Fianna Fáil Senator, Mark Daly has led a debate on the 26th of October a debate in the Seanad on the Corporate Manslaughter Bill which he introduced and saw the passing of the Bill to Committee Stage.
The Corporate Manslaughter Bill addresses the gap in Irish law where there is an absence of clear legislation to hold corporate entities and state agencies criminally liable for unlawful deaths that occurred as a result of their actions or negligence.
At present, there is no clear legal recourse following such a death and this bill will ensure that this gap is filled with robust, clear-cut legislation.
Corporate Manslaughter (No. 2) Bill 2016: Second Stage
“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?
Senator David Norris: It was very high.
Senator Mark Daly: 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.”