it. I have nothing against e-mails, although I cannot extract them from the machine fast enough because I am a little like Deputy Penrose in this regard - a bit stupid. He is illiterate; I am stupid.
It is important to understand that it is up to the individual to agree what method would be agreed for the service of the notice. If it suits the person to have the notice served electronically, that can be done. If the person declines that, it must be served by other means.
I will accept all of that provided there is some clarification that the e-mail has been received and a receipt or something similar is available to indicate this. That is the important point. There is much toing and froing with regard to current legislation concerning the receipt of particular documents. I am not putting this forward without having some basis for it. If somebody acknowledges delivery by way of receipt, that would be perfect.
It is a valid point. We can consider this issue. If the Deputy agrees not to push the amendment, we can perhaps bring forward some measure on Report Stage.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5.
Amendments Nos. 5, 6 and 8 are related and may be discussed together.
I move amendment No. 5:
In page 9, subsection (3)(a), line 27, to delete “exclusive of this Act” and substitute the following:
"exclusive of this Act, the Act of 1972 and the European Communities Act 2007".
These are technical amendments. Amendment No. 5 amends subsection (3)(a) to make it clear that regulations made under this Act cannot amend the European Communities Act. Amendment No. 6 deletes subsection (3)(b) on the advice of the office of the Parliamentary Counsel that it is superfluous. Once there is power under the Bill for the Minister to make regulations, there is power to grant exemptions as well. Amendment No. 8 reflects the fact that responsibility for harbour authorities and harbour companies lies with the Minister for Transport and not with the Minister for Communications, Energy and Natural Resources. The harbour authorities and harbour companies are the bodies that have responsibility under the current Seveso regulations.
Amendment agreed to.
I move amendment No. 6:
In page 9, subsection (3)(b), to delete lines 34 and 35.
Amendment agreed to.
I move amendment No. 7:
In page 9, subsection (3)(c), line 38, to delete “regulations.” and substitute the following:
"regulations, and
(d) prescribe persons to perform the functions of a national authority for the purposes of the regulations and the provision of the treaties governing the European Communities or act adopted by an institution of the European Communities to which the regulations give effect.”.
Amendment agreed to.
I move amendment No. 8:
In page 10, subsection (6), lines 8 to 13, to delete paragraphs (a) to (d) and substitute the following:
"(a) the Minister for the Environment, Heritage and Local Government,
(b) the Minister for Health and Children,
(c) the Minister for Justice, Equality and Law Reform, and
(d) the Minister for Transport,”.
Amendment agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 9:
In page 12, subsection (7), line 5, after "shall" to insert "post on its internet website and".
This comes back to the issue I have just raised. Where documents are made public, they should be put on the Internet in the first instance. This is a personal view but I hope the Minister can accept the amendment.
I accept the principle. We can bring forward an amendment on Report Stage to reflect that.
On that basis, I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
Amendments Nos. 10 and 11 are related and may be discussed together.
I move amendment No. 10:
In page 12, subsection (2), lines 27 and 28, to delete paragraph (b) and substitute the following:
"(b) the Environmental Protection Agency, in respect of matters relating to biodegradability of surfactants in detergents;
(c) the Minister for Health and Children, for the purposes only of Article 9(3) of that Regulation;
(d) the Irish National Accreditation Board, for the purposes only of Article 8(2) and (3) of that Regulation.”.
Amendment No. 10 designates two further competent authorities for the EU detergents regulation. These designations are being made to reflect the respective current roles of these bodies under other legislation. The Environmental Protection Agency will be responsible for matters concerning biodegradability of surfactants in detergents and the Irish National Accreditation Board, which is a committee of Forfás, will be responsible for certifying laboratories to the specific standards required under the regulation. Amendment No. 11 is consequential on amendment No. 10 and seeks to include a definition of the Irish National Accreditation Board.
Amendment agreed to.
I move amendment No. 11:
In page 13, subsection (6), between lines 19 and 20, to insert the following:
""Irish National Accreditation Board" means the committee commonly known by that name established pursuant to section 10 (amended by section 46 of the Industrial Development (Enterprise Ireland) Act 1998) of the Industrial Development Act 1993;".
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 to 11, inclusive, agreed to.
SECTION 12.
I move amendment No. 12:
In page 15, subsection (1)(b), between lines 42 and 43, to insert the following:
"(iv) any other material that may reflect a violation of the Act,".
Having reread this section, I accept this amendment may not be necessary. The intention was to strengthen the section. Section 12(1)(b)(ii) refers to “any activity, installation, process, procedure or matter at that place”. If the Minister is satisfied that “matter” adequately covers the term “material”, I would be happy to withdraw the amendment.
We have been advised that the provisions in section 12(1)(b) encompass any possible application of the Act.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 19, between lines 22 and 23, to insert the following subsection:
"(10) A statement or admission made by a person pursuant to a requirement under subsection (1)(i), (k) or (l) shall not be admissible in proceedings brought against that person for an offence (other than an offence under section 27(9)).”.
I propose this amendment following legal advice that the specific provision should be introduced to make it clear that self-incriminating statements cannot be admissible in evidence under this Bill. This should ensure that the national authority can get necessary information from individuals in carrying out its functions under the Bill when enacted.
What was that?
The amendment is to ensure that self-incriminating evidence cannot be used later on, which is simply natural justice.
It cannot be used.
It cannot be used in a court.
Why not?
It is natural justice. There cannot be a situation where a person is compelled under this Bill to provide information and then have it used to incriminate him or her in the context of a case being taken.
Is the Minister of State suggesting that if people were to choose to give self-incriminating--
If they are co-operating, for example, with an investigation under this Bill, they may give information that could be self-incriminating in the context of a case being taken at a later stage. The amendment is to make sure that self-incriminating evidence cannot be used in the context of the case being taken against an individual.
Amendment agreed to.
Amendments Nos. 14 and 21 are related and may be discussed together.
I move amendment No. 14:
In page 19, between lines 33 and 34, to insert the following subsection:
"(12) Documents subject to legal professional privilege shall not be liable to production under this section.".
The Minister of State referred to self-incrimination and this amendment is a continuation of that issue. It is an important provision which ensures that a search power is constitutional and in conformity with the law. The amendment sets out in clear terms the search power involved, that it is circumscribed and that documents which are part of legal advice and confidential to the client are protected. That is the law. I want to ensure it is applied in this case as it is with regard to the principle of self-incrimination which the Minister of State has set out. It is a sacrosanct legal principle and I do not want to see any undermining of such principles.
There is already a strong body of law that governs the privilege so there is no necessity to have it in this Bill. If it was included in this Bill, it could undermine other Acts where it was not included.
By its inclusion, it could be---
With its inclusion, other Acts could be---
I certainly do not want to do that. I want to ensure that---
We have looked at this in great detail. The constant advice to us is that it could undermine other legislation.
The Minister of State will know the reason I wanted this included. It is a fundamental tenet of law and justice.
I accept that.
On the basis that the Minister of State is happy with regard to the privilege, which is well set out in any event and has been for centuries, I accept it should not be disturbed.
I am coming from the same side as the Deputy. We considered this in great detail. The advice we are getting is that it could affect other legislation.
On that basis, I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
Amendment No. 15 has been ruled out of order. I believe Deputy Penrose was informed.
I am disappointed but I accept the ruling. I thought the immunity proposed here was excessive in that it was not limited to omission but also covered acts. There is no provision for any liability for negligence. It only provides liability if malfeasance is proven. I wonder if a sweeping immunity of this nature is constitutionally suspect.
For clarification, the disallowance is based on Standing Order 151(3) of 2007 which, unfortunately for the Deputy, states: "An amendment to a Bill which could have the effect of imposing or increasing a charge upon the people may not be moved by any member, save a member of the Government or Minister of State."
On such substantive issues, I defer to greater authority.
I have a view, in any case.
Amendment No. 15 not moved.
Section 13 agreed to.
Sections 14 to 20, inclusive, agreed to.
NEW SECTION.
I move amendment No. 16:
In page 24, before section 21, to insert the following new section:
"21.-(1) In proceedings for an offence under this Act, any document purporting to have been prepared or kept-
(a) pursuant to a requirement in the European Regulations, or
(b) in the ordinary course of business by a person who had, or may reasonably be considered to have had, personal knowledge of the matters specified in the document, shall be admissible as evidence of the matters specified in the document.
(2) In proceedings for an offence under this Act, a document purporting to be a reproduction in legible form of a document stored in non-legible form to which subsection (1) applies shall be admissible as evidence of the matters specified therein, if the court before which the proceedings have been brought is satisfied that it was reproduced in the course of the normal operation of the reproduction system concerned.
(3) This section shall not apply to-
(a) a document containing information that is privileged from disclosure in proceedings for an offence,
(b) a document prepared by a person who would not be compellable to give evidence at the instance of the party seeking to have the document admitted as evidence of the matters specified in the document,
(c) a document (other than a technical document) prepared for the purposes, or in contemplation, of-
(i) the investigation of any offence,
(ii) an investigation or inquiry carried out pursuant to or under any enactment,
(iii) any proceedings whether civil or criminal, or
(iv) proceedings of a disciplinary nature,
or
(d) a document (other than a technical document) prepared after the alleged commission of the offence concerned.
(4) Nothing in this section shall operate to render inadmissible in proceedings under this Act any document as evidence of any matter specified therein, that is so admissible by virtue of any rule of law or enactment other than this Act.
(5) In this section-
"business" includes any trade, profession or other occupation carried on-
(a) for reward or otherwise, and
(b) either in the State or outside the State;
"technical document" means-
(a) a map, plan, drawing or photograph (including any explanatory material in or accompanying the document concerned),
(b) a record of a direction given by a member of the Garda Síochána pursuant to any enactment,
(c) a record of the receipt, handling, transmission, examination or analysis of any thing by any person acting on behalf of any party to the proceedings for the offence concerned, or
(d) a record by a registered medical practitioner of an examination of a living or dead person.”.
I propose this amendment with regard to the type of documentary evidence that can be used in proceedings. The provision allows for documentary evidence to prove what is stated. It means that any documents generated by a company and any other documents required to be kept by EU regulations can be used as evidence without the necessity for oral evidence to be given in specific cases. The effect of this provision will be to give the prosecution more ways of proving a case.
That is fair. It is a very complex area but one would assume that the authenticity and veracity of what is contained in the regulations is correct, and that it can be proved on production rather than having somebody give oral evidence in respect of the contents thereof. I understand the Minister of State's point.
That documentary evidence can be used should give more ways of proving a case rather than always having oral evidence. It makes this more effective.
Amendment agreed to.
Sections 21 and 22 agreed to.
SECTION 23.
Amendments Nos. 17 and 18 are cognate and may be discussed together.
I move amendment No. 17:
In page 25, subsection (1), line 18, to delete "may" and substitute "shall, on an annual basis,".
This is an important amendment. Its purpose is that where a user or producer of chemicals has been fined or has broken the law, he or she should be named and shamed. Under the current legislation, it is at the discretion of the authorities to decide whether they wish to name and shame the polluter. I do not agree with this. One of the most effective measures to discourage and deter people from breaking the law is the certainty that they will be named and shamed on an annual basis, whether they like it or not.
I was involved in a fishing project in my own constituency where a fortune was spent restocking the Tolka River valley only to have a certain beef producer essentially kill all the fish. We had to name and shame that beef factory because the authorities would not do so. I feel strongly that this measure should be included in the Bill, at least on an annual basis. Deputy Penrose has a similar amendment so that violators would be named and shamed at least on an annual basis. It should not be up to the discretion of the authorities to choose which cases to highlight or not.
We must differentiate between prohibition notices and court orders and offences. For example, a prohibition notice might be served which could be rectified within a very short period of time. This could bring adverse publicity to a company where there is no need. There must be proportionality. Court orders and the like are in the public domain but a prohibition notice may be for a very small infringement which might be rectified very quickly.
The matter could also be appealed to a court. One could publish the name of a person on whom a prohibition notice has been served when that case could be appealed to a court and it could be found that the prohibition notice was served incorrectly or was not necessary in the first place. From that perspective, the amendment could give rise to many difficulties. We could consider this in the context of prosecutions and court orders. With regard to prohibition notices, however, I urge the Deputy to allow the discretion to remain.
I accept the Minister of State's point on enforcement notices. However, is it possible it could go to prosecution at a later stage?
We will examine tabling an amendment on Report Stage on court orders and discretion being allowed for prohibition notices if the Deputy agrees to withdraw his amendment. I outlined my views on prohibition notices.
I agree with the Minister of State but where the judicial process has been used it should be put up in lights.
We will certainly examine it and table an amendment on Report Stage to reflect it.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Section 23 agreed to.
Section 24 agreed to.
NEW SECTION.
I move amendment No. 19:
In page 25, before section 25, to insert the following new section:
"25.-(1) In this section "penalise" shall have the same meaning ascribed to it as under section 27 of the Safety, Health and Welfare at Work Act 2005.
(2) An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 24 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.
(3) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2).”.
The purpose of the amendment is to define more clearly what penalisation or penalty would mean to a whistleblower. It is not done in the Bill.
We will re-examine this prior to Report Stage. We want to protect people who come forward to the authorities to make complaints. If their bona fides are genuine we would like those people to be protected. I agree with the thrust of the amendment.
It is pretty much lifted out of the HSA Act. I used the same definition for "penalise".
I thank the Deputy for raising it and we will table an amendment on Report Stage to reflect the thrust of this amendment.
On that basis I will withdraw the amendment.
Amendment, by leave, withdrawn.
SECTION 25.
I move amendment No. 20:
In page 26, subsection (6), line 34, to delete paragraph (c) and substitute the following:
"(c) where the operation of the notice has been suspended under subsection (4), the end of the period of suspension,”.
This is a technical amendment to reflect that the reference should be to suspension of a notice by a judge under subsection (4) and not to the time within which an appeal may be lodged with the court under subsection (3).
Amendment agreed to.
Amendment No. 21 not moved.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 22:
In page 27, between lines 15 and 16, to insert the following subsection:
"(3) Reference to this section is inserted in Part I of the Third Schedule to the Freedom of Information Act 1997.".
It is appropriate to make provision in the Bill for the extension of the Freedom of Information Act 1997 to the national authorities. At the very least, reference to the Freedom of Information Act 1997 should be inserted in the Schedule so it will not prevent disclosure of information under the Act. This would be worthwhile because we have curtailment of accessibility with regard to freedom of information. I do not see why we should not extend the provisions of the Freedom of Information Act in this context.
The effect of listing section 26 of the Chemicals Act in Part 1 of the Third Schedule to the Freedom of Information Act 1997, which is what this amendment seeks to achieve, would be to subject the Chemicals Bill to the scope of the Freedom of Information Act. In practice, this would be information relating to enforcement activities under the Bill when enacted. It is also relevant to point out that under EU regulations, in particular REACH, a considerable degree of information will be available on the intrinsic properties of chemical substances. Limitations will apply in commercially sensitive areas of information. It would be more prudent to wait and see how the legislation as proposed in the Bill works.
The Freedom of Information Act requires a report every five years on any non-disclosure provision not listed in the Third Schedule and a recommendation is made as to whether the provision should be amended, appealed or allowed to continue in force or whether the provision should be listed in the Third Schedule. The Oireachtas Joint Committee on Finance and the Public Service reviews all such reports and makes a report to each House of the Oireachtas. It is my intention that section 26 of the Chemicals Bill, when enacted, will be subject to this review process.
I know there is a ten-year period for everybody to get up to speed. Nevertheless, companies must be REACH compliant. I accept what the Minister of State said and I will withdraw the amendment. However, I hope we will review it and it will not be left on the shelf never to emerge again. It is up to us to ensure the Freedom of Information Act enables people to know what is going on. This amendment only extends it to the national authorities.
The Freedom of Information Act is evolving and extending to more agencies and Acts. This can be reviewed but I would like to see how it beds down first.
On that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.
I move amendment No. 23:
In page 27, lines 24 to 31, to delete subsection (3) and substitute the following:
"(3) Where-
(a) a distributor,
(b) a downstream user,
(c) an importer,
(d) a manufacturer,
(e) a person appointed in accordance with Article 8 of the REACH Regulation, or
(f) a producer of an article,
contravenes a provision of the REACH Regulation that applies to him or her, that person shall be guilty of an offence.".
This is a technical amendment to reflect the fact that the representative in the EU of non-EU manufacturers appointed under Article 8 of the REACH regulation has legal obligations under REACH and to provide that any breaches of these obligations would be an offence under the Bill. Its purpose is to ensure the compliance of non-EU manufacturers with their legal obligations under REACH.
What does "downstream user" mean in this context?
Those who are using chemicals as they could go from one user to another.
Potentially, it could mean a consumer.
It is a person who is not manufacturing chemicals but is using them.
Could this put onerous legal obligations on consumers?
It is contained in the REACH regulation itself. It is in our EU journal.
It must be right then.
The REACH regulation states:
Downstream user: means any natural or legal person established within the Community, other than the manufacturer or the importer, who uses a substance, either on its own or in a preparation, in the course of his industrial or professional activities. A distributor or a consumer is not a downstream user. A re-importer exempted pursuant to Article 2(7)(c) shall be regarded as a downstream user.
Does it say something about a consumer not being a downstream user?
Amendment agreed to.
Section 27, as amended, agreed to.
Sections 28 to 30, inclusive, agreed to.
SECTION 31.
I move amendment No. 24:
In page 30, subsection (2), line 44, to delete "any of the relevant chemicals statutory provisions" and substitute "section 27(16)”.
This is a technical amendment to subsection (2) to reflect the provision of the Criminal Justice Act 2006 which restricted the Petty Sessions Act time limit to summary offences only and not those offences which could be tried summarily on indictment.
Amendment agreed to.
Section 31, as amended, agreed to.
NEW SECTION.
I move amendment No. 25:
In page 31, before section 32, but in Part 7, to insert the following new section:
32.-For the avoidance of doubt, an order of the District Court confirming, varying or cancelling a notice under section 15(6), 16(6) or 25(3) is a decision of a judge of the District Court for the purposes of section 84 of the Courts of Justice Act 1924.”.
I propose this amendment to make clear in legislation the existence of a right of appeal from the District Court to the Circuit Court by either side from a decision of the District Court to confirm, vary or cancel a notice issued by a national authority.
Amendment agreed to.
Sections 32 to 34, inclusive, agreed to.
Title agreed to.
I thank the members and my officials. I will take on board the issues raised before Report Stage. We should use every forum to highlight the pre-registration period for businesses between June and December to ensure they are not caught out at the end of the day. A REACH help desk is in place. The number is 1890 289 389. The Health and Safety Authority is also providing information. If members are addressing an organisation or a company, I urge them to mention this. This is coming down the tracks and companies should avail of the opportunity to pre-register before December.
The chemicals industry was set up in Ireland in the mid-1960s and companies primarily manufacture chemicals in their raw state and not finished products such as shampoo or garden spray.
Such products are not covered by the legislation.
But the chemical in shampoo is manufactured by one of the companies that will have to register under the legislation.
Shampoos come under cosmetics.
Shampoos and garden sprays contain chemicals.
The chemicals would be registered beforehand.
The Bill will be costly for many companies, especially in our region.
It will not because companies are complying with the REACH directive anyway. The legislation relates to the enforcement of the regulations with which companies are complying. This will not result in an additional cost to or regulatory burden on companies.
I thank the Minister of State for the information he provided. I take on board Deputy Varadkar's comments because I also have concerns. It is important that people do not pollute the environment and enforcement and warning notices at local authority level are important. The new biodiversity report has revealed shocking news about the disappearance of flora, fauna and fungi. I look forward to Report Stage. This is important legislation because we will be able to access information on 30,000 additional chemicals. This will protect the consumer and the producer.
It is in everybody's interest.
Bill reported with amendments.