Railway Safety (Amendment) Bill 2018: Discussion

The main purpose of the meeting is to engage in pre-legislative scrutiny of the general scheme of the railway safety (amendment) Bill 2018. I welcome Ms Maev Nic Lochlainn, principal officer; Ms Ann Cody, assistant principal officer; and Mr. John Dunican, administrative officer, Department of Transport, Tourism and Sport.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses, or an official, either by name or in such a way as to make him or her identifiable.

I invite Ms Nic Lochlainn to make her opening statement.

Ms Maev Nic Lochlainn

I pass on the apologies of the Minister for Transport, Tourism and Sport, Deputy Shane Ross, who, unfortunately, has an engagement this morning and cannot attend. I am here in response to an invitation from the joint committee to assist in its consideration of the general scheme of the railway safety (amendment) Bill as submitted recently to and approved by the Government for publication and drafting by the Parliamentary Counsel in the Office of the Attorney General.

A key role for the Minister is to develop robust legislation to underpin railway safety in Ireland. First, I will give an overview of the various agencies that operate under that legislative framework. Each has an important role in railway safety. The prime duty to ensure safety in the day-to-day safe operation of railways rests with the railway operators, in accordance with the Railway Safety Act 2005 and a wide range of EU laws. They include Iarnród Éireann and Transdev, the company that operates Luas. All railway organisations are obliged to implement statutory compliant safety management systems.

As an independent specialist regulator, the Commission for Railway Regulation, CRR, is the national safety authority for the rail sector. It is charged under the 2005 Act with oversight of the safety of the heavy and light rail organisations which provided over 80 million passenger journeys in 2017. It approves and audits the safety management systems of the railway operators and takes enforcement proceedings, where necessary.

The Railway Accident and Investigation Unit, RAIU, is an independent investigation unit that conducts investigations into accidents and incidents on railways in Ireland. Investigations are carried out in accordance with the Railway Safety Act 2005 and EU law. The purpose of RAIU investigations is to make safety recommendations in order to prevent future accidents and improve railway safety.

This comprehensive framework is in place because railway safety is critical for passengers, railway workers and all who come in contact with the rail network. One aspect of railway safety involves safeguarding against impairment of safety critical workers as a result of intoxicant use. The main provisions in the general scheme as circulated propose important amendments to the drug and alcohol provisions of the 2005 Act. The general scheme also has some miscellaneous amendments to the 2005 Act, in addition to one amendment to the Public Transport Regulation Act 2009.

I will focus first on Part 9 of the 2005 Act which provides for the implementation in the workplace of a statutory code of conduct for drugs and alcohol for railway safety critical workers. Not all employees are safety critical workers. Under the Act, a safety critical worker is one who performs safety critical tasks, including tasks to control the movement of trains, encompassing train drivers and signal operators, as well as tasks to control the movement of persons, for example, at railway crossings on platforms, in addition to maintenance tasks. The code sets out the workplace policy for testing these workers for intoxicants. Disciplinary sanctions apply for non-compliance, up to and including dismissal. Under these provisions, Iarnród Éireann and Transdev, the current Luas operator, have both agreed codes of conduct for drugs and alcohol. Random testing is undertaken, in addition to testing for cause – for example, after an incident. Iarnród Éireann has 2,421 safety critical workers employed. In the three years to the end of 2017, 710 employee tests were undertaken, with eight positive results. None of the positive results was after an incident and all were dealt with under disciplinary procedures. Transdev has 246 safety critical workers employed. Since the commencement of Luas operations in 2004, four Luas safety critical workers have had positive results. None has continued in employment or returned to work for Transdev. Iarnród Éireann has indicated that the introduction of the drugs and alcohol policy and the associated testing has been extremely effective in developing its safety culture. It seems that workplace testing and the culture of awareness of intoxicants can be considered as factors in the continued positive record of railway safety in recent years.

While the provisions of Part 9 are working well, the general scheme addresses some issues of concern. The alcohol limits set in the 2005 Act mirrored the provisions that applied under road traffic Acts at the time. However, the alcohol limits under road traffic Acts have evolved since 2005. The Railway Safety Act has not kept pace. Road traffic legislation has been amended to reduce the statutory alcohol limits for all drivers and introduced a "specified person" category which includes professional road drivers such as drivers of buses or taxis. This means that train drivers and other railway safety critical workers are currently permitted to have four times more alcohol in their blood than the equivalent professional road driver. Following a CRR recommendation, the general scheme proposes that statutory alcohol limits consistent with those specified under Road Traffic Acts for "specified persons" apply to all railway safety critical workers under Part 9. Other changes are proposed to clarify procedures. For example, the amended Part 9 will make it clear that a doctor is not required to be present when a urine sample is given. It is also proposed to expand the provisions to introduce a role for a nurse in sampling.

Part 10 of the Act provides for criminal sanctions. It is proposed to amend the provisions in order that the procedures under Part 10 will be used only following an accident causing harmful consequences such as one involving fatalities. Just as for Part 9, the proposal is to ensure statutory alcohol limits consistent with those under the road traffic Acts for "specified persons" will apply to all safety critical workers on the railways. Under Part 10, the sanction will involve criminal offences with potential penalties, on conviction in court, involving a fine or imprisonment, or both. As they are currently exempt, the general scheme also proposes to extend criminal sanction provisions to heritage train operators where they are operating on the rail infrastructure of another rail organisation – for example, when a steam train runs day trips on the Irish Rail mainline.

Road traffic legislation was expanded in 2016 to provide for analysis of blood samples to establish the concentration level of certain drugs such as cocaine. A Schedule to the Road Traffic Act 2010 sets out the relevant drugs. In regard to drugs, it is proposed that the approach under Parts 9 and 10 differ. Workplace testing will continue to provide for a simple Yes/No test for the presence of drugs. The more sophisticated approach involving sampling by the Garda and analysis for concentration of specified drugs by the Medical Bureau of Road Safety will be used only in the criminal context. If in the future either the statutory alcohol limits or the list of specified drugs set out in Road Traffic legislation are amended, the Bill provides that all such changes will automatically carry through for application for railway safety also.

Since the general scheme was circulated to the committee, we have been liaising with the Office of the Parliamentary Counsel. It has begun considering the many associated issues and complexities. In opening discussions the Parliamentary Counsel highlighted the intricate interplay between Part 9 which is broadly based on employment law and Part 10 which constitutes criminal law, as it did in the original 2005 Act. Initial views suggest that, in order to safeguard the ability to prosecute successfully under the criminal provisions, there may be a need to deal with those provisions separately or to apply a different legislative approach. The Parliamentary Counsel has also noted that the general scheme was developed to closely mirror the drugs and alcohol provisions of the Road Traffic Acts, while adjusting them to fit the context of railway infrastructure, rather than public road, and to consider railway safety critical tasks being performed, rather than a car or road vehicle being driven.

While the Office of the Parliamentary Counsel has not yet finalised its analysis, it seems possible that the outcome of deliberations may be to recommend an approach that will be simpler than the full mirroring of the road traffic provisions, which is evident in the heads circulated. While we cannot be definitive in that regard just yet, I highlight for the members of the committee that these considerations are ongoing and that the approach currently applied in the heads may evolve.

In respect of the commission, the Bill includes provisions that recognise the expanding remit of the CRR, and some streamlining of administrative procedures. Due to changes in EU law, there is a need to ensure the RAIU continues to have adequate powers. Post-transposition of the EU Fourth Railway Package, the RAIU would be unable to conduct investigations on light rail or metro, if this change in the Bill was not made. There is also an amendment which provides for possible future international rail agreements.

The amendment to the Public Transport Regulation Act 2009 brings commercial school bus services which operate outside the scope of the school transport scheme under the Department of Education and Skills, and back within the scope of NTA’s licensing regime. These services were inadvertently excluded due to the definition of public bus passenger service which was amended in the 2009 Act. The new provision corrects this.

I thank the Chairman and committee members for inviting me to make this presentation and look forward to hearing their views.

I thank Ms Nic Lochlainn for her presentation. This is the first time I have dealt with legislation and the heads of a Bill. Members may have some very important questions on the Bill or on particular heads of the Bill. I will be happy to take either-or. The Department has assured me that if there are any questions that members ask to which it does not have the answers, it will come back with them.

This is very important legislation. The record of Irish Rail drivers was exemplified by the driver of the train on the Malahide estuary some years ago when the lives of hundreds of passengers would have been lost but for his skill and capacity. As the line collapsed, he was able to go at the correct speed to get everybody safely over the bridge. I know many people who were on that train and how thankful they were for the professionalism of the driver concerned. There is an excellent safety record but there are issues that have to be addressed and this legislation is updating the legislation for drivers of vehicles, drivers of trains and critical staff.

I took the train from Sligo yesterday and it was a very pleasant experience. If it was a little quicker, it would be better but it was pleasant nonetheless. I have a few questions regarding the general scheme of the railway safety (amendment) Bill. The witness said that with the amendment to the Public Transport Regulation Act 2009, the school transport scheme was inadvertently excluded due to the definition of a public bus passenger service. Why did that happen? It sounds like something simple. Was it just left out?

In the three years to the end of 2017, 710 employee tests were undertaken with eight positive results. None of the positive results was post-incident and all were dealt with under disciplinary procedures. I notice in Transdev, which is a newer company, that 246 safety-critical workers and four Luas safety-critical workers had positive results and none of these has continued in employment or returned to work for Transdev. Is there a different interpretation or how were the people in Iarnród Éireann dealt with compared to Transdev? Did they lose their jobs or was there a different procedure?

I find it hard to believe that until now train drivers were permitted to have four times more alcohol in their blood than the equivalent professional road driver. I know what this Bill is about but maybe we were not keeping our eye on the ball. I welcome this Bill.

The witness can answer those questions and then I will go to Senator O'Mahony. I understand Senator Lahart is substituting for Deputy Troy for today's meeting. I will then go to Deputy Munster.

Ms Maev Nic Lochlainn

On the school bus services, bus licensing is normally there as a regulatory regime in regard to the commercial bus operators. The exclusion which existed before 2009 was that, in respect of the State bus operators, there was an essential approach that they had a different regulatory oversight regime and that in that case they were excluded from the bus licensing regime of the NTA. The intention was to continue that exemption solely in regard to the bus services that were either provided by Bus Éireann or provided under contract to Bus Éireann. The Department of Education and Skills school transport scheme is administered by Bus Éireann and has a significant number of services provided directly or under contract with Bus Éireann. The way it has been approached is that the oversight regime conducted by our State operator is adequate and the intention was to exclude them from the bus licensing regime.

Given the way the definition was crafted, what happened was that at the same time, inadvertently or unintentionally, other school bus services which were simply provided by commercial bus operators and were not under the Department of Education and Skills or Bus Éireann's oversight were excluded. It is, however, a very small minority of school bus services. In the past year, 130 licensed. In the scheme of all the bus services provided in Ireland that would be less than 5%, which is a small number. They were inadvertently excluded. What will happen with this amendment is that it will allow the NTA to conduct oversight and to check - for argument's sake - that Garda vetting is being conducted. We are not saying that Garda vetting is not being conducted but at the moment, there is not an arm of the State that can make those additional checks.

Disciplinary procedures are brought by both companies in regard to the workplace tests and any failures. I am not in a position to go into the detail of any of the particular cases, but disciplinary code involves up to, and including, dismissal. As I understand it, in certain cases, people have been dismissed in Irish Rail. I do not have the full detail here but, in some cases, they may have had other actions under the disciplinary code which may not have led to dismissal.

On that point, perhaps the committee could write to Transdev and, if the witness wishes, Irish Rail-----

Ms Maev Nic Lochlainn

If the committee wishes, we can provide further detail.

I call Senator O'Mahony.

I wish to follow up on a question Senator Feighan's asked in which I was interested. Drivers were dismissed in Irish Rail.

Ms Maev Nic Lochlainn

Absolutely, yes.

But not all of them. Some had other-----

Ms Maev Nic Lochlainn

My understanding is that in those eight cases, perhaps not all but certainly some. I am cautious about moving into that area with the committee.

Yes, I understand that.

To be fair to the Senator and the witness, we could ask Irish Rail and Transdev, or whichever company the Senator wishes,-----

If that could be followed up-----

-----about their codes of conduct and when the Garda has authority to test. There are two different issue here.

Ms Maev Nic Lochlainn

Part 10 is related to criminal sanctions where the Garda separately-----

We can write to those transport authorities to ask them, if that is helpful to the Senator.

That is fine. In regard to the alcohol limits, is it four times-----

The specified person is the driver.

Train drivers and the other safety-critical workers are currently permitted to have four times more alcohol in their blood. Is that four times 50 or is it four times-----

Ms Maev Nic Lochlainn

Under the Road Traffic Acts, an ordinary car driver is allowed 50. At the moment, if one is a specified person, including a taxi driver, a bus driver or a driver of a truck, one is allowed 20. At the moment, the blood alcohol limit for the railway safety-critical worker is 80.

That is fine. I just wanted that clarified.

It is a very liberal regime.

We are bringing it into line with the new safety regulations. I call Deputy Lahart.

Most of the questions have been asked. I thank Ms Nic Lochlainn for her public service and for attending today. Why was this missed? What was the cause of this omission?

Ms Maev Nic Lochlainn

It came to light within the group of my own divisional colleagues in recent years. It is probably a factor of a certain siloed approach in respect of the development of legislation. There are people who do road traffic legislation and people who consider railway legislation. Somewhere, obviously, something fell between the gaps. We intend to address this in the way in which we have approached this Bill. The intention is not only to update the limits, but also to ensure there is a connection back to the limits in the Road Traffic Acts in order that if there is an amendment on the road traffic side, relating to either statutory alcohol limits or concentrations of drugs, this will automatically carry through straight away. As soon as my colleagues and I realised there was a disparity, draft regulations were developed to address the disparity and to amend the limits because, under the current 2005 Act, there is a power to amend the limits with a statutory instrument. However, when we developed that statutory instrument and sent it to the Office of the Parliamentary Counsel, it asked the advisory side of the Office of the Attorney General to look at it and to consider whether we had adequate powers, given statutory alcohol limits are set in primary legislation and we were attempting to amend these limits in primary legislation using only secondary legislation or a statutory instrument. When that question was asked within the AG's office, it turned out that there was a Supreme Court case pending at the time which addressed the exact question whether these powers could be used. The AG awaited the outcome of that case and then advised that it was inappropriate for the Department or the Minister to attempt to change the limits using a statutory instrument. When the outcome of the Supreme Court case was clear, the advice was that primary legislation should be developed to amend the statutory limits. This process took its time, and part of the delay was due to that engagement.

DART drivers come under Iarnród Éireann.

Ms Maev Nic Lochlainn

Absolutely.

It is reassuring that the submission states that of 710 employees who underwent tests over three years in Iarnród Éireann, eight tested positive. However, as it also states, this should not happen at all. Did the positive tests relate to drink or drugs?

Ms Maev Nic Lochlainn

No. The information the company gave me simply said, "Tested positive" or "Did not test positive". I did not ask, nor were we given the detail, as to which it was.

It would be important to have that detail.

Ms Maev Nic Lochlainn

If the committee wishes us to provide extra detail, we can provide that material to the committee.

I would like the same information for Transdev. These are just details.

Is the random testing carried out while the driver is at the controls or at any time in the workplace?

Ms Maev Nic Lochlainn

The random testing is conducted by a contracted body to the two rail companies because they do not have the expertise themselves. As part of the contract, a worker can arrive at work and be expected to take a test. It would be unreasonable if the worker was in the middle of doing the task, but the legislation is written in such a way that if one either presents to do the task, that is, arrives at work and clocks in or is driving the train, one is not allowed to be unfit or intoxicated between walking from the flexi-clock to the train. The legislation provides that if an authorised person notices that, he or she can take action. The random test can be conducted before a person starts performing a safety-critical task because the legislation provides that one should not be unfit. It is, therefore, not that one is stopping someone doing a task, but it is clear that the offence exists regardless of whether one has started.

Might it be helpful to invite or get a written submission from the contracted companies to get those questions answered? What is the rate of random testing? It seems approximately 10% of Irish Rail staff, or 230, are tested each year. I do not expect the witnesses to have the answer now, but we need to know what goes on.

Head 4 provides for further expansion of the role of the commission. What other functions are envisaged for the commission that would require statutory backing?

Head 6 had proposed that the reporting requirement be changed from three to five years. How was it decided that five years would be adequate? Was evidence used based on international comparisons or what was the basis for that?

Head 7 refers to the international rail service. I am just curious as to what this provides for. Is it specifically about the North and Brexit, or is the Department laying down procedure for something else into the future? The reason I seek clarity on this is I would not trust the Government or the Minister when it comes to privatisation by stealth. When the Department refers to future international agreements, what precisely is meant by that? If the Department is talking about the Enterprise service, we are an island. I do not see how we would need international agreements in that regard. Because the wording is so vague, I am just trying to understand what precisely is meant by it. What was the rationale behind it? It seems out of sync with the rest of the amendments. It seems as if it was just slung in there with a specific purpose and I just want to find out what it is about.

Ms Maev Nic Lochlainn

Under head 4, the purpose of the amendment is to broaden adequately the scope of any potential order that can be made.

Which amendment is this?

Ms Maev Nic Lochlainn

This is under head 4. The reason for this is simply that since 2005 there have been many amendments to EU rail legislation which has involved additional functions being given essentially to the CRR. The purpose of the amendment is to broaden adequately the scope of any potential order that could be made for conferral of additional functions on the commission. It flows from the amendment proposed for section 10 in view of the European Commission now having a remit broader than railway safety. For argument's sake, it now also does economic regulation because of legislation that was brought through by the EU, which was transposed in Ireland. Similarly, it reflects the fact that it used to be called the Railway Safety Commission. Given the commission now has that broader remit, it is now called the CRR. The amendment is, therefore, simply a reflection of this new reality, which was also recognised by the Oireachtas in 2016. It is just a further extension of that.

Head 6, the code of practice for the governance of State bodies, allows for an interval period of between three and five years for the mandatory publication of a statement of strategy. Section 29 currently imposes a requirement on the commission to publish a statement of strategy at least every three years, and the proposed amendment is to extend the interval to at least five years. The commission is a regulatory body. Much of the work that it does, while important, will in a sense be the same. There are safety management systems which it will have to oversee and regulate. There are pieces of infrastructure coming into service which it must authorise before they are allowed into service, and there is a risk-based audit and inspection regime. These tasks will not radically change. In that context, and also given the code of practice for the governance of State bodies allows it, it is understood that in the context of this organisation, five years will be adequate.

It was not based on any international comparisons or anything; it was just decided.

Ms Maev Nic Lochlainn

It was based largely on the fact that the Irish code of practice for the governance of State bodies allows it.

When was the commission's last statement of strategy published?

Ms Maev Nic Lochlainn

The current one is in place for 2015 to 2017. There is a new one which will be published imminently. It will be for 2018 to 2019 or 2020, so it will be published very shortly, I understand.

The Deputy had another question on international agreements.

Ms Maev Nic Lochlainn

The key point to be made on international services is that Ireland is an island. Since there are no dramatic plans for tunnels to built involving rail corridors to other jurisdictions apart from the one which exists in the North of Ireland, the intention here is, in the event that there may be a need to have an arrangement with the North of Ireland which is different from the arrangements that currently exist, which may happen given the circumstances that are evolving on the international front in relation to obvious developments, the provision is included to cover for those eventualities.

Is it only in relation to the North because of Brexit?

Ms Maev Nic Lochlainn

It is solely in relation to the North. Given the urgency of changing the limits, some parts of the Bill were put together quickly to get the limits changed. This is one of the provisions we thought was important to add in but may not have taken as much consideration as others. We will have to consider that fully with the Office of the Parliamentary Counsel.

I have a question and I appreciate Ms Nic Lochlainn may not have the answer with her. It relates how critical workers in the airline safety business are tested while on the ground or in the air, or what legislation, if any, covers them. If Ms Nic Lochlainn has not got the answer, she might forward it to the committee. It would be interesting to look at what the regulations are, particularly as in some cases people come into the State from outside the jurisdiction. Is there common testing among airlines throughout the world?

Ms Maev Nic Lochlainn

There are specific drug and alcohol provisions in the Bill relating to railway safety. On the aviation side, I understand random testing is conducted. Many such tasks in the transport sector are safety-critical. As I understand it, in aviation, the codes were developed under the Safety, Health and Welfare at Work Acts where one is obliged to have safe employees and safe practices to protect one's own safety and the safety of passengers. Health and safety legislation is used, as far as I understand it.

Will Ms Nic Lochlainn provide the committee with a briefing note on it for its information?

Ms Maev Nic Lochlainn

Yes.

As there are no other questions, the joint committee has concluded its consideration of the general scheme of the railway safety (amendment) Bill 2018. I thank the witnesses for attending.

The joint committee adjourned at 10.12 p.m. until 1.30 p.m. on 4 July 2018.