Tuesday, 8 December 1981
Dáil Eireann Debate
“(3) For the purpose of an investigation under subsection (2) (d) the Council shall have discretion as to the manner in which the investigation shall be carried out and in particular may carry out the investigation wholly or partly in public and the Council or a person authorised by the Council (in this section referred to as an authorised person) may—
(c) by notice in writing require any person to give any relevant information or produce plans or documents and for such purpose to attend and to give evidence before the Council or an authorised person, and
Mr. Connolly: Last week I was dealing with the amendment put down by the Minister. It states in the amendment “shall be guilty of an offence” but in that section of the amendment the Minister does not state the amount of the fine. Maybe the amounts are as they apply under the other sections of the Bill and I would be grateful if the Minister would confirm that in his reply. We had reservations about the earlier drafting of the section and welcome this amendment. I had some reservations about evidence not taken on oath. Such evidence would be hazy; witnesses called might not attend and, if they did attend, their evidence could be open to different interpretations. I presume that the tribunal, under this section, would, if necessary receive legal aid and that the Department of the Environment would pay these costs. An inquiry recently ended has cost, in legal fees, over £1 million, which is an enormous amount of money.
If an investigation were carried out on any small premises where a disaster might, unhappily, occur, what recourse would the owner have to legal aid? A man who owned or managed a small hotel or business, or who leased property, could not afford to hire legal people to carry out an investigation which might last for weeks and cost a lot of money. This goes for any place where people might congregate. There is no mention in the Bill of legal aid in such a case. There should be an arrangement to indemnify these people in some way. We did not put down an amendment, preferring to  have the matter brought up in the House to see if it was possible to come to arrangements with the insurance companies.
In regard to the Bundoran inquiry, would the Minister let us know if there is a change of heart in that direction and if an immediate investigation will be carried out into this disaster? We, on this side of the House, have been pressing for an immediate hearing on this and people are anxious to know the outcome of any hearing. The leak in the reports has not helped and this matter should be cleared up immediately.
The Government amendment states that the hearing may be partly or wholly in public at the discretion of the council. All the investigations which the council may carry out should be in public. Anything in the line of a major investigation which is held in private could be open to accusations that there was a cover up. That would be a dangerous situation and not in everyone's best interests. The IIRS, or somebody qualified, should examine the seating arrangements of a number of hotels and places of entertainment where people congregate, to ensure that they are not of an inflammable nature. It might be better if the amounts of the fines payable for offences were included in the amendment. However, this may come under another part of the Bill.
Minister of State at the Department of the Environment (Mr. Creed): I am glad that this amendment has been accepted and welcomed by the House. I want to reply to matters raised in the debate on the amendment. Deputy Burke asked if the council would be totally independent of the Minister. As he pointed out, subsection (1) of section 16 requires the council to carry out such services as the Minister may specify from time to time. Subsection (2) lists some of the services which shall be performed at the request of the Minister, including at (d) the carrying  out of an investigation into any fire or any emergency operation.
It is, therefore, clear that the council will hold investigations only at the request of the Minister. Once the Minister has made a request, subsection (3) as outlined in the amendment will give the council discretion as to how the investigation shall be carried out. It will, of course, be open to the Minister to give the council specific terms of reference when asking it to carry out any investigation. The question of whether an investigation would be conducted wholly or partly in public was also raised and the amendment clearly gives the council discretion to decide this.
I believe that this is the correct approach since it will leave the council free to assess each case on its merits. I am sure that we can rely on its members to make a fair and balanced judgment on this. It is to be expected that in the majority of cases referred to the council should be in a position to produce a report without recourse to public hearings. However, where the council consider the hearing of evidence in public is necessary for the purpose of its investigations, the amendment would enable them to do so. Not all investigations into fires are going to be of the scale and complexity of Stardust and Whiddy and it is likely that many will only involve an expert assessment with conclusions and recommendations on the lessons for the future. It must be remembered that, if the Government of the day consider a public inquiry is necessary into any fire, they will have the option of setting up a public inquiry under the Tribunals of Inquiry (Evidence) Act or the Local Government Act, as appropriate. It can also be expected that in the future more fires will come under judicial scrutiny by the courts in view of the obligations being placed by the Bill on persons in control of premises.
It is also important to note that, while the Council might hold public hearings, it would not be appropriate to require that their own deliberations would be in public, bearing in mind that the deliberations of a tribunal, once it has finished taking evidence, are not held in public. There were some questions as to what  penalties would apply in respect of offences specified in the amendment. The penalties are those mentioned in section 5 (1) (a): £500 fine or six months imprisonment or both the fine and imprisonment. These apply to most offences mentioned in the Bill except for contraventions of sections 18 (2), 20 and 37 and I believe they represent an adequate deterrent.
A number of other issues were also raised which are not directly relevant to the amendment, in particular the Bundoran fire and the staffing of fire services. I have nothing to add to what the Minister said on Committee Stage. In relation to the Bundoran fire mentioned by Deputy Connolly, I understand that the Minister went into great detail on Committee Stage and on the Second Stage of the Bill. Deputy Connolly also raised the question of legal aid. This does not arise in the Bill. It is a matter which will be considered separately in the light of particular investigations by the council. It is not something which is relevant to the Bill at this stage but it is something that could be considered by the council subsequently.
Mr. Raphael Burke: While the Minister on Committee Stage went into some detail on the question of the Bundoran fire inquiry, we did not have at that time the amendment which the Minister drafted subsequent to the argument we made on Committee Stage. In the spirit of the debate which we have had here and for the sake of clarity, will the Minister say what type of inquiry is to be held in relation to Bundoran? Is it to be a public inquiry or will it be this type of inquiry? Will the Minister at least tell us when there will be an announcement about it?
Mr. Creed: In the course of Committee Stage the Minister indicated that there would be an inquiry into the Bundoran fire but that the Government had yet to decide what form that inquiry would take, to decide whether it would be a judicial tribunal established under the Tribunals of Inquiry (Evidence) Act, or  an investigation by the Fire Services Council under section 18 of this Bill, and that no decision would be taken by the Government until these two options are available to them following enactment of this Bill. He also pointed out that the question of criminal liability had been disposed of by the Garda and the Director of Public Prosecutions and what remained to be done was to establish the lessons to be learned for the future. I cannot go beyond that at this stage. As I said, the Minister dealt with it in detail. Beyond that I cannot give the Deputy any other information.
Mr. Raphael Burke: When this legislation is passed here it will go to the Seanad and, assuming it is completed by Christmas, the Council will be set up after Christmas. When will the first sitting of the inquiry be?
An Ceann Comhairle: For the information of the Deputy, there is an amendment No. 3 on the Order Paper which relates to section 36. Recommittal is necessary in this case and this might cover the point raised by Deputy Taylor.
Mr. Mervyn Taylor: I was seeking to have section 36 deleted in its entirety. The Minister's amendment, brought in as a result of what I said, is welcome. It goes some of the way towards what I was looking for but it by no means goes all of the way. Section 36 is rather a strange thing to find facing one in a Bill being put before the Oireachtas in the year 1981.
The section in its original form gave the Minister, the fire authorities and the sanitary authorities complete immunity from being taken to task by any private citizen because of their failure to comply with any of their duties or obligations. That means that the Minister has duties imposed on him by the Bill, as have the fire authorities and the local authorities, and yet we have a section in the Bill which would seek to exonerate them from responsibility to any citizen who suffered injury or damage because of failure of any of these authorities to comply with obligations imposed on them by law.
That kind of immunity goes back to the old feudal notion that the king can do no wrong. That was thought to have been transported into our law by saying that the State can do no wrong. For many years it was thought that was the position, that a private citizen who sustained injury as a result of the negligence or the fault of a State servant or a State authority would not have a claim for damages. This was not a theoretical thing: it was something relied on and used by the Government  and State authorities until relatively recent times.
The matter came to a head in the Supreme Court in 1971 in a case known as Byrne v. Ireland. It concerned a woman walking along who fell into a trench which had been cut there and negligently left by Department of Posts and Telegraphs workmen. She sought to recover damages from the State for her injuries. Despite the old traditional thing that the king could do no wrong, the State could do no wrong, the High Court upheld her claim. It was appealed to the Supreme Court, who decided that this sort of immunity by the State was not a reality, and the State were held liable.
Apart from the undesirability in this day and age of granting immunity to the State, or to State or local authority officers, when carrying out their lawful functions, this supposed immunity very likely is unconstitutional. In any case, it is a retrograde measure which in this day and age should not be contemplated. That old concept of State immunity used to apply in Europe. In France it was abolished in 1873, in Germany in 1896 and in Britain, which was the fount of the whole idea, it was abolished by the Crown Proceedings Act of 1947. Here, in 1981, when new responsibilities for fire services are being introduced, it is purported to introduce this immunity. I shall refer briefly to some of the comments made by two of the Supreme Court judges in the case I have mentioned which are apt to this situation. At page 281 of Irish Reports Mr. Justice Walsh is reported:
Where the people, by the Constitution, create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals.
During his short contribution last Tuesday, when he was putting down his own amendment, Deputy Taylor drew attention to the provisions of section 36, which, as drafted, gives local authorities and the Minister immunity from civil actions for damages arising from the exercise or failure to exercise any of their functions. Since then the Minister has had an opportunity to have another look at this section, the purpose of which was to ensure that fire authorities and the Minister would not be inhibited in the performance of their functions because of the constant threat of liability to civil actions.
I should like to make it clear that I am legally advised that there is no objection to this section from a constitutional point of view. However, I appreciate the point made by the Deputy that the provisions of section 36 might be regarded as retrogressive in so far as they relate to the exercise of functions. This amendment proposes to delete the words “exercise of or” and will bring section 36 into line with the existing provisions of section 5(2) of the Fire Brigades Act, 1940, on which it was based. If the amendment is accepted it means that immunity from civil actions for damages will only apply where there is a failure to carry out a function. I hope this will meet Deputy Taylor's point.
Mr. Mervyn Taylor: As I said at the outset, the amendment goes half way to meeting the objection I had to the section. In its original form the section granted immunity in cases in which injury was caused or damage done either by the exercise of functions under the Act or failure to comply with any of the provisions of the Act. It is proposed to take half of that out, but I still regard the section as 50 per cent objectionable. I was quoting the comments made by Mr.  Justice Walsh in the Supreme Court. He referred to the duty of the State to render justice against itself in favour of citizens. He said that was as much a responsibility of the State as it was to provide justice between private individuals. Even as the section has been left, a private individual would be denied justice as against the State. If the Minister or one of his servants or one of the servants of the sanitary authorities or fire authorities fail to comply with their obligations under the Act and an injury resulted, the injured person would not be able to maintain an action for damages against the State. Mr. Justice Walsh continued:
In my view the whole tenor of our Constitution is to the effect that there is no power, institution or person in the land free from the law save where such immunity is expressed or provided for in the Constitution itself.
From what is to be deduced in the main from an analysis of the foregoing provisions of the Constitution in so far as they affect the immunity of the State from suit, it would seem correct to say that the Constitution is not imbued with fuedal conceptions of privilege and exemptions, but rather with the modern conceptions of the duty of the State and the recognition by it of the human rights and needs of those who are the citizens of the State, so that instead of hedging the State with privileges and immunities, the general trend is to place obligations on the State.
That seems very much in point in this discussion and I have serious reservations about any immunity being provided in the Bill for the State authorities or local authorities for their failure or the failure of their employees to carry out the duties and obligations imposed on them by law in this Bill. In the case of any private firm or concern, if their employees do some negligent act such as making a cutting in the road, and somebody falls into it and injury is sustained, then they carry the  can, they hold the responsibility, and a private citizen injured thereby is entitled to go to the courts and recover damages at law. I cannot see any good reason in this day and age for not extending that general provision to the State. That was the clearcut message that came out of the Supreme Court ten years ago. While I heard the Minister's comment that he has taken advice on it and feels that the section as now amended would be constitutional, speaking in my personal capacity as a humble solicitor, I must say I have some doubts about it, having read the judgment in that case rather carefully.
Possibly I am taking the Minister short on this. It is some days since I raised the point with him. Unfortunately I did not advert to the section on Committee Stage or I would have raised it then. Appreciating that the Minister has gone at least 50 per cent of the way to meet the point I made on this section, I would ask him to look at it again. If he feels there is merit in dealing with the remaining part of the section, perhaps he could deal with it when the Bill reaches the Seanad.
Mr. Raphael Burke: I am grateful to Deputy Taylor for highlighting this matter and drawing our attention to this section. This is the section as I introduced it in April or May. Having listened to Deputy Taylor, and having read through the section while he was speaking, I can see great merit in the case he is making.
The Minister has gone half way down the road to meet the point made by Deputy Taylor in his amendment, No. 2, which was not acceptable and which suggested the deletion of section 36. I join with Deputy Taylor in asking the Minister to look at this whole section again as he did in the case of the argument we put forward with regard to inquiries. He brought forward a very positive amendment on Report Stage which was accepted earlier this afternoon. I see considerable merit in the case made by Deputy Taylor.
I do not purport to be a constitutional lawyer. Deputy Taylor referred to himself as a humble solicitor. He is more than a humble solicitor. He made his case very well on the constitutionality of this  section. I appeal to the Minister to have another look at it before it goes to the Seanad to see if the point made by Deputy Taylor can be accepted.
Mr. Connolly: Deputy Taylor has made a very good case. In his reply the Minister referred to a failure to carry out a duty. I should like to know the interpretation of the word “failure”. This is getting into a very technical and legalistic area. I will leave that to the legal people.
I have some reservations about the section. The Minister has gone half way down the road to meet Deputy Taylor. The constitutionality of the section may now come under scrutiny. I am worried about the word “failure”. How does a person to whom this section applies fail in his duty? Will the fire council say at a hearing that an official of the local authority was at fault? This section was drafted when we were in office. The question is whether it is constitutional. I do not know. This opens up a very wide technical argument.
Mr. Creed: I am glad there is general acceptance that the Minister, in the phrase used, went down half of the road to meet the wishes of Members opposite and of Deputy Taylor. In fact the Minister went a long way towards meeting their views. It is only right that the views of Members of the House should be taken into consideration in finalising this Bill. I cannot understand the objection by Deputy Burke and Deputy Connolly to this section because it was in Deputy Burke's Bill.
Mr. Creed: I am at a loss to understand why Deputy Burke is objecting to it at this stage. That is not in accordance with the spirit of the debate on this Bill. The matter has got a good airing. There have been detailed discussions on the Bill.
It could be argued that section 36, as it stands, precludes a claim for damages by a person injured in an accident with a fire engine or by a fireman injured in the course of his duty. This was not the intention.  The provisions of section 5(2) of the 1940 Act have presented no problems in this regard and, for that reason, it is proposed to return to the general formula used there.
The objection to section 36 advanced by Deputy Taylor is based almost entirely on the question of constitutionality. Obviously this is a matter where I must be guided by the advice of legal experts. Perhaps I should point out that the Bill was drafted by an experienced senior draftsman who would have been very conscious of any possible infringement of the Constitution. Furthermore, his draft was cleared through the office of the Attorney General. At that stage the Attorney General agreed with a submission that the provisions of the Bill did not appear to be unconstitutional.
Since Deputy Taylor has raised a question specifically in relation to section 36, the Legal Adviser of my Department has been consulted. He has looked at the judgment in the case of Byrne v. Ireland and is satisfied that section 36 is not unconstitutional. The office of the Attorney General has also been consulted on the matter specifically and the advice given has been confirmed. I do not think it necessary to pursue this aspect any further.
I do, however, appreciate the point made by Deputy Taylor that the provisions of section 36 may be retrogressive in so far as the immunity provided in relation to the exercise of functions may be inconsistent with the trend of developments in the law.
Accordingly, I have agreed to an amendment of the section which would bring it into line with the provisions of section 5(2) of the Fire Brigades Act, 1940. I am not aware that this section ever gave rise to any difficulty in regard to recovery of damages where appropriate.
The section as amended should be retained. It ensures that no legal action may be taken against fire authorities, sanitary authorities, or the Minister for damages in respect of any injury alleged to have been caused or contributed to by the failure to exercise any function conferred  by this Bill. The provision needs to be considered firstly as it relates to local authorities, both fire and sanitary, and secondly as it affects the Minister.
As far as fire and sanitary authorities are concerned this section is simply a reenactment of section 5 (2) of the Fire Brigades Act, 1940. It is interesting to look back to the original debates as reported in volume 78, column 1745 of the official report of 21 February 1940 to see a reason quoted in support of the provision which applies equally well today:
If damage caused by the outbreak of a particular fire could be made the basis of a claim against the local authority it is considered that there is a possibility that public funds might be liable to be applied towards compensation which can at present be obtained only on the basis of contractual arrangement between a private person and an insurance company.
This argument is strengthened by the fact that this Bill places the primary duty for fire safety on the person having control of premises and also because section 37 gives the Minister power to make regulations as to compliance with certain fire safety requirements.
It is also important to emphasise that the primary function of sanitary and fire authorities is to ensure the protection of persons and, to a lesser degree, property, from fire. They must not be inhibited in any way in carrying out their task and it is certain they would feel more constrained if they remained under the constant threat of liability following civil actions. They might hesitate to use their ancilliary powers during a fire and as a result lives or additional property could well be lost. They might be much more circumspect in using their inspection powers, as inspection which was not followed by some action might be taken to imply approval of the fire safety provisions in a premises.
If subsequently the building burned down they might be made liable even if they had perfectly valid reasons for taking no action. Equally failure to inspect and enforce provisions might also make  them liable even though there were valid reasons for not doing so, for example, an industrial dispute, inability to recruit adequate staff or perhaps the not unlimited fire prevention staff were concentrating on what they considered to be the premises presenting the most serious risk.
The provisions relating to the Minister stem from similar principles, namely, that public funds should not generally be applied to provide compensation where insurance is available and that the Minister should not be unduly inhibited in the performance of functions assigned to him. For example, he should be free to make or not to make regulations. He might judge that the best results could be achieved, say, through flexible and easily understood guidelines used by fire authorities rather than mandatory requirements in regulations, written in legal language, and because of their formal nature relatively slow to be amended. If he were liable to pay compensation he might well opt to make regulations for safety's sake, even though he took the view that an alternative approach would be more satisfactory.
Mr. Raphael Burke: I was surprised at the opening comments of the Minister for State. I acknowledged that I had introduced this legislation when I first spoke on this amendment. The purpose of the Committee and Report Stage debate is to give Deputies time to reflect on the legislation, and if a Member comes up with a way of improving the legislation, it is mandatory on everyone to accept his good arguments. Deputy Mervyn Taylor brought this matter to light and it has been a great help in improving this Bill. The more I listened to the Minister the more I was convinced of the validity of the case made by Deputy Mervyn Taylor.
The Minister said the fire authorities might be inhabited with regard to inspection of properties if we take out this section. He said they might feel they could  not inspect a property because if they did and saw something wrong but did not put it right, they would be liable to a civil action. In my view they should be liable to a civil action if they do nothing to improve or to condemn a potentially dangerous building.
The Minister also spoke about the inability to recruit staff. Are we serious about this legislation? Is the Minister aware of the implications in this legislation with regard to inspections, fire prevention and the staffing of fire authorities? In reply to amendment No. 1 the Minister of State said he was not going into the staffing question any further because his Minister had answered the points adequately on Committee Stage. I do not agree with that because they were not answered at all. Under this section we are removing from citizens protection to which they are entitled, protection against blundering or failure at national or local fire authority level.
The Minister of State said if this section was removed the Minister might be constrained with regard to the type of regulations he would make and he might merely set down guidelines. The Minister has a responsibility to govern wisely and should be liable, if he makes regulations that endanger life or property. I do not accept the point that public funds should not be used to pay for the failure of fire authorities or the Minister, with regard to death, injury or loss of property due to negligence on the part of the fire authority, the local authority, the sanitary authority or the Minister. In my view, the argument put forward by the Minister of State makes a case for the removal of section 36.
The Minister might say I introduced this Bill and I acknowledge that, but having listened to the points raised I see a very strong case for the removal of this section. The amendment covers the exercise of powers and should be extended to failure to carry out their duties and responsibilities as laid down in this legislation. I ask the Minister to look at this again between now and when it is discussed in the Seanad.
Mr. Mervyn Taylor: I welcome the Minister's amendment which goes a long way towards meeting my objections to section 36. He was making the point that his amendment brings this section more into line with the equivalent section in the Fire Brigades Act, 1940. That Act was passed 41 years ago and one would have thought that after that lapse of time one would have made some progress towards a more modern concept of removing altogether the old feudal immunities that applied to State authorities. Traditionally the immunities did not apply to local authorities yet here such an immunity is imported for a local authority as well as a State authority.
There could be many situations like those I am talking about. The functions are set out in section 10. The fire authority is given various functions under the Dangerous Substances Act, 1972, the Explosives Act, 1875, the Safety in Industry Acts, 1955 and 1980, and the Public Dance Halls Act, 1935, and other legislation. What it amounts to is that if a failure by the fire authority to comply with its obligations under any of that legislation resulted in injuries to persons or loss of property the fire authority would have immunity under section 36 as it stands. The opening words of section 10 put the obligation on the fire authority to make provision for the prompt and efficient extinguishing of fires in buildings and other places of all kinds in its functional area. In my view they are given an obligation in that and it is not unreasonable that the fire authority should be expected to carry out that obligation in a proper manner, to provide adequate fire fighting appliances in the correct locations, to serve centres of population and other areas in a proper, reasonable and careful way. If they fail to do that and it transpires that a centre of population is not adequately catered for as a result of which there are injuries, death or loss, it seems reasonable to make the case that the fire authority should compensate the person injured as a result of their neglect to comply with a function laid upon them in the Bill.
I thought I was making the case on two separate bases. One was on some doubt  as to its constitutionality but, leaving that aside, on the basis of a modern concept of whether it is appropriate that immunty should be accorded to the State or local authorities, I should like an indication from the Minister that he will have a look at this aspect. If it is considered appropriate I hope he will consider the question of a further watering-down of the immunity when the Bill is discussed in the Seanad. I welcome the amendment the Minister has introduced. It is a major contribution to the Bill.
Mr. Creed: I have listened to the points made by Deputies Raphael Burke and Mervyn Taylor and I have no doubt that the views expressed are sincerely held. I have given an undertaking to Deputy Taylor that I will ask the Minister to have another look at that section but I cannot give any commitment in that regard. Deep consideration was given to the section because it is a controversial one. My belief is that the Bill, as amended, should be retained but that does not mean that the Minister will not have another look at it. On the question of inspections Deputy Burke seemed to indicate that there could be a reluctance on the part of local authorities to carry out inspections. I can assure the Deputy and the House that there will not be any question of a reluctance on the part of local authorities, or a reluctance on the part of the Minister in introducing the regulations, to ensure that inspections are carried out. It is clear to everybody that such inspections are necessary. I appreciate the views expressed by the Deputies today but I believe the section, as amended, should be retained.
Mr. Connolly: I should like to make it clear that I did not oppose the Minister's amendment although I asked a number of questions about it. Deputy Mervyn Taylor has opened up a new area on this matter and put up a lot of valid points. The Minister has stated that a member or an official of a fire authority will be immune from prosecution for failure to carry out inspection, but he should bear in mind that in view of the ban on recruitment to the public service brought in by  the Minister for Finance, corporations and county councils do not have sufficient personnel to implement the terms of this Bill. The owner of a premises must ensure that his premises are in order but if a local authority does not carry out its duty, a prosecution will not follow. That is not right. Such authorities should be held responsible just as the owner is. I have no doubt that legal arguments will follow the introduction of this legislation. It is easy for lawyers to argue about the constitutionality of a certain provision but there is a duty on the owner of a premises, either in its erection or in its purchase, to adhere to the provisions of the Bill. It is wrong that a member of a fire authority should be immune from prosecution if he fails to inspect such a premises. In my opinion that will not stand up. I hope the Minister will tidy up that provision.
An Leas-Cheann Comhairle: The Chair must advise the House that the Chair is now putting the Question: “That all amendments set down by the Member in charge of the Bill for Report Stage, including any requiring re-committal, and not disposed of are hereby made to the Bill and re-committal and Fourth Stages are hereby completed and the Bill is hereby passed.”
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