Irish law comes from a number of sources, including the Oireachtas, (the Dail, Seanad and the office of the President), European Regulations and Directives, and the Common Law (based on precedents set in Court cases). The Constitution of the Irish Republic, Bunreacht na HEireann, was published in 1937. It has been amended 34 times in the interim, with some of the amendments since removed. Legislation must not be introduced which is in conflict with the Constitution or its existing amendments.
Legislation is the law made by the Oireachtas (primary legislation) or by Ministers or other appointed persons (secondary legislation) who are given the right to make law by a piece of primary legislation (Act of the Oireachtas).
European laws are introduced by the European Parliament in conjunction with the Council of Ministers. Ireland implements European Directives through primary legislation (Acts of the Oireachtas) and through Regulations or other secondary legislation. Directives may be introduced in an agreed time frame (three years) from the initial passing by the Council and Parliament. Individual member states may receive derogation from certain aspects of a Directive based on potential negative impacts on them. European Regulations are similarly implemented, although the time frame is immediate and derogations are not permitted. European Regulations are thus preferred to Directives when there is a requirement for cooperation across borders or where a common standard is required.
Legislation is documented and maintained in the electronic Irish Statute Book (eISB), which includes Acts of the Oireachtas and Statutory Instruments and in the official printed versions published by Government Publications.
Ireland is also a Common Law jurisdiction, which means that in the Court System a case may be taken for failure to implement a common law duty or uphold a common law right. Common Law is law based on precedents set in previous cases, which have not been over-turned by the Court.
Specific examples of primary legislation as applicable to EH&S include:
- Safety, Health and Welfare at Work Act 2005
- Environmental Protection Agency Act 1992
- Protection of the Environment Act 2003
These are high level pieces of legislation introduced by the Oireachtas to provide a strategic direction and a framework for EH&S regulatory and administrative structures, including the H.S.A. and the E.P.A.
Secondary legislation includes:
- Safety, Health and Welfare at Work (General Application) Regulations 2007 (14 parts, each comprising a number of chapters and dealing with specific requirements relating to work place, work equipment, PPE, noise, sensitive risk groups, etc.)
- Safety, Health and Welfare at Work (Chemical Agents) Regulations 2001 and (Amendment) Regulations 2015
- Safety, Health and Welfare at Work (Biological Agents) Regulations 2013
- European Union (Fluorinated Greenhouse Gas) Regulations 2016
Secondary legislation may be enacted to implement more specific requirements of a primary Act, or to implement requirements specified under EU law.
European legislation includes:
- Regulation (EU) No 517/2014 on Fluorinated Greenhouse Gases
- Directive (EU) 2017/2398 of the European Parliament and of the Council of 12 December 2017 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (not yet transposed)
Prosecutions under EH&S legislation are generally taken by the H.S.A. or the E.P.A., although lower level sanctions are also available to them.
Civil cases in EH&S are taken by private individuals or companies based on the Common Law, and generally using breaches of legislation as further evidence of failing to meet a common law duty. These cases are based on injury or harm inflicted on the person or company as a result of the actions or failures of the person/body against which the claim is made. For a claim to succeed it is necessary to show that:
- A duty was owed,
- There was a failure to discharge the duty,
- Harm, loss or injury were suffered as a failure to discharge the duty
A duty is generally owed to any person who could be seen as a neighbour in the most general interpretation of the word (think the good Samaritan rather than the person next door). There is a higher and more specific duty of care to an employee than to a member of the public, but in both cases, there is a duty.
Duties to employees include providing a safe place of work, safe systems of work, safe plant and equipment, safe materials and safe co-workers.
A failure in a duty may be a lack of training, unsafe workplace, unsafe systems of work (e.g. insufficient risk assessments and controls, etc.)
Harm or loss include personal injury, loss of income, damage to property.
A Court will find based on the balance of probabilities that a duty did or did not exist, the duty was or was not discharged, and harm or loss occurred or did not occur.
This is a very brief summary of the sources and implementation of EH&S legislation in Ireland. Other common law jurisdictions such as the UK have similar common law systems. Other EU countries also have law from the European parliament and Council. EH&S legislation and common law are based on setting standards of care to be taken by duty holders, as specified in the documented code or in common law principles. Ignorance of these requirements is no defence under the law and there is an onus on companies in particular to be aware of their legal duties and ensure they are fully discharged. At Pegasus, we support our clients in meeting the stringent requirements of ISO 14001 and OHSAS 18001/ISO 45001, the international standards for implementing effective environment and health and safety management systems.