Amendment No. 82 is being discussed with amendments Nos. 84 and 85.
Railway Safety Bill 2001: Report Stage (Resumed).
Bill recommitted to Committee Stage.
Debate resumed on amendment No. 82:
In page 47, line 30, after "commissioner" where it secondly occurs to insert ", the Chief Investigator".
—(Deputy Cullen).
Amendment No. 82 relates to assessors who would assist a tribunal of inquiry into a railway accident in its work. An assessor would typically be an expert in railway safety or some aspect of it, or perhaps a legal expert. I propose in amendment No. 82 that the chief investigator should also be qualified to be an assessor. He or she may well be the best qualified for such a function.
On Committee Stage, Deputy Naughten proposed some restrictions on who should be eligible to chair a tribunal of inquiry into a railway accident. To ensure the impartiality of the chair beyond question, I propose therefore to go further than Deputy Naughten suggested. Amendments Nos. 84 and 85 propose that all serving staff of the commission and investigation unit, including the commissioner and chief investigator, should be barred from chairing a tribunal. All serving and former staff of the railway undertaking involved in the accident should also be barred from the chair. In addition, any other person with a conflict of interest should be barred. This may include some former staff of the commission.
Amendment agreed to.
I move amendment No. 83:
In page 48, line 1, after "oath" to insert "or affirmation".
The purpose of this amendment is to clarify the position regarding affirmations. When I have tabled similar amendments in the past, the relevant Minister has claimed the issue is dealt with by the Interpretation Acts. That is not the case. The Interpretations Act does not say what everybody seems to imply. It provides that an oath includes affirmation for persons entitled by law to affirm. However, there must be a legal entitlement which is what we are seeking in this amendment. Recently, the Minister for Justice, Equality and Law Reform conceded that point during a debate on another Bill.
I thank the Deputy for the amendment. I can accept it.
I thank the Minister.
Amendment agreed to.
I move amendment No. 84:
In page 48, lines 5 and 6, to delete "a commissioner or former commissioner,".
Amendment agreed to.
I move amendment No. 85:
In page 48, line 8, after "expertise" to insert the following:
"but does not include a serving commissioner, Chief Investigator, or member of the staff of the Commission or Investigation Unit, any person who is or was a member of the staff of a railway undertaking involved in the incident, or any person who, in the opinion of the Minister, has an actual or potential conflict of interest".
Amendment agreed to.
Amendments Nos. 86 and 87 not moved.
Section 63, as amended, agreed to.
SECTION 64.
I move amendment No. 88:
In page 49, line 23, to delete "Commission" and substitute "Investigation Unit".
Amendment agreed to.
I move amendment No. 89:
In page 49, line 25, to delete "Commission" and substitute "Investigation Unit".
Amendment agreed to.
Section 64, as amended, agreed to.
SECTION 65.
I move amendment No. 90:
In page 49, lines 27 and 28, to delete "Commission" and substitute "Investigation Unit".
Amendment agreed to.
Section 65, as amended, agreed to.
Section 66 agreed to.
Amendment No. 91 not moved.
Section 67 agreed to.
SECTION 68.
Amendment No. 92, amendment No. 1 to amendment No. 92 and amendments Nos. 93 to 99, inclusive, are related and will be discussed together.
I move amendment No. 92:
In page 50, line 19, after "Minister" to insert the following:
"and after consultation with the Council, railway undertakings, organisations which represent staff of railway undertakings and such other persons as in the opinion of the Commission may be relevant".
This group of amendments relate to the power of the commission to make regulations. On Committee Stage, having debated Deputy Shortall's amendment No. 51, my predecessor agreed the commission should consult with railway undertakings and railway unions before making regulations under section 68. I am now providing for that in amendment No. 92. I am also providing that the Railway Safety Advisory Council should be consulted and anybody else who may be relevant. This will allow for wide consultation and result in better quality regulations. I, therefore, invite the Deputy to withdraw her Report Stage amendment which provides for similar matters. Originally it was her amendment.
I thank the Minister for taking those amendments on board.
Amendment No. 1 to amendment No. 92 not moved.
Amendment No. 92 agreed to.
Amendment No. 93 not moved.
Amendment No. 94 has already been discussed with amendment No. 92.
I did not discuss it. When was it discussed?
Amendments Nos. 92 to 99, inclusive, were debated together.
May I discuss it now?
Yes.
I move amendment No. 94:
In page 50, between lines 22 and 23, to insert the following:
"(b) requirements for the maintenance and inspection of railway infrastructure, rail track, permanent way and rolling stock,
(c) the maximum carrying capacity for both passenger and freight trains,
(d) the maximum hours of work and the minimum hours of rest for safety critical staff,”.
This section provides that the commission be given the power to make regulations in a number of areas important to rail safety. What I am seeking is that the commission be allowed make regulations in respect of the maintenance and inspection of railway infrastructure, the permanent way, rolling stock and the rail track. It is strange that aspect appears to have been omitted from the Bill. Also the commission should be allowed make recommendations on the maximum number of hours people would work on railways. There are similar issues in the area of aviation. I understand that for some reason, traditionally, this has been omitted from rail safety legislation. It appears to me that it should be included in a new Bill and also the maximum carrying capacity. There is a point beyond which trains might be considered to be overpacked either with freight or passengers. Will the Minister respond to these points?
In regard to paragraph (b) of Deputy Mitchell’s amendment No. 94 I am reluctant to allow the commission make regulations in regard to such matters. It would be a very prescriptive approach to tell railway undertakings how often they should inspect and maintain their infrastructure and trains. Railway undertakings are in the best position to know how often such inspections and maintenance need to be done to ensure safety. The primary duty of care under this Bill is placed where it rightfully belongs on the railway undertaking. This principle is enshrined in the EU railway safety directive adopted in 2004. A railway undertaking knows best the condition of its infrastructure and trains. I would expect it to demonstrate to the commission in its safety case that its inspection and maintenance regimes are appropriate to the condition of its infrastructure and trains.
In regard to paragraph (c) of Deputy Mitchell’s amendment, my amendment No. 95 allows the commission to make regulations restricting the number of standing passengers in trains. In regard to paragraph (d ) of the Deputy’s amendment, I would expect a railway undertaking to be able to demonstrate in its safety case that the working patterns of its safety critical staff do not contribute to an increasing risk on the railway. In addition, the Minister for Enterprise, Trade and Employment last year made regulations SI 817 of 2004 extending the maximum 48 hour working week to transport workers——
I was not aware of that.
——in line with the amended EU working time directive. On that basis I ask the Deputy to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 95:
In page 50, between lines 24 and 25, to insert the following:
"(c) requirements or restrictions relating to the management of passengers and other persons on railway property, including in relation to persons standing in trains, the placing of luggage in trains, and emergency evacuation from trains,”.
Amendment agreed to.
I move amendment No. 96:
In page 50, line 27, after "training", to insert the following:
"and requirements on railway undertakings to facilitate staff holding positions before the entry into operation of such regulations in achieving any required level of training, competency or qualification,".
Amendment agreed to.
Amendment No. 97 in the name of Deputy Mitchell has already been discussed with amendment No. 92.
The amendment has not been discussed.
The Chair said we were taking amendments Nos. 92 to 99, inclusive, together.
The Chair did not give me an opportunity to speak on them. This is the first opportunity I have had.
Deputy, I read out on the first round——
I understand that but now is my opportunity to speak.
The Deputy was allowed to speak on amendment No. 94. The Deputy should have contributed on amendment No. 92 and discussed——
I am contributing on amendments Nos. 92, 93, 94 and 95.
No. When amendments are being taken together they are discussed together. They are not taken seriatim when they are grouped. Does the Deputy have a list of the groupings?
I have several lists of groupings.
The list of groupings will show the Deputy that amendments Nos. 92 to 99, inclusive, were taken together.
When did we discuss them?
The Minister proposed them and then Deputy Shortall came in. When we got to amendment No. 94 you pointed out that you did not have an opportunity to discuss them. The Deputy did not offer at that stage, so the Chair took her intervention at the first available opportunity.
We can discuss it now or on Report Stage, but I think it is sharp practice.
I suggest that we can discuss amendments Nos. 97 to 99, inclusive, now.
I only want to discuss my amendment briefly.
The Deputy may do so, but we are not going to take them seriatim. From here on, we will have to go by the groupings.
Can somebody point out to me which is the latest edition of the groupings?
The Deputy will be supplied with a list of the groupings.
I have three of them at this stage.
The list has not changed. I am still on the original one.
The Minister is all right. He has plenty of people pointing out when he must speak and what he has to say.
I was trying to be helpful.
I move amendment No. 97:
In page 50, between lines 37 and 38, to insert the following:
"(h) requirements to avoid accidental obstruction of railway infrastructure by road vehicles by establishing——
(i) criteria for the apportionment of responsibility and cost of improvements to be made at locations where roads meet, cross or run close to railways,
(ii) guidelines on enhanced risk assessments and physical measures to reduce risk of vehicles accidentally leaving the road and obstructing railway infrastructure,
(iii) reporting mechanisms to identify relevant information on incidents involving vehicles, which obstruct railway infrastructure,".
I want to make a case for this amendment, which refers to situations—
I ask the Deputy to stand when she is making a contribution.
Is that necessary on Committee Stage? I want to make a case for this amendment, which refers to situations where there is an interface between the railway and roads infrastructure. It aims to regulate the situation in some way where, for instance, there may be a dispute or even unwillingness by either party to accept responsibility for safety improvements that may need to be made. The amendment seeks some system to dictate how boundary treatments are organised, as well as reporting, collating and recording accidents. This area is completely unregulated. I do not know if the Minister is aware that in Dublin trucks are constantly damaging railway bridges when they come into contact with them. This issue is likely to become even more prevalent if super-cubes are to be allowed on to our city streets. The regulation of this area needs to be tightened up.
We share the same view on those trucks. I certainly do not want those super-cubes here.
I do not suggest otherwise. It is the one issue on which I agree with the Taoiseach.
As regards paragraph (i) of Deputy Olivia Mitchell's amendment No. 97, section 23 of the Transport (Miscellaneous Provisions) Act 1971 makes a provision concerning the apportionment of the costs of upgrading works at a level crossing between the railway undertaking and the local authority. Section 92 of the Bill before the House, as passed in committee, makes provision concerning the responsibility of any person carrying out works on a public road near a railway.
As regards paragraph (ii) of Deputy Olivia Mitchell's amendment No. 97, section 92(4), as passed in committee, already provides the commission with power to prepare and publish guidelines on works on public roads that may affect the safety of a railway infrastructure. The interim commission is currently preparing these guidelines to be ready for adoption by the commission on its establishment. I hope that is helpful to the Deputy.
I thank the Minister and withdraw the amendment in that case.
Amendment, by leave, withdrawn.
Section 68, as amended, agreed to.
SECTION 69.
Amendment No. 98 has already been discussed with amendment No. 92.
I move amendment No. 98:
In page 50, line 43, after "may," to insert the following:
"with the consent of the Chief Investigator, and".
Amendment agreed to.
Amendment No. 99 has already been discussed with amendment No. 92.
I move amendment No. 99:
In page 50, line 43, after "Minister" to insert the following:
", the Minister for the Environment, Heritage and Local Government".
Amendment agreed to.
Section 69, as amended, agreed to.
Section 70 agreed to.
SECTION 71.
I move amendment No. 100:
In page 51, between lines 34 and 35, to insert the following:
"(4) Whenever the Minister, or such other Minister of the Government as the case may be, makes, modifies or revokes any instruments under the statutory provisions referred to in subsection (1), or publishes proposals for legislative change concerning railway safety and related matters, he or she shall, at the same time, cause copies of any recommendations of the Commission under subsection (1)(c) or arising from the Commission’s consideration of proposals under subsection (3), to be laid before each House of the Oireachtas.”.
On Committee Stage my predecessor accepted, in principle, Deputy Naughten's amendment No. 55 which proposed that recommendations from the commission to the Minister regarding this Bill after its enactment or relating to proposed legislation affecting the commission, should be laid before the Oireachtas. I have addressed the issue in this amendment, which requires me or any other Minister concerned to lay before each House of the Oireachtas any recommendations concerning existing or proposed statutory provisions affecting the carrying out of the commission's functions under this Act. This will allow the Oireachtas to be fully informed as to the relevant background to any legislative changes. I am happy to take amendment No. 55 into consideration. It is a good one.
Amendment agreed to.
Section 71, as amended, agreed to.
SECTION 72.
Amendment No. 101 has already been discussed with amendment No. 57.
I move amendment No. 101:
In page 52, line 36, to delete "subject to section 73(6),”.
Amendment agreed to.
Amendment No. 102, in the names of the Minister and Deputy Shortall, has already been discussed with amendment No. 36.
I move amendment No. 102:
In page 52, lines 39 and 40, to delete "either alone or in the presence of any other person, as he or she thinks fit,".
Amendment agreed to.
Amendment No. 103 has already been discussed with amendment No. 36.
I move amendment No. 103:
In page 53, between lines 42 and 43, to insert the following:
"(4) A person who is being interviewed under subsection (3)(k) or section 73 may, if he or she requests——
(a) where the person is a member of the staff of the railway undertaking or a person engaged by the undertaking, be accompanied——
(i) by one other member of the staff of the railway undertaking, or of the person engaged by the undertaking,
(ii) by one other person from an organisation which represents, as the case may be, the staff of the undertaking or the person engaged by the undertaking, or
(iii) at his or her own expense, by a legal or other adviser,
or
(b) where the person is not a member of the staff of the railway undertaking or a person engaged by the undertaking, be accompanied, at his or her own expense, by a legal of other adviser.
(5) The sole function of a person permitted to accompany another person in accordance with subsection (4) shall be the provision of advice to the person being interviewed.
(6) A person permitted to accompany another person in accordance with subsection (4) shall, if directed by the inspector concerned, desist from doing anything which, in the opinion of the inspector, frustrates the orderly and efficient conduct of the interview.”.
Amendment No. 1 to Amendment No. 103 not moved.
Amendment No. 2 to amendment No. 103 not moved.
Amendment No. 103 agreed to.
Section 72, as amended, agreed to.
SECTION 73.
Amendment No. 104 has already been discussed with amendment No. 5.
I move amendment No. 104:
In page 54, lines 46 and 47, to delete "purposes of an investigation under section 57” and substitute “purpose of exercising his or her function under this Act”.
Amendment agreed to.
Amendment No. 105 not moved.
Amendment No. 106 has already been discussed with amendment No. 57.
I move amendment No. 106:
In page 55, to delete lines 4 to 13.
Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 and 75 agreed to.
SECTION 76.
Amendments Nos. 107 to 109, inclusive, are related and may be discussed together by agreement.
I move amendment No. 107:
In page 57, between lines 7 and 8, to insert the following:
"(5) In considering an appeal against an improvement notice, the Court shall take into account the general duties of railway undertakings and others under sections 36 and 37.”.
On Committee Stage there was considerable discussion of Deputy Naughten's amendments Nos. 63 and 65, which proposed that commercial considerations would not be grounds for an appeal against an improvement or prohibition notice. Deputy Olivia Mitchell raised a related amendment today. While I have much sympathy with Deputy Naughten's proposal on Committee Stage, it would be inappropriate to impose restrictions on what a person could plead before the courts. However, I have examined the Bill to see if there is some workable and practical means of giving the appropriate weighting to commercial and safety considerations in the Bill, given the imperative requirements attaching to safety. I propose to address Deputy Naughten's concerns through my amendments Nos. 107 and 109. These amendments will require a judge or jury, in considering an appeal against an improvement or prohibition notice, to take into account the safety imperative implied in the duties imposed in sections 36 and 37 of the Bill, as passed in committee. Section 36 places a duty on a railway undertaking to ensure the safety of persons in the operation of its railway in so far as is reasonably practicable. Section 37 places a duty on others to ensure that a person is not exposed to danger on a railway by their actions or omissions, again in so far as is reasonably practicable.
Deputy Olivia Mitchell's amendment No. 118 proposes that a railway undertaking may not consider cost when complying with its duty under section 36. Ultimately, under the provisions of this section it will be a matter for a judge or jury to decide what it is reasonable for a railway undertaking to do in a particular circumstance to ensure safety. Nobody can give an absolute guarantee of safety in anything we do. As a society we decide that there is a reasonable risk on a daily basis.
I thank the Minister for clarifying the situation. I have given the matter considerable thought and as the general duties of the railway undertaking transcend commercial considerations, the matter would be decided by a court. As the Minister says this is the only reasonable expectation we could have and I will not press my amendment.
Amendment agreed to.
Amendment No. 108 not moved.
Section 76, as amended, agreed to.
SECTION 77.
I move amendment No. 109:
In page 59, between lines 2 and 3, to insert the following:
"(6) In considering an appeal against a prohibition notice, the Court shall take into account the general duties of railway undertakings and others under sections 36 and 37.”.
Amendment agreed to.
Section 77, as amended, agreed to.
Sections 78 to 80, inclusive, agreed to.
SECTION 81.
I move amendment No. 110:
In page 62, line 2, to delete "or" where it secondly occurs and substitute "of".
This is a technical amendment to correct a drafting error.
Amendment agreed to.
Section 81, as amended, agreed to.
SECTION 82.
I move amendment No. 111:
In page 62, between lines 38 and 39, to insert the following:
"(v) the nature and mix of expertise, skills and experience that is desirable in a candidate for appointment as a commissioner, and".
Amendment agreed to.
Section 82, as amended, agreed to.
NEW SECTIONS.
Amendments Nos. 112 to 119, inclusive, and Nos. 124 to 144, inclusive, and amendments Nos. 1 and 2 to amendment No. 144 are related. Amendments Nos. 120 to 123, inclusive, are alternatives to amendment No. 112. Amendment No. 1 is consequential. It is proposed to discuss amendments Nos. 112 to 144, inclusive, and amendment No. 1 together.
I move amendment No. 112:
In page 63, to delete lines 14 to 43, to delete pages 64 to 70 and substitute the following:
"PART 9
INTOXICANTS AND PERSONS WORKING ON RAILWAY INFRASTRUCTURE
83.—This Part comes into operation on such day or days as the Minister may appoint by order either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.".
This is a fundamental and important issue. I would like to make a number of introductory remarks regarding the new Parts 9 and 10 which are before the House. My predecessor announced on Committee Stage the intention to introduce criminal sanctions for workers found to be intoxicated while working on the railway. The then Minister had earlier signalled on Second Stage his intention to look at this area by inviting Deputies to submit their views on the issue. Since the announcement on Committee Stage, the advice of the Attorney General and of the Office of the Director of Public Prosecutions has been obtained. Consultations have also taken place with railway unions, Iarnród Éireann and the Luas operator, Connex.
It is a general societal view that drug and alcohol use is a significant problem and it is clear that any use of intoxicants by safety critical workers represents potential for significant operational risk. My Department has sought information on the position in other jurisdictions and while no uniform approach to managing the use of drugs and alcohol by safety critical workers on railways exists, many European countries, including the UK, have made it a criminal offence to be intoxicated while working on the railway. In a number of countries the railway undertakings themselves, recognising the inherent dangers of intoxicant abuse, have introduced, as part of their internal procedures, provisions which provide for testing for drugs and alcohol. Nearer to home, Connex, the operator of the Luas system, has provision for random testing and subsequent disciplinary actions built in to workers' contracts.
Other examples are as follows. In the United States, legislation has been in place since 1991 that provides for drug and alcohol testing on a random basis covering all transportation workers. The US annual drug and alcohol testing rates for 2004 in respect of the Federal Railroad Administration was 25% for drugs and 10% for alcohol.
In Sweden, random testing is carried out by an independent body on behalf of the railway undertakings. Each station is tested on average four times a year.
In Northern Ireland, a voluntary code of conduct exists in Northern Ireland Rail which provides for random testing of drugs and alcohol. An offence can result in dismissal as can a refusal to take the test. In France, internal company procedures provide for testing for drugs and dismissal is an option for the company if a safety critical worker is found to be intoxicated.
In New South Wales, the 2002 Rail Safety Act requires rail operators to implement a drug and alcohol programme. The independent transport safety and reliability regulator can conduct random drug and alcohol testing of rail safety workers at any work site. I hope it will be clear that I have given careful thought and consideration to this matter before presenting the proposals before the House for amendment of the Bill regarding intoxicants.
I want to signal at this point that the new provisions, particularly as regards sampling for drugs in Part 9, are based on a partnership approach. The Bill requires that the sampling procedures, code of conduct and support services must be drawn up in consultation with unions and staff representatives and must be approved by the new independent railway safety commission provided for in the Bill.
I propose to delete the present Part 9 of the Bill which provides for matters relating to internal company sampling and disciplinary procedures for intoxicants and to substitute a new Part 9 which provides for similar matters. I also propose a new Part 10 which provides for matters relating to criminal offences for intoxication while working on a railway. The new Part 10 also provides for certain other matters withdrawn on Committee Stage, namely, offences for careless and dangerous working on a railway and requirements regarding medical fitness for safety critical work on a railway.
I know that my colleague, Deputy Naughten, raised many concerns when these amendments were introduced on Committee Stage. However, as I am satisfied that the Minister has now taken on board those concerns, I am very happy to support him. These changes are necessary and I believe the required safeguards now exist.
Several different terms are used in respect of the person carrying out sampling. For example the terms "authorised person" and "suitably qualified" are used. In other cases "medical practitioner" is mentioned. Is it absolutely clear that an authorised person is a medical practitioner? The section states that an authorised person involved in sampling should receive training as determined by the undertaking.
The person must be a medical practitioner.
Why would a railway undertaking train such a person?
The person could be in for the first time.
Certain protocols might need to be put in place.
The protocols regarding sampling would need to be agreed.
I am happy to support the amendments.
On the last day we discussed how the Minister proposed dealing with the legislation. As we know the Bill was published in 2001. Last year when we eventually got around to taking Committee Stage, we had the most inept handling of legislation I have ever witnessed. After Deputy Naughten and I, along with others, had put considerable time into the Committee Stage discussion, one morning the Minister's predecessor arrived with a new Part 9 and Part 10 which we had never seen before. In spite of our best efforts to block it, he pressed ahead. It then took the intervention of David Begg at the most senior level in Government to stop it, which is how the legislation was stalled for the past year. It is important to remind ourselves about the mishandling of that matter by the previous Minister for Transport, Deputy Brennan, which led to the delay of a minimum of 12 months and was no way to do business. I recognise that discussions have taken place in the interim.
It is important to remember there is no history of intoxicant use or abuse within the railways. In none of the accidents was the cause found to be related to intoxicants of any kind. We must recognise that and give due credit to those working on our railways through the years who have maintained a high work standard. From the way the former Minister, Deputy Brennan, spoke on the matter, one would imagine it was a huge problem, but there is no intoxicant history there with regard to accidents. We should thank people for their commitment in that regard.
Many of the concerns we had when this Bill was sprung on us last year by the then Minister, Deputy Brennan, arose because it contained no clear definitions. It was very loose in terms of who would have access to the samples that could be taken and in terms of the definitions. I welcome the fact that this has been tightened up to some extent, and that those areas which have not been tightened are subject to discussions on protocols, code of conduct and so on.
It is difficult for anyone to object to the notion of public transport workers being subject to random testing because, clearly, a major safety issue is involved. However, it is a little rich to hear the Minister talk today of other countries where there is random breath testing among many different groups of transport workers. The Minister and his predecessor have consistently opposed any attempt or calls to introduce random breath testing for road users. Notwithstanding what he said about Connex, no other group of workers in the transport area is subject to random testing.
Any night of the week, one can see very busy car parks at any pub. People are in the pubs for lengthy periods of time and it is quite clear to all of us that considerable numbers of people are driving cars after imbibing intoxicants. There seems to be no political will to tackle the issue. We see road carnage on a regular basis, very often as a result of drink driving.
Some months ago the Minister had an opportunity to redress this by means of the Road Traffic Bill, when I proposed an amendment to provide for the introduction of random breath testing for drivers. He voted against it. On a number of occasions he has said he has faced difficulties, is awaiting legal advice and is getting various messages from the Attorney General, yet nothing has been produced.
The Minister's predecessor promised that random testing was on the way. It was part of the road safety strategy and is a clear target in the current road safety strategy for introduction by 2006. The Government spokesperson, Deputy Power, appeared on television last week, however, and clearly knew nothing about the matter nor had any plans to do anything about it. Similarly the Tánaiste, when asked about the matter during the Order of Business last week, knew nothing about it.
It is unfair to target one particular group of workers. If random testing is to be introduced, it should be introduced across the board. The Minister frequently notes constitutional and other legal problems with regard to introducing random testing for drivers yet he has no difficulty in introducing it for railway workers. Every excuse in the book is produced to explain why the Minister has not introduced random testing on the roads. Let us apply the testing evenly to all, across the board.
I hope the Minister will indicate his intentions. It is one thing to set down targets in a safety strategy but quite another to do something about them and ensure that the area is given priority, So far, there is no indication from the Department that the Minister is personally taking up the issue or making any attempt to champion it. Given his responsibility for road safety, this is an area where priority should be given. I welcome the Minister's view and ask him to make a clear statement as to his intentions, and the timescale involved.
There are serious issues involved in Part 10 of the Bill with regard to criminalising what we would call carelessness. I have some concerns about definitions. The section has certainly been improved in so far as the offences apply to everyone working in a railway undertaking whereas previously, management was not deemed to have any role or responsibility in the area. However, I am concerned about the definition of carelessness. The penalties are very severe and I wonder if we are clear on whether there is potential for management, perhaps, or someone who has it in for a particular worker or group of workers to scapegoat someone on the basis of something as simple as failure to tie one's shoe-lace adequately. Could that be deemed to be carelessness, and thus liable to be a criminal offence? There is some danger that people could be singled out, perhaps people who for one reason or another were not popular with management because of activities in which they were involved. Under the proposals before us it would be easy enough to frame someone. I would like to know what safeguards the Minister will put in place to ensure this does not happen.
I support many of the points made by Deputy Shortall, particularly with regard to random testing, my main area of concern. The Bill refers to giving a person the power to oblige employees to provide samples and refers to "reasonable grounds for suspicion". From outside, it seems reasonable to discuss such matters, but as we know the difficulty is that there has been a poisoned relationship in the railway sector between management and many of the workers. There has been a public perception and a worry that this element of the Bill would be used by a less than perfect management as a tool of harassment or bullying. This concern has been expressed to me.
Random drug and alcohol tests are a violation of civil rights. The Minister mentioned the workers in Connex but the only other workers whom I know of who are subject to such tests are those in the Defence Forces. I am uncomfortable with this. I was also uncomfortable with the fact that the last Minister for Transport was pushing the notion of this random testing. As other speakers noted, there is no evidence to suggest that in the past 30 years, drugs or alcohol have been involved in any railway accident. That is not to say there might be such involvement in the future but it seems odd that this legislation supposedly had to be rushed through. The issue of random testing seemed to jump out at one. I did not get an answer from the Minister as to his reasons for its proposed introduction.
I object to random testing because of the thought process behind it. Such testing is invasive, and doubt hangs over its effectiveness. Driver fatigue is a bigger issue but it did not arise in any of the discussions. It certainly was not raised by the Minister. However, people who work in this area regularly talk about the long hours involved.
Random drug testing removes the assumption of innocence because the person subjected to the test must prove he is innocent by providing a clear sample. Where random drug testing is carried out, the person giving the sample is forced to strip and urinate into a cup in the presence of an observer to prevent cheating. I welcome the fact that the Minister has in mind a partnership approach with the unions and I hope that is not the type of random testing that will be undertaken. It would create major difficulties and human resources problems.
Random drug testing can also disclose information of a personal medical nature. It can inform an employer if an employee is on medication for a heart condition, epilepsy or other illnesses. It can also reveal if a female employee is pregnant, even if she is unaware of it and might not want to be aware of it. These are genuine and legitimate privacy concerns and the legislation has not taken sufficient account of them.
The test, if it produces a positive result, provides no evidence of present intoxication or impairment. It merely indicates that a person may have taken a drug at some time in the past. This issue arose in the United States. The American Civil Liberties Union has carried out a great deal of research on this issue in the face of attempts to spread random drug testing into the workplace and schools. Commonly used drug tests have yielded false positive results of between 10% and 30%, according to the ACLU.
I do not believe there is a problem with drug and alcohol abuse in the rail industry. There is probably a bigger problem with driver fatigue and people being forced to work long hours. Perhaps the Minister will explain the partnership approach further. It appears that this section has delayed the Bill. I welcome the fact that there are ongoing discussions with the unions on this matter because people have a genuine concern that we are moving into new territory. I do not know where this move originated. I await the Minister's comments.
I appreciate the responses of the Deputies. Lest Members consider this to be specific to railway safety critical workers, the Safety, Health and Welfare at Work Act 2005 contained the same provisions that are being introduced today. This is happening across the system in all types of work. In general, Deputies appear to believe we have taken the concerns on board, notwithstanding whatever issues arose as Deputy Shortall outlined previously. Knowing my colleague, I do not believe there was any malice aforethought. Perhaps it was just an effort to try and include it.
That debate threw up key issues and, as Deputies said, we have reflected on them. It is a partnership approach. I appreciate the concerns workers have about their rights, and they are right to have them. We have had much discussion in working out the protocols surrounding this and I believe we have reached a point of general satisfaction on the issue.
I wish to answer the question Deputies Shortall and Mitchell raised about random breath testing. The difference between rail and road random testing can be outlined as follows. I have received advice on how the weighting is done with regard to individuals on roads. Irish Rail, a service provided or funded by the State, employs approximately 5,500 staff, of whom approximately 3,800 work on safety critical tasks. These employees are responsible for the safe movement of over 35 million passengers each year. On the roads, driving is an individual responsibility for each person. The issue of proportionality arises with the introduction of random testing.
The Attorney General has advised that in the case of random testing for safety critical staff on the railways, the proposed random testing provision would withstand constitutional scrutiny on the basis that the balance struck between the private rights of individuals and those of the greater public is proportionate. This is a fundamental issue we must deal with on the introduction of random breath testing in the sense mentioned by Deputy Shortall. Deputy Olivia Mitchell has also raised this in the past.
Under the Road Traffic Acts, gardaí are empowered to check all drivers involved in road collisions or detected committing any traffic offence, in addition to having the power to demand a test of a driver who, in the opinion of a garda, has consumed alcohol. We are way ahead of other countries in that.
I accept Deputy Shortall's point in that I would rather get this item off the agenda, one way or another. I cannot sustain a position of giving the impression that I do not want to do anything about this. However, as both Deputies are aware, given that their parties have been in Government, one cannot come to the House with a provision, regardless of the issue, unless one has legal advice that it will stand. Road traffic legislation is probably the most often challenged legislation in the courts and there is no question that if we introduce random breath testing it will be challenged. I am not worried about that but I cannot knowingly introduce a measure that has almost no chance of success in the courts. That is the position.
There have been a number of proposals aimed at overcoming the proportionality issue and ideas are being examined. Some of them make sense in certain ways but in others they do not. I would like to reach a conclusion on this issue. For the present, I have a formula backed up by legal certainty that this has a good chance of success. Even though we know this legislation will probably be challenged it is worth legislating for on the basis that we believe it is robust enough to withstand a legal challenge in the courts. At present, the introduction of random breath testing in an untargeted way would, I am told, be unlikely to withstand a court challenge.
That is the position. There is no reticence on my part. I am not a legal practitioner and I am not trying to shift the blame but to resolve the issue. I want to be able to tell the House whether something cannot be done or what is the best that is achievable according to the legal advice. We are trying to narrow it to a couple of issues and I thank the officials and the legal personnel in the Attorney General's office for their assistance with this. Members can see where it breaks down, and this is a good example. Given the responsibility in this area and the proportionality involved, it is likely that the balance is struck in doing it and this would have a good chance of withstanding a court challenge. At the moment, the advice is that simply random breath testing everybody who has an individual responsibility would be most unlikely to withstand a court challenge. On that basis, I cannot put it before the House with any confidence. That is the bind in which I find myself.
I am being open with the Deputies. I am reaching the point where I would like to say either that as far as I am concerned, it is off my watch because I cannot resolve this issue or that I have a proposal to achieve it. If we find a proposal we believe to be workable, I will be happy to seek the Deputies' thoughts on it even before proceeding with it.
It is hard to accept that it is so difficult to do this.
It has fallen apart in some countries. It was tried but failed. I will forward that information to the Deputy.
It seems extraordinary that it cannot be introduced unless on a targeted basis.
If that is the core of legal advice and the basis for the Minister's approach, then the next category of people would be bus and coach drivers, taxi drivers and so on. When, if ever, would it be applied to individual drivers?
I apologise to the Deputy if I gave that impression because, notwithstanding the logic of the Deputy's response, that is not what I said.
It may be targeted rather than random.
To avoid any misunderstanding, I was referring specifically to road users in general. There must be some form of proportionality applied. Some options have been suggested but I do not know if they are a good or a bad idea and I wonder how some of them would provide a solution. I do not wish to give the Deputy the impression that when I spoke about proportionality I was doing so in the comfort zone of picking out groups; I was talking specifically in reference to a solution about a general group.
Is the Minister referring to proportionality in respect of the level of risk and the numbers of people involved? He referred to the numbers of people being driven by train drivers.
No. I was referring to the train drivers as an example of a good, solid reason. They are responsible for transporting 35 million people and the proportionality stands up in this case. With regard to individuals, such as car drivers, I am informed it is probably impossible to introduce random breath testing, with which we would all be in favour. From recollection, constitutionally it has not been possible in other countries and it has failed in countries where it has been attempted. It is a question of how to approach the issue. Do other issues arise within that grouping which can be tackled? I do not wish to say more because it is then regarded as something that will be done and that is not the way to hold a debate.
I will be happy to consider other options and to discuss the legal advice I have received and try to move the issue forward. There is not a way of legislating for it to be done on an open-ended basis.
This is a very pressing national issue and it is one of the two main contributing factors to road fatalities. There is cross-party agreement that this problem needs to be tackled and many people are making a sincere effort to grapple with it. The Oireachtas Joint Committee on Transport will be dealing with this issue next week and a number of people have been invited to speak on the subject. The Minister has also agreed to meet the committee in a few weeks' time.
The Minister has referred to and quoted his legal advice from time to time. Is he prepared to make this legal advice available to the Oireachtas Joint Committee on Transport because it seems to be the main stumbling block? The political will exists, as does the social acceptance of the need to do something about drink driving and, by and large, the media would be supportive of such action. The main stumbling block is the legality of the action or the legal pitfalls involved. If these have been examined and outlined to the Minister by the Office of the Attorney General, I ask that as a contribution to the debate, he would make that legal advice available to the committee for its meeting tomorrow week because it would be helpful to the national debate.
I hope the Deputy can see that I am engaged with this issue and on which I have had many discussions. It would be worth discussing the legal advice with the committee but I will refer to the Office of the Attorney General on that matter.
One does not need a fait accompli in everything. We seldom have an open debate about things. It is accepted that this is a national issue which needs to be tackled. I acknowledge the Minister’s declaration of his good intentions in this regard and that it is a serious issue. It seems he has been provided with extensive legal advice. As a contribution to this debate and in an effort to move the debate forward, will the Minister publish that advice and let the House know about the problems? I suggest we all take legal advice on this matter and present our proposals for the Minister’s consideration. Why is it necessary to wait until everything is finalised and the Minister has presented his final proposal? There is a sense of urgency about this issue and much interest in it. He should put his legal advice in the public domain and we can take it from there. The Minister should accept that neither he nor the Office of the Attorney General has the monopoly of wisdom in this area.
I accept the point made by the Deputy. There is no question that any legislation will be challenged in the courts. The first person caught under the random breath testing will go to the courts immediately as is their right. I do not wish to introduce a measure which has no chance of success and will result in an undermining of the road safety strategy and possibly other things.
The Minister should allow us read the legal advice.
Much of the advice is delivered orally in discussions of whether a method would be possible or be a success. The advice is given orally rather than the production of tomes of responses. I have put the principles involved clearly to the House in this debate this afternoon and I have done so in the past and provided examples. I will consider the point made by the Deputy but I will not go any further.
Is there a difference in law between random breath testing to detect whether or not a person has been drinking and random speed testing with a roadside speed gun?
It is a good point but I am not a lawyer.
I merely wonder whether there is an answer.
I do not know the answer to that question. Given that there is random speed testing but not random breath testing, I suspect there are fundamental differences.
Even the speed testing is constantly being challenged.
I agree with the Deputy but it is so far, so good.
I apologise for returning to this issue but it has been kicked to touch for many years and after all the talk we should endeavour to bring it to some kind of fruition. The House does not know the legal principles and difficulties relating to this issue. Apart from discussing the issue of proportionality, we do not know about other difficulties which may exist.
That is the core issue.
Will the Minister allow the House read the legal advice? There is a general perception among the public that a close association exists between Members of this House and the publicans' lobby and this point is often made regarding members of the Minister's party. A number of Members of this House are publicans. The longer it takes for any action at Government level, the more cynical the public become and the more they believe there is a vested interest and the political will to do anything about it is absent.
The Minister seems to be kicking to touch again today. I have asked him a straight question. The joint committee will consider this issue next week. I ask the Minister to provide the House with the legal advice in order to help the debate. If the Minister kicks to touch it is difficult to blame people for being sceptical about whether the Government has the political will to tackle this serious social problem. I implore the Minister to give favourable consideration to my request and to produce the legal advice in time for the committee meeting tomorrow week.
Amendment agreed to.
I move amendment No. 113:
In page 63, between lines 13 and 14, to insert the following:
84. (1) In this Part—
"analysis" includes any operation used in determining the presence (if any) of a drug in a specimen of blood or urine, and cognate words shall be construed accordingly;
"analysis body" means a person who, in the opinion of a railway undertaking concerned and the Commission, is competent to carry out an analysis of a sample and is independent of the railway undertaking concerned and of any other railway undertaking;
"authorised person" means a person appointed to be an authorised person under section 94;
"code of conduct" means the code of conduct drawn up by a railway undertaking under section 87(1)(a) or amended under section 87(10) and accepted by the Commission under section 87 (5);
"drug" includes all drugs whether legally obtained or otherwise;
"railway undertaking" means a railway undertaking to which this Part applies;
"safety critical task" has the meaning assigned to it in Part 10;
"safety critical worker" has the meaning assigned to it in Part 10;
"sample" means the provision of a specimen of blood or urine in accordance with sampling procedures;
"sampling procedures" means procedures established under section 87(1)(b) or amended under section 87(10)2 and accepted by the Commission under section 87(5).
Amendment agreed to.
I move amendment No.114:
In page 63, between lines 13 and 14, to insert the following:
85.—(1) This Part applies to a railway undertaking (other than a heritage railway) which operates railway infrastructure or operates trains on a railway infrastructure where such infrastructure is used, or intended to be used, wholly or partly for the carriage of members of the public or freight.
(2) This Part does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used or intended to be used solely for industrial use.
(3) This Part applies to a safety critical worker.".
Amendment agreed to.
I move amendment No.115:
In page 63, between lines 13 and 14, to insert the following:
86.—(1) It is the duty of a safety critical worker and is deemed to be a term of his or her contract of employment or contract of services (whether made before or after the passing of this Act) with a railway undertaking or with a person who has a contract of services with a railway undertaking—
(a) not to perform a safety critical task while being unfit,
(b) not to make himself or herself available to perform a safety critical task by attending at work while being unfit,
(c) not to do anything that is an offence under section 96,
and
(d) to comply with the railway undertaking’s code of conduct and sampling procedures.
(2) It is the duty of a railway undertaking to take reasonable steps to ensure that a safety critical worker complies with his or her duties under subsection (1).
(3) In this section, "unfit" has the meaning assigned to it in section 96.”.
Amendment agreed to.
I move amendment No. 116:
In page 63, between lines 13 and 14, to insert the following:
87. (1) Subject to subsection (2), in order to fulfil its duty under section 86(2), a railway undertaking shall, in consultation with organisations which represent the staff of its undertaking—
(a) draw up a code of conduct for safety critical workers to be observed by each of them while at work in relation to intoxicants,
(b) establish sampling procedures in relation to the provision of samples under section 88 by safety critical workers while at work or following a railway incident, and
(c) provide counselling and other assistance (in this Part referred to as “support services”) to safety critical workers on the request of such workers or in respect of such persons who fail to comply with section 86(1) in order to assist those persons to comply with that subsection in the future.
(2) Without prejudice to the generality of subsection (1)(a), a code of conduct shall include provisions—
(a) providing for the course of action (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or performing specified safety critical tasks or mandatory attendance at counselling) to be taken where a safety critical worker—
(i) has failed to comply with his or her duties under section 86(1),
(ii) has failed, without reasonable excuse, to provide a sample under section 88 or comply with sampling procedures under this section, or
(iii) is convicted of an offence under Chapter 2 of Part 10,
and
(b) providing for procedures relating to appeals under section 89.
(3) Without prejudice to the generality of subsection (1)(b), sampling procedures shall provide for——
(a) matters relating to the circumstances in which sampling may be undertaken under section 88,
(b) the caution to be given to a safety critical worker who is required under section 88 to provide a sample, as to the consequences of failing, without reasonable excuse, to give such sample,
(c) the means of sampling,
(d) the location where a sample may be taken,
(e) analysis of a sample by an analysis body,
(f) privacy in relation to sampling,
(g) procedures for the protection of the integrity of a sample,
(h) division of any specimen of blood and urine into 2 parts and provision of one part to a person being sampled,
(i) a certificate to prove the results of the analysis of a sample and presumption as to the accuracy of the results of the sample so certified, and
(j) grievance procedures in relation to sampling.
(4) A railway undertaking shall, within 6 months of the commencement of this Part or such further period, at the discretion of the Commission, being not more than 12 months from such commencement, submit to the Commission for its acceptance drafts of a code of conduct, sampling procedures and details of support services to be provided.
(5) The Commission shall issue a notification in writing accepting a code of conduct, sampling procedures or details of support services submitted under subsection (4) where the Commission is satisfied that—
(a) it is sufficient to enable the railway undertaking to discharge its duty under section 86(2), and
(b) the undertaking has adequately consulted with organisations which represent the staff of its undertaking.
(6) Where the Commission is not satisfied with any draft code of conduct, sampling procedures or details of support services submitted to it under subsection (4), the Commission shall notify in writing the railway undertaking of its dissatisfaction and the reasons for the dissatisfaction, and the railway undertaking, on receipt of a notification under this subsection shall, before resubmitting to the Commission, within such period as may be specified to it by the Commission, the code, sampling procedures or details, take the action necessary to address the reasons stated in the notification and shall consult with organisations which represent the staff of its undertaking in relation to the said matters.
(7) On service of a notification from the Commission under subsection (6), a railway undertaking shall, within 6 months of the date of the notification, ensure that the code of conduct and sampling procedures are adopted and implemented and support services are provided.
(8) A railway undertaking shall take reasonable steps to ensure that the code of conduct, sampling procedures and details of support services provided by it and an abstract of this Part are displayed in a prominent place in the undertaking and brought to the attention of safety critical workers.
(9) A railway undertaking shall give a copy of the code of conduct, sampling procedures or details of support services provided by it to a safety critical worker upon the request of that worker.
(10) A railway undertaking may amend a code of conduct drawn up, sampling procedures or details of support services provided by it, in consultation with organisations which represent the staff of its undertaking, and subsections (4) to (9) shall apply to any such amendment or alteration with such modifications as are necessary.
(11) A railway undertaking to which this Part and section 94 apply, shall, within 3 months of the end of each year, make a report to the Commission on the implementation by it of the measures provided for in this Part and Part 10. The report shall contain such particulars as the Commission may direct.
(12) The Commission shall, within 2 months of receipt of a report under subsection (11), publish details of the report, but without giving information of a personal, confidential or prejudicial nature.
(13) The Commission shall, before publishing details of a report in accordance with subsection (12), lay a copy of those details before each House of the Oireachtas.
Amendment agreed to.
I move amendment No. 117:
In page 63, between lines 13 and 14, to insert the following:
88.—(1) An authorised person may require a safety critical worker to provide a sample of blood or urine, in accordance with the sampling procedures of the railway undertaking concerned
(a) where he or she is of the opinion, or on the request of an inspector who is of the opinion, that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has a drug in his or her body to such an extent that he or she is in breach of his or her duty under section 86(1),
(b) where a railway incident occurs and he or she is of the opinion, or on the request of an inspector who is of the opinion, that
(i) the safety critical worker concerned was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or
(ii) the safety critical worker concerned failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident,
or
(c) for the safe operation of the undertaking, at random and in circumstances that are reasonable, where that worker is performing a safety critical task or has made himself or herself available to perform a safety critical task by attending at work.
(2) Only a medical practitioner may take a specimen of blood or be provided with a specimen of urine.
(3) It is the duty of a safety critical worker if a requirement to provide a sample is made of him or her under subsection (1), unless he or she has reasonable excuse, to provide the sample.
(4) While a safety critical worker is at a hospital as a patient, he or she shall not be required to provide a sample unless the medical practitioner in immediate charge of his or her case has been notified by an authorised person of the proposal to make the requirement and
(a) if the requirement is then made, it shall be for the provision of a sample at the hospital, but
(b) if the medical practitioner objects, on the ground that the requirement would be prejudicial to the proper care and treatment of the patient, the requirement shall not be made.
(5) A sample provided to an authorised person under this section shall be sent by him or her to an analysis body for the purposes of analysing the sample for drugs and the analysis body shall issue a certificate to the authorised person in relation to the results of the analysis.
(6) An analysis body may charge the railway undertaking concerned a fee in respect of any analysis made and certificate issued by it under subsection (5).
(7) The results of any analysis under subsection (5) in respect of a sample taken under this section shall, at the request of the Investigation Unit, be given to it by the railway undertaking for whom it was made for the purposes of an investigation by the Unit under section 57.”.
Amendment agreed to.
I move amendment No. 118:
In page 63, between lines 13 and 14, to insert the following:
89. (1) Where an authorised person makes a complaint to the management of the railway undertaking which appointed him or her that
(a) a safety critical worker has been convicted of an offence under Chapter 2 of Part 10, or
(b) in his or her opinion, a safety critical worker has
(i) failed to comply with his or her duty under section 86(1),
(ii) failed without reasonable excuse to comply with his or her duty to provide a sample under section 88,
or
(iii) contravened subsection (6),
the railway undertaking concerned shall
(c) in the case of a complaint under paragraph (a), satisfy itself as to the fact of that person’s conviction, and if the code of conduct so provides, inquire at an oral disciplinary hearing into the circumstances of that conviction, and
(d) in the case of a complaint under paragraph (b), satisfy itself as to the facts and circumstances of the matter at an oral disciplinary hearing.
(2) Where, in accordance with subsection (1)(c) or (d), a railway undertaking is satisfied that a safety critical worker
(a) has been convicted of an offence under Chapter 2 of Part 10, or
(b) has
(i) failed to comply with his or her duty under section 86(1),
(ii) failed without reasonable excuse, to comply with his or her duty to provide a sample under section 88,
or
(iii) contravened subsection (6),
it shall decide the course of action to be taken (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or working at safety critical tasks, or mandatory attendance at counselling) in accordance with the code of conduct.
(3) A safety critical worker who is the subject of a disciplinary hearing under this section may represent himself or herself or be represented by another person at the hearing.
(4) Where a railway undertaking imposes any sanction against a safety critical worker as a result of a hearing under this section, it shall afford the worker an opportunity, at his or her choice, to appeal to it or to such other person or persons nominated by the undertaking against the sanction.
(5) A person nominated under subsection (4) shall be independent of the undertaking and shall not be a member of its staff or connected to it or be a member of the staff of or connected to another railway undertaking.
(6) A safety critical worker shall not take or attempt to take any action with the intention of frustrating disciplinary measures under this section.
Amendment agreed to.
I move amendment No. 119:
In page 63, between lines 13 and 14, to insert the following:
90. In any disciplinary hearing under section 89 or in any proceedings, a certificate, issued under section 88(5), purporting to be signed by a person employed or engaged in the analysis of samples provided under section 88(1) 2 at an analysis body, stating the capacity in which the person is so employed or engaged and stating any one or more of the following, namely
(a) that the person received the sample sent under section 88 (5) to the analysis body,
(b) that, for such period as is specified in the certificate, the person had in his or her custody the sample so sent,
(c) that the person gave to such other person as is specified in the certificate the sample so sent,
(d) that the person carried out the analysis of the sample, and
(e) the results of the analysis, shall, unless the contrary is shown be evidence of the matters stated in the certificate.
Amendment agreed to.
Question, "That section 83 stand part of the Bill", put and decided in the negative.
Amendment No. 120 cannot be moved.
Amendment No. 120 not moved.
Question, "That section 84 stand part of the Bill", put and decided in the negative.
Amendment No. 121 cannot be moved.
Amendment No. 121 not moved.
Question, "That sections 85 to 87, inclusive, stand part of the Bill", put and decided in the negative.
Amendment No. 122 cannot be moved.
Amendment No. 122 not moved.
Amendment Nos. 122a and 122b not moved.
Question, "That section 88 stand part of the Bill", put and decided in the negative.
Amendment No. 123 cannot be moved.
Amendment No. 123 not moved.
Question, "That sections 89 to 91, inclusive, stand part of the Bill", put and decided in the negative.
I move amendment No. 124:
In page 71, before line 1, to insert the following:
PART 10
OFFENCES BY PERSONS WORKING ON RAILWAY INFRASTRUCTURE
Chapter 1
Preliminary
91. This Part comes into operation on such day or days as the Minister may appoint by order either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Amendment agreed to.
I move amendment No. 125:
In page 71, before line 1, to insert the following:
92.—(1) In this Part—
"analysis" includes any operation used in determining the concentration of alcohol in a specimen of breath, blood or urine, and any operation used in determining the presence (if any) of a drug or drugs in a specimen of blood or urine, and cognate words shall be construed accordingly;
"Bureau" means Medical Bureau of Road Safety;
"designated" means designated by a member of the Garda Síochána;
"prescribed" means prescribed in regulations made by the Minister;
"safety critical task" means a task specified in paragraph (i), (ii) or (iii) when performed in the course of the operation of a railway undertaking, and
(a) in the course of a person’s employment with the undertaking,
(b) under a contract of services with the undertaking,
(c) in the course of a person’s employment with a person who has a contract of services with the undertaking, or
(d) voluntarily or otherwise, namely
(i) driving a train, or in any other way controlling or affecting the movement of a train,
(ii) controlling, affecting or managing, the movement of persons on a train, on a platform, across a level crossing, or, the boarding of, or alighting from, a train of persons, or
(iii) working in a maintenance capacity (as defined in subsection (2) or as a supervisor of, or look-out for, persons working in such capacity;
"safety critical worker" means a person who performs a safety critical task.
(2) For the purposes of this Part and Part 9, a person works in the course of the operation of a railway undertaking in a maintenance capacity, if his or her work in the operation involves installation, maintenance, repair, alteration or inspection of, railway infrastructure or trains, or involves coupling or uncoupling trains or performing a pre-departure examination of trains.
Amendment agreed to.
I move amendment No. 126:
In page 71, before line 1, to insert the following:
93. (1) A member of the Garda Síochána may enter railway property for the purposes of enforcing this Part.
(2) A member of the Garda Síochána may request a railway undertaking to stop a train at a convenient and safe location for the purposes of this Part.
(3) In exercising a power under subsection (2), a member of the Garda Síochána shall take all reasonable steps to avoid disruption to the operations of the railway undertaking concerned.
Amendment agreed to.
I move amendment No. 127:
In page 71, before line 1, to insert the following:
94. (1) This section applies to a railway undertaking (other than a heritage railway) which operates railway infrastructure or operates trains on a railway infrastructure where such infrastructure is used, or intended to be used, wholly or partly for the carriage of members of the public or freight.
(2) This section does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used, or is intended to be used, solely for industrial use.
(3) A railway undertaking to whom this section applies shall appoint persons whom it, with the consent of the Commission, considers are suitably qualified to be authorised persons for the purpose of performing functions under this Part and Part 9, on its behalf.
(4) An authorised person is not entitled to perform a function under this Part or Part 9 unless he or she has received training and instruction, which, in the opinion of the undertaking concerned, is such as will provide appropriate guidance to him or her in the performance of the function.
(5) An authorised person, shall, on his or her appointment under this section, be furnished by the railway undertaking concerned with a warrant of his or her appointment as an authorised person and when performing any function conferred on an authorised person under this Part or Part 9, shall if requested by any person affected, produce such warrant to that person for inspection.
(6) A statement by an employee involved in the management of the railway undertaking concerned that, a warrant of appointment as an authorised person was furnished to a particular person, and such person had received training and instruction which, in the opinion of the undertaking concerned, provided appropriate guidance to such person in the performance by him or her of a function under this Part or Part 9, shall, until the contrary is proved, be sufficient evidence in any proceedings of the fact of, the furnishing of such warrant to such person, receipt by him or her of such training and instruction, and the making of the statement by an employee so involved in the undertaking.
(7) A warrant furnished by an undertaking under subsection (5) shall be in such form and contain such particulars as may, from time to time, be specified by the Commission.
(8) Subject to the Fire Services Act 1981, an authorised person shall have unhampered access to a railway incident site for the purposes of this Part and Part 9.
(9) Subject to the Fire Services Act 1981, a railway undertaking shall, for the purposes of this Part and Part 9, ensure that an authorised person appointed by it has unhampered access to any railway property under its management or control.
(10) An authorised person may be referred to by the undertaking concerned by such title as it decides.
Amendment agreed to.
I move amendment No. 128:
In page 71, before line 1, to insert the following:
Chapter 2
Intoxicants
95. (1) The Bureau shall perform the functions assigned to it by this Chapter.
(2) In particular, and without prejudice to the generality of subsection (l), the Bureau shall arrange for
(a) the receipt and analysis of specimens of blood and urine forwarded to the Bureau under this Part and the issue of reports on such analyses,
(b) the determination, in respect of such specimens, of the concentration of alcohol in the blood or urine and of the presence (if any) of a drug or drugs in the blood or urine, and
(c) the issue of certificates required under this Chapter to be issued by the Bureau.
(3) The Director shall exercise general supervision in relation to the performance by the Bureau of the functions assigned to it by or under this Chapter.
(4) No action or other legal proceedings lie (except in the case of wilful neglect or default) against the Director or any member, officer or employee of the Bureau by reason of, or arising out of, any analysis or determination under this Part.
Amendment agreed to.
I move amendment No. 129:
In page 71, before line 1, to insert the following:
96. (1) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while being unfit, is guilty of an offence.
(2) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while there is present in his or her body a quantity of alcohol such that, within 3 hours after so performing that task or of attending at work, the concentration of alcohol
(a) in his or her blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood,
(b) in his or her urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine, or
(c) in his or her breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath,
is guilty of an offence.
(3) The Minister may, by regulations, provide for other amounts, for the time being, to stand in lieu of any of the amounts of alcohol concentration specified in subsection (2)(a), (b) or (c).
(4) A draft of every regulation proposed to be made under subsection (3) shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.
(5) In this section and in section 86, ’unfit’ means, in relation to a safety critical worker, being under the influence of an intoxicant to such an extent that his or her ability to perform a safety critical task, without exposing a person (including himself or herself) to danger or risk of danger, is for the time being impaired.
Amendment agreed to.
I move amendment No. 130:
In page 71, before line 1, to insert the following:
97. (1) Where an authorised person or a member of the Garda Síochána is of the opinion—
(a) that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work,
(i) has consumed intoxicating liquor, or
(ii) is committing or has committed an offence under section 96,
(b) where a railway incident occurs, that
(i) a safety critical worker was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or
(ii) a safety critical worker failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident, or at the request of an inspector who is of such opinion, he or she may make a requirement of the safety critical worker under subsection (3).
(2) Without prejudice to subsection (1), a member of the Garda Síochána or an authorised person may, for the safe operation of a railway undertaking, at random and in circumstances that are reasonable, make a requirement under subsection (3) of a safety critical worker who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work.
(3) A member of the Garda Síochána or an authorised person, may, in the circumstances referred to in subsection (1) or (2), require a safety critical worker
(a) to provide, or to accompany him or her to a place (including a vehicle) at or in the vicinity of the railway infrastructure concerned and there require the worker to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath, or
(b) where the authorised person or member does not have such apparatus with him or her, to remain (for not more than one hour), at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person or member of the Garda Síochána until such an apparatus becomes available to him or her and the authorised person or member may then require the worker, to provide by exhaling into such an apparatus, a specimen of his or her breath.
(4) Where an authorised person is of the opinion that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has consumed intoxicating liquor, or is committing or has committed an offence under section 96, and where a member of the Garda Síochána is not present, the authorised person shall require the safety critical worker concerned to remain (for not more than one hour), as the case may be, at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person, pending the arrival of a member.
(5) A member of the Garda Síochána or an authorised person making a requirement under subsection (3) may indicate the manner in which the safety critical worker is to comply with the requirement.
(6) A safety critical worker who refuses or fails, to comply immediately with a requirement under this section, or to comply immediately with such a requirement in a manner indicated by a member of the Garda Síochána or an authorised person, is guilty of an offence.
(7) In a prosecution for an offence under this Chapter, it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána or an authorised person for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.
Amendment agreed to.
I move amendment No. 131:
In page 71, before line 1, to insert the following:
98. (1) A member of the Garda Síochána may arrest a safety critical worker without warrant if he or she has reasonable cause to suspect that worker is committing or has committed an offence under section 96 or 97.
(2) For the purpose of arresting a safety critical worker under subsection (1), where a member of the Garda Síochána has reasonable cause to suspect that the worker is committing or has committed an offence under section 96 or 97, the member may enter (if need be by force) any place where that worker is or where the member, with reasonable cause, suspects him or her to be.
Amendment agreed to.
I move amendment No. 132:
In page 71, before line 1, to insert the following:
99.(1) Where a safety critical worker is arrested under section 98, a member of the Garda Síochána may, at a Garda Síochána station, at his or her discretion, do either or both of the following:
(a) require the worker to provide, by exhaling into anapparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement,
(b) require the worker either
(i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood,
(ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.
(2) If the medical practitioner referred to in subsection (1)(b) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker’s blood or be provided by the worker with a specimen of the worker’s urine, the member may make a requirement of the worker under subsection (1)(b) in relation to the specimen other than that to which the first requirement related.
(3) Subject to section 107, a person who refuses or fails to comply immediately with a requirement under subsection (1)(a) is guilty of an offence.
(4) Subject to section 107, a person who, following a requirement under subsection (1)(b)—
(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, is guilty of an offence.
(5) In a prosecution for an offence under this Chapter it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath.
Amendment agreed to.
I move amendment No. 133:
In page 71, before line 1, to insert the following:
100. (1) Where a railway incident occurs in consequence of which a safety critical worker is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the incident
(a) the worker was working on the railway infrastructure or on a train involved in the incident, and
(b) the worker had consumed an intoxicant, then the member may, in the hospital, require the worker either
(i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or
(ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.
(2) If the medical practitioner referred to in subsection (1) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker’s blood under subsection (1)(i) or be provided by the worker with the specimen of the worker’s urine under subsection (1)(ii), the member may make a requirement of the worker under subsection (1) in relation to the specimen other than that to which the first requirement related.
(3) Subject to section 107, a person who, following a requirement under subsection (1)
(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, is guilty of an offence.
(4) Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a medical practitioner and the medical practitioner refuses, on medical grounds, to permit the taking or provision of the specimen concerned.
Amendment agreed to.
I move amendment No. 134:
In page 71, before line 1, to insert the following:
101. —Where a safety critical worker is at a Garda Síochána station having been arrested under section 98, section 16 of the Road Traffic Act 1994 applies and references in that section to subsection (1) of that Act are to be read as including references to this section.
Amendment agreed to.
I move amendment No. 135:
In page 71, before line 1, to insert the following:
102. (1) Where, consequent on a requirement under section 99 of him or her, a safety critical worker provides 2 specimens of his or her breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen, in case the apparatus determines that each specimen has
(a) the same concentration of alcohol, either specimen, or
(b) a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of section 96(2) and the other specimen shall be disregarded.
(2) Where the apparatus referred to in section 99 determines that in respect of the specimen of breath to be taken into account the safety critical worker may have contravened section 96(2) he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by the apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the apparatus.
(3) On receipt of the statements, the safety critical worker shall on being requested so to do by the member
(a) immediately acknowledge such receipt by placing his or her signature on each statement, and
(b) return either of the statements to the member.
(4) A person who refuses or fails to comply with subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000 or to imprisonment for a term not exceeding 1 month, or to both.
(5) Section 106(1) applies to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section.
Amendment agreed to.
I move amendment No. 136:
In page 71, before line 1, to insert the following:
103. (1) Where under this Chapter a designated medical practitioner has taken a specimen of blood from a safety critical worker or has been provided by the worker with a specimen of his or her urine, the medical practitioner shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.
(2) Where a specimen of blood or urine of a safety critical worker has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the worker one of the sealed containers together with a statement in writing indicating that he or she may retain either of the containers.
(3) As soon as practicable after subsection (2) has been complied with, a member of the Garda Síochána shall cause to be forwarded to the Bureau the completed form referred to in subsection (1), together with the relevant sealed container or, where the safety critical worker has declined to retain one of the sealed containers, both relevant sealed containers.
(4) In a prosecution for an offence under section 96 it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.
Amendment agreed to.
I move amendment No. 137:
In page 71, before line 1, to insert the following:
104. (1) As soon as practicable after it has received a specimen forwarded to it under section 103, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.
(2) Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same safety critical worker or 2 specimens of urine so forwarded together in relation to the same worker, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or (as may be appropriate) one of the 2 specimens of urine.
(3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the prescribed form for the purpose of this section and shall forward a copy of the completed certificate to the safety critical worker who is named on the relevant form under section 103 as the person from whom the specimen was taken or who provided it.
(4) In a prosecution for an offence under section 96, it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.
Amendment agreed to.
I move amendment No. 138:
In page 71, before line 1, to insert the following:
105. (1) A safety critical worker shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to comply with a requirement under section 99) with the intention of frustrating a prosecution under section 96.
(2) A person who contravenes subsection (1) is guilty of an offence.
(3) Where, on the hearing of a charge for an offence under section 96, the court is satisfied that any action taken by the defendant (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his or her breath or urine or to permit the taking of a specimen of his or her blood) was taken with the intention of frustrating a prosecution under that section, the court may find him or her guilty of an offence under subsection (2).
Amendment agreed to.
I move amendment No. 139:
In page 71, before line 1, to insert the following:
106. (1) A duly completed statement purporting to have been supplied under section 102(2) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him or her by or under this Chapter prior to and in connection with the supply by him or her under section 102(2) of such statement.
(2) A duly completed form under section 103(1) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the designated medical practitioner concerned with the requirements imposed on him or her by or under this Chapter.
(3) A certificate expressed to have been issued under section 104 is, until the contrary is shown, sufficient evidence in any proceedings under this Part of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Chapter.
(4) In a prosecution for an offence under section 96, it shall be presumed, until the contrary is shown, that each of the following persons is a designated medical practitioner—
(a) a person who by virtue of powers conferred on him or her by this Part took from another person a specimen of that other person’s blood or was provided by another person with a specimen of that other person’s urine,
(b) a person for whom, following a requirement under section 99(1) or 100(1) to permit the taking by him of a specimen of blood, there was a refusal or failure to give such permission or to comply with a requirement of his or her in relation to the taking of such a specimen,
(c) a person for whom, following a requirement under section 99(1) or 100(1) to provide for him or her a specimen of urine, there was a refusal or failure to provide such a specimen or to comply with a requirement of his or her in relation to the provision of such a specimen.
(5) Where, pursuant to section 99 or 100 a designated medical practitioner states in writing that he or she is unwilling, on medical grounds, to take from a person a specimen of his or her blood or be provided by him or her with a specimen of his or her urine, the statement signed by the medical practitioner is, in any proceedings under this Part, sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it.
Amendment agreed to.
I move amendment No. 140:
In page 71, before line 1, to insert the following:
107.(1) In a prosecution of a safety critical worker for an offence under section 99 for refusing or failing to comply with a requirement to provide 2 specimens of his or her breath, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.
(2) In a prosecution of a safety critical worker for an offence under section 99 or 100 for refusing or failing to comply with a requirement to permit a designated medical practitioner to take a specimen of blood or for refusing or failing to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.
(3) Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under section 96 that the defendant refused or failed to comply with a requirement to provide 2 specimens of his or her breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his or her blood or to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, as the case may be.
(4) It is not a defence for a person charged with an offence under section 96 to show that, in relation to the facts alleged to constitute the offence, an analysis or determination under this Chapter, has not been carried out or that he or she has not been requested under section 97 to provide a specimen of his or her breath.”.
Amendment agreed to.
I move amendment No. 141:
In page 71, before line 1, to insert the following:
108. A person guilty of an offence under this Chapter (other than section 102(4)) is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.
Amendment agreed to.
I move amendment No. 142:
In page 71, before line 1, to insert the following:
Chapter 3
Carelessly or dangerously working or working while unfit, on railway
109. (1) A safety critical worker shall not perform a safety critical task on railway property or in a public place without taking due care and attention.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €2,500 or to imprisonment for a term not exceeding 3 months, or to both.
Amendment agreed to.
I move amendment No. 143:
In page 71, before line 1, to insert the following:
110. (1) A safety critical worker shall not perform a safety critical task in a manner which, having regard to all the circumstances of the case, is dangerous to the safety of persons or poses an unreasonable risk of harm to persons.
(2) A person, being a supervisor, manager, director or secretary of a railway undertaking, shall not instruct a safety critical worker to perform a safety critical task in a manner that may cause that worker to contravene subsection (1).
(3) A person who contravenes subsection (1) or (2) is guilty of an offence and
(a) in case the contravention causes loss of life or serious personal injury to another person, is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding €10,000, or to both, or
(b) in any other case, is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.
(4) In proceedings for an offence under subsection (3), it shall be a defence for the person against whom such proceedings are brought to prove that the safety critical task
(a) in respect of a contravention of subsection (1), was performed, or
(b) in respect of a contravention of subsection (2), was instructed to be performed,
in accordance with written rules or procedures of the railway undertaking concerned, where those rules or procedures specify the manner in which that task should be performed.
(5) Where a member of the Garda Síochána is of the opinion that a person has committed an offence under this section causing loss of life or serious personal injury to another person, the member may arrest the person without warrant.
Amendment agreed to.
I move amendment No. 144:
In page 71, before line 1, to insert the following:
111.—(1) A railway undertaking may require a safety critical worker to undergo an assessment by a medical practitioner, nominated by the undertaking, of his or her fitness to perform a safety critical task and such person shall co-operate with such medical assessment.
(2) Railway undertakings shall ensure that safety critical workers undergo assessment by a medical practitioner of their fitness to perform safety critical tasks.
(3) Where, following an assessment under subsection (1), a medical practitioner is of the opinion that a safety critical worker is unfit to perform a safety critical task, he or she shall notify the railway undertaking concerned, by the quickest practicable means, of that opinion and shall inform the safety critical worker of that opinion and the reasons for that opinion.
(4) If a safety critical worker becomes aware that he or she is suffering from any disease or physical or mental impairment which, should he or she perform a safety critical task, would be likely to cause him or her to expose a person to danger or risk of danger, he or she shall immediately notify the railway undertaking concerned.
(5) Where a railway undertaking receives a notification under subsection (3) or (4), it shall not permit the safety critical worker concerned to perform a safety critical task until such time as an assessment under subsection (1) confirms that he or she is fit to so perform that task.
(6) The Commission may, with the consent of the Minister, and after consultation with railway undertakings, organisations which represent staff of railway undertakings, the Medical Council, the Health and Safety Authority and such other persons as in the opinion of the Commission may be relevant, make regulations in relation to all or any of the following
(a) the nature of a medical assessment under subsection (1) and the matters that shall be assessed, or
(b) the frequency of an assessment under subsection (2).
(7) The Commission may, after consultation with railway undertakings, organisations which represent staff of railway undertakings, the Medical Council, the Health and Safety Authority and such other persons as in the opinion of the Commission may be relevant, publish guidelines in relation to the types of disease or physical or mental impairment which may require notification by a safety critical worker to a railway undertaking under subsection (4).
(8) On each occasion that a safety critical worker attends his or her medical practitioner, he or she shall inform that medical practitioner of his or her position as a safety critical worker.
Amendment agreed to.
Is it appropriate for me to speak to that amendment?
No it is not because it has already been discussed. We will now deal with the amendments to amendment No. 144.
I move amendment No. 1 to amendment No. 144:
In subsection (7), in the second line, to delete "organisations" and substitute "trade unions or staff associations,".
I am sorry that we missed this earlier because I am favourably disposed to Deputy Shortall's suggestion. I would like to consult with the Office of the Parliamentary Counsel before tabling a suitable amendment for Seanad Éireann. I am in agreement in principle, but I must ensure that the wording is correct. In fact, Deputy Shortall's second amendment to the amendment deals with consultation with the Equality Authority and I am happy to accept that suggestion.
There will be sufficient time to deal with this on Report Stage.
I will have to revert to the Parliamentary Counsel.
Amendment No. 1 to amendment No. 144, by leave, withdrawn.
I move amendment No. 2 to amendment No. 144:
In subsection (7) in the third line, after "Medical Council" to insert "the Equality Authority".
I am happy to accept this amendment.
Amendment No. 2 to amendment No. 144 agreed to.
Amendment No. 144, as amended, agreed to.
SECTION 92.
I move amendment No. 145:
In page 71, line 52, to delete €100,000 and substitute €500,000.
I propose to increase the penalty in section 92 for indictable offences relating to road authorities and others who endanger railway safety through failure to maintain works on a public road in the vicinity of a railway structure. I propose to increase this penalty from €100,000 to €500,000 as a failure to maintain works is a serious offence and is worthy of a higher penalty.
I welcome the increase. The Minister is correct that the potential for damages is enormous. The port tunnel comes to mind. Does the definition of a public road include a tunnel? Would the port tunnel be covered and are there other kinds of infrastructure that would not come under that heading?
A tunnel is a public road.
Is there other potential infrastructural work that would not come under the heading of a public road?
Not that I am aware of. As the Deputy raised the point, I will look at it before going to the Seanad to see if there is a tighter or more specific definition. It is interpreted in terms of road use. It is a reasonable point.
Amendment agreed to.
Section 92, as amended, agreed to.
Sections 93 to 97, inclusive, agreed to.
SECTION 98.
I move amendment No. 146:
In page 73, line 26, to delete “Parts 10 or 11” and substitute “Part 12”.
This is a technical amendment to correct a drafting error caused by the withdrawal on Committee Stage of a proposed amendment to insert a new Part 10 in the Bill providing for offences by persons working on a railway.
Amendment agreed to.
Section 98, as amended, agreed to.
SECTION 99.
I move amendment No. 147.
In page 73, between lines 30 and 31, to insert the following:
"(2) The Commission shall be entitled—
(a) to view and take copies of any record or other evidence gathered or obtained by the Investigation Unit during the course of its investigation of a railway incident under section 57, and
(b) subject to section 57(17) to submit as evidence in criminal or other proceedings any such record or other evidence.
(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for any offence under this Act may be instituted at any time within 2 years after the date of the offence.".
Amendment agreed to.
Section 99, as amended, agreed to.
Sections 100 and 101 agreed to.
SECTION 102.
I move amendment No. 148:
In page 74, line 31, to delete "2001" and substitute "2005".
This is an amendment to update the reference to the Companies Act.
Amendment agreed to.
Section 102, as amended, agreed to.
Sections 103 and 104 agreed to.
NEW SECTIONS.
Amendments Nos. 149 and 150 are related and amendment No. 2 is consequential. The amendments will be discussed together.
I move amendment No. 149:
In page 76, between lines 27 and 28, to insert the following:
"105.—The Transport Act 1950 is amended—
(a) in section 20(1), by inserting after paragraph (b) the following:
‘(bb) the provision of parking facilities for vehicles on land belonging to or occupied by the Board, including fees for failure to comply with bye-laws made under section 22 (1)(ee),’,
(b) in section 22—
(i) by inserting after paragraph (e) of subsection (1) the following:
‘(ee) for matters relating to the use and parking of vehicles on land belonging to or occupied by the Board including—
(i) the regulation of traffic generally, including parking restrictions, direction of traffic and the maximum speed of traffic on such land,
(ii) the making of provision for the fixing of an immobilisation device to any vehicle which has been unlawfully parked in any place on such land, and
(iii) the regulation of small public service vehicles (within the meaning of section 3 of the Road Traffic Act 1961) at railways or the approaches thereto;',
and
(ii) by substituting for subsection (4) (as amended by section 6 of the Transport Act 1987) the following:
‘(4) Where a person contravenes a provision of bye-laws made under this section which is stated in the bye-laws to be a penal provision, he or she is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(4A) The liability of an offender to a penalty under subsection (4) of this section does not prejudice the recovery of any fare, tariff or fee payable by him or her to the Board for any damage caused by him or her to property of the Board.
(4B) An offence under subsection (4) of this section may be prosecuted by the Board.',
and
(c) in section 59, by substituting for subsection (1) (as amended by section 7 of the Transport Act 1987) the following:
‘(1) A person who trespasses on any of the railways of or worked by the Board is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.'."
These amendments propose changes to the Transport Act 1950. The new section set out in amendment No. 149 provides in paragraph (a) for the amendment of section 21 of the Transport Act 1950 so that CIE may levy charges for parking on railway property and may levy fees for removal of clamps from vehicles parked in breach of by-laws. CIE may already have a common law power to do this, but it is generally best to confirm such powers in primary legislation.
Some of these issues have been dealt with previously. Paragraph (b)(i) of amendment No. 149 amends section 22 of the Act and empowers CIE to make by-laws in regard to parking on their property, clamping of illegally parked vehicles and regulation of traffic generally.
Amendment agreed to.
I move amendment No. 150:
In page 76, between lines 27 and 28, to insert the following:
"106.—The following section is inserted after section 22 of the Transport Act 1950:
"22A.—(1) If an authorised officer reasonably suspects that a person—
(a) is contravening or has contravened or is failing or has failed to comply with a provision of bye-laws made under section 22 of this Act which is stated in the bye-laws to be a penal provision,
(b) is committing or has committed an offence under section 59(1) of this Act, section 25 of the Transport (Miscellaneous Provisions) Act 1971, or section 96 or 106 of the Railway Safety Act 2004,
(c) is assaulting or has assaulted or is causing or has caused deliberate harm to another on railway property,
(d) is causing or has caused wanton or deliberate damage to railway property,
(e) is obstructing or has obstructed or is impeding or has impeded an authorised officer in the exercise of his or her duties under this section or any provision of bye-laws made under section 22 of this Act which is stated in the bye-laws to be a penal provision,
(f) on any railway property is intoxicated or is committing or has committed an offence under section 15 of the Misuse of Drugs Act 1977, or
(g) if requested by an authorised officer to cease such contravention or action or to so comply, fails to comply with the request, he or she may—
(i) using such reasonable force as the circumstances require, remove or escort the person from the railway property or any part of it,
(ii) in circumstances where the officer considers it to be justified, arrest the person without warrant, or
(iii) require the person to give his or her name and address and, if the person fails or refuses to do so or gives a name that the authorised officer reasonably suspects is false or misleading may arrest that person without warrant,
and, if he or she is not a member of the Garda Síochána, deliver, as soon as practicable, the person, if arrested, into the custody of a member of the Garda Síochána to be dealt with according to law.
(2) A person who fails or refuses to give his or her name or address when required under subsection (1) of this section, or gives a name or address which is false or misleading, is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(3) The Board may appoint such and so many persons as it considers necessary to be authorised officers for the purposes of this section or any provision of bye-laws made under section 22 of this Act which is stated in the bye-laws to be a penal provision.
(4) An authorised officer, who is not a member of the Garda Síochána, is not entitled to exercise a power under this section unless he or she has received training and instruction, which, in the opinion of the Board is such as will provide guidance to him or her in the exercise of the power.
(5) The Board shall endorse on the warrant it furnishes to an authorised officer under subsection (6) of this section a statement to the effect that the officer has received the training and instruction referred to in subsection (4) of this section.
(6) An authorised officer, who is not a member of the Garda Síochána, shall, on his or her appointment under this section, be furnished by the Board with a warrant of his or her appointment as an authorised officer.
(7) An authorised officer, who is not a member of the Garda Síochána, when exercising a power under this section shall be in uniform provided or authorised by the Board.
(8) The arrest of a person under this section does not prejudice the re-arrest of the person by a member of the Garda Síochána.
(9) An authorised officer, who is not a member of the Garda Síochána, may be referred to by the Board by such title as it decides.
(10) In this section—
"authorised officer" means a person appointed under this section or a member of the Garda Síochána whose attendance is requested by an authorised officer or by the Board;
"railway property" means all land, buildings, railway infrastructure (within the meaning of the Railway Safety Act 2004), rolling stock and vehicles within the control of the Board.
(11) In this section a reference to the committal of an offence or an act includes a reference to an attempt to commit the offence or the act.".
Amendment agreed to.
Section 105 agreed to.
NEW SECTIONS.
Amendments Nos. 151, 155 and 157 are related and will be discussed together.
I move amendment No. 151:
In page 76, after line 36, to insert the following:
"PART 14
Miscellaneous
106.—(1) Every passenger of a railway undertaking shall, on request by an officer or employee of a railway undertaking, produce, and if so requested, deliver up to the officer or employee a ticket showing that his or her fare is paid and, if the fare has not been paid, shall upon request—
(a) pay, to the officer or employee—
(i) his or her fare from the place where he or she started the journey by railway, or
(ii) such other fare for non-payment of a fare as fixed by the undertaking, as the officer or employee decides, or
(b) give the officer or employee his or her name and address.
(2) A passenger who fails—
(a) to comply with a request under subsection (1) to deliver up a ticket,
(b) to pay the fare required under subsection (1)(a), or
(c) to give his or her name and address, if requested under subsection (1)(b),
is guilty of an offence.
(3) A passenger who—
(a) travels or attempts to travel on a railway of a railway undertaking without having previously paid his or her fare, and with intent to avoid such payment,
(b) having paid his or her fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance, and with intent to avoid such payment, or
(c) having failed to pay his or her fare, gives in reply to a request by an officer or employee of a railway undertaking a false or misleading name or address,
is guilty of an offence.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €1,000.
(5) The liability of an offender to a penalty under this section does not prejudice the recovery of any fare payable by him or her.".
The purpose of the amendments is to update the law on fare evasion. The existing law on fare evasion is set out in sections 5 and 6 of the Regulations of Railway Acts 1889, as amended by section 10 of the Transport Act 1987, which I am proposing to repeal in amendments Nos. 155 and 157 and replace with the new section set out in amendment No. 151. The principles in the 1889 Act are still appropriate.
This amendment is essentially to modernise the legislation. Amendment No. 151 requires a person when requested by an employee of a railway company to produce a valid ticket for the journey made. If the person does not have a valid ticket, an employee of the railway company can require him or her to pay the correct fare or the standard fare for fare evasion levied by the railway company, or to give his or her name and address. A person who refuses this request will be guilty of an offence. It will also be an offence to wilfully evade the correct fare or to give a false name and address when requested. Conviction will carry a maximum fine of €1,000 and the offender will still be liable for the unpaid fare or standard fare levied. The prison sentence provided for in the 1889 Act is in excess of penalty and, therefore, I do not propose to include this.
Amendment agreed to.
I move amendment No. 152:
In page 76, after line 36, to insert the following:
"107.—(1) Where an authorised officer has reasonable grounds for believing that a person is committing or has committed an offence under section 22(4), 22A(2) or 59(1) of the Transport Act 1950, section 25(1) of the Transport (Miscellaneous Provisions) Act 1971, or section 96 or 1061, he or she may serve the person with a notice (’fixed payment notice’) in the prescribed form stating that—
(a) the person is alleged to have committed the offence,
(b) the person may during the period of 21 days beginning on the date of the notice make to the railway undertaking concerned at the address specified in the notice a payment of €100, or in lieu of that amount such other amount standing specified for the time being in regulations, accompanied by the notice, and
(c) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
(2) Where a fixed payment notice is given under subsection (1)—
(a) a person to whom the notice applies may, during the period specified in the notice, make to the railway undertaking concerned at the address specified in the notice the payment specified in the notice accompanied by the notice,
(b) the railway undertaking concerned may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstances by the person who made it, and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In a prosecution for an offence under this Act the onus of proving that a payment pursuant to a notice under this section has been made shall lie on the defendant.
(4) A railway undertaking may appoint such and so many persons as it considers necessary to be authorised officers for the purpose of subsection (1) generally or for specified purposes.
(5) In this section—
‘authorised officer' includes in relation to an offence under section 22(4), 22A(2) or 59(1) of the Transport Act 1950, section 25(1) of the Transport (Miscellaneous Provisions) Act 1971 and section 96 or 106 and in relation to railway property belonging to or under the control of Corás Iompair Éireann, an authorised officer appointed under section 22(A) (inserted by section 106) of the Transport Act 1950;
‘prescribed' means prescribed by regulations made by the Minister.".
The amendment proposes a new section which provides an authorised officer appointed by Iarnród Éireann with the discretion to issue an on-the-spot fine for persons suspected of having committed a certain specified offence. The purpose of this new section is to reduce the burden on Iarnród Éireann of prosecuting many lesser offences. On-the-spot fines are established practice in many jurisdictions and they have the advantage of not clogging up the courts with minor prosecutions. Offences covered include trespass, failure to close a level crossing gate and proper use of the emergency chord, fare evasion, breach of a by-law and giving a false name and address to an authorised officer.
Amendment agreed to.
Amendments Nos. 1 and 2 to amendments Nos. 153 and 154 are related and will be discussed together.
I move amendment No. 153:
In page 76, after line 36, to insert the following:
"PART 15
Light Railway and Metro
108.—(1) The following sections are substituted for section 66 of the Transport (Railway Infrastructure) Act 2001:
66.—(1) Bye-laws may be made—
(a) by the Agency, in relation to a railway, or
(b) with the consent of the Agency, by a railway undertaking in relation to a railway it operates or under its control, in relation to any one or more of the following matters—
(i) the general regulation, subject to any statutory provisions in that behalf, of—
(I) the travelling upon or use of a railway, (including a requirement to travel with a valid ticket or pass and the issue of such), or
(II) the working of railway transport services by a railway undertaking,
(ii) the prevention of the commission of nuisances in or upon a railway,
(iii) the prevention of damage to railway infrastructure,
(iv) the removal from or the prohibition of the use on a railway of any vehicle or thing which is or may become a danger to life, health, the operation or maintenance of a railway or would otherwise interfere with the proper operation of a railway,
(v) the regulation of parking of vehicles on or adjacent to a railway,
(vi) the safe custody and return or disposal of any property found on a railway,
vii) the repair, improvement, extension and development of a railway,
(viii) subject to any statutory provisions in that behalf, the regulation of works that would affect the operation or maintenance of a railway or would otherwise interfere with the proper operation of a railway.
(2) Bye-laws under this section may contain such incidental, subsidiary and ancillary provisions as the Agency or the railway undertaking making the bye-laws, considers necessary or expedient for the purposes of the bye-laws.
(3) The Agency, or, as the case may be, a railway undertaking may provide for reasonable charges in respect of matters provided for in bye-laws made by it under this section.
(4) Whenever, after the passing of the Railway Safety Act 2005, the Agency or a railway undertaking proposes to make bye-laws under this section, the following provisions have effect—
(a) the Agency or the undertaking, as the case may be, shall publish notice of the proposal at least once in at least 2 daily newspapers published in and circulating in the State or the area to which the bye-laws relate,
(b) the notice shall include—
(i) a statement of the purposes for which the bye-laws are to be made,
(ii) an intimation that a copy of draft bye-laws is open for public inspection at the principal offices in the State of the Agency or the undertaking, as the case may be,
(iii) an intimation that any person may submit to the Agency or the undertaking, as the case may be, objections to the draft bye-laws at any time during the period of 30 days commencing on the date of the first publication of the notice,
(c) the Agency or the undertaking, as the case may be, shall, during that period of 30 days, keep a copy of the draft bye-laws open for public inspection during ordinary office hours at its principal offices,
(d) any person who objects to the draft bye-laws may submit his or her objection to the Agency or the undertaking, as the case may be, in writing at any time during that period of 30 days and the Agency or the undertaking, as the case may be, shall consider the objections, and
(e) on the completion of that period of 30 days, the Agency or the undertaking, as the case may be, shall as it thinks proper, refrain from making the bye-laws or make the bye-laws either without modification or with modification as it thinks proper.
(5) Such details of bye-laws under this section shall be displayed on a railway, where practicable, in conspicuous places in such manner as—
(a) the Agency, where the bye-laws are made by it, or
(b) a railway undertaking, where the bye-laws are made by it, subject to any general direction of the Agency,
considers best adapted for giving information to the public. The absence of any such display is not a defence to a contravention of or failure to comply with such bye-laws.
(6) Bye-laws under this section shall not be made without the consent of the Minister.
(7) Every bye-law made under this section, after the passing of the Railway Safety Act 2005, shall be laid, where they are made by the Agency, by the Agency and where they are made by a railway undertaking, by the railway undertaking, before each House of the Oireachtas, as soon as may be after it is made and, if a resolution annulling the bye-law is passed by either such House within the next 21 days on which that House has sat after the bye-law is laid before it, the bye-law shall be annulled accordingly, but without prejudice to anything previously done under it.
(8) A person who contravenes or fails to comply with a bye-law under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(9) The liability of an offender to a fine under subsection (8) does not prejudice the recovery of any fare, tariff or fee payable by him or her to the Agency or a railway undertaking for any damage caused by him or her to property of the Agency or a railway undertaking.
66A.—(1) Where an authorised officer finds on a railway a vehicle—
(a) parked in contravention of bye-laws made under section 66,
(b) is or may become a danger or a nuisance to persons, or
(c) would otherwise interfere with the proper operation of a railway,
he or she or a person acting under his or her direction may—
(i) fix an immobilisation device to the vehicle while it remains in the place where he or she finds it, or
(ii) move it from the place where he or she finds it (whether or not he or she has fixed an immobilisation device to it) to another place and fix an immobilisation device to it in that other place.
(2) When fixing an immobilisation device to a vehicle, there shall also be affixed to the vehicle a notice in the prescribed form—
(a) indicating that the device has been fixed to the vehicle and warning that an attempt should not be made to drive it or otherwise put it in motion until the device is removed,
(b) specifying the steps to be taken to secure such removal, and
(c) giving such other information (if any) as may be prescribed.
(3) Subject to subsection (4), an immobilisation device that has been fixed to a vehicle under this section may be removed only by an authorised person or a person acting under his or her direction.
(4)(a) An immobilisation device fixed to a vehicle under this section shall be removed or a vehicle moved under this section shall be released, only—
(i) if the person seeking its removal shows to the satisfaction of an authorised person that he or she, is the owner of the vehicle or is authorised by its owner to seek such removal or release and pays the prescribed charge,
(ii) for the purpose of the removal of the vehicle under section 97 of the Act of 1961, or
(iii) for the purpose of moving the vehicle under subsection (1).
(b) Where the owner of a vehicle which has been moved or to which an immobilisation device has been fixed under this section shows to the satisfaction of an authorised officer that the vehicle was parked while being used by a person other than the owner and that such use was not authorised by the owner, the authorised officer shall waive the prescribed charge and he or she or a person acting under his or her direction shall remove the immobilisation device from the vehicle.
(c) An immobilisation device fixed to a vehicle under this section shall be removed from it or a vehicle moved under this section shall be released, as soon as is reasonably practicable, after the payment of the prescribed charge or after the waiver of such charge, as the case may be.
(5) A notice affixed to a vehicle under this section shall not be removed or interfered with by a person other than the owner of the vehicle or a person authorised by such owner to use the vehicle and a person who contravenes this subsection is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(6) Charges may be prescribed for the purposes of this section for the removal of an immobilisation device or the release of a vehicle.
(7) A person who—
(a) obstructs or impedes an authorised officer, or a person acting under his or her direction, in the performance of his or her duties under this section, or
(b) without being authorised to do so under this section, removes or attempts to remove from a vehicle an immobilisation device fixed to it under this section,
is guilty of an offence and is liable on summary conviction to a fine not exceeding €2,000.
(8) An immobilisation device shall not be fixed under this section to an ambulance, a fire brigade vehicle or any vehicle used by a member of the Garda Síochána or the Defence Forces, in the performance of his or her duties, in an emergency situation.
(9) In this section—
"immobilisation device" means any device or appliance designed or adapted for fixing to a vehicle for the purpose of preventing it from being driven or otherwise put in motion;
"prescribed" means prescribed in regulations made by the Agency with the consent of the Minister;
"vehicle" has the same meaning as in the Act of 1961.
Powers of authorised officers.
66B.—(1) If an authorised officer reasonably suspects that a person—
(a) is contravening or has contravened or is failing or has failed to comply with a bye-law made under section 66,
(b) is committing or has committed on a railway an offence under section 64 or 65,
(c) is assaulting or has assaulted or is causing or has caused deliberate harm to another on a railway,
(d) is causing or has caused wanton or deliberate damage to railway infrastructure,
(e) has contravened section 96 or 106 of the Railway Safety Act 2005,
(f) is obstructing or has obstructed or is impeding or has impeded an authorised officer in the exercise of his or her duties under this section, section 66A, 66C, or under any bye-law made under section 66,
(g) on any railway is intoxicated or is committing or has committed an offence under section 15 of the Misuse of Drugs Act 1977, or
(h) if requested by an authorised officer to cease such contravention or action or to so comply, fails to comply with the request, he or she may—
(i) using such reasonable force as the circumstances require, remove or escort the person from the railway or any part of it,
(ii) in circumstances where the authorised officer considers it to be justified, arrest the person without warrant, or
(iii) require the person to give his or her name and address and, if the person fails or refuses to do so or gives a name that the authorised officer reasonably suspects is false or misleading, arrest that person without warrant,
and, if he or she is not a member of the Garda Síochána, deliver, as soon as practicable, the person, if arrested, into the custody of a member of the Garda Síochána to be dealt with according to law.
(2) A person who fails or refuses to give his or her name or address when required under subsection (1), or gives a name or address which is false or misleading, is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(3) The Agency, or a railway undertaking with the consent of the Agency, may appoint such and so many persons as it considers necessary to be authorised officers for the purposes of this section, section 66A, 66C or any bye-law made under section 66.
(4) An authorised officer, who is not a member of the Garda Síochána, is not entitled to exercise a power under this section unless he or she has received training and instruction, which, in the opinion of the Agency is such as will provide guidance to him or her in the exercise of the power.
(5) The Agency or a railway undertaking, as the case may be, shall endorse on the warrant it furnishes to an authorised officer under subsection (6) a statement to the effect that the officer has received the training and instruction referred to in subsection (4).
(6) An authorised officer, who is not a member of the Garda Síochána, shall, on his or her appointment under this section, be furnished by the Agency or a railway undertaking, as the case may be, with a warrant of his or her appointment as an authorised officer.
(7) An authorised officer, who is not a member of the Garda Síochána, when exercising a power under this section shall be in uniform provided or authorised—
(a) where he or she is appointed by the Agency, by the Agency, or
(b) where he or she is appointed by a railway undertaking, by the railway undertaking.
(8) The arrest of a person under this section does not prejudice the re-arrest of the person by a member of the Garda Síochána.
(9) An authorised officer, who is not a member of the Garda Síochána, may be referred to——
(a) where he or she is appointed by the Agency, by the Agency, or
(b) where he or she is appointed by a railway undertaking, by the railway undertaking,
by such title as it decides.
(10) In this section a reference to the committal of an offence or an act includes a reference to an attempt to commit the offence or the act.
(11) In this section "authorised officer" means a person appointed under this section or a member of the Garda Síochána whose attendance is requested by an authorised officer or by the Agency or a railway undertaking.
66C.—(1) Where—
(a) an authorised officer has reasonable grounds for believing that a person is committing or has committed an offence under section 64(1), 66(8) (for a contravention or failure to comply with a bye-law made under that section), 66A(5) or (6), or 66B(2) or section 96 or 106 of the Railway Safety Act 2005, or
(b) a member of the Garda Síochána has reasonable grounds for believing that a person is committing or has committed an offence under section 54(5),
he or she may serve the person with a notice ("fixed payment notice") in the prescribed form stating that—
(i) the person is alleged to have committed the offence,
(ii) the person may during the period of 21 days beginning on the date of the notice make to the Agency or the railway undertaking concerned, as the case may be, at the address specified in the notice a payment of €100, or in lieu of that amount such other amount standing prescribed for the time being, accompanied by the notice, and
(iii) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
(2) Where a fixed payment notice is given under subsection (1)—
(a) a person to whom the notice applies may, during the period specified in the notice, make to the Agency or the railway undertaking concerned, as the case may be, at the address specified in the notice the payment specified in it and accompanied by the notice,
(b) the Agency or the railway undertaking concerned may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstances by the person who made it, and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In a prosecution for an offence under this Act the onus of proving that a payment pursuant to a notice under this section has been made lies on the defendant.
(4) In this section 'prescribed' means prescribed in regulations made by the Minister.'.
(2) Any bye-law made under section 66 of the Transport (Railway Infrastructure) Act 2001, which is in force immediately before the passing of this Act, continues in force as if made under section 66, inserted by subsection (1).”.
Amendments Nos. 153 and 154 update the Transport Railway Infrastructure Act 2001. All the provisions proposed in amendment No. 153 are standard provisions relating to by-laws for railway operation.
Amendment No. 153 replaces section 66 of the 2001 Act with four new sections. The first of these four sections replaces the present by-law provisions set out in section 66 of the 2001 Act. The new by-law provisions condense some new measures not included in the present text of the 2001 Act. These are that by-laws must be published. By-laws must be displayed conspicuously on the railway. By-laws cannot be made without the consent of the Minister and by-laws must be laid before each House of the Oireachtas. The RPA or railway undertaking may recoup the cost of any damage to the railway caused by the breach of a by-law, in addition to any fine imposed for the breach.
The second of these four new sections entitled "immobilisation, removal, etc. of unlawfully parked vehicles" relates to clamping and removing of vehicles.
Amendment No. 1 to amendment No. 153 has already been discussed. Is Deputy Shortall formally moving amendment No. 1?
It was not already discussed.
It is under discussion.
I move amendment No. 1 to amendment No. 153:
In the new section 66A of the Transport (Railway Infrastructure) Act 2001, in subsection (1), to delete subparagraph (i).
The amendments proposes to delete subparagraph (i). It appears that it is illogical to give the power to clamp a car if it is parked on the railway line. It would appear obvious to move it and then clamp it. I do not see the point in giving power to clamp it in situ if it is parked on a railway line.
Is it about parking?
It is about removing powers.
It depends which way one looks at it. The first part of the Deputy's proposal would have the effect of denying an authorised Luas staff member the power to clamp a vehicle which is in breach of by-laws or is otherwise causing a danger or nuisance. I note the Deputy is agreeable to such vehicle being towed away and clamped in another location as this is provided for in the subsequent paragraph. I do not see any reason to deny Luas personnel the flexibility to clamp the vehicle where it is parked rather than tow it and clamp it elsewhere. The second part of the Deputy's proposal would reduce the cost of on-the-spot fines for specified offences from €100 to €60. They should not be reduced to less than €60. A vehicle could block the Luas line, which the driver would want to move, and that could be clamped while a vehicle parked near a Luas line could be clamped but not necessarily moved.
The Minister referred to proportionality earlier. The fine for not paying a €20 fare on a train is €100 but if one fails to pay a €2 fare on Luas, the fine is still €100, which is excessive.
I do not agree with the Deputy because we have moved to multiple new systems. Recently a person boasted about the number of times he had travelled on one of the systems without paying a fare. That is wrong even though the same numbers of inspectors as in the past are not available to provide a visible presence. People are on their honour. If they abuse the system, they must be hurt in some way. A fine of €100 will not break anybody but it will send a message. People would not avoid paying a few euro for a fare if they thought the fine for failing to pay was €100.
Amendment No. 1 to amendment No. 153, by leave, withdrawn.
Amendment No. 2 to amendment No. 153 not moved.
Amendment No. 153 agreed to.
I move amendment No. 154:
In page 76, after line 36, to insert the following:
"Increase of fines.
109.—Parts 4 and 5 of the Transport (Railway Infrastructure) Act 2001 are amended by substituting in——
(a) section 54(6), “€1,000” for “€600 (£472.54)”,
(b) section 56(2), “€3,000” for “€2,500 (£1968.91)”,
(c) section 59(3), “€1,000” for “€600 (£472.54)”,
(d) section 60(4), “€3,000” for “€2,000 (£1575.13)”,
(e) section 63(3), “€3,000” for “€2,000 (£1575.13)”,
(f) section 64(1), “€1,000” for “€600 (£472.54)”,
(g) section 65, “€3,000” for “€2,000 (£1575.13)”, and
(h) section 67(2), “€1,000” for “€600 (£472.54)”.”.
Amendment agreed to.
SCHEDULE 1.
I move amendment No. 155:
In page 77, between lines 21 and 22, to insert the following:
|
52 & 53 Vict. c. 57 |
Regulation of Railways Act 1889 |
Sections 5 and 6 |
"
Amendment agreed to.
I move amendment No. 156:
In page 77, between lines 26 and 27, to insert the following:
|
No. 19 of 1958 |
Transport Act 1958 |
Section 9 |
|
No. 14 of 1971 |
Transport (Miscellaneous Provisions) Act 1971 |
Sections 22 and 29 |
"
Amendment agreed to.
I move amendment No. 157:
In page 77, line 27, column 3, after "Section" to insert "10 and".
Amendment agreed to.
I move amendment No. 158:
In page 77, line 28, column 3, to delete "and 51" and substitute ", 51 and 57".
Amendment agreed to.
Schedule 1, as amended, agreed to.
SCHEDULE 2.
I move amendment No. 159:
In page 78, to delete lines 20 to 22.
Amendment agreed to.
Schedule 2, as amended, agreed to.
TITLE.
I move amendment No. 1:
In page 7, line 19, after "DRUGS," to insert "TO PROVIDE FOR OFFENCES BY PERSONS WORKING ON RAILWAYS,".
Amendment agreed to.
I move amendment No. 2:
In page 7, line 22, after "RAILWAYS," to insert the following:
"TO PROVIDE FOR OFFENCES AND OTHER MATTERS RELATING TO THE CONDUCT OF PERSONS ON RAILWAYS, TO PROVIDE FOR MATTERS RELATING TO CÓRAS IOMPAIR ÉIREANN, AND FOR THAT PURPOSE TO AMEND THE TRANSPORT ACT 1950 AND OTHER ENACTMENTS RELATING TO CÓRAS IOMPAIR ÉIREANN, TO PROVIDE FOR MATTERS RELATING TO LIGHT RAILWAYS AND METRO, AND FOR THAT PURPOSE TOAMEND THE TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001,".
Amendment agreed to.
Title, as amended, agreed to.
When is it proposed to take Fifth Stage?
Now.
Is that agreed?
No. Departmental officials kindly provided a briefing last week for Deputy Olivia Mitchell and myself, during which we discussed the schedule for taking the legislation. The understanding was that the Bill would not be before the House until next week. I did not receive a schedule of business for this week and it was only when one of the officials rang me before lunch that I discovered the Bill would be before the House today. I want to table Report Stage amendments, including an amendment that was not discussed on Committee Stage. I gave notice of my intention to table an amendment in that regard.
This is not a satisfactory way of dealing with legislation. Given that the Department sat on it for four years and that the Minister has sat on it for 12 months following a lengthy Committee Stage debate, it is unreasonable to spring Fifth Stage now and rush us into finalising the legislation. Another few days will not make a difference to the legislation.
In deference to Members of the House and proper procedure, I ask the Minister to defer Report Stage to enable us to table amendments, as we are entitled to do under Standing Orders. It would be most unfair if the Minister pushed ahead and forced Report Stage through without giving us notice and, thereby, denying us an opportunity to engage in a debate on Fifth Stage.
Where a Bill has been recommitted, it is not the practice to have a separate Report Stage in respect of the amendments. Recommital is not a separate Stage of a Bill and it can only be invoked when a Bill is on Report Stage. If there is a disagreement on this point and if there is a view that a separate Report Stage should be provided for the proceedings, Report Stage would need to be adjourned to enable time to be given for the tabling of amendments. These circumstances pertain and, therefore, I will put the question.
Question put: "That Fourth Stage be now adjourned."
The Dáil divided: Tá, 50; Níl 62.
Tá
- Allen, Bernard.
- Boyle, Dan.
- Breen, James.
- Broughan, Thomas P.
- Bruton, Richard.
- Burton, Joan.
- Connaughton, Paul.
- Connolly, Paudge.
- Costello, Joe.
- Crawford, Seymour.
- Crowe, Seán.
- Deenihan, Jimmy.
- English, Damien.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Joe.
- Higgins, Michael D.
- Hogan, Phil.
- Howlin, Brendan.
- Kenny, Enda.
- Lynch, Kathleen.
- McCormack, Padraic.
- McEntee, Shane.
- McGinley, Dinny.
- McGrath, Finian.
- McGrath, Paul.
- McHugh, Paddy.
- McManus, Liz.
- Mitchell, Olivia.
- Murphy, Catherine.
- Murphy, Gerard.
- Naughten, Denis.
- Neville, Dan.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Dowd, Fergus.
- O’Sullivan, Jan.
- Pattison, Seamus.
- Penrose, Willie.
- Perry, John.
- Quinn, Ruairi.
- Rabbitte, Pat.
- Ryan, Eamon.
- Ryan, Seán.
- Shortall, Róisín.
- Stanton, David.
- Timmins, Billy.
- Twomey, Liam.
- Upton, Mary.
- Wall, Jack.
Níl
- Ahern, Noel.
- Andrews, Barry.
- Ardagh, Seán.
- Blaney, Niall.
- Brady, Johnny.
- Brady, Martin.
- Browne, John.
- Callanan, Joe.
- Carey, Pat.
- Carty, John.
- Coughlan, Mary.
- Cowen, Brian.
- Cullen, Martin.
- Curran, John.
- Davern, Noel.
- de Valera, Síle.
- Dempsey, Noel.
- Dempsey, Tony.
- Dennehy, John.
- Devins, Jimmy.
- Ellis, John.
- Fahey, Frank.
- Finneran, Michael.
- Fitzpatrick, Dermot.
- Fleming, Seán.
- Gallagher, Pat The Cope.
- Glennon, Jim.
- Grealish, Noel.
- Hanafin, Mary.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Kelleher, Billy.
- Killeen, Tony.
- Kirk, Seamus.
- Kitt, Tom.
- Lenihan, Brian.
- McDowell, Michael.
- McEllistrim, Thomas.
- McGuinness, John.
- Moloney, John.
- Moynihan, Donal.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M. J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Dea, Willie.
- O’Donnell, Liz.
- O’Donovan, Denis.
- O’Flynn, Noel.
- O’Keeffe, Ned.
- O’Malley, Fiona.
- O’Malley, Tim.
- Power, Peter.
- Roche, Dick.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Wilkinson, Ollie.
- Wright, G.V.
Tellers: Tá, Deputies Neville and Broughan; Níl, Deputies Kitt and Kelleher.
Question declared lost.