Draft Public Transport Bill 2015: Discussion

The purpose of this meeting is to engage with officials from the Department of Transport, Tourism and Sport and a representative from the National Transport Authority on the provisions in the draft public transport Bill 2015. On behalf of the committee, I welcome Mr. Kevin Doyle, Ms Eilis O'Connor and Ms Nicola Hayes from the Department, and Mr. Hugh Creegan from the NTA. I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the Chair to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable. I also remind witnesses that any submission or opening statements they have made to the committee will be published on the committee website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I call on Mr. Kevin Doyle to make his opening statement.

Mr. Kevin Doyle

I thank the Chairman for the invitation to address the committee on the draft public transport Bill 2015. Due to the nature of the Bill, comprising entirely of amendments to existing legislation and providing for no new policy provisions, it had been substantially drafted in advance of submission to Government and is before the committee in draft Bill form, as opposed to the more usual heads of Bill for pre-legislative scrutiny.

The Bill provides for amendments to the Dublin Transport Authority Act 2008, the Taxi Regulation Act 2013, the Road Traffic Act 1961, the Railway Safety Act 2005 and the State Airports Act 2004. It is a short Bill comprising just seven sections, including one providing for the short title and collective citation, with one each for four of the five Acts being amended and two for amendments to the Taxi Regulation Act 2013. I will give an overview of the main amendments being proposed, but I emphasise that the amendments proposed are technical amendments to existing legislation and do not involve any new regulatory policy.

Section 1 relates to the public transport infrastructure functions of the National Transport Authority, NTA. The proposed amendments to the Dublin Transport Authority Act 2008 will ensure that the NTA can develop and deliver public transport infrastructure such as bus rapid transit, BRT, in the event that it is decided to proceed with such infrastructure. The amendments are required to address certain issues identified by legal advisers to the NTA as potentially precluding the NTA from providing such projects. The proposed amendment ensures that the NTA would have the necessary powers to deliver required public transport infrastructure but does not involve a commitment to the development of BRT. No decision has yet been made with regard to any of the BRT projects proposed by the NTA.

In particular, the amendments in section 1 address a constraint in the existing legislation which creates a differentiation between public roads existing before the establishment date of the NTA and public roads which were developed after the NTA was established. The advice of the Office of the Attorney General confirmed that a technical amendment would be required to the 2008 Act to address this differentiation and provide that the NTA would have equivalent vires to provide public transport infrastructure on public roads that were constructed either before or after the establishment date of the NTA.

Section 1 also provides for an amendment to section 44 of the DTA Act 2008 regarding the performance of a "function" by the NTA. The amendment removes a doubt that has arisen over whether it adequately addresses the situation where only part of the function is required to be performed. This means that a likely case of the NTA intending to undertake certain aspects of a function, while the other statutory party continues to carry out all of the remaining aspects, may not be permissible, or may carry the risk of a successful legal challenge.

Sections 2 and 3 provide for amendments to the Taxi Regulation Act 2013. That Act was introduced primarily to give legal effect to recommendations of the Taxi Regulation Review Report 2011 relating to increased enforcement measures, including a demerit scheme to deal with recurrent breaches of small public service vehicle, SPSV, regulations; the issue of on-the-spot fines for an increased range of offences; and a proportionate system for mandatory disqualification from holding a licence on conviction for a serious criminal offence. The 2013 Act also repealed and replaced the Taxi Regulation Act 2003.

The amendments in section 2 can be grouped into those which provide greater precision in the 2013 Act relating to certain provisions; provide more specific enabling powers under the 2013 Act for certain matters which the NTA may provide for in regulations; and relate to punctuation and textual corrections and refinement. Some of the main amendments providing greater precision in the Act provide for the inclusion of a requirement that the licensing authority may only grant a licence to drive a small public service vehicle to a person who holds a driving licence to drive such a vehicle; the automatic revocation of a SPSV licence on surrender of the licence by the licence holder; and the non-application of the representations and appeal procedures under the Act to decisions of the licensing authority to refuse to grant a licence or to revoke or suspend a licence, arising from a vehicle not meeting the required standard for SPSVs.

Without this amendment, the licensing authority's decision does not take effect until the appeal procedures have been exhausted, which takes around two months, during which the licence continues and the vehicle can be used as a small public service vehicle, SPSV, despite failing the vehicle standards test. It is proposed to extend the current three-month timeframe to nine months from the date of the death of a licence holder, during which the nominated representative of the deceased licence holder may apply to the NTA for the grant of a licence of the same category. It is considered that in the circumstances three months is too short a period. The final amendment relates to the applicability of the dispatch operator licensing requirements to technological intermediaries. An argument has been put forward that such intermediaries do not provide a booking service, which is the term used in the 2013 Act; rather, they provide a platform whereby intending passengers can directly contact vehicles. The proposed amendments to sections 2, 7(2)(c) and 22(5) of the Act will bring certainty on this issue.

As regards those amendments providing for more specific enabling powers for certain matters which the NTA may provide for in regulations, the key amendments relate to section 7 and provide for the requirement for prescribed written declarations or undertakings to accompany a licence application - for example, that the applicant has not been convicted of certain offences specified in the Act and that his or her health or mobility does not affect his or her ability to drive a small public service vehicle. There are also a number of amendments relating to punctuation and textual corrections and refinement.

Section 3 provides for the substitution of section 48 of the 2013 Act relating to fixed payment notices for small public service vehicles. Section 48 provides that when a person is issued with a fixed payment notice he or she has 28 days, beginning on the date specified in the notice, during which he or she may pay the prescribed fixed payment amount. That is the first payment option. If the person does not pay the prescribed fixed payment amount during that first 28-day period, he or she may make a payment of an amount 50% greater than the prescribed fixed payment amount. That is the second payment option. However, the timeframe for the second payment option is not currently prescribed in section 48 - it is prescribed in the fixed payment notice issued to the alleged offender. Legal advice is that it is preferable that the period for the second payment option be prescribed in section 48. In this amendment, the opportunity has also been taken to provide for greater precision in certain aspects of the wording of section 48 - for example, the addition of the words "specified in the notice" to subsection (1)(a), and the addition of the words "duly completed" to subsection (1)(b).

Section 4 provides for an amendment to the Railway Safety Act 2005 to change the name of the Railway Safety Commission to the Commission for Railway Regulation. The Railway Safety Commission was established under the Railway Safety Act 2005 to foster and encourage railway safety and to enforce legislation relating to railway safety. Directive 2012/34/EU establishing a single European railway area, which must be transposed into national law by mid-June 2015, requires each member state to designate a regulatory body to monitor competition in the rail services market in the State to ensure non-discriminatory access to railway markets. The regulatory body will have a monitoring function and the role of hearing appeals made by railway undertakings and other interested persons.

Draft regulations that are under preparation at present to transpose the directive provide for the assignment of the functions of the regulatory body to the Railway Safety Commission. The effect of this will be that, in addition to the regulation of railway safety, the Railway Safety Commission will have statutory functions in respect of regulation of the rail services market. It is considered, therefore, that it would be appropriate to change the name of the commission to Commission for Railway Regulation to best reflect the broadening of its remit. It is proposed that the date for the change of name be appointed in an order to be made by the Minister to ensure that the timing of the change of name can be carried out in a planned and organised manner.

Section 5 provides for a purely technical amendment to section 27, as inserted by section 51 of the State Airports (Shannon Group) Act 2014 into the State Airports Act 2004. The amendment will bring the provisions of section 27 in line with similar provisions under the Road Traffic Acts as operated by local authorities and the Garda Síochána, and clarifies that the payment accompanying the notice cannot be accepted unless all the required information has been completed on the notice.

Section 5 also provides for an amendment to section 48 of the State Airports (Shannon Group) Act 2014, which sets out the basis on which authorised officers can act in the interest of the proper operation or the security or safety of an airport, or the security or safety of persons, aircraft or other property at an airport. The amendment provides for the inclusion of an offence under section 47 of that Act in the various offences for which an authorised officer at an airport may arrest a person without warrant. An offence under section 47 relates to a case in which an authorised officer at an airport finds a vehicle remaining stationary or parked in a place in contravention of airport by-laws and the driver does not comply with the requirement of the officer to move the vehicle.

Section 6 is essentially a technical amendment, correcting section 106 of the Road Traffic Act 1961, which deals with duties on the occurrence of an accident. It was amended in 2014 to introduce new offences for hit-and-run incidents causing death or serious injury. The Attorney General's office has since advised the Department that the amended version of the section contains an implicit contradiction. The new hit-and-run provisions are indictable offences, but they come under a section heading referring to summary offences. The Attorney General's advice is that the intention of the law is clear in spite of the error, and the DPP is continuing to take prosecutions under this legislation. However, it is also the Attorney General's view that the error should be corrected at the earliest available opportunity, and that is what we are doing here. At the same time, we are rectifying an omission in the 2014 provisions. When the new hit-and-run provisions were introduced, there should have been an associated amendment to state that there would be a consequential disqualification for those who were convicted under the new provisions. As that was not done at the time, we are doing it now though section 6(b) of the present Bill.

I thank Mr. Doyle for his presentation. I will hand straight over to Deputy Dooley.

I thank Mr. Doyle for his comprehensive overview of the legislation. I accept in principle that the amendments relate to largely technical issues that are being tidied up. I am not entirely clear about section 1. Mr. Doyle referred to the necessity of the section to deal with bus rapid transit, BRT. What is the difference between the provision of bus rapid transit and any other form of bus transit? At the moment the NTA is in the process of going to the marketplace to issue tenders, which is causing a level of upset among workers, and there is the threat of strike action. What is the difference between getting the services of an external private operator through the tendering process and getting the service provider to provide BRT?

Mr. Kevin Doyle

The relevant section is section 44 of the Dublin Transport Authority Act 2008. It relates to securing the provision of public transport infrastructure. At the moment, what section 44 provides is that the NTA shall arrange the functions set out in that section to be performed on its behalf in relation to railway, metro, light rail interchange facilities and other public transport infrastructure. Cycling schemes and other such matters could be included there as well. At the moment, the section refers to other public infrastructure which "immediately before the establishment day" was owned or under the control of a public transport authority. It concerns local authorities in particular. That would be included in the definition. Each of the BRT schemes that are under design at the moment envisage works on public roads developed after the establishment date of the NTA. For instance, the Swords bus rapid transit scheme will include the Glen Ellan Road extension north of Swords, but that extension was created after the establishment day. It is a technical amendment to delete "immediately before the establishment day" and to allow the NTA to carry out infrastructural works on those roads regardless of ownership or control before or after the establishment date.

Is there anything in the amendments that is required to deal with the current tendering process that is ongoing for buses?

Mr. Kevin Doyle

No. There is no amendment in relation to that whatsoever.

Is Mr. Doyle clear that the law as it stands is solid in that regard? I am aware that one of the unions is challenging the NTA and the State on certain provisions in a previous Act - namely, the 2008 Act - in terms of the issuance of tenders for the provision of bus services.

Mr. Kevin Doyle

Yes. As that is the subject of legal proceedings I would prefer not to comment on it, but I think the NTA has already indicated that it is satisfied that it has the vires to do the tendering process.

I do not want to get into the issue that is the subject of current litigation, but is there any measure that is being introduced to support the case of the NTA or the State?

Mr. Kevin Doyle

No, there is nothing in this legislation amending those provisions.

I welcome the officials and thank them for the presentation. As Deputy Dooley said, these are technical amendments. Regarding sections 5 and 6, is there any danger, or have the officials been advised by the Office of the Attorney General or by other legal advice, that past convictions under those Acts could now be unsafe or could be challenged? Some of them are recent.

Mr. Kevin Doyle

Regarding section 6, the advice we got from the Attorney General's office is that the intention of the law is clear. This is the hit-and-run situation. The Director of Public Prosecutions is continuing to take prosecutions under this legislation successfully. It is an error in the legislation but the intention is clear, so the advice was to clear it up if we can. This legislation, subject to the views of the committee, is almost complete. It is a short Bill and we hope to get it drafted quite quickly and to try to get it enacted before the summer recess. A road traffic Bill is going through at present, but that is much further away. It certainly will not be completed before the summer recess and it will be later in the year before it is enacted. We are taking this opportunity to correct this provision.

With regard to section 5, what does it mean above and beyond criminal damage or trespass?

Mr. Kevin Doyle

These are technical amendments to the State Airports Acts. Section 51 of the 2014 Act substituted section 27 of the 2004 Act to provide for making the owner of an illegally parked vehicle liable for a by-law infringement, even if they were not driving it at the time, as well as making the driver liable. This section also adds a new section. It allows the owner of a vehicle to make a declaration in writing that another person was in charge of the car at the time the offence was committed. The amendment is for the smooth operation of the airport. It does not impact on any cases that could be taken, but it causes a problem with people refusing to remove vehicles if found to be illegally parked in an area of the airport or in a security sensitive area at the airport. It also provides for the authorised officers to stop persons and ask for evidence of identity and any other relevant information. It basically gives them the power of arrest as well if somebody does not comply with those requirements either to leave the airport or to remove the vehicle from the location.

Are the authorised officers gardaí?

Mr. Kevin Doyle

They are authorised officers, so we are talking about airport police.

I thank the witness for the presentation. Sections 2 and 3 amend the Taxi Regulation Act 2013. Section 7 refers to the fitness of a person who is driving a taxi and whether they can handle somebody who is disabled. Is it not the process that one gets a doctor's certificate to go into the industry in the first place and then one must have a test on an ongoing basis? There will be some older taxi drivers or people who would not have the ability to lift a person who is disabled into a car. What is the rule in that regard? Do they refuse to take the person or say they are unable to take the person? I am not sure that asking them to sign a declaration that they are fit and so forth is the norm in any industry. Can the witness explain that?

Regarding a vehicle failing a test and a person is then suspended for two months while an appeal takes place, what if that is only a minor issue with the taxi and not a bad mechanical issue? Is it fair to say that somebody cannot drive their taxi? They will not have earnings. It appears to be very punitive. Will the witness explain if there are any exceptions if it is only a minor matter or a small issue to do with the interior of the taxi or otherwise, or is this purely a mechanical matter?

The extension from three months to nine months is quite reasonable. With regard to the payment of 50% in section 48, I do not know why we continue to do this. It is an extra charge of 50% for somebody who might not make a deadline. Why are we putting such a heavy burden on people? I know people should not do things if it is wrong to do them, but 50% is a massive amount for a penalty. It is way over the top.

Finally, EU Directive 2012/34 requires each member state to form a regulatory body to monitor competition. This is another road to privatisation. How will this be introduced here? Introducing this in the rail services is another way of introducing privatisation. How will that be managed by the NTA?

Mr. Kevin Doyle

I will respond to the Deputy's last point first. The proposed directive, 2012/34, from which we derogated previously, must be implemented now. It does not in any way impose a requirement on us to competitively tender for the provision of rail services. We can still operate with the direct award contract, which the NTA has with Irish Rail. It was a ten year contract from 2009 so it continues to 2019. In fact, in discussions in Europe on the fourth railway package we are insisting that we can continue to have a direct award contract and that we do not have to tender competitively due to the size of our rail market, which is approximately 0.4% of the total EU rail market. In some respects it would not make sense that we would be forced to competitively tender. That is the position we are adopting in that regard.

On the mechanical issue the Deputy mentioned, I presume that relates to the appeals procedure where somebody could continue to operate a vehicle which has failed the NCT as a taxi. The way the legislation is worded at present means that, with appeals procedures and so forth, a person could potentially continue to operate that taxi for a period of two months even though it has failed the NCT. In all other respects, the appeals procedure would allow the person to continue to operate for any other reason, it only specifically relates to failing the-----

Does it have to be a fairly serious failure or is it just a failure, full stop? That is the point. Somebody could end up suspended for a period, with a loss of revenue.

Mr. Kevin Doyle

To clarify, it is in respect of the vehicle standards inspection. If it fails that inspection, for example, because it does not have the required roof sign or even a verified taxi meter, the operation of the section means we cannot just fail the vehicle and not renew the licence. Instead we are required to inform the applicant that we propose to fail the licence and not renew it. He or she has 14 days to make representations. We must then consider those representations and write to the applicant with our final decision. There is a further 28 days for the applicant to appeal the decision to the District Court before the decision to fail the vehicle on a straightforward technical matter can take effect. During this period of approximately two months the decision to fail the vehicle and not renew the licence does not take effect and, consequently, the licence continues.

It is in relation to vehicle standards and issues such as not having a roof sign to verify a taxi meter is in the taxi. It is only in relation to those aspects. In regard to one or two other issues raised, Mr. Hugh Creegan from the NTA may wish to respond.

Mr. Hugh Creegan

The health declaration item was already part of our secondary legislation and it is now being incorporated in this Bill as primary legislation. We would operate that declaration probably on the basis of a standardised type of form such as that used by the Road Safety Authority for standard licences for various medical conditions where one ticks the box to indicate one does not have a condition. We want a simplified process in place.

The point I am making is that a person will say he or she is fit to work. It is a merely a declaration by that person. That persons ticks a box or whatever but surely the doctor is the person who declares him or her fit to work and that must be on the form. Is that correct?

Mr. Hugh Creegan

There are different levels. The level we would like to start with is that it is a self-declaration that one is fit to work. If one says one has certain conditions, we would say that person needs to get a doctor's opinion in regard to one's suitability given those particular conditions. Most conditions that might appear on the current road safety forms box for driver licences would not preclude one from driving a vehicle but one needs to declare them. A small number would create a difficulty in terms of the lifting of luggage as mentioned by the Deputy. For those ones, we would have the ability to request a doctor's opinion.

In terms of older taxi drivers, they may be able to handle luggage but if they cannot help a disabled person into a car, what happens?

Mr. Hugh Creegan

For most disabled persons I presume we are talking about wheelchair accessible vehicles. In those cases, most of the vehicles-----

Not all cases.

Mr. Hugh Creegan

Not all cases. In most cases, that is a push the wheelchair into the vehicle arrangement and little extra effort is required. If a person had a condition where they could not even do that or could not lift luggage, I cannot see how one can do one and not the other. We would have an issue in that case as to whether that person was suitable to operate as a taxi driver. Part of the job is to be able to give some level of assistance but it is a low level of assistance and very few people would be affected by that.

In terms of payments-----

Mr. Kevin Doyle

The Deputy raised the issue of the fixed payment notice in the second payment option which is 50% greater. That provision was put into the Taxi Regulation Act 2013 so it is in place. In this Bill we are providing for the timeframe to be prescribed. The timeframe for the first payment option is prescribed but we did not prescribe the timeframe for the second payment option and that is what is being done here. In respect of a person who does not pay after 28 days, he or she has a further period within which to pay an amount but given that the person will pay a higher amount, there is an incentive to pay the fixed payment fine within the first payment period.

What happens if they do not pay in the second period? Do they go to court?

Mr. Kevin Doyle

There was a third payment option but that has not been brought into force. There are issues around it, even on the road safety side as well. It is then that proceedings are issued.

What was the third payment option?

Mr. Kevin Doyle

The third payment option was increased by 100% up to seven days before the date the court is due to hear the case.

It increased from €50 to €100 in advance of the court case.

Mr. Kevin Doyle

Yes, these offences gave rise to fixed payments which would be prosecuted by the NTA or the Garda but the Garda was unable to make the provision for the third payment option until it made modifications to its IT-based processes and also the Courts Service implemented the procedure. I have just been told by the road safety side that it might be in place by mid-2016. That would allow us to commence that section in relation to this issue.

So the third option is not gone for ever.

Mr. Kevin Doyle

No, it is still in the Act but that portion of the Act has not been commenced. It is section 49 of the 2013 Act.

The negative is that the incentives get bigger.

On behalf of the committee, I thank the representatives for appearing before the committee and explaining the technical nature of the provisions. I ask that they take note of the concerns and views of the Members.

The joint committee adjourned at 10.36 a.m. until Wednesday, 27 May 2015 at 9.30 a.m.