Mark Daly (Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I thank the Tánaiste and Minister for Justice and Equality for coming to the House today. If one was to dedicate this Bill to anyone it would be to the 1,600 people who contracted hepatitis C as a result of the actions and inaction of the blood transfusion service.

In 2005 the Law Reform Commission identified a serious gap in Irish legislation in terms of holding entities, both incorporated and otherwise, to account in situations where management failed. In some cases, it would be impossible to secure a conviction because of the legislative gap. While it is theoretically possible for a corporate entity to be prosecuted, the Law Reform Commission identified two serious deficiencies in securing a conviction. First, in order to initiate a prosecution, it was necessary to establish that a senior manager within the entity had the necessary criminal responsibility or guilty mind required under current legislation. Second, the commission also observed that the law was ambiguous and would fall foul of legal principle.

Section 2 of this Bill means that a corporation could be convicted of corporate manslaughter if found guilty of gross negligence, where no one individual within the organisation was said to have responsibility. There are a number of cases where that happened in Ireland although the most famous such case is that of the Zeebrugge ferry disaster between England and Holland. This Bill will provide the necessary mechanism to ensure that corporate entities are held to account. It will provide an avenue to justice for the families of the victims of corporate manslaughter. It will re-balance the current legislation in favour of workers, customers, the public and the citizens. In reality, this is about providing a game changer in corporate culture and ensuring that management understands it is liable for persons in its care. We want to create a deterrent effect whereby senior managers are aware that they could go to jail for up to 12 years. Corporations will no longer be able to evade their responsibilities by rotating managers.

As the Minister will be aware, the former Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern, received approval from the Government of the day to put forward a criminal justice (corporate manslaughter) Bill in 2010. A report was prepared on that Bill but it has not yet been published. Unfortunately, it never progressed. Fianna Fáil is willing to accept amendments to this Bill on Committee Stage, which will begin in ten weeks. I know there probably will be a call for pre-legislative scrutiny but if anyone claims he or she can do better than the Law Reform Commission on pre-legislative scrutiny, I would beg to differ. We want to produce the best Bill possible and we want to provide on this side of the Border what is available on the other side, namely, adequate corporate manslaughter legislation. The UK legislation was proposed under a Labour Government and pushed by the trade union movement. When people hear the term "corporate entities", they think of large private and public companies but we are also talking about State agencies, as in the case of the blood transfusion service.

The tragedy of the gap in our legislation is such that when prosecution cases relating to the blood transfusion service were under way, the individuals who should have but did not act when contaminated blood products were given to people could only be prosecuted under the Offences Against The Person Act 1861, a section of which refers to deliberately administering a noxious substance. That was the best the Director of Public Prosecutions could come up with in terms of prosecution but even that failed because of delays and serious failings within the aforementioned Act. That legislation did not countenance that a State agency would deliberately and knowingly contaminate 1,600 women with blood products it was aware were deficient.

I am aware of a situation relating to the Coast Guard service in County Kerry. Senior management in Dublin was aware that the communications equipment being used was liable to catastrophic failure at any moment. The Coast Guard service co-ordinates rescue operations involving the Coast Guard helicopter service, lifeboats and ships in distress. Management had been informed by Motorola that the equipment being used, which dated back to the 1960s, was liable to fail catastrophically at any moment. Mid-rescue, it could simply stop functioning but management did nothing. In a rescue situation, if communication fails, lives could be lost. Despite being told that, senior management refused to seek new equipment because it wanted to close down the coastguard station at Valentia and move operations to Dublin.They wanted to keep highlighting the fact that the equipment was out of date. Their concern was more about their own requirements of closing Coast Guard stations, at Malin and Valentia in this case, rather than the lives of the people involved. However, if corporate manslaughter legislation was enacted and those in senior management knew they could go to jail in the event of lives being lost because communications equipment failed and they knew about it, I imagine there could be a cultural shift. This deterrent factor that I am seeking to have put into law, as is the case in other jurisdictions, would bring to mind the new reality for those in areas of responsibility and those responsible for people's lives. These people should have the best interests of the citizen at heart.

Tragically, in the case of the blood transfusion service, the Coast Guard in Kerry and in the case of CIE following the Buttevant rail disaster, no one could attribute blame to one individual. This is another important aspect of the legislation. There was an entire cultural problem within these organisations.

There are remedies other than sending an individual or a number of people to jail. Under this legislation, the corporation, entity or State body would have a report undertaken on its activities as a result of a court action being brought against it. The cultural shift required as a result of this report would then be put in place. If it were not to be put in place, then the courts could seek further redress. The courts could also impose sentences that do not involve jail terms, for example, community service. There are other possibilities as well.

Fundamentally, this law should be put in place for the 1,600 victims of our blood transfusion service. Tragically, that is the worst case I can make, but it is not the only case in which State agencies or bodies failed to act in the best interests of the people. The idea of having gross negligence on the Statute Book would allow the Director of Public Prosecutions and others to pursue individuals. It would also ensure individuals who, for whatever reason, do not have the best interests of the citizens at heart might at the least have their own interests at heart and might think twice before forgetting to recall blood products or not bothering to recall blood products they know to be contaminated.

In the case of the Stardust nightclub fire, there is nothing to say this law would have secured a prosecution. However, it is certain that the current law would definitely not allow prosecutions in such cases. Health and safety legislation predominately addresses issues of gross negligence in the workplace. Outside of that there is little available when it comes to customers, women in hospitals expecting the State to look after their best interests or people who are on the high seas off our coasts who expect modern communications equipment to deal with the crisis at hand.

The extraordinary thing was how the Coast Guard was allowed to be run down to the point it reached. This happened despite the then Minister, Noel Dempsey, instructing senior management to buy new equipment. The new equipment was purchased and put into a warehouse in Blanchardstown for two years until the warranty ran out. We then waited for the next Minister to come in and produce a report on why the stations at Malin and Valentia should be shut down. Those involved hoped that the Minister would agree with the report and that the new equipment would be installed in Dublin. All the while, antiquated Motorola equipment was in use. It was so bad that the operators of the consoles used to have tweezers to pull the buttons out of the consoles after pressing them. That was how old they were and how liable they were to catastrophic failure at any moment. Senior management were given what was known by Motorola as a death certificate. They had all that equipment and information and they did nothing. They sat on it for ten years. What was the likelihood that someone would die as a result of such behaviour by senior management?

David Norris (Independent)
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It was very high.

Mark Daly (Fianna Fail)
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It was extraordinary high. Let us suppose I was able to inform those in senior management that, under corporate manslaughter legislation, if that equipment failed, they would go to jail. I imagine that while such people would not have the interests of the people on the high seas in their hearts, they most certainly would have the interests of not going to jail in their hearts. This is the cultural shift and the deterrent factor we are looking for.

I sincerely hope no one ever gets convicted under this legislation. I wish there was no need for it. However, as we know from the hepatitis C scandal and others, it is required. If, in future, families lose loved ones, there will be a remedy to ensure the people who acted irresponsibly, who were grossly negligent or who failed to act would go to jail, as they should.

Lorraine Clifford Lee (Fianna Fail)
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I welcome the Tánaiste to the House. I commend my colleague, Senator Daly, on all the work he has done to date on the Bill. As Senator Daly has outlined, the Law Reform Commission report on corporate killing in October 2005 recognised that current legislation was deficient and recommended that the new offence of corporate manslaughter be created. The commission opinion was that existing liability mechanisms in tort and health and safety legislation were insufficient to articulate the abhorrence of society with regard to manslaughter. It recommended a number of sentencing options. Furthermore, the Law Reform Commission identified a number of organisational failures in Ireland that resulted in death. Senator Daly has outlined a number of these, including the Irish Blood Transfusion Service Board failure to recall contaminated blood products, the Stardust nightclub disaster, the Whiddy Island disaster and the rail crash in Buttevant. These cases were used to show how grossly negligent management resulted in death and how these tragedies could have been prevented.

In 2010, the then Minister for Justice and Law Reform, Dermot Ahern, received Government approval for the preparation of a Bill to make corporate bodies criminally liable for deaths they cause. However, despite Government approval, the Department of Justice and Equality, under the then Minister, Mr. Shatter, and subsequently under the Minister, Deputy Fitzgerald, has yet to publish legislation to deal with this important matter. That is why we have brought the Bill before the House today.

The Bill follows numerous attempts by Fianna Fáil to have corporate manslaughter recognised as an offence, most recently in a Bill published in 2011. The Bill provides that where an undertaking causes the death of a person by gross negligence, that undertaking is guilty of an offence called corporate manslaughter. The Bill is of the utmost importance when health and safety statistics are taken into account. Health and Safety Authority statistics show that between 1998 and 2004, 88 corporate entities were convicted of health and safety offences where deaths occurred. This illustrates that corporate bodies are often responsible for fatalities. Another survey of deaths in the construction industry from 1991 to 2001 found that 22% of building site fatalities were primarily attributable to the injured parties, 28% were caused by problems with management of the construction company and a staggering 47% were caused by management difficulties.

Under this Bill there is provision for criminal sanction for an undertaking that causes death by gross negligence where it owes a duty of care to the deceased person. The sanction would apply if it has breached that duty of care in that it has failed to meet the standard of care or the breach of duty involves a serious risk of death or personal harm or the breach causes the death of a person. In such cases, the court would have a number of means to penalise those convicted of corporate manslaughter, as outlined by Senator Daly. Under the provisions, courts would be in a position to impose a remedial order on the convicted undertaking, alongside a fine, to remedy the circumstances that led to corporate manslaughter.This Bill would also allow for a disqualification of a high managerial agent from acting in a management capacity in specified areas if that managerial agent has been convicted of grossly negligent management causing death. This may motivate the managerial agent to not be grossly negligent in the first place. This is a progressive Bill, which is long overdue. I welcome it and call on all Members present to support it.

Catherine Noone (Fine Gael)
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I welcome the Minister to the House and the opportunity to debate this important issue and while I do not oppose the Corporate Manslaughter (No. 2) Bill 2010, I believe it requires amendments before being passed into law. Currently the law provides for the offence of gross negligence manslaughter, a common law offence. Prosecutions for such offences are infrequent as such events are themselves uncommon. Perhaps the most famous of these rare events dates back to 1998. The accused, a funfair owner, was convicted of gross negligence manslaughter after a woman died when her chair became detached from a 20 year old chairoplane ride at the accused’s facility.

The law also already provides an offence of endangerment under section 13 of the Non-Fatal Offences against the Person Act 1997 which provides: "A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another." In addition the Safety Health and Welfare at Work Act 2005 provides statutory standards and practices to be adhered to by employers and employees. It includes offences for breaches of statutory safety standards.

The Corporate Manslaughter (No. 2) Bill 2010 has 13 sections and is similar in many respects to a draft Bill included in the Law Reform Commission’s report on corporate killing. The Bill provides for the creation of two criminal offences directed at those culpable for fatalities occurring in the corporate environment. The first is corporate manslaughter, the corporate offence which is directed at the culpable enterprise. The second is grossly negligent management causing death, the individual offence which is directed at a high managerial agent within a company. While the corporate offence cannot attract a custodial penalty the individual offence has penalties of a fine or up to 12 years imprisonment. The corporate offence is punishable by a fine. The convicted corporate entity may also be ordered to undertake specific actions on foot of orders handed down by the court.

Section 1 is an interpretation section which provides definitions of “court”, “high managerial agent” and “undertaking”. Section 2 sets out the offence of “corporate manslaughter” which is the death of a person caused by the gross negligence of an undertaking where the undertaking owed the deceased person a duty of care; breached the duty of care by failing to take all reasonable measures to anticipate and prevent risks to life; the breach of the duty of care involved a serious risk or serious personal harm and the breach caused the death. The section also sets out the factors about the undertaking that have to be considered in deciding whether the undertaking owes a duty of care.

Section 3 sets out the offence of “grossly negligent management causing death”. This section also sets out factors for consideration when determining whether a high managerial agent should be liable for the offence, such as the level of responsibility and powers of the person in question or whether he or she passed on information on the risk to those who could have eliminated the risk of serious harm or death. The Bill provides that a high managerial agent would still be open to prosecution even if the corporate entity had been dissolved. Section 13 provides the Short Title of the Bill. Most are valid points but there are some key issues for debate, first, regarding the offence of corporate manslaughter against an individual. This Bill provides for an offence by a “high managerial agent”, which is defined 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, . . . 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 the person is not employed by the business in question. No matter how the definition of “a high managerial agent” is framed, the fundamental problem remains that the Bill is trying to define an offence by reference to the position of an individual in a hierarchy, whereas it is a general principle throughout our criminal law that the law applies equally to every citizen, depending only on the individual’s culpability. The second issue for debate is application of the offence of corporate manslaughter to unincorporated entities. The Bill would apply to all “undertakings” in the State. In the Bill:

“undertaking” means a person being a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or, the provision of a service . . . including those which are Government Departments and statutory bodies, whether carried on for profit or not, as well as faith based organisations and groups.

The fact that the Bill would apply the offence of corporate manslaughter to unincorporated bodies may well create a legal minefield. It would potentially apply to every employee and every volunteer in almost any kind of organisation. It would be difficult to conceive of any activity that the offence of corporate manslaughter would not apply to and potentially any person in the State could find themselves exposed to the risk of prosecution even if they have no corporate role whatsoever.

The third point is that there are no exempt activities in the Bill. The corporate manslaughter offence would apply to all activities, including our ambulance services, fire services, Defence Forces, Garda Síochána, the lifeboat service and air-sea rescue.

David Norris (Independent)
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Why not?

Catherine Noone (Fine Gael)
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These are activities which are essential public services and which, of their nature, involve a necessary and fundamental level of risk. If we were to legislate in this way, then our ambulance services, fire services, etc., would all be vulnerable to prosecution for corporate manslaughter in any circumstance when a fatality occurs during the operation of their services.

David Norris (Independent)
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Only if they were guilty of negligence.

Catherine Noone (Fine Gael)
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Taking all that into account the fact remains, Ireland needs to progress its legal system to make it a positive, appealing and safe place to work. Several other countries have already taken the necessary steps to improve their legal system with regard to corporate manslaughter. Britain passed the Corporate Manslaughter and Corporate Homicide Act 2007, a landmark in British law. The Act came into force on 6 April 2008, allowing companies and organisations to be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. Canada has also taken steps to improve its legal system in this regard, passing the Bill C-45 in March 2004. C-45 established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death. Moreover, the C-45 provided new rules for attributing criminal liability to organisations, including corporations, their representatives and those who direct the work of others. I commend the Senators for putting this Bill before us and I welcome the Minister's comments in due course.

Alice-Mary Higgins (Independent)
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I would like to share time and give two minutes to my colleague, Senator Kelleher.

Diarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.

Alice-Mary Higgins (Independent)
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I welcome the Minister. I also welcome what is a constructive and important Bill, which I would love to see move forward today and which am happy to support. It is an important Bill in the context of Ireland having made commitments in respect of the area of business and human rights in its business and human rights strategy. It fits very much within that space. It is an important principle that companies which are legal entities and undertakings for the purposes of the protections offered under our statutes should be also appropriately liable under those statutes for the very real consequences of their actions.

One reason the Bill is needed is because there is a gap which civil cases alone cannot fill. Previously, in holding corporations to account, we have relied to a large extent on cases taken by individuals which are often settled and may look to some form of economic compensation but which do not do enough to challenge the culture and the complacency within corporations around actions that have a detrimental impact. The Bill gives the Director of Public Prosecutions a power not reliant on an individual taking a case because their health and safety considerations have been breached but rightly being able to represent the public concern and the public good and demand action in that regard.

The form of penalty set out in the Bill will act as a genuine deterrent because, on a global level, there can be a calculated cost for some companies in terms of certain compensation that they are willing to pay. That moves it out of the space of calculated cost into a space whereby, appropriately, there is genuine reputational damage in terms of companies in breach of their appropriate human rights, safety and other considerations. In that regard, I am sure the Minister is aware of the progress we have made on equality legislation where we have moved past a situation where an individual might seek redress because their equality rights have been breached and looking to a positive public duty in terms of trying to ensure a culture of responsibility. This Bill is in the spirit of that also. I welcome the two-pronged approach. It is very important that the Bill sets out penalties for both companies and for those in high managerial positions. That is a vital and welcome aspect.

There are parts of the Bill that could be strengthened. The definition of "high managerial position", as highlighted by Senator Noone, needs to be examined - we could do that on Committee Stage - because the Bill refers to those with delegated managerial roles with or without contract. Having worked previously on the volunteer charter, I believe it is important that we make sure that, for example, interns and volunteers would not be in a position to hold a company to liability. That aspect might need some work done on it. I believe it is possible to identify those in high managerial position. We have identified named personages in other spaces with particular responsibilities. That is appropriate.

It is also important that we monitor and look to address the concern which has arisen in the United Kingdom about managers who are rotated through or scapegoated. It is important because we do not want a situation to arise where we do not notice a pattern developing by which corporations seek either to scapegoat or rotate managers through so that nobody is ever culpable. The two-pronged approach is important in that regard.

The Minister might clarify a point on gross negligence. I understand that in the UK gross negligence relates not just to intent but to intent or recklessness. In terms of the language in the Bill, I am not sure whether it refers to intent or intent and recklessness. That is important because a choice not to consider consequences in that regard must be challenged.

There are economic costs in bringing this through but the State is currently carrying the costs for the huge impact of cases of gross negligence against corporates. It is a huge cost, not just to individuals but to the State in terms of addressing some of the consequences of environmental health and other areas that would be covered by this Bill.

At a time when the Government is actively supporting the introduction of new investor courts that will operate outside our national legal system, which would allow corporations to seek compensation for unearned future profits if they are affected by regulations, it would be appropriate that we would take action in the more appropriate national legal space to ensure that citizens also are able to address the impact of the very real and concrete costs which come to them arising from the negligent actions of corporations. It would be very unfortunate if we were to move forward with further additional compensation for corporations at a time when we still do not have adequate protection for citizens, be they workers or members of the public.

I will pass over to my colleague at this point. I commend the Bill to the House.

Diarmuid Wilson (Fianna Fail)
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Obviously, the Senator has been practicing because she concluded in exactly six minutes.

Colette Kelleher (Independent)
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She has put it up to me now.

Diarmuid Wilson (Fianna Fail)
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Absolutely.

Colette Kelleher (Independent)
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I support Senator Mark Daly's Corporate Manslaughter (No. 2) Bill. Eleven years later, it will close a serious legal gap identified by the Law Reform Commission in its 2005 report on corporate killing. Above all, it will act in a preventive way. I speak as a recently stepped down senior manager for an organisation which employed 1,000 staff. I was responsible for providing services and supports when I was in COPE to 2,500 children and adults. I speak from the point of view of this Bill having an impact on somebody who would have been in that role. In terms of senior managers but also boards - which I am not sure are covered - the legislation will act preventively by encouraging senior managers and boards to think twice, act and make responsible decisions which can have life and death implications for other people. It is the "other people" part that is the important aspect.

The Bill will strengthen accountability of people in positions of power over other people and, above all, change the culture around decision making and get people to consider the consequences arising from actions, or inaction, which we know from the cases cited in Whiddy Island, Valentia and the Irish Blood Transfusion Service, have serious implications for other people. I welcome the introduction, albeit 11 years later, of this Bill.

Ivana Bacik (Independent)
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I welcome the Minister and commend Senator Mark Daly on introducing this Bill. Others have spoken about the long history and background to the introduction of an offence of corporate manslaughter. It is not a new idea, it has been around a long time.I am happy, on behalf of the Labour Party, to support the Bill. We introduced the first Labour Party Bill on corporate manslaughter in 2001. Quite a succession of Bills have been introduced by different parties over the years since then. It is unfortunate that we never moved to legislate finally on it. I hope this Bill will be the final catalyst. Others mentioned a very important Law Reform Commission report on corporate killing from October 2005. I know this Bill is very much based on the Law Reform Commission's draft Bill that was produced then.

It is worth commenting on the contrast in terms of the law in England where a reform to introduce an offence of corporate manslaughter was finally introduced, as others said, in the 2007 Act there. There is some interesting history around the UK Act, which is called Corporate Manslaughter and Corporate Homicide Act 2007. It created a new offence in England, Wales and Northern Ireland called corporate manslaughter and in Scotland it is called corporate homicide. There were originally proposals to make it an offence of corporate killing. That term was seen as too emotive and it was dropped in favour of the term "corporate manslaughter". That legislation provided for an offence where an organisation has caused a person's death and also the way in which its activities are managed or organised that caused a person's death and the way in which the activities are managed or organised that amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased. The test is somewhat different from that adopted by the Law Reform Commission in this Bill. It would be worth considering whether the test in this Bill is too onerous and whether the test in the English law is somewhat better.

There is other interesting history in the English Bill in that there have been quite a number of successful prosecutions for corporate killing before that under pre-exiting powers. There were a number of major disasters in the UK that changed public opinion and made the introduction of the legislation particularly urgent there. Others have mentioned some of these. There was the Zeebrugge ferry disaster in 1987 where 193 people had lost their lives when the MS Herald of Free Enterprise, a cross-channel ferry, capsized after leaving the port with it bow doors open. I have read over the years since some of the reports on that disaster and there was a famous report which referred to the company's operations as having been from the top to bottom infected with the disease of sloppiness. It was the first time where an offence of corporate manslaughter was sought to be prosecuted but the prosecution failed on the basis that nobody sufficiently high up in the company could be identified with the particular breach of duty and the particular gross negligence. This was always the pitfall of the old common law position on corporate killing. In Lord Denning's words, it had to be proven that the acting mind, the directing mind, of the company was liable rather than just the hands, the mere operatives who carried out the policy decisions of those at the top. It is a very archaic view, some would say now, of company organisation.

In Britain there were a number of disasters starting with the Zeebrugge ferry and then a number of rail crashes, which others have mentioned, one in Southall in 1997 which resulted in seven deaths and in Paddington in 1999 which resulted in 31 fatalities. These and other terrible accidents in which large numbers of people were killed led ultimately to the passage of the legislation there. Fortunately, we have not had anything like that in Ireland but, as a result, this issue has not been as politically urgent or has not been seen as politically urgent as it should been. The impetus here should lie in our occupational deaths, that is, deaths at work, and others referred to high numbers of deaths, in particular, in agricultural workplaces and in the construction industry.

When we look at how deaths have been dealt with in criminal law and in health and safety law in particular as a result of workplace accidents, generally prosecutions have been taken under the Safety, Health and Welfare at Work Act. Colleagues will be familiar with the Zoe Developments' case in 1997 where a company was ultimately ordered to pay £100,000 to charity after the death of a building worker on one of the sites operated by that company. The site in question was also closed for a time which was seen as a much more severe sanction on the company because it lost a large sum of money as a result. Roseberry Construction was another case which colleagues may recall where two individual workmen were killed, again in a workplace accident. In that case, the company was fined €200,000 for breaches of health and safety legislation. There have certainly been prosecutions but they have not been of the order of corporate manslaughter or in the name of corporate manslaughter and clearly the fines, while they have been significant, have not been of the nature of fines we have seen in England.

Turning to the experience in the UK and looking at some of the cases there, to some of which colleagues referred, since the 2007 Act came into force, we have seen a number of very high-profile successful prosecutions for corporate manslaughter. The County Armagh case was referred to where a farming company was fined £187,000 in 2012. In 2011, the first prosecution was in the Cotswolds where a trench collapsed in Gloucestershire and the company was fined £375,000. A big fine of £480,000 was imposed in 2012 on Lion Steel, a manufacturing company, over the death of an employee of the company, Stephen Berry, who suffered fatal injuries. The fine provided for in UK law is unlimited. Fines are clearly the right sanction for a company. There has been a long debate over how one sanctions a company for corporate manslaughter and for corporate liability for criminal offences. That is the model that is followed here. It is a no-brainer that this legislation should be adopted, that we should all support it and that we should move forward with it, looking, if necessary, at amendments on Committee and Report Stages, but noting that it is overdue that we would move to have this sort of offence.

Another observation I would make in terms of changes to criminal law is that we have seen in recent years a much greater emphasis on enforcement of company law offences, specifically since the enactment of the Company Law Enforcement Act in 2001 and the establishment of the Office of the Director of Corporate Enforcement, ODCE. We have seen a much greater culture of corporate liability for criminal offences and specifically for breaches of company law provisions as well as the health and safety law breaches to which I have referred. It might be deduced and we might conclude from the movement towards greater liability being attached in criminal law to companies for breaches of or offences under company law compared with the lack of momentum on corporate manslaughter that greater priority was given to making companies liable in Ireland to protect financial interests than to protect human life or health, especially of employees of companies.

With those few remarks, I welcome the Bill and very much welcome the principle behind it.

David Norris (Independent)
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I welcome the Bill. I welcome the Minister to the House. I am glad to say that I understand that she proposes to accept the Bill in principle. It is another good day for the Seanad. It is interesting that we have put through a number of Bills recently. The media showed complete disinterest in any of this material which is very important. I congratulate Senator Mark Daly on finding this legislation. It is a very good thing that Seanad Éireann picks up on the doings and deliberations of the Law Reform Commission. Otherwise its findings would be just left lying on shelves in dusty tomes. It is excellent that we took up this matter. It addresses a situation where corporate bodies and entities have evaded their responsibilities.

There is a short story by James Joyce called A Painful Casein which Mrs. Sinico is killed at Sydney Parade by a train. The last line of it instructive: "It seems nobody was to blame." This was the attitude as far as corporate manslaughter was concerned in this country and will continue to be until the passage of this Bill. It seems nobody is to blame. In other words, they can get away with it.

I remember a series of scaffolding disasters, particularly on building sites, where people were killed, the building companies were fined a couple of thousands pounds but nothing was given to the families. This is one of the provisions I would like to see in the Bill. I would like to see the direction of money. People are fined but the money should go to the widows and orphans to protect and look after them. The area of agriculture was mentioned but almost all the accidents involve a single farmer, farm machinery and children, so where is the corporate entity to be sued? In addition to the responsibility on corporations and such bodies. there is a responsibility on every citizen to take care. We see advertisements on the television every night about people out in countryside or clipping a hedge next of an electrical wire. People have to take responsibility for themselves.

I speak with some passion on this because for quite a number of years I was the manager, owner, and everything else of a gay nightclub in Temple Bar. It actually started the whole of Temple Bar. We had a cinema, restaurant, discotheque, library, outreach facilities, publications and all that kind of thing.We were an amateur, volunteer body. God Almighty could not have stopped people smuggling in bottles of vodka, joints and the like. There was a flat roof and I was always in a taut state of excitement in case some of these people would fall of the roof and we would be liable. Again, they should have had a duty of care. Then considers events such as the Stardust fire, where the fire doors were bolted. That is a clear example of responsibility. Fire exits should always be maintained.

My colleague in Fine Gael said that we could not possibly have the fire brigades and ambulances. Why the hell not? Senator Daly gave the example of the rescue services and the way in which they were deliberately deprived of life-saving instruments and material. I believe that if the fire brigade is grossly negligent, it should be done for that in the same way as everybody else. It has a responsibility. As the individual fire fighters and so forth give their efforts and risk their lives on behalf of all of us, that means we also have a duty to protect them legislatively, so I apologise for not accepting that argument. It should be liable just as much.

I noted the way the Bill is sensitively worded. It says that the standard of care required of the undertaking is to take all reasonable measures, having due regard to the state and circumstances of the undertaking. In other words, it must be proportionate. This is a very good thing in legislation. I am not entirely sure of the difference between corporate manslaughter and grossly negligent management causing death. They appear to be pretty much the same. I like the idea of pre-sanction reports. Before one goes in with the hatchet one finds out what the situation in the company is. There is absolutely no point in fining a company or an individual €5 million if they are virtually bust. A pre-sanction report should include information on the means and financial status of the undertaking, which is very important, and the previous compliance, in other words whether it had a good record. This is evidence relating to the character of the company. The report should also include the previous co-operation by the undertaking with relevant bodies having legislative enforcement functions and the possible adverse effects on other parties of imposing a fine or other measures under the legislation. It is a carefully constructed provision.

I support the idea of community service orders. They are much better if it is an individual, if it is a fairly small situation and if there are extenuating circumstances. It is good to have provision for community service orders in the legislation. I love the idea of adverse publicity orders, where the company must state in public, "We were wrong. We were responsible for this death and we are very sorry. We will never do it again and we warn other companies to take precautions". That is very good, because it might well prevent incidents further down the line. My final point is about the €5 million fine. I do not know anybody who could support such a fine. Nobody of my acquaintance could and I certainly could not. However, it is probably wise to make provision for the most extreme circumstance.

This is a very good Bill. Hello, media, I think this is another good day for the Seanad. We are showing that we are worth our weight in gold. Nobody is listening, but the Seanad is a damned good institution and it does valiant work protecting the lives, safety and welfare of the people of Ireland.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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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?

David Norris (Independent)
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The services themselves will be responsible.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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We need to debate precisely where the responsibility would lie and whether it is the right public policy. We are talking about boundary issues here that we need to examine further. I suggest that we have amendments that would confine the scope of the corporate manslaughter offence to corporate bodies. This is clearly an area of concern as well.

In number of areas, the Bill does not set any limit on the amount of a fine. We need proportionality between any maximum fine and any maximum sentencing to imprisonment. The sections dealing with pre-sanction reports and remedial orders appear to potentially conflict with the 2005 legislation introduced after the Law Reform Commission completed its work on this issue. Many aspects of that legislation are relevant when discussing the Bill proposed by Senator Mark Daly and others. We could further examine the procedures in regard to community service.

I welcome the discussion in the Seanad on this very important topic. Senators have quoted quite a number of incidents in the UK and Ireland that clearly have raised concerns where they believe this Bill could usefully have been used. I am making the point that I am not opposing the legislation but I have a number of significant concerns and suggestions relating to the amendment of it, which I believe would improve it and make it more workable.

David Norris (Independent)
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On a point of order, section 10(4) states that a person convicted of an offence under this section is liable to a fine not exceeding €5 million so it is there in the text.

Michelle Mulherin (Fine Gael)
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The Senator knows better than I do that is not a point of order.

David Norris (Independent)
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I know but I got away with it.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is in the penalties section.

David Norris (Independent)
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I see.

Michelle Mulherin (Fine Gael)
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I call on Senator Mark Daly to reply to the debate.

Mark Daly (Fianna Fail)
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I thank the Minister for her response. I know that she was on this side of the House many times when that side of the House shot down very worthwhile legislation that was being proposed simply because she was on this side of the House. I am glad that as a result of the new politics, we are not habitually shooting down legislation regardless of where it is proposed.The benchmark on the legislation concerns those who should have acted on the hepatitis C scandal. I refer to the people at senior management level in the Blood Transfusion Service Board should have gone to jail. This is where we will differ on section 3. They were guilty of corporate manslaughter. People undoubtedly died as a result of their actions and inaction, and this must be our very clear focus.

Michelle Mulherin (Fine Gael)
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Please refrain from referring to individuals who have not gone through any due process in a court of law.

Mark Daly (Fianna Fail)
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They are well known individuals and we are allowed to refer to court cases, especially this one, which failed the Irish people. The Law Reform Commission report referred to the Safety, Health and Welfare at Work Act 2005 and its legislation took into account that Act. The Bill we have brought forward also takes much of it into account. The benchmark is whether people in senior management positions in agencies and corporate bodies should go to jail if people die as a result of their management and mismanagement. I suggest, and many people agree, they should. The reason section 3, which contains the sanction of imprisonment, was removed in the UK was that the people in charge at the top level in England would not like to face such an offence in a court of law. While they have no problem with their corporate entity being fined, community service or adverse publicity, they have a problem with going to jail. We need to discuss it.

I am glad the Tánaiste is accepting the Bill. I am glad new politics works, in some instances. Now, unfortunately, the pressure is on the Department of Justice and Equality. In ten weeks' time it is going to Committee Stage under new politics. We will table amendments and I would love to sit down with the Tánaiste's officials and tease out the sections of the Bill she is not happy with. I ask the Tánaiste to reflect on the 1,600 victims of the hepatitis C scandal and those who died as a result. In her heart of hearts, the Tánaiste must agree that somebody should have gone to jail for it. This is what we are trying to prevent.

I want nobody to ever have to go to jail under the legislation. I want it to bring about a cultural change whereby it will not happen again, because people will know they could go to jail. As the Tánaiste is well aware, there are people who have no problem with adverse publicity orders against their organisations or by the time any court of law gets around to finding against their corporate entity or agency, they are well retired and pensioned off, and they do not care. They have to care. We have got to make them care. If they do not care about the individuals, we must make sure they care about the women who ended up getting sick because people in a State agency failed them and knew they were failing them, and knew people would die. This is the only benchmark.

Section 3 is a critical part of the Bill. It was removed in the UK, and I take into account the voluntary organisations. We can tease out all those elements. However, we must not forget that this is about prevention. Nobody ever gets a medal for preventing a war. The guys who go to war get all the medals and glory. We are trying to stop future hepatitis C scandals and future Stardust fires. From now on, our task and responsibility is to ensure that, when we are long gone from public service, the Bill will prevent those who should have acted from gross mismanagement to the point that they will go to jail if they fail people.

Michelle Mulherin (Fine Gael)
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When is it proposed to take Committee Stage?

Mark Daly (Fianna Fail)
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In ten weeks.

Michelle Mulherin (Fine Gael)
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What date?

Mark Daly (Fianna Fail)
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We will say next Tuesday, but in reality it will be in ten weeks' time. It will be at the end of January.

Michelle Mulherin (Fine Gael)
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When is it proposed to sit again?

Catherine Noone (Fine Gael)
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At 10.30 a.m. tomorrow.