Brendan Howlin (Wexford, Labour)

I wish to discuss my amendments Nos. 17, 18 and 26. When we debated this matter on Committee Stage, I thought the Minister of State acknowledged to an extent that real issues need to be addressed in this regard and I half-expected a ministerial amendment to this section.

I would like to examine the basic principles of this legislation. Chapter 2 of the Bill sets out the general duties of employees and persons in control of places of work. Section 13(1) states that an employee "shall", while at work, "if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed". It is a bald and far-reaching provision. Any employee at work "shall" submit to any appropriate, reasonable and proportionate tests for intoxicants. If we are to step across the threshold of the rights of individuals in that manner, we will need a very compelling reason to do so. We will have to adopt a balanced approach. My honest contention is that the bald statement in the Bill is not balanced. It clearly gives all employers a statutory right to test all employees for drugs. The provision is too broad and too strong and it intrudes on civil liberties to too great an extent.

I do not object to specific drug testing provisions being collectively negotiated with employers and trade unions in the workplace on the basis of individual occupations. It is clear that some forms of employment can be considered to be much more onerous than others, in terms of the likelihood of danger being presented to the relevant employee and his or her colleagues. I hope my amendments are in line with the strong argument made by the Minister of State on Committee Stage. If safety is to prevail, employers are not to be held liable and people are to be protected in their places of work, there is a need to identify people who come to their places of work in a state of intoxication and to give employers rights. I am not suggesting the blanket exclusion suggested by Deputy Morgan in amendment No. 16, but, I hope, a via media. I suggest the following in amendment No. 17: "In page 23, line 32, to delete "if" and substitute "subject to subsection (2), if"." The new subsection (2)(a) would read: "Subsection (1)(c) shall apply only to such categories of employee and in such circumstances as are prescribed by regulations made by the Minister,". The Minister would have to have regard to the categories of employees and the circumstances in which it would be appropriate to require mandatory drug testing. Amendment No. 36 reads:

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.".

In essence, I am giving scope to the Minister to reflect further so he will not give a catch-all legal right to all employers in all circumstances to test all employees for drugs. I know the Minister of State will point out the phrase "appropriate, reasonable and proportionate." However, what does that really mean? It allows all employers to come up with a set of circumstances to justify the drug testing of all employees. That is a very big step to take. No doubt the Minister of State can point to jurisdictions in which such a law prevails, but I am not keen on replicating in this jurisdiction many of the laws that prevail in others.

I hope my compromise amendment will allow the Minster to make regulations for drug testing that are appropriate but which will also give this House powers of review. This is important in a democracy.

There is always a balancing of rights involved in the provision of security of citizens in a State, whether this is security at work, on the road or elsewhere. The other obligation on the State, either through this House or through the Executive, is to protect the constitutional rights of individuals to privacy and freedom of action. There is now a strong belief, rather than a perception, that the nanny state is too casual in its trampling on the rights of individuals in the belief that it knows best and that it must protect people from themselves. It believes it must intrude in people's lives in such a way as to ensure they are protected in all circumstances. We are constantly narrowing the private space and room for manoeuvre of individuals. I detect on the ground a positive reaction against this incipient restriction of the rights of individuals — I do not know if the Minister of State can perceive it. We must therefore be careful about all provisions through which we want to be so righteous and good that we do not compromise the very privileges that define a democracy. Perhaps this sounds very grandiose in terms of the legislative provision under discussion but the provision is symptomatic of an attitude that has been prevalent in many Bills brought before this House. We push the people at a cost and if they ultimately perceive that the nanny state is going too far, there will be a reaction against all legislation.

My amendment is, in the words of the Minister of State, "appropriate, reasonable and proportionate" in respect of the requirements of health and safety. It would allow for the setting out in regulations under the Minister's control the circumstances and the employments where mandatory testing would be appropriate. It would give the final say to the Oireachtas in determining whether the Minister's judgment is correct. I ask the Minister of State, even now on Report Stage, to reflect hard on what I have said and accept the essence of what I am suggesting.

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