13th June, 2000
Mr. Dardis: I move:
That, notwithstanding anything in Standing Orders, the Order of the Seanad of 8th June, 2000, fixing the Committee Stage of the Merchant Shipping (Investigation of Marine Casualties) Bill, 1999 for Wednesday, 14th June, 2000 be discharged and Committee Stage be taken today.
Question put and agreed.
Merchant Shipping (Investigation of Marine Casualties) Bill, 1999: Committee and Remaining Stage.
SECTION 1.
Dr. Henry: I move amendment No. 1:
In page 5, subsection (3), line 32, after "with" to insert "section 4 of the Fisheries (Amendment) Act, 1994, and".
I welcome the Minister and thank the Labour Party Members for allowing me to take the amendment in their name because I have a great interest in this Bill. The purpose of the amendment is to remedy an oversight by inserting section 4 of the Fisheries (Amendment) Act, 1994, in the Bill.
Minister for the Marine and Natural Resources (Mr. Fahey): The Attorney General's office advises me that section 4 of the Fisheries (Amendment) Act, 1994, already inserts a textual amendment into the Merchant Shipping Act, 1894, and, therefore, it appears unnecessary to construe it with the 1894 Act. Section 4 of the 1994 Act is already included in the citation of the Merchant Shipping Acts under section 15 of the 1994 Act and it is not necessary to include a reference to it in this Bill as proposed by the Senator. Therefore, I do not intend to accept the amendment.
Dr. Henry: Who am I to become involved in a legal fight with the Attorney General? If the amendment is unnecessary, I will withdraw it.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 to 8, inclusive, agreed to.
SECTION 9.
Dr. Henry: I move amendment No. 2:
In page 8, subsection (1)(a), line 30, after "Minister" to insert "of which one shall be appointed from amongst persons nominated by the Marine Institute, one shall be appointed from amongst persons nominated by the Irish Congress of Trade Unions and one shall be appointed from amongst persons nominated by the Irish Business and Employers Confederation".
The purpose of the amendment is to make the appointment of three persons to the board independent of the Minister. This could be viewed as a good move because we are aware of the trouble that can be caused by political appointments and these appointments would be political.
The nomination of persons by the Marine Institute, the Irish Congress of Trade Unions and the Irish Business and Employers Confederation would be to the Minister's benefit. It would mean that the appointments would be considered wholly independent of the Minister and could not be described as political. In the current climate, one is aware of the difficulties that can arise and the challenges that can be made to political appointments. There would be wisdom in accepting the amendment.
Mr. Caffrey: I support the amendment for the reasons outlined by Senator Henry. There have been too many political appointments by various Governments over the years and some impartiality could be shown in this area if people were nominated by the Marine Institute, ICTU and IBEC. The amendment would remove political stigma from these boards and the appointments would be considered impartial by the public. Transparency has always been important but it will be more so in the future. I urge the Minister to consider accepting the amendment.
Mr. T. Fitzgerald: I do not know how the Minister will respond but I agree with the provisions of the Bill as they stand. Nobody is more entitled than the chief surveyor to be a member of such a board. The chief surveyor checks all boats to ensure their seaworthiness and usefulness. I cannot foresee any problem regarding the Secretary General of the Department of the Marine and Natural Resources or somebody nominated by him, such as the Assistant Secretary General or a senior officer.
There is no reason for the inclusion of the Marine Institute. I apologise for the pun but this institute was established to deal with a totally different kettle of fish. It exists as a developmental and exploratory body. It finds new places for fishing, etc., and it has no place in this area. In addition, I do not see any place for the Irish Congress of Trade Unions. If it was suggested that a representative of a fishermen's association, such as the IFO, should be included, I might support it. However, I cannot support the amendment.
Mr. Fahey: I understand the Senator's intention in putting forward the amendment. However, it is important to ensure the membership of the board is highly competent, that the chairperson is capable of ensuring the efficient operation of the board and that the appointments are made in a careful and proper way by myself and the Department. It is important not to confine the scope of our choices with these amendments. I assure Senators I will welcome nominations for board membership from the organisations mentioned and from any other organisation, particularly in the marine sector. This will enable me to give the widest possible choice. For that reason, I do not propose to confine my choice to nominees put forward by those organisations only. I assure Senators that full and careful consideration will be given to all nominations received before appointments are made. It is not necessary, therefore, to accept this amendment.
Dr. Henry: It is unparliamentary for the Minister to say he is getting fed up with the old guff about transparency and accountability. I am prepared to withdraw the amendment and to table another one on Report Stage with a wider list of organisations, such as a fishermen's association as Senator Tom Fitzgerald suggested, which could be consulted about nominations. If nominating bodies are not included, the three appointees will be political appointees only.
An example of how the population is fed up with the appointment of people to prestigious positions on the grounds of their political affiliation or the fact they are known to members of the Government is the case currently between the courts. This is one area where the Government could show its willingness to ensure the public's views are taken into account. It is fine if the Minister wants to make a list of bodies he will consult which could nominate people. However, it is the usual carry on to state "three persons appointed by the Minister" and a considerable number of people are fed up with it.
I suggest that in the interest of showing that transparency and accountability, which are constantly preached to us, mean something and if the Minister does not agree with the amendment I table on Report Stage, he should compile a list of organisations he feels are suitable to nominate people for appointment by the Minister.
Mr. Fahey: I reject in the strongest possible terms the Senator's phrase, "the usual carry on", and the way she denigrates political appointments. I could go through every board set up in my Department by previous Governments and justify people's appointments on the basis of their contribution both professionally and otherwise. I assure the Senator that my political appointments will be from experts in the industry. They will be taken from organisations involved in the sector which have expertise, such as the Irish Maritime Law Association, the Irish Chamber of Shipping, the Irish Institute of Master Mariners and the various fishing and marine related organisations. It is not necessary to include the Irish Congress of Trade Unions or the Irish Business and Employers Confederation.
We should not denigrate ourselves as politicians or claim the same old thing happens all the time when it does not. The vast majority of people nominated to boards by all parties in Government have the specific expertise required. Why should others not have a political background? What are politics about other than appointing representatives of the people? It annoys me when I hear complaints about political appointees. It is as if we pick up lapdogs from the side of the road. I can stand over my record of appointments since I became a Minister of State in 1987.
Dr. Henry: I would not like the Minister to take my comments personally. We have to think of future Ministers and the appointments they may make. If the Minister wants to write into the legislation the boards and institutions from which he would draw the appointees, that would be fine with me. I have no particular hang-up about the ones that are listed but there is no need for us to denigrate ourselves. What is being said about us outside these Houses is more than enough for any of us to have to carry on with. I suggest it would be worthwhile having fewer than three persons appointed by the Minister and that some sort of specification would be useful.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 17, inclusive, agreed to.
NEW SECTIONS.
Dr. Henry: I move amendment No. 3:
In page 12, before section 18, to insert the following new section:
"18.---Paragraph 1(2) of the First Schedule to the Freedom of Information Act, 1997, is hereby amended by the addition of 'Bord Imscrúdú Taismí Muirí,'.".
This amendment is for the purpose of adding the board to the list of bodies to which the Freedom of Information Act will apply. I am sure the only reason it is not included is that it was inadvertently left out. It is extraordinarily important in a Bill such as this, dealing with the investigation of marine casualties, that there should be the possibility for the Freedom of Information Act to apply.
Mr. Fahey: The Attorney General's office advises me that there is a provision within the Freedom of Information Act to allow for the addition of bodies to those already subject to the Act, and this can be done by regulation made under the Act. In the circumstances, it would be more appropriate to have the new Marine Casualty Investigation Board included by way of such regulations and not by a provision contained in the Bill. I assure Senator Henry that I have no difficulty in principle with the Marine Casualty Investigation Board being subject to the Freedom of Information Act and my Department will liaise with the Department of Finance to arrange for the board to be included in the appropriate legislation or regulations made under this Act as soon as possible. Consequently, I do not believe it is necessary to include the amendment.
Dr. Henry: I thank the Minister for his reply. I am sure there was no intention to leave it out and I accept his assurance that it will be brought forward in regulations as quickly as possible.
Amendment, by leave, withdrawn.
Dr. Henry: I move amendment No. 4:
In page 12, before section 18, to insert the following new section:
"18.---The First Schedule to the Ombudsman Act, 1980, is hereby amended by the addition of 'Bord Imscrúdú Taismí Muirí,'.".
This is the same situation. The purpose of this amendment is to allow for complaints to be made to the Ombudsman about the activities of the board. I would have thought this was something the Minister would not have any difficulty with and I hope he has the same view on it as he had on the previous amendment.
Mr. Fahey: I understand the Department of Finance is currently in the process of drafting an amending Ombudsman Bill which, among other matters, will provide for the addition of a number of new bodies which will become subject to the criteria of that Act. I am advised by the Attorney General's office that it would be more appropriate to have the new board included in the amending Ombudsman Bill rather than seeking to provide for an amendment in the Bill before the Seanad today. Once again, I assure Senator Henry that I have no difficulty in principle with the Marine Casualty Investigation Board being subject to the Ombudsman Act and my Department will liaise with the Department of Finance to arrange for the board to be included in the appropriate manner when the legislation is being considered.
Dr. Henry: I thank the Minister again. I assure him I will not get into a tangle with the Attorney General about this issue but if the legislation is forthcoming, and I hope we will see it shortly, I hope the Ombudsman will be included in it.
Amendment, by leave, withdrawn.
Sections 18 to 25, inclusive, agreed to.
SECTION 26.
Dr. Henry: I move amendment No. 5:
In page 15, subsection (4), line 17, to delete ", impede or improperly" and substitute "or impede or improperly to".
This is really a grammatical change. There is nothing pedantic about this. However, we have our grammatical spies who point out that there is a split infinitive here. The phrase in the section is, "to instruct, to impede or to improperly influence", and "to influence improperly" would be grammatically more correct. I do not know how worried the Minister is about split infinitives, but perhaps our descendants will look at this and ask why he left the split infinitive. What the Minister should say - how I wish Senator O'Toole was with me, but the Cathaoirleach can add his voice to mine - is "to influence improperly", which would be better grammatically.
Mr. Fahey: I have no difficulty in accepting it apart from the fact that it adds nothing to the meaning or interpretation of the provision. We have sought the advice of the parliamentary draftsman and Attorney General's office on this. Since it is simply a matter of grammar, we will not split hairs. I will accept the amendment.
Dr. Henry: I thank the Minister. I hope the Attorney General's office was not asked about this because I did not realise he was an expert on grammar. I am quite sure the Minister would be just as good, given that he was a teacher.
Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 to 30, inclusive, agreed to.
SECTION 31.
An Cathaoirleach: We now come to amendment No. 6. This amendment should refer to "line 43".
Dr. Henry: I move amendment No. 6:
In page 17, line 43, subsection (1)(a), after "samples" to insert "of urine or blood".
As a doctor, I think this is quite important. It refers here to giving samples. As the Minister knows, we are in a difficult situation at the moment regarding the taking of samples - people perhaps are refusing to give samples for DNA testing where samples of semen, of skin, or cells from inside the cheek are being sought. In some quarters there seems to be enthusiasm for taking samples from people by force. It would be wiser to specify urine or blood here, which is what we have had to date in legislation, in case anyone decided that it could go further than that. It would be pretty intrusive to go further than that in taking samples. I imagine those drafting the Bill did not intend that in taking samples we would go further than blood or urine, from which even DNA measurements can be obtained if desired because there would be cells in such samples. In general what we are after here are blood alcohol levels, drug levels and so forth. Lest another interpretation be put on this later, it would be wise to specify blood and urine.
Mr. Fahey: The provisions of this section will enable an investigator to require the person to submit to a physical or medical examination or to give samples for analysis or testing. The purpose of such examination or testing will be to establish the general physical or medical fitness of a person involved in the operation of a vessel in a maritime casualty and whether the state of that person's fitness could have played a part in causing the casualty.
The specific powers which I am now proposing for marine casualty investigators in this matter are consistent with those already available to investigators who conduct investigations into aviation casualties. Obviously the use of such testing procedures will be necessary to establish the presence or otherwise of intoxicants and other substances. The provision of blood or urine samples will be required.
It is, however, possible that different testing procedures could be reasonably required to establish whether a person had any other medical or fitness conditions which were relevant to the cause of the casualty. In such cases the testing required might involve more than the provision of urine and blood samples and could, for example, include the provision of samples of tissue or other body matter. For this reason the Attorney General's office advised me that the legislation should not be confined to the taking of blood or urine samples alone and that provision should be made for the taking of samples in the wider sense. I appreciate what the Senator says on the basis of her professional background. However, it should be left in its wider sense, because blood and urine would be included.
Dr. Henry: I am glad that the amendment is being discussed and that we have clarified this. It is a pretty major change and it is not included in any other legislation. What sort of medical condition is the Minister thinking of? We need to elaborate on this because it is a very big step.
Mr. Fahey: It is exactly the same provision as in the aviation accident investigation legislation. What is the problem with the need to take other tissue samples?
Dr. Henry: The problem is how they might be used. I need to know what conditions the Minister is thinking of in order to be able to say whether or not I would be concerned. Could the Minister tell me what conditions he has in mind that would make it necessary to obtain more than blood or urine samples?
Mr. Fahey: We have not specified any particular conditions. There may be situations where medical opinion may wish to take samples other than blood and urine. We are simply allowing for that possibility. We see no problem with doing that. We are advised by the Attorney General that that is the proper thing to do. It is already in the aviation accident investigation legislation.
Dr. Henry: It is unfortunate that I missed that legislation. I want to know what the Attorney General is thinking of. I do not think we should put provisions in the legislation without having some notion of the conditions in respect of which samples might have to be taken. We are talking about intoxicants in general. There is blood analysis and urine analysis. If the Attorney General has a list of conditions which he feels it should be possible to monitor, I would like to know what they are. I cannot accept that the fact that this slipped by me into another Bill is a good reason for putting it into this Bill.
Mr. Fahey: If an investigation team found that the master of a passenger boat had a history of a specific illness, there might be a necessity to analyse and examine that history in a more fundamental way than by simply taking blood and urine samples. That is the reason it is felt that a medical team should have the ability to carry out whatever examination or investigation it wants.
Dr. Henry: There is no such thing as taking a sample of a history. One takes a sample of tissues. What tissues does the Attorney General want examined, apart from blood and urine? I cannot find out from the Minister a condition in respect of which it may be necessary to have other samples taken, nor can he give me an idea of what other samples he wants taken. This is very broad. What samples has the Minister in mind? Is it liver or brain samples? What does the Minister want and for what conditions?
Mr. Fahey: I do not have information to hand as to conditions. The investigation should be as wide ranging as possible and there should not be any impediment on the medical profession in carrying out whatever examinations they wish. While I do not want to go into any specifics in terms of what the conditions will be, I am at a loss to understand what the problem is if there were to be another form of testing.
Dr. Henry: I can tell the Minister what the problem is. Suppose someone said they wanted a liver biopsy. This legislation looks as though that can be done. This is a silly position to be in. Has the Minister asked anyone in the Department of Health and Children if they need as broad a term inserted? A person could be asked to allow samples be taken of anything.
Mr. Fahey: The review group examined this matter. There was a medical input. These examinations will only be carried out by medical personnel. If we were trying to limit the scope of medical personnel it would be a bigger problem than giving them the kind of scope they would want to have.
We are dealing with what could be a difficult situation. For argument sake, there could be an accident on a large passenger vessel. In such a case it may be necessary for the master of the ship to undergo an in-depth medical examination but it is up to the medical profession to make that decision. All the advice I have been given indicates that it would be wrong for us to limit the medical profession in this legislation.
Dr. Henry: I am a doctor but neither the Attorney General nor the Minister is. They do not have to be doctors to understand this provision. We are putting forward a provision that will allow a board demand samples. It could demand samples of any tissue, as this provision is worded. This is a ridiculous provision. I have not been given any idea of what conditions the Minister is looking for. If I were I could say it was reasonable and rationalise that the board might want parings of the person's toenails. No one has given me a sensible answer to my question - and forgive me for putting it like that - about what conditions we are talking about. If there is something secretive going on perhaps someone will inform me about it by writing it down on a piece of paper and passing it to me.
Is the Minister absolutely sure that the medical profession demanded that a board should have the ability to take samples? I find this difficult to subscribe to. I cannot let this matter pass. Members of the medical profession have an ethical obligation to say that a law that is being put in place goes too far. It is a very big step to say that any samples can be taken.
Mr. Fahey: It is quite the opposite. As the Senator was saying, suppose there was an accident where 1,000 people lost their lives and a blood sample was not sufficient for a medical professional-----
Dr. Henry: What is it not sufficient for?
Mr. Fahey: I will not go into the medical details because that is a matter for the medical profession. Suppose the medical profession decides that it wants to take a liver biopsy, are we to write into this legislation that it cannot do that? That would be utterly ridiculous.
Dr. Henry: We certainly are. Liver biopsies have a mortality rate. We have a problem if we want to write into legislation that things can be done which have a mortality rate. Suppose they said they wanted a brain biopsy. What conditions are we talking about it? I am not trying to be difficult. Surely someone has thought about the various conditions that we are talking about here. Virtually all tests can be carried out using blood and urine samples. If the Minister told me what he is talking about then I could say it sounds good, but when he cannot tell me, then I could not possibly agree to liver biopsies which have a mortality rate. This is one of the problems we had in the hepatitis C tribunal. We had to ask people to undergo tests which had a mortality rate.
Mr. T. Fitzgerald: I do not intend to argue with Senator Henry because she is a doctor but I must disagree with her. I went into hospital in January. Is she telling me that blood and urine samples were the only ones taken from me in hospital? Was she aware of my condition or what the doctors were searching for? She was not. My doctor did not know what he was searching for until he had carried out six tests.
What happens with boats? Does Senator Henry know the ports boats go into?
Dr. Henry: I do.
Mr. T. Fitzgerald: The boats dock in ports all over the world and they could come back with an unknown disease. I am not a doctor but some diseases may not show up in blood and urine samples and doctors would have to go further.
Dr. Henry: Can Senator Fitzgerald name one of those diseases?
Mr. T. Fitzgerald: Senator Henry is a doctor and I accept her view but is she trying to tell us here that blood and urine samples will show every deficiency that can be found in the human body? If she is, then I bow to her. They do not show every deficiency that might lead to a master of a boat or craft being declared unfit.
Dr. Henry: I will not ask the Senator what biopsies he had to endure. They sound absolutely dreadful. What conditions is he talking about? In order to diagnose some conditions a person may have to undergo a brain biopsy. If this provision is included in the legislation then a person could demand that a liver biopsy is carried out.
Mr. T. Fitzgerald: Why did I have a liver biopsy when I suffered a heart complaint two years ago?
Dr. Henry: If the Senator explained to me which biopsies he is thinking about then I could give my medical opinion - usually he would have to pay me for the privilege. It would be unwise for us to address his medical condition now, particularly in this public forum, but I will discuss it if he wishes. This might be a new development on the record of the Seanad.
An Cathaoirleach: It would not be appropriate to do so.
Dr. Henry: I agree.
Mr. T. Fitzgerald: In my condition I would be deemed unfit to be a master of a vessel.
Mr. Fahey: Blood tests might not show that
Dr. Henry: I doubt the Senator gave a sample of his heart muscle.
Mr. T. Fitzgerald: If I wanted to be a master of a vessel in the morning my health condition would not allow me.
An Cathaoirleach: Senator Henry without interruption, please.
Dr. Henry: I doubt that Senator Fitzgerald had biopsies carried out on his heart, brain and liver. The medical profession could find out that he was unfit by doing ECGs and EEGs which are tests. I am talking about tissue samples. The person conducting a biopsy must puncture a person, twist around a little core and then suck it out. The examiner is left with a piece of the person's liver, brain, spleen, pancreas or whatever. We are saying the Minister can do that if the word "samples" is included in the provision. Is that really what he wants?
Mr. Fahey: Yes.
Dr. Henry: This is quite dramatic. Why does he want it? The Minister wants to be able to do liver, brain, pancreas, heart biopsies or whatever. For what conditions does he require biopsies? What are the conditions that cannot be adequately dealt with by blood and urine samples? I really want to know what those conditions are. It would be medically worthwhile for me to find out from the Minister and his Department what conditions are being referred to.
Mr. Fahey: We simply do not want to limit the investigator and the medical team working with him.
Dr. Henry: Would the Minister ask the medical team to what conditions does this apply before the next Stage?
Mr. Fahey: I am talking about the medical team who would investigate an accident. If a medical practitioner felt that a test or sample was unnecessary he could refuse to carry out an examination.
Dr. Henry: Today there has been appalling story in the newspapers of a 77 year old pathologist who should not have been working in this country at all. Suppose that pathologist looked at a blood sample and decided he wanted a liver biopsy as well, would the Minister agree to it? The Minister is giving huge powers to people in this provision.
Mr. Fahey: I cannot understand the way the Senator is trying to reflect on her profession.
Mr. T. Fitzgerald: Yes. She is trying to demean them.
Mr. Fahey: I cannot understand why she is trying to demean the medical profession. This is really an issue for the medical professionals who must work with an accident investigator following an accident. There are EU directives which deal with this matter as well as our own legislation but no one has claimed that what is being done is wrong. I am beginning to wonder what the Senator is doing.
Mr. Caffrey: I cannot support this amendment because I do not see the sense of it. We cannot, in all sincerity, restrict a medical investigation into a major accident by confining the investigators to two samples. Senator Henry is approaching this from a medical standpoint and may have questions of principle over certain aspects but we cannot legislate for a specific incident, we must legislate for the general. There will be many peculiar accidents and there will be many peculiar investigations requiring many techniques. If we restrict the medical profession to investigating two avenues, we are doing this legislation an injustice.
Dr. Henry: I am not trying to demean my profession. I am the luckiest person on earth being both a doctor and a politician at present.
Has the Minister asked the pathology section of the Royal College of Physicians if it requires more than blood and urine? In what conditions would other samples be required? We are introducing legislation to investigate conditions when we do not know what the conditions are. There are only so many things in life that cause accidents as a result of a person's physical condition. Usually those will be drink and drugs.
Mr. T. Fitzgerald: There is more than that wrong with my body.
Dr. Henry: ECGs are not samples. This is heavy handed stuff. The Minister says he does not understand and that is what worries me most. I will try to make myself clear once more. Will the Minister tell me the conditions to which he is referring that may make a person capable of causing an accident where blood and urine samples will be inadequate in working out the cause? Other tests may be needed but I am talking about tissue samples. Which tissues does he wish to take? He says he might want to take brain tissue samples. That is a huge thing to suggest.
Mr. Fahey: It is a question of giving powers, not defining conditions.
Mr. T. Fitzgerald: Perhaps I could help both sides. It is vital to have good eyesight.
Dr. Henry: A sight test does not involve the removal of a sample of eye tissue.
Mr. T. Fitzgerald: If there is a collision and the master of a boat is brought in, his sight and hearing must be tested. Is the Senator telling me that a blood or urine sample would indicate that a person had a tumour behind his ear which impeded his hearing?
Dr. Henry: In the case of a neuroma on the acoustic nerve, a brain scan, not a sample, would be taken. It would be terrible to say to a person that he would have to be subjected to having a sample taken.
Mr. T. Fitzgerald: I am only asking.
Dr. Henry: I am telling the Senator. I am not trying to be difficult. For eyesight, there are eye tests and for hearing there are hearing tests. For a brain tumour or a neuroma on the acoustic nerve, MRI scans, CAT scans and brain scans would suffice. It is not in order to take a sample. For the heart there could be an ECG test or angiography. Samples would not be taken. Blood tests give a good idea of the condition of the liver long before a liver sample would be needed. My question is not about having tests done but about taking samples. Taking samples involves urine, blood or tissue. I do not see why it would be necessary to take tissue.
Mr. T. Fitzgerald: Surely if a doctor had this legislation and was told that a person had to be examined, the doctor would be competent enough to do the job and would know exactly what to do. What difference would it make by spelling out the type of samples? The doctor should be able to take any samples necessary to determine if there was a problem with a person's health. The doctor could take the samples he wanted, not that the Minister wanted. All the legislation is doing is leaving it to the discretion of the doctor.
Dr. Henry: Doctors are extraordinarily careful about invasion of the human body but I cannot think of anything they might require more than blood or urine because it is possible to carry out non-invasive tests for everything else. This Bill gives permission for invasive tests.
I will not delay the House any more because I am getting nowhere with this. I am very disappointed because it is obvious that the Minister does not understand my concerns. I will raise this issue again on the next Stage. I hope the Minister will consult medical experts in the meantime as to what conditions will require other samples.
Amendment, by leave, withdrawn.
Dr. Henry: I move amendment No. 7:
In page 18, lines 3 to 6, to delete subsection (3) and substitute the following new subsection:
"(3) Where a person fails without reasonable excuse to comply with this section the investigator may draw such inference from such failure as he or she thinks proper.".
This ties in with the last amendment. If a person says that someone must undergo a liver biopsy, it is an offence to refuse. That can be taken into account. This is getting out of hand. Does the Minister see my point? A person could be told he must have a lumbar puncture. The definition of "samples" has been left so broad that it is possible anything can be demanded to be taken from a person. If that person refuses a liver biopsy - and reasonably so, liver biopsies have a mortality rate - that person will be committing an offence.
Mr. Fahey: The purpose of including an offence provision in section 31(3) is to ensure that any person required to comply with the section does so unless he has a reasonable excuse not to. I am advised by the Office of the Attorney General that it is a standard provision and that an adequate safeguard is provided by the fact that it would be for a court to decide on the merits of any prosecution brought before it under this section. I am also advised that the principle of the amendment already applies because the investigators' finding will be able to refer to the failure of any person to comply with this section.
Dr. Henry: This is the same thing. This shows how serious it is to have "samples" written down. I cannot understand why, when intoxicants are the main things we are after, blood and urine will not do. Suppose someone decides a person has to have a liver biopsy. Who is to say if it is reasonable to refuse? The mortality rate is only 1% so the person demanding it could say there is only a one in a hundred chance of death. There is also a morbidity rate.
rial, Helvetica">Amendment, by leave, withdrawn.
Section 31 agreed to.
Sections 32 to 37, inclusive, agreed to.
SECTION 38.
An Leas-Chathaoirleach: The line reference in amendment No. 8 should read "line 9" and not "line 10".
Dr. Henry: I move amendment No. 8:
In page 21, subsection (2)(c)(ii), line 9, after "oath" to insert "or affirmation".
Many Bills allow a person to affirm he is telling the truth instead of taking an oath. I have tabled similar amendments in respect of previous Bills and they have been accepted. Taking an oath involves swearing on the Bible and, given that we live in a post-Christian society, there are those who would prefer to affirm that they were telling the truth. I understand that people are allowed to do so in the courts and I would be glad if provision was made in the legislation in that regard.
Mr. Fahey: The additional requirement proposed by the Senator of providing an affirmation is not necessary because the administration of an oath by a tribunal of inquiry is sufficient for the purposes of the Bill.
Dr. Henry: I am disappointed that the Minister is not accepting the amendment. Provision has been made in other legislation to allow people to affirm to tell the truth. It is a pity that people are obliged to swear oaths on what I consider to be the most sacred book of all, particularly if they do not believe in that book's teachings. It would be better to ask people to affirm that they are telling the truth rather than obliging them to swear an oath.
Amendment, by leave, withdrawn.
Section 38 agreed to
Sections 39 to 46, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment.
Question proposed: "That the Bill be received for final consideration."
Dr. Henry: I had intended to table a number of amendments on Report Stage but I presume the Whips agreed to dispose of the Remaining Stages today. I had hoped the Minister would be able to seek medical advice on whether it has ever been necessary to seek samples of anything other than blood or urine.
An Leas-Chathaoirleach: On the Order of Business the Deputy Leader indicated that Report Stage would also be taken today.
Dr. Henry: I understood that Committee Stage only would be taken today.
Mr. T. Fitzgerald: On the Order of Business it was stated that Committee and Remaining Stages would be taken today and not one voice was raised in dissent. We intend to proceed with the Order of Business, as agreed to. It is not possible to continually change the business of the House in the middle of a sitting.
An Leas-Chathaoirleach: Is it agreed that the Bill should be received for final consideration?
Dr. Henry: No. It is important that the Minister should obtain advice on the matter to which I refer.
Question put.
The Seanad divided: Tá, 22; Níl, 5.
Tá
Bohan, Eddie.
Bonner, Enda.
Callanan, Peter.
Cregan, John.
Dardis, John.
Finneran, Michael.
Fitzgerald, Liam.
Fitzgerald, Tom.
Fitzpatrick, Dermot.
Gibbons, Jim.
Glennon, Jim.
Glynn, Camillus.
Hayes, Maurice.
Kiely, Daniel.
Kiely, Rory.
Lanigan, Mick.
Leonard, Ann.
Mooney, Paschal.
Moylan, Pat.
O'Brien, Francis.
Ó Fearghail, Seán.
Ormonde, Ann.
Níl
Caffrey, Ernie.
Coghlan, Paul.
Henry, Mary.
Manning, Maurice.
O'Toole, Joe.
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Henry and O'Toole.
Question declared carried.
Question proposed: "That the Bill do now pass."
Mr. Bonner: I thank the Minister for introducing such an important Bill. I particularly welcome his comments regarding safety now with the approach of summer when so much leisure activity takes place on our beaches and waterways. I welcome the section which deals with the publication of reports and reiterate the need for these reports in view of the many tragedies around our coast. During the past weekend a fisherman engineer from my own area was killed in a tragic accident on a Scottish boat in France. The man was a nephew of the late Deputy Cormac Breslin who served as Ceann Comhairle some years ago.
I thank the Minister and I am delighted to see this important Bill pass so speedily through the House.
Dr. Henry: I too am axious that this legislation should be passed. I repeat my concern that we are leaving out such a wide section. Those who are employed in the industry are entitled to protection as well as the passengers.
I would like the Minister to have been able to explain exactly which conditions needed such wide legislation regarding samples. It is unfortunate that it is an offence to refuse to give these samples, even though they may have a certain mortality rate.
Nevertheless, I welcome the legislation because we have paid scant attention to safety, despite the fact that we are an island nation.
Minister for the Marine and Natural Resources (Mr. Fahey): I thank Senators for their assistance in passing this legislation so speedily. A number of amendments have been made to the Bill since it was published, including some proposed by the Opposition in the Dáil. Some of these amendments were quite substantial and significant in detail, paticularly those to the part of the Bill which provides for the amendment of the Merchant Shipping Act, 1992, but I believe the Bill is considerably strengthened by their inclusion.
I regret that I have been unable to satisfy Senator Henry. The Bill gives powers of investigation, particularly of major casualties at sea; it gives power rather than lays down conditions. My officials and I are satisfied that what is provided for and the confidence being placed in the medical profession are warranted.
I thank Senators for their contributions.
Question put and agreed to.
