Pat Breen (Clare, Fine Gael) | Oireachtas source

I thank all the Sinn Féin Members for being here and all the other Members. As Deputy Cullinane said, it is a fine afternoon. Let me state from the outset that it is vital that the public is not put into life threatening or dangerous situations during extreme weather events. The fact that Met Éireann has a graded, colour coded weather warning system has considerable merit. It serves to inform the public and business owners when caution is required and certain activities need to be curtailed. That is an important part of the system. In that regard, I appreciate the well intentioned motivation behind the current proposal. I believe, however, that the introduction of this Bill is premature as a full review of Storm Ophelia and Storm Emma is ongoing. Like other speakers, I compliment the emergency services during both storms and the work they did to ensure the safety of the public. I compliment the team in the Department of Communications, Climate Action and Environment as well. It would be more appropriate to wait for the outcome of this review to gain an understanding of experiences across the various sectors of the economy and Government. At that point it will be possible to determine what, if any, policy, legislative or general guidance changes are required. Also, many aspects of the Bill as presented are unworkable.

It has been the consistent policy of successive Governments to support the development of workplace health and safety legislation. Through the inspection, enforcement and promotional activities of the Health and Safety Authority, the number of fatalities and accidents arising from work related activities has fallen considerably over the last two decades. We can all welcome this and I am sure this progress will continue in the future. Our existing safety, health and welfare at work legislation offers robust protections for workers, as does Ireland's employment rights legislation.

This Bill proposes to amend the Criminal Justice (Public Order) Act 1994 to provide for the protection of public safety and the safety of rescue service personnel during an extreme weather warning. It will create a new offence when some individuals act recklessly, or without reasonable cause, and engage in any activity directly or indirectly which endangers life. While this proposal is well intentioned, from my perspective, the most important concept to consider in this debate is that of balance and the potential broader impact and consequences of the Bill as it is currently presented. The primary legislation relating to occupational safety and health is the Safety, Health and Welfare at Work Act 2005. Under this legislation employers, including the self-employed, already have a statutory obligation to provide for the safety of their employees while at work and while undertaking work activities. This statutory responsibility includes employees required to drive as part of their work.

However, normal commuting to and from a place of work in a private vehicle or using other modes of transport is outside the scope of the 2005 Act. The issue of the safety of the commuting public in this context of an extreme weather event is a matter of public safety and is outside the remit of my Department and that of the Health and Safety Authority. I contend that the underlying purpose of the Bill is to ensure broader public safety in the context of an extreme weather event with particular reference to the commuting public. I must stress therefore that the proposed amendments are not in keeping with the overall purpose and focus of the 2005 Act which is primarily to secure the safety, health and welfare of employees at work in the context of work activities.

These amendments would confer a range of disproportionate duties on employers, as well as obligations that go beyond what could be regarded as reasonable arising from work activities and the management of a workplace. The matters raised in the Bill are essentially matters of broader public safety. Employers already have a duty to ensure the safety and health of persons at work and to manage work activities to ensure, so far as is reasonable, the safety and health of their employees while they are at work. In this regard, in the period preceding a likely extreme weather event employers should assess the risks arising from the place of work, the work environment and from work activities in order to establish whether or not the work activities are likely to cause specific risks to the safety and health of workers arising from those work activities. If a risk is established, then adequate precautions must be taken to prevent the risk of injury.

In relation to the specific proposed amendment to section 11 of the Safety Health and Welfare at Work Act 2005 it should be noted that section 11(2) already deals with serious, imminent and unavoidable danger for persons at work and the protection of employees. Subsection (2) already obliges an employer to inform all employees of the risks involved and the steps to be taken to protect them in the event of such an emergency or serious and imminent danger. It is also notable that the plans and procedures to be put in place by an employer under section 11 also require the necessary measures be provided for the evacuation of both employees and any other individual at the place of work. Section 11(3) provides that an employee who leaves a place of work in such circumstances is not penalised. Subsection (5) excludes certain defined classes of emergency workers.

The proposed amendment to section 11 seeks to give the Minister for Communications, Climate Action and Environment vaguely described, ill-defined and broad powers to exempt categories of employees from inclusion in the newly inserted subsection (4A). The terms used are vague. It is not at all clear what is meant by “essential service” or “work, that by its nature, requires continuity of it be maintained.” The provisions do not seem to be workable from either a legislative drafting, legal or practical perspective. The proposed amendment is framed as an absolute obligation on an employer to close all places of work in the affected area, without any precondition of assessments appropriate to the particular workplace, or a particular weather event, be it rain, snow, wind or a combination of these events. Furthermore, the amendment is framed entirely outside the existing provisions of section 11 which are all geared towards requiring an employer to plan and put in place procedures to deal with emergencies etc.

There would undoubtedly be unintended consequences to such an absolute obligation. For example, what happens if employees, such as teachers with pupils, are already in their places of employment when a status red weather warning is given for the area? This Bill specifically directs employers such as schools to close during a status red weather warning. That could force staff and pupils out of a safe place of employment into dangerous weather conditions.

The Bill addresses the employer's right to keep the business open especially when food production and supplies are concerned. Indeed, in the case of food distribution preventing workers from delivering food in circumstances where it has been determined that it is safe to do so may contribute to food shortages or give rise to loss of perishable foodstuffs and, in extreme circumstances, could give rise to social unrest.

The Bill proposes to insert a new section 6A into the Criminal Justice (Public Order) Act 1994. The provision creates an offence relating to dangerous activity in a workplace when a status red weather warning is in place. Under the provisions a person commits an offence where he or she acts recklessly or without reasonable excuse and engages in any activity that presents a danger to his or her life or to the life of other persons or interferes with the ability of the emergency services to perform their functions. This is unclear and ill-defined and could be interpreted by some to include going for a walk in heavy rain if there is a red alert for rainfall in the area. Indeed, industry representatives will argue that the Bill would adversely affect productivity if unnecessary closure of businesses occurs, impacting on businesses in terms of business continuity and competitiveness.

The Bill amends the definition of "public place" in the 1994 Act to include any part of the maritime area within the meaning of section 2 of the Continental Shelf Act 1968 in respect of which a status red severe weather warning is in place. However, this reference to the Continental Shelf Act 1968 is not understood upon review of the contents of the section.

The proposed section 6A(3) that would amend the 1994 Act defines "emergency service" as including the Garda Síochána, the fire service, the ambulance service, the coastal rescue service and the mountain and cave rescue services or a similar emergency service. The catch-all reference "or a similar emergency service" creates a grey area. The section does not specifically include waterways, whether inland or coastal, or emergency services such as the Irish Coast Guard, Civil Defence or Royal National Lifeboat Institution. It does not address the services of non-governmental organisations such as the Order of Malta, St. John Ambulance and Irish Red Cross emergency services or other private emergency services such as private ambulances.

The Bill amends section 8 of the 1994 Act to provide that the new offence is covered by existing Garda powers to direct people to desist from acting in a manner that runs contrary to public order and to leave the vicinity of the place concerned. The prescribed penalties for those found guilty of commission of the new offence relating to dangerous activity are, on summary conviction, a fine of up to €1,000 or imprisonment for up to six months or both. The proposed new offence of dangerous activity in a public place is well-intentioned. However, making it an offence to put one's own life in danger could deter a person from calling for assistance. My colleague, the Minister for Justice and Equality, has responsibility for the criminal justice aspects of the Bill, including the proposed amendment to the Criminal Justice (Public Order) Act. The Minister for Justice and Equality is conscious of the need to ensure that the law sufficiently reflects the duty on the Legislature to protect the lives and safety of the public and of the emergency services when experience shows that this is required. The foolhardy and reckless behaviour of some people entering the water when Storm Ophelia hit caused understandable controversy. While it is incumbent on everyone to act responsibly, the Minister recognises that there may be need to make the law more explicit in certain circumstances. The proposed new offence of dangerous activity in a public place is well-intentioned. However, it gives rise to some issues that may need to be teased out further if the Government were not to oppose it.

The Office of the Attorney General has been consulted and has highlighted several concerns. One relates to imprecision in the use of certain language and terminology. The broad scope of the proposed new offence could apply to all public places. There is inconsistency of language in other provisions in the public order legislation. There is some duplication or overlapping of offences that could lead to uncertainty and be exploited by the defence. For example, section 19 of the 1994 Act already provides for an offence of obstruction of peace officers - essentially the emergency services - and section 13 of the Non-Fatal Offences Against the Person Act 1997 provides for an offence of reckless endangerment. One unintended consequence that could arise relates to where a person has found himself or herself in a position where he or she presents a danger to himself or herself but is deterred from contacting the emergency services lest he or she leaves himself or herself open to prosecution. Another is the possibility of inadvertently criminalising a person suffering from mental health issues who has commenced the process of committing suicide, thereby presenting a danger to himself or herself, during an extreme weather occurrence. A further concern relates to the need to ensure that proposed penalties are appropriate and consistent with other legal provisions.

These issues need further and careful examination. I put it sincerely to the Sinn Féin Party that the Minister of Justice and Equality is nevertheless open to engagement on the criminal justice proposals in the Bill with a view to highlighting the various difficulties with the criminal justice elements of the Bill, as drafted, and inviting its sponsors to take on board this feedback and bring forward new proposals.

The Bill goes beyond the updated guidance that was issued by the Workplace Relations Commission in response to the weather warnings during Storm Emma.

The Bill has flaws, especially with regard to balance and proportionality. The practical and potential legal issues that would arise if it were to be enacted are numerous. They are capable of creating many difficulties and significant consequences for individual employers and businesses. Given these flaws I cannot support the Bill and I intend to oppose it.

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