Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senators for their contributions on this very important topic and I thank Senators Mark Daly, Robbie Gallagher, and Lorraine Clifford-Lee for introducing the Bill. We can all agree that where there has been an incident which results in the homicide of a person or persons, it must receive a strong response from the criminal justice system. Fatalities which occur as a result of gross negligence in the corporate or workplace environment are no exception. The victims of such incidents are not only the person who has been killed but also the immediate and extended family, colleagues and friends. It is our duty to ensure that there is an effective and appropriate criminal justice response in place to deal with such events. The Government therefore does not oppose this Bill in principle. However, I will discuss some of the more detailed provisions and make some recommendations and suggestions on them.

The objective of the proposed legislation is to address a possible lacuna in the criminal law. This gap, in theory, leaves members of the public with inadequate protection from gross negligence that results in a fatality on the part of corporate entities. The protection of the right to life and the vindication of that right, by law, are fundamental rights recognised in the Constitution and the European Convention on Human Rights. As Senators said, the Law Reform Commission issued a report on the subject of corporate killing some years ago. This provided a possible criminal law response to incidents of corporate homicide and, as in the Bill before us, both corporate and individual offences were included. More recently, my Department co-ordinated an interdepartmental working group, comprising officials from across the various Departments, to examine this issue. The group considered the issue in great detail for the purpose of identifying the impact of introducing targeted legislation that criminalises homicides which are the result of gross negligence in the corporate environment.

The outcome of the working group's analysis highlighted the complexity of this sensitive area of policy and the fact that a wide range of issues must be considered prior to the development of a legislative response to such fatal incidents. It is important that any new criminal law in this area would create an environment where systems in place that protect public safety and provide opportunities for learning and improvements in workplace safety and practice remain effective. Furthermore, the consequences of a conviction should not have a collateral effect of penalising those linked to the corporate entity but who are entirely innocent of any criminally negligent behaviour.

In this regard, Members can see immediately that the Bill presents challenges that require consideration with regard to providing an effective criminal law solely directed at fatalities occurring as a result of negligence in the corporate environment. The criminal law route should only be used where death has occurred as a result of flagrant abuse of the safety standards expected of corporate entities. Before embarking on the creation of new offences, particularly offences which, as Senator Norris noted, will carry substantial penalties, it is important to be aware of, and have regard to, legislation which is already in place, which not only provides an effective punishment but also reflects the public abhorrence of such crimes and serves as a deterrent to their occurrence.

There are a number of laws in place already. I will deal separately with the law which deals with an offence by a corporate entity, and then refer to the law as it applies to an individual. Safety in the workplace is governed by the provisions of the Safety, Health and Welfare at Work Act 2005. I should point out that this legislation was not in place when the Law Reform Commission reported, so we should take account of the legislation introduced subsequent to its report which impacts on this area. I will not go into detail about that Act but it provides for having statutory standards and practices in place to be adhered to by employers and employees. Compliance with the statutory requirements set out in this legislation is very important. It is a major contributor to safety in the workplace and to ensuring that serious or fatal incidents in the workplace are, thankfully, relatively rare, although there are issues in certain sectors which require us to be vigilant on an ongoing basis. The fines that can be imposed for breaches of this legislation are substantial.

The offence of endangerment under section 13 of the Non-Fatal Offences against the Person Act provides for a penalty of up to seven years' imprisonment. The Safety, Health and Welfare at Work Act 2005 provides for substantial fines and a term of imprisonment of up to two years. There is also the law which provides for the offence of grossly negligent manslaughter, and Senator Noone referred to the 1998 case where the accused was convicted of gross negligence manslaughter after a woman died when her chair became detached from a 20-year-old chairplane ride at the accused's funfair.Prosecutions for such offences are rare because such events are rare but I understand the motivation behind this legislation and why Senators want to see it on the Statute Book. However, I want to make the point that it would be incorrect to suggest or believe that there are no remedies in either the statutory regulatory environment or in criminal law to deal with those culpable of serious negligence which results in death in the corporate setting.

As I said earlier, the Government does not oppose the principle of this Bill and I welcome the opportunity to discuss it. I note what Senator Mark Daly said about wanting to ensure we had the best possible approach and I make these comments in this context. A number of issues require deeper consideration in ensuring the best approach to the provision of a criminal law response to the type of fatalities that are the focus of this Bill. First of all, I would like to address particular concerns in regard to the proposed individual offence of grossly negligent management causing death, as set out in section 3 of the Bill. Under the provisions of the Bill, a high managerial agent would be open to a custodial penalty of up to 12 years imprisonment upon conviction. The Bill defines a "high managerial agent" as "a person being a director, manager, or other similar officer of the undertaking, or a person who purports to act in such a capacity, including those that play a role in the making of decisions about how the whole or part of the activities of the undertaking are to be managed or organised or the actual managing of those activities, including those who have been delegated managerial duties, whether or not that person has a contract of employment with that undertaking". In effect, the Bill will apply to any person who makes any management decision even if they are not employed by the business in question. That would create many difficulties and may be unworkable.

It would mean, for example, that a person who is on the board of management of a sports club, school or community organisation could be seen to be legally responsible for a death for which they did not have personal responsibility. In such a scenario, one would have to ask who would be willing to volunteer to sit on the board of management of a community organisation, sports club or school. Moreover, no matter how we modify the definition of a high managerial agent in the Bill, there is a fundamental problem because we are trying to define an offence by the position of an individual in a hierarchy whereas throughout our criminal law, the law applies equally to every citizen depending only on the individual's culpability. Defining an offence by reference to a person's job title may make bad law and I would be concerned about it.

The existing offence of gross negligence manslaughter is a more objective and fairer procedure. In 1948, the courts set out the factors which are to be considered in establishing the offence of gross negligence manslaughter. Criminal negligence occurs where the accused fails to act as experience shows necessary to avoid risk of injury to others, the accused's negligence must be responsible for death, the negligence must be of a very high degree and the negligence must involve a risk of substantial personal injury. In 2012, the High Court stated that this law is clear. The penalty for this offence can be life imprisonment. In contrasting section 3 and what we have under this provision, I am concerned about section 3. The current law is stronger than section 3. The effect of the penalties provided for in section 3 could mitigate against effective investigation of health and safety in the workplace. The current standard is that in order to ensure an effective investigation and response that will prevent such incidents occurring in the future, people can report and provide information that would ensure that such incidents do not recur on a non-punitive "no fault" basis. I believe that if we introduce an offence of corporate manslaughter attaching to persons because of their position in a management hierarchy, we will significantly reduce the effectiveness of our health and safety law. It was because of these kinds of difficulties that it was decided in the UK to confine its Corporate Manslaughter and Corporate Homicide Act 2007 to corporate offences and not to include an offence of manslaughter by an individual. I suggest that in considering this legislation further, this might be the best approach. I ask the Senators sponsoring this legislation to reconsider this and consider how it might be approached. On behalf of the Government, I suggest that section 3 of the Bill should be deleted because it would be bad law and create confusion and vagueness in the law.

I will now turn to a separate issue of concern. The Bill would apply to all "undertakings" in the State. The Bill defines an "undertaking". I do not need to go into how it is defined because it has already been referenced. We would be concerned that this definition could create a legal minefield. It could mean a group of hill walkers could be liable to a charge of corporate manslaughter if one of them has a fatal fall due to negligent planning and improper safety procedures. It would apply to every volunteer in almost any kind of organisation. It would be difficult to conceive of any activity to which the offence of corporate manslaughter would not apply. Potentially any person in the State could find themselves exposed to the risk of prosecution even if they have no corporate role whatsoever.

The question of the emergency services is an interesting one and different views have been expressed about it here today. These are activities by the Defence Forces, An Garda Síochána, the lifeboat service and air-sea rescue. These are activities which are essential public services and, obviously, involve a necessary level of risk. There is a discussion to be had about whether a corporate manslaughter Act should encompass these areas. Would it mean that individual members of all of these services would be vulnerable to prosecution for corporate manslaughter, what would be their area of responsibility when they are out there doing their work providing essential public services and is that the right public policy?