Arthur Morgan (Louth, Sinn Fein)

I move amendment No. 16:

In page 23, to delete lines 32 to 36.

We had a lengthy discussion on Committee Stage about this amendment, about which I feel strongly. It is grossly unreasonable that section 13(1)(c) attempts to deal with the issue of testing for intoxicants in a mere 24 words. In other jurisdictions, such as the United States, the conditions in which tests may be conducted are outlined in regulations which extend to lengthy tomes. Many countries have enacted primary legislation to specify the conditions in which drug testing can take place. Such regulations need to be lengthy, specific and comprehensive to avoid the misuse of section 13(1)(c), as it stands. I am concerned about this matter. If the Minister insists on maintaining the Government's current minimalist position, how will employees be protected from the small number of employers who might seek to use the provisions of section 13(1)(c) to harass or bully workers? That is a real concern for me.

The Bill does not restrict drug testing to persons who hold safety-specific positions. On Committee Stage, I referred to Part 9 of the Railway Safety Bill 2001, which is eight pages long. Almost an entire page of that Bill is devoted to safety-specific positions of employment. Section 13(1)(c) of this Bill makes no provision for such restrictions, however. It will apply across the board. I am also concerned that the Bill does not mention specific forms of testing. Can tests other than breath, blood or urine tests be carried out? If the testing will be confined to the three forms I have mentioned, what level or degree of the intoxicant will be specified? No such matters are mentioned in the Bill. Part 9 of the Railway Safety Bill 2001 refers specifically to levels of alcohol in one's blood, breath or urine. Section 13(1)(c) is of such weight that specific matters of that nature should be included in it.

I am also concerned that section 13(1)(c) states than an employee should submit to a test "if reasonably required by his or her employer". It does not mention "reasonable suspicion", which is mentioned in the Road Traffic Acts, for example. Gardaí must have "reasonable suspicion" if they wish to test drivers whom they suspect of being over the legal alcohol level. The Garda is not allowed to set up road blocks and check points and start to test randomly. During the recent Committee Stage debate on the Road Traffic Bill 2004, which will allow gardaí to test without "reasonable suspicion", I said I understood from leaks in the Department or the comments of advisors that it might not be constitutional. This Bill is being passed with the exact same void.

I am in favour of this Bill, generally speaking, and I am anxious for it to be implemented as quickly as possible. It is very good, on balance, and will be a great asset to employers and employees. I have significant concerns about section 13(1)(c), however. I ask the Minister of State to include a reference to "reasonable suspicion", even at this stage.

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