I welcome the Minister for Transport. I congratulate him and wish him well on his reappointment.
Dublin Transport Authority Bill 2008: Committee Stage (Resumed).
SECTION 40.
Debate resumed on amendment No. 37:
In page 34, subsection (1), line 17, to delete paragraph (a).
—(Senator David Norris).
I thank the Leas-Chathaoirleach.
Amendments Nos. 37 to 41, inclusive, are being discussed together. Senator Norris was in possession.
I do not need to rehearse much of what I had to say on the previous day. This is a series of related amendments that deal with an issue a number of other colleagues have also raised, that is, the exclusion of elected Members of both Houses of the Oireachtas and also of local authorities from membership of the Dublin transport authority. A Member of European Parliament would, by definition, be unsuitable because he or she would be out of the country for long periods. I am not so sure about an outright ban on Members of the Oireachtas because we have a good, active transport committee. I think that to bar a member of that committee from the Dublin transport authority would be regrettable. Barring a person because he or she is a member of a local authority will diminish the possibility for democratic pressure and for people to have their say. As other Members pointed out, if we have an elected Lord Mayor he or she would be disbarred from participating in the Dublin transport authority. I always assumed that the point of having an elected mayor would be for the position to be along the lines of the elected mayoralty in London. Transport has been a key element in the policy mandate of the Mayor of London.
That is all I need to say and I look forward to the Minister's response.
The last time we debated this I raised the issue of the exclusion of local authority members because I feel it is wrong and we must do something to deal with it. It is very unfair that local authority members should be debarred; at least Oireachtas Members have the right to attend an Oireachtas committee and can raise questions when they do so. In this case even the Lord Mayor could be debarred and that is wrong. I appeal to the Minister to further examine this matter before Report Stage and, if possible, allow local authority members to be members of the board.
At least those in Dublin and surrounding counties.
We have had this discussion already and I do not think we need delay further on it. I indicated last time, when this matter arose, that I am sympathetic to the view of Senators that local authority members should not be excluded from membership of the Dublin transport authority. As I said last week, nothing in section 14, which concerns membership of the authority, precludes the Minister for Transport from appointing a member of a local authority to the Dublin transport authority. I wish to emphasise this. In this section I do not wish to go down the route of naming individuals or classes of people who I think should or should not be a member of the authority. I wish only to use the generic description of people who have an interest, expertise or skill in this area.
In deference to the arguments made by Senators, including Senator Ellis and others, I am indicating my willingness to bring forward an amendment on Report Stage to remove the provisions in section 40 that have the effect of prohibiting a member of a local authority from serving as a member of the Dublin transport authority. As Senator Ellis said, I will retain the provisions relating to Members of the Oireachtas because we are elected to do a full-time job that is onerous enough. Senator Ellis pointed out that Oireachtas Members have the opportunity to appear before committees and I will not change the provisions relating to Oireachtas Members.
Senator Norris raised a point relating to the meaning of section 40(1)(a) and he is concerned that the distinction made may not be clear enough. I have asked the parliamentary draftsman to re-examine this and, if necessary, I will introduce an amendment on Report Stage. The initial view I was given is that this provision is just meant to distinguish between the Taoiseach’s nominees and elected Members of Seanad Éireann. I will see if it is necessary to make the distinction or if this could give rise to confusion. On this basis I ask the Senators to withdraw their amendments as they can be discussed further on Report Stage, if necessary.
In our previous discussions on Committee Stage we agreed that further substantive debate could take place today, under this section, on the issue raised in amendment No. 21, which I tabled. It was felt that the areas were related, in terms of the membership of local authority members.
Given the Minister's comments today on not excluding members of the board of the Dublin transport authority who subsequently become local authority members, could he agree to having a local authority member on the board by right? This was the thrust of amendment No. 21, which I agreed to withdraw last week on the basis that we would have further discussion on it. I intend to press this amendment on Report Stage.
I will not delay the House but I am glad the Minister referred to our previous discussion on Committee Stage on section 40(1)(a). We are invited to hand in our nominations. This may only directly affect the six university seats in the Seanad but we are invited by the provost to hand in our nominations. This means we are nominated and even a person who fails to gain a seat in the House would be automatically ruled out.
I welcome the fact that the Minister is again examining the question of local authorities. I have mixed views about barring Oireachtas Members, though I take the Minister's point that we have plenty to do in these Houses. If membership of the Dublin transport authority is really a full-time, professional commitment, Oireachtas Members should be ruled out of serving on it.
I ask the Minister, when he is making the amendment he suggested regarding the participation of local authority members, to keep the remit for such members as wide as possible. I am aware that in other parts of the legislation the Minister is quite specific in suggesting that members of the regional authorities or assemblies should be involved in the Dublin transport authority. In any amendment the Minister makes in this regard, he should not be prescriptive about the role a member of a local authority may have. In many cases "ordinary" members of city and county councils may have much expertise in this area because they are members of strategic policy committees or because of their professional backgrounds. However, they may not be members of regional assemblies due to the demands of jobs they hold.
I ask the Minister to provide as broad a remit as possible, to allow all members of the local authority to participate, when he decides how to amend this legislation. This would be a welcome change.
I feel that if we dropped section 40(1)(a) entirely and changed section 40(1)(b) to read “an elected Member or nominated Member of either House of the Oireachtas or the European Parliament”, we could get out of the spot of trouble we are in.
We can discuss how this will be done on Report Stage. It is possible that we could make this very simple, though sometimes people do not like simple language in legislation.
I do.
If a person becomes a Member of either House of the Oireachtas or the European Parliament that solves the problem. We will look for an agreed way forward on this. I will give consideration to Senator Donohoe's point.
This opens the whole discussion on Members of the Oireachtas. Senator Donohoe mentioned people with major professional commitments who may still be members of local authorities. That would mean they could not give a full-time commitment. If that is to be opened up, there would be a need to also question membership of the Oireachtas because there is a contradiction there.
Amendment, by leave, withdrawn.
Amendments Nos. 38 to 41, inclusive, not moved.
Section 40 agreed to.
Sections 41 and 42 agreed to.
SECTION 43.
Amendment No. 41a is in the names of Senators Brendan Ryan, Alex White, Michael McCarthy, Phil Prendergast, Dominic Hannigan, Alex Kelly and David Norris.
I move amendment No. 41a:
In page 36, line 12, to delete paragraph (a).
Is this amendment in opposition to the section?
It is amendment No. 41a, on an additional list, already circulated on 8 May.
This amendment seeks to delete section 43, paragraph (a). An immunity for individuals in good faith on behalf of the authority, in accordance with section 80, would not be objectionable. However, a blanket immunity against any proceedings in respect of the authority itself for failure to act appears to be open to constitutional challenge, according to our advice. The Minister has an amendment which is to delete the section in full. I hope it is in recognition of our amendment and if so, I thank him for that.
The bad news for Senator Ryan is that when we looked at this again, it was decided that I should withdraw my amendments. I take it we are taking these two together, amendment No. 41a and my amendment to delete section 43. The Government is withdrawing the proposal for the deletion of the section, therefore, Senator Ryan and I are not ad idem, but rather on opposite sides in this regard.
Could the Minister explain the rationale behind this dithering?
It was originally proposed to delete section 43, but we received further legal advice in this regard to what is contained in the section. It is a common provision in legislation establishing State bodies. Its purpose is to ensure no one can seek to claim damages from, inter alia, the authority or a subsidiary of the authority in circumstances where the authority or its subsidiary fails to conform or comply with its statutory functions. In other words, we are ensuring that no one can take a legal action against the authority or its subsidiary body for something it did not do. Basically, there are many people who are willing to take legal action against authorities and their subsidiaries for things they do, or do not do properly. We are not going to offer people the opportunity to take legal action against authorities for things they did not do, as this would serve to further enhance the compensation culture that exists at the moment.
If we remove this provision we shall be opening a can of worms. Given the spirit or intent of Senator Ryan's proposal, however, it is important to state that there will be no bar on anybody taking an action regarding alleged damage arising from the exercise by the authority, or a subsidiary, of its statutory functions. If somebody does something incorrectly, as a result of which loss or damage is caused, my amendment will ensure people may continue to take action against the authority or subsidiary concerned. We are simply not giving people the right to sue because an authority did not do something.
Will the Minister clarify two points on this amendment? How common is a clause such as this in legislation setting up an organisation such as the Dublin transport authority? When I read the section, it appeared to that this was a blanket cover to the effect that anybody working for the Dublin transport authority would be immune from prosecution for services he or she was not providing. This seemed to be a very strong indemnity to be offering any employee of the Dublin transport authority.
Even if I take on board the point the Minister has just made, about the need for an employee of the authority to have such immunity, paragraph (d) also offers this immunity to a person who is providing services to the authority, that is, somebody who is not an employee of the authority but who is just providing services to it. Is it common for a blanket immunity such as this to be offered to somebody who is not an employee of the organisation?
Although our legal advice is that this blanket approach might lead to a constitutional challenge later, I do not intend to press our amendment but I reserve the right to seek to have it reconsidered on Report Stage.
It is rather curious behaviour. It is somewhat like the "I stepped in again, you stepped out again" approach. It appears in the Bill, step 1. It is deleted, step 2, and then it is back in, step 3. That does not suggest a very clear and logical approach. I am not fully convinced about the Minister's action. Is it the case that the Minister does not now propose to delete the section?
I do not propose to delete it.
The Minister is right, particularly since we were talking earlier about safety. If somebody is injured because of a dereliction on the part of a transport authority, particularly if Senator Donohoe has his way and it is running railway trains, buses, boats, canal barges, etc., then the public should have the right to sue. The right to restore something that was proposed to be deleted suggest some degree of dithering but that is a very human quality. Since the Minister has got it right now, we shall absolve him.
We need to be careful about paragraph (d), which refers to “a person providing services to the Authority”. That could very well be construed as a subcontractor to the authority who was negligent should not be exempt from being sued. In the event, it is the authority that will be sued, not the subcontractor if there is negligence, and there should be some way of getting around that, because a loophole exists. It means that if I am contracting to the DTA, I do not have to give tuppence about insurance or anything else, because the authority is the first port of call, and I am exempt. It is the DTA that gets sued.
I withdraw my remarks because I am now completely confused. I have been made dizzy by this sort of thing, and it now appears that the immunity is left intact. I am not sure this is a good idea for the reasons I gave when I thought matters were the other way around. I do not see why a citizen should not have a case for redress if he or she is damaged by the actions of the authority. It seems a wide-ranging immunity is to be provided without very clear reasons from the Minister.
Senator Ellis and I have raised a question about section 43(d). I am not convinced about the need for such a strong immunity for the authority itself. I have, however, a wider concern about whether such immunity should be extended to a third party working for the authority. Will the Minister give an assurance that such a clause is commonplace in enabling legislation establishing new bodies and it cannot be used to excuse poor service or performance by a contracted party?
Such a provision is contained in the Roads Acts. The Senators are having some difficulty with this clause. I was accused of dithering about it earlier by Senator Norris but he has changed his position four times since we started. There is a certain amount of confusion, largely because of the amendments. I will examine this again on Report Stage.
The provision states no action or other proceedings shall lie or be maintainable against the authority, or a subsidiary of the authority, if it fails to perform or to comply with its statutory duties. I understand the concerns expressed by Senators. If, for example, a subcontractor does bad work on a Luas line and it causes a crash, there are concerns the subcontractor could be immune from prosecution under this provision. I will clarify this on Report Stage.
Amendment, by leave, withdrawn.
Section 43 agreed to.
SECTION 44.
Amendment No. 42 is ruled out of order as it involves a potential charge on the Revenue.
Amendment No. 42 not moved.
I move amendment No. 43:
In page 38, subsection (10), line 24, after "Authority" to insert the following:
"but must in the first instance be open to competitive tender to all public transport operators".
We have had full discussions about amendments of this kind already. The Dublin transport authority should play a more active role in stimulating competition for new routes and modes of public transport. It is about ensuring taxpayers' money is well spent and the routes and capacity are in place to deal with the growing population of the greater Dublin area.
The Senator wants all public transport networks to be open to competitive tender. Section 44(9) allows the authority to exploit commercial opportunities arising from its functions under Part 3. This includes aspects such as public transport infrastructure, public passenger transport services, integration measures, traffic management, research and information. Section 44(10) enables the authority, or a third party on its behalf, to exercise that right.
I want to avoid becoming too prescriptive in this section. It would be impossible to list all commercial opportunities that may arise. Accordingly, the purpose of section 44 is not to be prescriptive but leave the authority the sufficient latitude and flexibility to enable it to act commercially where the opportunity arises. It is not possible to foresee every case in which there may be a need for a competitive tender process. In some commercial opportunities, no need may arise.
The Dublin transport authority will be subject to the necessary procurement legislation where it applies. The section, as it stands, gives greater flexibility and will not preclude competitive tendering. I will, therefore, not accept the amendment.
Amendment, by leave, withdrawn.
Section 44 agreed to.
Sections 45 to 48, inclusive, agreed to.
SECTION 49.
Government amendment No. 44:
In page 41, subsection (2), line 50, to delete "section 48” and substitute “subsection (1)”.
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 and 51 agreed to.
NEW SECTION.
I move amendment No. 45:
In page 42, before section 52, to insert the following new section:
"52.—(1) The Authority shall issue additional public service contracts where it can be shown by any person or body corporate that-
(a) there is a requirement for such service in the general economic interest; and
(b) a public service operator has the capacity to provide such a service.
(2) The Authority shall ensure there is a facility in the Authority to accept and consider any such proposal under subsection (1).”.
The amendment arises from my concerns over the immense power vested in the authority over Dublin's transport network. The Bill allows the authority to be both a regulator and provider of transport services. This creates a conflict of interest for the authority which could cause problems.
Under section 52 the authority will have exclusive power to determine what it believes are the needs of Dublin's commuters and the organisations involved in providing public transport. The amendment seeks to allow another body, either Dublin Bus or a private operator, to express a belief that there is a requirement for the expansion of a service or the provision of an additional service, and to ask the Dublin transport authority to consider this request and publish a view whether it believes this additional service is needed and whether it will provide it. Also, if the authority will not provide it, it should explain why this is the case.
I have tried to make the amendment more reasonable by making clear that the organisation seeking to demonstrate that an additional transport capacity is needed must be able to demonstrate that is in the clear economic interest of the region, as laid out in the early sections of this Bill. We must also ensure the operator has the capacity to provide the service. We do not want frivolous organisations wasting the time of the public and the Dublin transport authority by putting forward recommendations for services they are not able to provide.
The amendment asks the Dublin transport authority to consider the proposals and recommendations from other organisations in the greater Dublin region to dilute in some way the power this organisation will have and allow it to consider competing views. I hope in some cases that these competing views, if met, would be in the interests of commuters in the Dublin region.
These sections are important, as the Senator has said. Before I address the specific amendment, it is important to put in place the background to this overall chapter. As Senators have said and as they will know from the Bill, the immediate results that will flow from the chapter we are discussing here are that the procurement of all public transport services in the greater Dublin area will be done by the Dublin transport authority, which is important. This will involve the authority entering into public transport service contracts with all prospective transport operators.
In the case of public bus and rail passenger services, contracts will only be entered into where a public service obligation, PSO, is identified by the authority. Contracts will have to comply with EU law and in particular with the new EU Regulation 1370/2007/EC which establishes a new framework for PSO contracts for bus and rail passenger services and comes into effect on 3 December 2009.
This chapter has been the focus of much attention. When I first introduced the Bill to Government, the Attorney General made his views known on this on the basis of what was happening in Europe at the time with the PSO regulation. Given this, we needed to alter the Bill to take the PSO regulation fully into account. Everything that is in this chapter and these sections is very carefully worded to ensure we comply with EU law and the PSO regulation, which, as I said, will come into effect on 3 December 2009.
The specific structure we have adopted with regard to the making of the direct award of contracts with the CIE companies has been prepared with particular reference to the need to migrate from where we are at present to full regulation in 2009. That is the general background. The Bill is very carefully worded in this regard.
With regard to the amendment, Chapter 2 of Part 3 of the Bill establishes a comprehensive framework which will give the authority the power to secure the provision of public passenger transport services through the making of public service transport contracts. Section 48 envisages that the authority may enter into such contracts following open tendering in respect of public bus passenger services, metro services and light rail services. It also provides that public bus and rail services can be secured by means of direct award contracts. However, section 52, which relates specifically to the making of direct award contracts, provides that in the case of public bus passenger services, such contracts will only apply to the continued provision of the services currently being provided by Dublin Bus and Bus Éireann. Accordingly, the future growth in the market for subvented public bus services can only be pursued by way of open tendering.
The intent of the Senator's proposed amendment is already addressed in the overall provisions of this chapter of the Bill. I specifically cite the provisions of sections 48 and 52, to which I referred. These have been carefully prepared and drafted to ensure they are fully in line with the provisions of the EU regulation, which, as the Senator appreciates, has direct application in this regard.
The Senator's amendment includes the words "shall issue additional public service contracts". This leaves the authority with no discretion as to how it might provide a public transport service. That is a not a route we want to go down because options must be available to the authority. The intent of the Senator's amendment is addressed already in these sections which fully comply with the EU PSO requirements in place.
The Minister's response indicates clearly that this is one of the pivotal sections in the Bill, which I acknowledge. I also take on board his point regarding the language of my amendment. The concern we should all share with regard to the Bill is that we might get a phrase or clause wrong in such a way that creates vulnerability for an organisation in determining future transport policy in Ireland.
I have a particular concern. Let us say a private operator is operating in another European market and wants to become involved in the provision of transport in Ireland. By legally challenging part of this legislation, the operator would remove the ability of the Government to create policy and might try to force the policy direction of this country via legal action.
There are a number of points I would like the Minister to address. First, is he confirming in this clause that the Dublin transport authority will be what I believe is called the competent local authority for the provision of transport within the Dublin region? If so, will the authority which decides on local transport matters outside of the greater Dublin area still be the Department of Transport and the Minister? Is there a conflict between having the competent local authority, the Dublin transport authority, deciding transport policy within the greater Dublin area and the Department of Transport deciding transport policy for the region outside this area? Could this conflict in any way create an opening for legal challenge to this legislation at some point in the future?
Second, if we are confirming that the Dublin transport authority is the competent local authority for transport issues within the greater Dublin area, does this in any way affect the ability of the new organisation to offer direct award contracts to organisations such as Dublin Bus and Iarnród Éireann? As the Minister acknowledged, if we are wrong on any of these points, it will open this legislation to challenge by private companies who might want to influence the way we provide transport in Ireland.
On the Senator's specific questions, which are valid, the DTA will be the competent authority for transport in the greater Dublin area. The Department of Transport will continue to be the competent authority outside the greater Dublin area. As stated in a newspaper article on the Bill, the Government is not handing over all policy-making power and will still be responsible for transport policy. The DTA will be acting on behalf of the Minister as a competent authority, not as a competent local authority per se. The Minister is also a competent authority.
Comments were made to the effect that the Minister for Transport is mentioned 183 times in the Bill. I make no apologies for that because I believe, in respect of any organisation we set up, that Ministers should be accountable to the Houses for policy and the implementation thereof. Every Member of the Oireachtas would agree with this. I am, therefore, not handing over all policy-making functions in respect of transport in the greater Dublin area. I will be asking the DTA to execute the policy and any of the decisions it will make will be subject to ministerial approval, as is right. This meets the Senator's concerns.
I thank the Minister for his response. He has clarified that within the greater Dublin area, the DTA will be the competent local body while elsewhere it will be the Department of Transport. I am teasing out this point because it is of pivotal importance to this legislation and how the authority will work.
Will the Minister explain the position on routes that do not originate within the greater Dublin area but which are important to the smooth operation of the transport system run by the authority? What will be the deciding body regarding decisions on such routes? Consider, for example, decisions on fares or the frequency of buses on a bus route that begins outside the greater Dublin area. The Minister said the Department of Transport will be responsible for the region outside the greater Dublin area and that the DTA will be responsible for the area within. If the route begins outside the greater Dublin area, will the DTA or the Department be responsible for making decisions on how it will operate?
To reiterate, we are concerned here with competent authorities. The Department of Transport is a competent authority and the DTA will be part of that authority. That is the position, particularly under EU legislation. On the specific point on publicly funded transport services — provided, for example, by Bus Éireann or Iarnród Éireann — that commence or terminate beyond the greater Dublin area and which would be regarded as being essentially part of public transport services in the greater Dublin area, section 54 provides that the Minister can, by order, designate services for the purpose of the section. He may also designate such services as the subject of exclusive rights subject to the granting of licences under the Road Transport Act 1932 or the subsequent legislative amendments thereto. Section 54(4) states: "The Authority shall enter into direct award contracts, which impose public service obligations, with Bus Éireann or Irish Rail in respect of the public passenger transport services to which this section relates." The Minister will make the order and the DTA will execute it.
I thank the Minister for his clarification. I will withdraw my amendment, particularly in light of his points. However, this area is ripe for confusion or exploitation in that the Department of Transport will be the national deciding body on transport policy while the Dublin transport authority will be operating in the greater Dublin area. The Oireachtas and those involved in the provision of transport in the Dublin area will need to monitor this.
Amendment, by leave, withdrawn.
SECTION 52.
I move amendment No. 46:
In page 42, subsection (1), after line 47, to insert the following:
"(d) Any new such public service contract within the greater Dublin area shall be offered first to Dublin Bus and or Bus Eireann.”.
The Minister has more or less addressed this amendment already because he suggested a European directive required the existence of an open, public and competitive regime. While I favour the existing service providers, particularly where there is a social element, I take it he will reiterate that answer, in which case I will have to accept it.
Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
I move amendment No. 48:
In page 43, subsection (4), line 15, to delete "5 years" and substitute "10 years".
At an earlier stage of our consideration of the Bill the Minister was lyrical on the need for what he described as a "level playing field" in these areas. If one is giving ten years to other providers, it seems that public service providers should be given exactly the same treatment. Perhaps the Minister will explain to me the distinction between them, which I do not understand.
The new EU regulation on public service obligations creates the framework that dictates how member states can award exclusive rights and pay compensation for public bus and passenger services in respect of which the public service obligations have been imposed. A specific right is provided for in the regulation to allow one to do this. Under the regulation, which will apply from 3 December 2009, and which will come into full effect on 3 December 2019, member states are being encouraged to take gradual measures to comply with its provision. The chapter we are talking about in the Bill provides for the first time in Irish transport law a contracting regime to govern the subvention of public bus and rail passenger services in respect of which public service obligations apply.
Section 52 establishes that the three CIE companies will have exclusive rights to provide the services that are the subject of State financial support at present and for growth in respect of rail services, subject to future legislative change. In the case of bus services, the exclusive right also is subject to the grant of bus route licences to private bus operators under the Road Transport Act 1932. Direct award contracts will be entered into to support the provision of the services that are encapsulated in such exclusive rights.
Section 48 provides that future growth in the market for subvented public services in respect of which the authority has determined that a public service obligation applies will be addressed by way of contracts resulting from an open tendering process. However, section 52 proposes that the initial direct award contracts in respect of bus services provided by Dublin Bus and Bus Éireann will be for a period of five years. It also provides for the review of such contracts and for the making of subsequent contracts.
As for the Senator's point that the initial direct award contracts are limited to a five-year period, this provision, allied to the review provisions and the power to enter into subsequent direct award contracts, ensures the provisions of EU Regulation No. 1370/2007 will be fully complied with within the timeframe envisaged in that regulation. This section and chapter were carefully crafted to ensure the exclusive rights being granted to the CIE companies, as well as the direct award contracts which relate to them, will be fully in line with Ireland's obligations under the regulations. Accordingly, I ask the Senator to withdraw the proposed amendment.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 43, subsection (5)(a), lines 19 and 20, to delete “unilaterally make amendments to such contract” and substitute the following:
"can amend such direct award in objectively justified cases and in a proportionate manner".
This is a precautionary amendment because the powers granted to the Minister in this regard are quite serious and swingeing. The section pertains to carrying out a review and so on and there is another related amendment a little further on. My amendment includes a provision that this should be objectively justified and the action should be taken in a proportionate manner. I am sure this is exactly what the Minister would wish. He would not wish to be disproportionate and he would desire such cases to be objectively justified and I propose to include this wording as a form of safety net.
This chapter relates to the legislative basis for the procurement of bus, rail, metro and light rail public passenger transport services by the Dublin transport authority in the greater Dublin area. As for public bus and rail services, procurement will arise only where a public service obligation is determined and there is a consequent requirement to subvent the operation of such services. The approach adopted in this chapter in respect of the determination of public service obligations again is consistent with the EU public service obligation regulation which provides for the making of a determination that such an obligation is to be applied as a matter for the competent authority. In the case of public bus and rail passenger services in the greater Dublin area, such a role is being given to the authority.
For that reason, as well as the associated responsibility given to it to ensure funding for the delivery of the services in respect of which the public service obligation relates is in compliance with Regulation No. 1370/2007, the authority must be empowered to carry out reviews of the public service contracts at its exclusive discretion. This is encapsulated in section 52(5). Obviously, the authority cannot act unilaterally, inappropriately or disproportionately in cases such as this. It will be obliged to act in a fair manner and as its actions will be subject to judicial review, the companies are fully protected.
While the Minister's response again makes clear that this section is in compliance with the European directive, nothing in my amendment is in conflict with it. Although the Minister has more or less stated this would be the manner in which the authority would act in any case, enabling an authority to act unilaterally in such a way is a strong power. I propose the inclusion of a safeguard of precisely the kind the Minister considers will be the manner in which the authority will act in any case. It is not in conflict with any provisions contained in the European regulations.
I will read the Minister's further comments with great interest. However, I must apologise to the House as I have a long-standing engagement that I must fulfil and for which I am already late. Consequently, I have asked Senator Donohoe to move the subsequent amendments in my name. While I greatly regret that I will not have an opportunity to be eloquent on the subject of St. Stephen's Green, I understand the Bill's Report Stage debate will take place on another day and I may be able to wax eloquent on the subject of the green on that occasion. I again apologise to the Minister and the House. I do not intend any discourtesy and I am grateful to Senator Donohoe for agreeing to technically move my amendments. This does not mean he is ideologically committed to them but he simply is doing me a democratic service.
Amendment, by leave, withdrawn.
I move amendment No. 50:
In page 43, subsection (5)(b), line 23, after “services” to insert the following:
"in objectively justified cases and in a proportionate manner".
As was the case with amendment No. 45, the capacity to review direct award contracts must rest with the authority. However, in the case of a review under section 52(5)(b), the authority must engage in a public consultation process provided for in section 52(5)(d). As part of that process, the authority is required to consult the service provider as well as other potential interested parties, including the users of the services, before it makes the amendment. The authority also is required, under section 52(5)(e), to publish a report as to the reasons it promoted the amendments made as a result of a review under section 52(5)(b). This section provides the opportunity for all interested parties to make their views known to the authority and as I consider the approach set out is appropriate in the circumstances, I ask the Senator to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 51:
In page 43, subsection (5), lines 30 to 39, to delete paragraph (c) and substitute the following:
"(c) (i) The Authority shall, six months prior to the expiration of any direct award contract, invite and consider tenders from any public transport operator in respect of the relevant public transport service contract or any portion thereof.
(ii) The Authority shall provide a written statement of the reasons to any public transport operator whose tenders is unsuccessful under subsection (1).”.
Members already have discussed at length the role the Dublin transport authority will play in respect of direct award contracts and the power it will have in respect of the greater Dublin area. This amendment seeks in two ways to provide guidance and clarity to those who will provide such services. First, it will make clear, either to an organisation such as Dublin Bus or to a private organisation, that a particular contract is due to expire at a particular time and will ensure tenders will be invited. While in many cases such large companies probably will be aware of when a contract is due to expire anyway, it is important to have transparency for all involved as to when a tendering opportunity might arise.
Second, the amendment proposes that in respect of an organisation which is unsuccessful in gaining a contract, the Dublin transport authority would be obliged to communicate to that organisation the reasons it was unsuccessful. The Minister has put much work into making clear the Dublin transport authority's explicit functions. It is important that organisations that seek to provide services in the Dublin region but fail in their attempts to so do are made aware of the reasons they were unable to gain the relevant contracts. Moreover, the DTA should be obliged to explain to such organisations what they did wrong to afford them an opportunity to learn lessons for the future, as well as an opportunity to participate in other tendering processes in which, it would be hoped, they would be more successful.
This section establishes, in a very clear manner, that the scope of the direct award contracts will extend to encompass the existing funded bus services in the greater Dublin area, but will also allow for future growth in respect of the provision of rail services. The funding of additional public bus passenger services can only be contemplated through the already mentioned contracts that are entered into following a public tendering process. I can assure the Senator that part of the public tendering process that now exists for such contracts ensures that people who submit tenders that are successful or unsuccessful can, if they request, as they generally do, be taken through the scoring and the points system to learn how the decision was reached.
The Senator is correct in that people go to considerable expense to put in a tender for a particular contract. If they do not succeed they should at least have an opportunity of seeing in which ways they may have failed. That is provided for in the tendering processes we currently have and is met without having to specifically state it.
We are discussing sections that are drafted on foot of the EU Regulation No. 1370/2007. In accordance with that regulation, and with regard to the Senator's point about notice, the authority must give one year's advance notice of the making of subsequent contracts. Subsection (5)(d) of this section requires that the authority seek the views of interested parties where it proposes to pursue the making of subsequent direct award contracts. The arrangements ensure that a continued supply of public bus services will be provided by Dublin Bus and Bus Éireann, subject to the fact that the authority is to be given broad powers to review the direct awards contracts relating to them. The section will, equally, ensure the continuation of the existing rail passenger service and will accommodate increases in such services.
I realise that it is probably not the Senator's intention but if the proposal presented in this amendment were accepted by me the direct award contracts envisaged under subsection (3) would cease to have effect after five years in the case of public bus passenger services and after ten years in respect of rail services. Subsequent direct award contracts could not be entered into by the authority. That would mean that in the absence of alternative operators, serious questions would arise regarding future provision of the services to which the direct award contracts relate. I am aware that such is not the intent of the amendment but the actual effect of it is that we could end up with a situation where we would not have anybody contracting. I do not believe the kind of uncertainty that would inevitably result from the acceptance of this proposal would be in the interest of the travelling public. I ask the Senator to withdraw the proposed amendment because what he is trying to achieve is covered very well in this section.
I thank the Minister for his clarification. I do not seek to remove the ability of the new authority to award direct contracts to organisations for the provision of transport services for the Dublin area. The Minister has clarified the process that takes place up until the awarding of the contract. What I have in mind is large developers and organisations for which I do not frequently have much sympathy. These can spend huge amounts of money submitting applications for planning permission and hold a great number of consultation meetings, etc., only to have the application turned down. They are frequently unsure as to why this is the case. The objective of this amendment is to ensure complete transparency about why operators are unsuccessful. The Minister assures me that this is already provided for in the legislation. In anticipation of Report Stage I ask him to be sure that is the case and I will withdraw this amendment.
We can clarify that even further but there is a section in the Bill that allows for guidelines to be issued and perhaps we might cover the question in that way.
Amendment, by leave, withdrawn.
Section 52 agreed to.
Sections 53 to 55, inclusive, agreed to.
SECTION 56.
I move amendment No. 52:
In page 45, lines 33 and 34, to delete paragraph (a).
This section gets to the heart of one of the major concerns that I have about the proposal. What this clause will do in the legislation is to create an organisation that will be a regulator at the same time as it has the capacity to provide the service itself. I have real concerns about whether, in practice, this will create conflicts of interest that will not be in the interest of passengers and commuters for whom the service is intended.
The practical example that I would give is that of our waste markets, the systems for the pick up of domestic waste across many parts of our country. The situation with which I am most familiar is within Dublin City Council which is both the provider of the service and its regulator. It creates many instances where there is a perceived conflict of interest as that organisation tries to perform both parts of its remit well.
This legislation will confer upon the transport authority the ability to tender out for transport services or to give guidance to organisations about how that transport is going to be delivered. If it is not happy about how that is done it will be able to step in and provide the service itself. The example that made this most clear to me in respect of the conflict that might come about is an issue we have discussed many times, namely, the awarding of contracts for bus routes. The Dublin transport authority will be the organisation that will set the criteria for a successful tender. If it is not happy with a tender it can then step in and provide the service itself.
The Minister has clearly outlined on a number of occasions that the role of the Dublin transport authority is to deal with the vested interests that have at times got in the way of providing the right solutions for the people who need the services. Does this not create the potential for the DTA to be a vested interest itself at some point in the future? The board and the management team charged with setting the criteria for tendering processes and overseeing whether a service is well provided or an intervention should be made, is the same organisation that has the ability to provide the service itself. Will we not find ourselves at some point in the future in a situation where is a perceived conflict of interest that could be challenged by an organisation unhappy with a decision that the Dublin transport authority has made?
We have many different regulatory bodies that deal with a range of issues such as the supply of electricity or the operation of particular services but none of these authorities has the ability to provide the service itself. I am unclear as to why the Minister finds it necessary to confer such power on this organisation. Does he not think there could be a perception of a conflict of interest at some point in the future that might get in the way of the smooth operation of this organisation?
I am persuaded by the argument made by the Senator in this regard. The deletion of section 56(a) would benefit the legislation. While I take the Senator’s point that the Bill, as it stands, could be construed as allowing the authority to act as an operator of last resort in advance of the service being provided——
——that is obviously not the intent or focus of section 56(a). The section will provide that an intervention can be made if someone who is being paid to provide a service goes bankrupt, does not provide the service or provides a really bad service. I will accept Senator Donohoe’s amendment No. 52.
Amendment agreed to.
Section 56, as amended, agreed to.
Section 57 agreed to.
SECTION 58.
As amendments Nos. 53 and 56 are cognate, and amendment No. 69 is related to amendment No. 53, amendments Nos. 53, 56 and 69 may be discussed together, by agreement.
Government amendment No. 53:
In page 47, subsection (9)(b), line 24, to delete “data is” and substitute “data are”.
Amendment agreed to.
Government amendment No. 54:
In page 47, subsection (12), line 47, after "that" to insert "trip".
Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59.
I move amendment No. 55:
In page 49, between lines 4 and 5, to insert the following subsection:
"(9) The Authority shall make available to other statutory agencies and local authorities information or data generated under this section for the purpose of the discharge of the functions of those bodies, provided that such use does not result in the disclosure of commercially sensitive information in relation to an identifiable person or public transport operator except with the consent of such person or operator.".
I understand the Department of Transport has encountered some difficulties in respect of integrated ticketing. Issues have arisen in respect of the sharing of information by various organisations with each other and with the Department to facilitate the provision of integrated services to commuters in Dublin. I have tabled this amendment to give the Dublin transport authority greater powers to ensure information is shared between the various organisations in the Dublin region. Such powers are needed to ensure good integrated services are provided to commuters. The integration of public transport services, as opposed to the provision of new services, is necessary if we are to improve services and increase consumer satisfaction. This amendment seeks to make it easier for information to flow between the various bodies, thereby aiding the provision of more integrated services and strategies.
The Senator is trying to replicate the terms of section 58(9)(c), which relates to integrated ticketing schemes, in section 59. He is attempting to provide for the sharing with other statutory authorities of data generated under such schemes. Section 58 provides that the information of most use to most bodies may be shared. Such information may relate to the numbers travelling, the frequency and distance of travel, the modes of travel and the places of boarding and alighting, etc.
Such information can be used by a variety of organisations for statistical purposes under the terms of section 58. This section deals with fares. It provides that a fares scheme will be used as a kind of financial clearing house to facilitate the collection and distribution of revenues generated from smart cards and prepaid and onboard ticket sales across the various modes which will comprise Dublin's integrated transport network. The data generated under that system, which will be purely financial in nature, will be somewhat sensitive commercially. It will be of very little use to other statutory organisations with data collection responsibilities, such as the Central Statistics Office. For that reason, I do not consider this amendment necessary. It would not serve any useful purpose. As the statistics Senator Donohoe is looking for can be disclosed under section 58 of the Bill, I ask him to withdraw this amendment.
I thank the Minister for his response. I understand the importance of this section of the Bill. The lack of a policy body has been one of the reasons the integration we are looking for has not taken place. I accept the Minister's comment that information will be available under another section of the Bill. I will examine the matter in advance of Report Stage.
Amendment, by leave, withdrawn.
Section 59 agreed to.
SECTION 60.
Government amendment No. 56:
In page 50, subsection (9)(b), line 10, to delete “data is” and substitute “data are”.
Amendment agreed to.
Section 60, as amended, agreed to.
SECTION 61.
Government amendment No. 57:
In page 50, subsection (3), line 31, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Section 61, as amended, agreed to.
SECTION 62.
I move amendment No. 58:
In page 51, between lines 48 and 49, to insert the following subsection:
"(9) The Authority may require private bus operators to provide off street parking for their vehicles.".
I am proposing this good amendment on behalf of my colleague, Senator Norris. Like the Senator, I live in a part of Dublin that is heavily used by private bus operators for the purposes of parking. Their services tend to start and end in some of Dublin's greatest districts. If Senator Norris were here, he would be able to describe such areas far more eloquently than I am capable of doing. The locations in question are being ruined by private bus operators who leave their buses in place for long periods while they wait for their passengers to board. Such actions cause huge difficulties for people trying to get around such areas, damage the look of these places and make it much more difficult for residents to go about their daily business. Senator Norris has tabled this amendment to allow the authority to ensure private bus operators are compelled to provide safe and attractive starting and finishing points for the services they provide.
I take it that the operators referred to in this amendment are primarily those that provide services to people from rural Ireland living in Dublin who wish to return home for the weekend. In the absence of proper parking facilities, it would be unfair of the authority to prevent private operators from parking in the locations they currently use to pick up passengers. I accept the point being made by Senators Norris and Donohoe. I assume they are referring to the Parnell Square area where most of these problems arise. It is the only place many non-urban operators can use. If proper parking facilities were provided, everyone would accept this amendment. It would be unfair to make this change in the absence of such facilities, however.
Under the Road Transport Act 1999, bus operators must, as a condition of their operating licences, ensure adequate parking spaces and operating premises are provided in the State for the vehicles they operate or intend to operate under such licences. Bus operators are subject directly to the Road Traffic Acts, including the regulations relating to parking, during the course of their day-to-day operations on public roads. The Road Traffic (Traffic and Parking) Regulations 1997 enable the road authorities to provide short-term bus parking areas, such as the spaces provided on Nassau Street in Dublin, to facilitate tourist buses and other private transport operators. The regulations also enable the road authorities to prohibit the parking of large vehicles such as buses at specified locations, such as public roads and residential areas. The enforcement of those parking regulations is a matter for the Garda Síochána, local authority wardens or local authority-appointed vehicle clamping operators.
With regard to this specific amendment, Part 3, Chapter 4 concerns traffic management. The definition of traffic management, under section 2, includes "measures necessary for the purpose of facilitating managing, regulating and controlling . . . the parking of vehicles in a public or other non-residential place". I am satisfied that there is ample scope for the authority, under Chapter 4, to develop an appropriate vehicle parking strategy for the greater Dublin area generally, which individual road authorities will be required to implement. The Road Traffic Acts will continue to provide the legal basis for the control of parking on public roads. In view of that, I do not consider there is any necessity to amend the Bill further.
Amendment, by leave, withdrawn.
Section 62 agreed to.
Section 63 agreed to.
SECTION 64.
Government amendment No. 59:
In page 52, subsection (2)(f), line 30, to delete “development” and substitute “developments”.
This is a technical amendment correcting an inconsistency between the use of the word "developments" in section 12(5)(g) and “development” used in section 64(2)(f). The correct word is “developments”.
Amendment agreed to.
Government amendment No. 60:
In page 52, subsection (4), line 46, after "with" to insert "the NRA,".
This amendment inserts a reference to the NRA in section 64(4). It deals with the preparation by the authority of a strategic traffic management plan for the greater Dublin area. Subsection (4) puts an onus on the authority to consult with several interested parties when preparing such a plan. In listing the relevant parties, the inclusion of the NRA as a body to be consulted was inadvertently left out. This amendment corrects that omission.
Amendment agreed to.
Amendment No. 61 not moved.
Section 64, as amended, agreed to.
SECTION 65.
Amendments Nos. 62 and 64 to 66, inclusive, are cognate and may be discussed together by agreement.
Government amendment No. 62:
In page 53, subsection (3)(a)(i), line 20, to delete “road authorities” and substitute “the road authority”.
These are technical amendments to replace the three references in section 65 to "a road authority" with reference to "the road authority".
Amendment agreed to.
Amendment No. 63 may be discussed with amendments Nos. 67 and 68 by agreement.
Government amendment No. 63:
In page 53, subsection (3)(a)(i), line 22, after “management” to insert “or other transport-related”.
Sections 65 to 67, inclusive, concern the preparation of local traffic plans by road authorities in the greater Dublin area, the issuing of traffic management guidelines by the authority to those road authorities, and the giving of directions by the authority to those road authorities. Section 65 incudes a requirement that each road authority in the greater Dublin area must specify its use of the proceeds of parking or other traffic management revenues for traffic management purposes within its functional area. Sections 66 and 67 enable the authority to issue guidelines and directions, respectively, to a road authority in the greater Dublin area regarding the use of the proceeds of parking or other traffic management revenues for traffic management purposes within its functional area. The purpose of the amendments to these sections is simply to ensure that the proceeds of parking and other traffic management revenues can be used both for traffic management and other transport related purposes. I consider that the current wording is unnecessarily restrictive and the suggested amendments broaden the scope of the provision to encompass transport-related purposes.
Amendment agreed to.
Government amendment No. 64:
In page 53, subsection (3)(a)(ii), line 24, to delete “a road authority” and substitute “the road authority”.
Amendment agreed to.
Government amendment No. 65:
In page 53, subsection (3)(a)(ii), lines 25 and 26, to delete “a road authority” and substitute “the road authority”.
Amendment agreed to.
Government amendment No. 66:
In page 53, subsection (3)(b)(i), line 33, to delete “a road authority” and substitute “the road authority”.
Amendment agreed to.
Section 65, as amended, agreed to.
SECTION 66.
Government amendment No. 67:
In page 54, subsection (1)(g), line 9, before “purposes” to insert “or other transport-related”.
Amendment agreed to.
Section 66, as amended, agreed to.
SECTION 67.
Government amendment No. 68:
In page 54, subsection (1)(e), line 36, after “management” to insert “or other transport-related”.
Amendment agreed to.
Section 67, as amended, agreed to.
Sections 68 to 72, inclusive, agreed to.
SECTION 73.
Government amendment No. 69:
In page 57, subsection (1)(a), line 5, after “that” to insert “or those”.
Amendment agreed to.
Government amendment No. 70:
In page 57, subsection (3), line 22, to delete "making" and substitute "giving".
This is a technical amendment to section 73 to remove an inconsistency in the wording used. In subsection (3) the phrase "making a direction" is used when the correct phrase is, in fact, "giving a direction".
Amendment agreed to.
Amendments Nos. 71 and 72 are related and may be discussed together by agreement.
Government amendment No. 71:
In page 57, subsection (4), line 25, to delete "and statistics" and substitute "or statistics".
This is a technical amendment. Subsection (4) contains two references to "data and statistics". However, the correct term, and the one that is used elsewhere in section 73, is "data or statistics". Accordingly, the purpose of the amendments is to make these two corrections.
Amendment agreed to.
Government amendment No. 72:
In page 57, subsection (4), line 26, to delete "and statistics" and substitute "or statistics".
Amendment agreed to.
Section 73, as amended, agreed to.
SECTION 74.
Government amendment No. 73:
In page 57, subsection (1), line 36, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Government amendment No. 74:
In page 58, subsection (1)(e), line 6, to delete “National Roads Authority” and substitute “NRA”.
Amendment agreed to.
Government amendment No. 75:
In page 58, subsection (2), lines 7 and 8, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Government amendment No. 76:
In page 58, subsection (2), line 11, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Government amendment No. 77:
In page 58, subsection (3), line 15, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Government amendment No. 78:
In page 58, subsection (4)(a), lines 16 and 17, to delete “National Roads Authority” and substitute “NRA”.
Amendment agreed to.
Government amendment No. 79:
In page 58, subsection (5), line 26, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Government amendment No. 80:
In page 58, subsection (6), line 29, to delete "National Roads Authority" and substitute "NRA,".
Amendment agreed to.
Section 74, as amended, agreed to.
SECTION 75.
Government amendment No. 81:
In page 58, line 43, to delete "National Roads Authority" and substitute "NRA".
Amendment agreed to.
Section 75, as amended, agreed to.
SECTION 76.
Government amendment No. 82:
In page 59, lines 7 to 15, to delete subsection (2) and substitute the following:
"(2) Prior to any person undertaking the construction of any port facility or any other port related development, which, in the opinion of that person could impact in a significant manner on the movement of persons or goods in the GDA, that person shall obtain and consider the written views of the Authority.".
This subsection puts an onus on port and harbour companies and authorities to consult with the authority prior to the construction of any major port developments, which in their view would have a major impact on the involvement of persons and goods in the greater Dublin area. The wording, as currently drafted in the Bill, could be construed as limiting the effect of this section to harbour and port developments in the greater Dublin area by State companies or authorities established within the greater Dublin area. The proposed amendment widens that to include a prior consultation on any major port development which would have a major impact on the movement of goods and persons in the greater Dublin area by any potential developer, whether State-owned, private or a mixture of both. That would include the potential development of port facilities at Bremore in Fingal by the Drogheda Port Company, which may be a joint venture with the private sector. It would also include any further major development of Drogheda Port itself, given its geographical proximity to the greater Dublin area.
This is a good amendment. Some of the biggest changes that will affect the Dublin region concern the location of port facilities and what could happen if those port facilities were moved elsewhere. Many of the examples the Minister cited in support of this amendment concerned work that could take place at Drogheda Port. Can he confirm that the implementation of this clause would allow similar discussions to take place regarding changes in the operation of Dublin Port and that the Dublin transport authority would play a role and be briefed on the port's plans? What power would be conferred upon the authority in the event of it receiving a briefing about proposals with which it was unhappy, for example, if a new port were to be built and the authority believed the necessary transport infrastructure was not in place? I am looking for an assurance from the Minister that this power will also apply to Dublin Port and any other ports located in or near Dublin. Will the Dublin transport authority have any additional power conferred on it to make decisions on proposals for which it believes the necessary infrastructure is not in place?
I confirm to the Senator that the legislation would apply to any port, public or private, that might affect transport in the greater Dublin area. Potential developments at Dublin Port would be affected by this legislation. The port authorities would be able to obtain or consider the views of the Dublin transport authority before undertaking any major developments. This is the intention of the legislation. The Dublin transport authority must, in turn, have regard to general policy. In this case, the authority will have the power to make its views known and to pursue a course of action if it is not satisfied with a proposed development. It would use the normal statutory processes to make its views known. It is always preferable if State bodies talk to one another and agree proposals and plans. The ideal situation is that they discuss plans with each other and work out the necessary details. If this does not happen then a course of action would be open under the Planning and Development Acts for the Dublin transport authority to pursue such a matter with An Bord Pleanála or even through legal action.
Amendment agreed to.
Section 76, as amended, agreed to.
Section 77 agreed to.
SECTION 78.
I move amendment No. 83:
In page 60, between lines 49 and 50, to insert the following subsection:
"(7) Documents subject to legal professional privilege shall not be liable to production under this section.".
This amendment is part of the section that deals with authorised officers and the powers to call for production of documents and so on. Our advice is that the insertion of subsection (7) would ensure the authorised officers' power is constitutional and this clause is designed to protect the Minister from any possible constitutional challenge. I ask for the Minister's comments on this matter.
While I accept the intent of this amendment and that it is important legal professional privilege is protected for every one, I am assured such privilege does not require specific mention in the legislation or in the Statute Book. It has been pointed out to me that legal professional privilege has existed as a common law right and has protected citizens in a generic fashion for many years. On that basis I am satisfied the intent of the Senator's amendment is covered fully in existing practice and it is not necessary to state it explicitly in the Bill.
I note the Minister's comments but I will revisit my legal advice. I withdraw the amendment but reserve the right to re-introduce it.
Amendment, by leave, withdrawn.
Section 78 agreed to.
Section 79 agreed to.
SECTION 80.
Question proposed: "That section 80 be deleted."
The purpose of section 80 was to indemnify specified personnel against actions or claims made against them in the course of their duties, provided the authority was satisfied that such people were acting in good faith. However, I propose to delete this section because while such a provision has been a regular feature in establishing a State body, the current thinking is that an indemnification of personnel is not required where a body such as the authority is funded directly by the Exchequer.
I want to ensure I heard the Minister correctly. Is he proposing to delete this section?
Yes.
Question put and agreed to.
SECTION 81.
Government amendment No. 84:
In page 62, lines 16 to 20, to delete subsection (3).
Amendment agreed to.
Amendments Nos. 85 and 86 are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 85:
In page 62, subsection (6)(c), line 32, to delete “registered”.
These are technical amendments and I move them on the advice of the Office of the Parliamentary Counsel. The purpose of the amendments is to delete superfluous references to registered post which appear in sections 81(6)(c) and 81(6)(d).
Amendment agreed to.
Government amendment No. 86:
In page 62, subsection (6)(d), line 37, to delete “registered”.
Amendment agreed to.
Section 81, as amended, agreed to.
Sections 82 to 102, inclusive, agreed to.
SECTION 103.
Question proposed: "That section 103 stand part of the Bill."
I am looking for some guidance. I do not have a particular amendment for section 103, but do I still have the opportunity to question the Minister?
Yes.
The Minister has acknowledged that one of the main pieces of advice that he was given by the expert committee which drafted this legislation was that two organisations should be dissolved and integrated into the new Dublin transport authority. These were the Dublin Transportation Office and the Railway Procurement Agency. In the Minister's address to the House on Second Stage he explained that he agreed with the thinking behind the dissolution of the Dublin Transportation Office and its assumption into the proposed Dublin transport authority and accepted this recommendation. However, he also indicated he was not prepared to accept similar advice on the dissolution of the Railway Procurement Agency and its assumption into the proposed Dublin transport authority. The Minister outlined his reason for that. He considers that the Railway Procurement Agency was at a very sensitive point in its public private partnership procurement processes for metro north and the additional Luas lines it is charged with delivering and that in view of this he does not believe it is right to dissolve that organisation now given the vital work it is doing.
Even if now is not the right time to integrate the Railway Procurement Agency into the DTA, surely the legislation should allow the Minister to do so if he chooses at some point in the future. One of the reasons the DTA is so badly needed as a co-ordinating body is to address the problems arising from the involvement of so many organisations in providing parts of transport for the Dublin region. Given that the Railway Procurement Agency will be charged with operating some of the most vital new infrastructure we will have, surely we should now create the ability for the Minister for Transport at some point in the future to integrate the RPA into the Dublin transport authority even if the Minister chooses not to execute that function now.
I am particularly minded to make this point to the Minister because so many of the experts involved in advising the Department in drafting the Bill recommended this course of action. The regulatory impact assessment the Department of Transport made available suggested the abolition of the Railway Procurement Agency and its incorporation into the DTA. I am not criticising the Minister for not taking on board the advice of his officials because that is his prerogative. However, I am interested to know why he chose not to provide for the DTA to be able to do this work in the future if he or any of his successors is minded to make that decision.
I acknowledge what the Senator has said and I confirm that as a Minister I do not feel I must willy-nilly slavishly follow advice or recommendations I am given. It is important that we seek advice, consult as widely as possible in various areas and ask people for their considered views. At the end of that in view of all the circumstances the Minister should make up his or her mind as to the best way forward. Often the theory may appear good but does not take into account a range of matters, not least of which are human factors that could make life difficult one way or the other. I am not saying that is the case here.
Regarding accepting part of this advice and rejecting other parts, I have enormous time for the DTO, which is very skilled, specialised and focused on the task it is doing. It has given good advice in the past, much of which has been accepted. Much of the work it did on Platform for Change formed the basis for Transport 21. In establishing a transport authority in Dublin, it would be ridiculous — as I am sure the Senator accepts — to have it outside of that structure. As it is it will become part of it. It will be a specialist group in a larger organisation, which will be very helpful to the DTA.
The Senator has acknowledged some of the points I made about the Railway Procurement Agency and I will not reiterate them for too long. We are concerned here with a service provider. From my work in a number of different ministries I have experience of keeping regulatory bodies separate from those involved in the provision of services. In this case it is a halfway house. I decided not to included the RPA, which I will explain in a moment, but I am giving the DTA the power to step in and provide a service if it is necessary in cases where the RPA, Bus Éireann or any other organisation might not be delivering, which is extremely important. That is the main reason.
The subsidiary reason is that I have been conscious that we should consider opportunities to bring small bodies, organisations and agencies together to make them somewhat larger and reduce the number of bodies in total. In the case of the RPA or any other body it can be enormously disruptive. While I have often said we have an excellent public service, it is very difficult to change it. I would envisage that moving even a relatively new agency like the RPA into a new body would lose a few years in the provision of vital infrastructure like the metro. The uncertainty would give rise to the possibility of losing good people from the organisation because they did not like where they were going or for some other reason.
At this crucial time it is better to let it get on with that job. I hope it will deliver within schedules. There is nothing to stop a Minister at a later stage making a policy decision that it, or indeed Bus Átha Cliath, Iarnród Éireann or another body should be absorbed into it. Now is not the time to do that. For the practical reason that the Bill covers enough ground as it is, we should not cover a matter on which we have no settled policy. That should be a matter for some Minister in the future. That is why the possibility of absorption is not specifically included. It would create uncertainty that we can do without at a particular time.
I thank the Minister for his comprehensive response to my point. I support his rationale, which is the principle of a regulator and service provider being different organisations. That is why in the section dealing with the provider of last resort, I tabled an appropriate amendment, which the Minister surprisingly accepted. The principle of one organisation regulating and another organisation providing the service is vital. If it ever ends up that the Dublin transport authority needs to step in as a provider of last resort it is imperative that the Minister or any of his successors does so in very limited and exceptional circumstances. We could end up in all sorts of difficult waters with the possibility of conflicts of interests and so on.
Question put and agreed to.
Sections 104 to 111, inclusive, agreed to.
SECTION 112.
Government amendment No. 87:
In page 76, subsection (2), line 26, to delete "affected" and substitute "effected".
The purpose of the amendment is to correct a spelling error.
Amendment agreed to.
Section 112, as amended, agreed to.
SECTION 113.
Question proposed: "That section 113 stand part of the Bill."
Many small land plots in my constituency are owned by CIE and other organisations. I understand the intent behind the section; that if CIE wishes to dispose of a piece of land that it must get the consent of the Dublin transport authority. However, I suggest to the Minister that it might be worthwhile to assign a threshold or monetary value below which the clause would not kick in. Does CIE have to go to the DTA, and then to the Minister for Finance and the Minister for Transport, to get permission for every single land disposal it wishes to make? Would it be possible to amend the Bill to the effect that permission would only be required for disposals above or below a certain value?
Some advice I received suggested that if CIE is approached on the need to make use of its property in such a way, it might have to request the permission of the Department of Transport. The example given to me is that if somebody wishes to set up a newspaper stall in a CIE-owned train station that one of the consequences of the clause as it stands is that the permission of the Minister for Transport, the Dublin Transport Authority and the Minister for Finance would be required. I am sure that we would wish to remove an unforeseen consequence of that nature. I do not believe the permission of both Ministers and the DTA should be required for something of that nature. I would appreciate the Minister's clarification on the second point, but the broader point is whether we can change the clause so that it would only kick in for major acquisitions, as opposed to CIE having to get the permission of the Department of Transport and the DTA for every single land disposal it wishes to make?
If the Senator looks closely at section 113 he will see the reference to "an asset value specified in regulations", which means that issue is covered. Senator Donohoe gave an example of the threshold. I am not nit-picking but even a small piece of property in the middle of or in the vicinity of a railway station can become valuable if it becomes a ransom strip. One has to watch for those things. The concerns outlined by the Senator are covered in the section.
Question put and agreed to.
Section 114 agreed to.
NEW SECTION.
Amendment No. 88 is a Government amendment. Amendment No. 89 is consequential on it, therefore, amendments Nos. 88 and 89 may be discussed together by agreement.
Government amendment No. 88:
In page 77, after line 4, to insert the following new section:
"PART 8
RAILWAY WORKS, ETC. ON SAINT STEPHEN'S GREEN.
115.—Section 15 of the Saint Stephen's Green (Dublin) Act 1877 does not apply—
(a) to anything done for the purposes of surveys and inspections under section 36 of the Act of 2001,
(b) to any railway works (within the meaning of section 2 of the Act of 2001) carried out on or under Saint Stephen’s Green pursuant to a railway order under section 43 (inserted by section 49 of the Planning and Development (Strategic Infrastructure) Act 2006) of the Act of 2001, or
(c) to restrict the operation of a railway, light railway or metro (within the meaning of section 2 of the Act of 2001) on or under Saint Stephen’s Green.”.
Amendment No. 88 concerns the development and operation of railways at St. Stephen's Green. A number of Transport 21 projects will have an impact on St. Stephen's Green. They include metro north, the DART interconnector, the cross-city Luas link and possibly the Lucan Luas — but that depends on the route chosen. The current definition of St. Stephen's Green extends outside the perimeter railings to include the surrounding footpath. The St. Stephen's Green Dublin Act 1877 vests ownership of the park in the State and statutory responsibility for it lies with the Minister for the Environment, Heritage and Local Government.
Section 15 of the Act governs the management of the park and, in regard to the use of the green, it requires that the Office of Public Works maintain it as a park for the recreation and enjoyment of the public and not for any other purpose. There is no mechanism within the Act currently for permission to go outside the scope of the provision. Both the physical scale and the timescale for the completion of the Transport 21 projects, as well as their longer term physical impacts on the green, raise the question of whether the RPA and Iarnród Éireann would have the legal vires to carry out the required works in the green for the proposed metro north and DART interconnector stations. The advice of the Attorney General is that an amendment to the 1877 Act is required to overcome the restriction in section 15. The proposed amendment has been agreed with the Minister for the Environment, Heritage and Local Government.
Paragraph (a) allows the RPA and Iarnród Eireann to carry out surveys and inspections of the green for the purposes of preparing an application to An Bord Pleanála for a railway order. Paragraph (b) allows the RPA and Iarnród Eireann to carry out railway works pursuant to a railway order on or under the green. These works would include the excavations and construction necessary for the metro north and DART interconnector stations. Paragraph (c) allows the RPA and Iarnród Eireann to operate the metro and DART following construction. The timescale for commencing the construction works for metro north in the green is May 2009, subject to the granting by An Bord Pleanála of a railway order. The amendment needs to be in place to allow that to happen.
The design of the metro and interconnector stations was developed within constraints agreed with the Office of Public Works and in consultation with the Department of the Environment, Heritage and Local Government, Dublin City Council, and other key stakeholders. To facilitate the sensitive heritage and environmental aspects in the area, specialists — including conservation architects, archaeologists, and arboriculturists — are currently being taken on board to advise on these significant matters. A detailed landscaping plan to reinstate the park will also be agreed with the OPW. Prior to any work being carried out, detailed surveys, reports and photographic records will be commissioned and agreed with the OPW.
St. Stephen's Green is a national monument in the ownership of the Minister for the Environment, Heritage and Local Government. Under section 14 of the National Monuments Act 1930, as amended, any proposed works at or in proximity to a national monument in the Minister's ownership or guardianship require the Minster's written consent. The Minister is required by law to consult with the director of the National Museum of Ireland on any application for his consent under section 14.
In drafting the legislative amendment I have consulted fully with my colleague, the Minister for the Environment, Heritage and Local Government, and care has been taken to ensure that the Minister's powers of consent under the National Monuments Acts 1930 to 2004 remain unaffected. Hence, while the relevant provisions of the 1877 Act will no longer apply to the proposed metro north and interconnector projects, there remains a separate robust statutory process whereby the written consent of the Minister for the Environment, Heritage and Local Government is required for any works that will impact on the built heritage of the green proposed in regard to these projects. Moreover, that consent cannot be granted without the Minister having first consulted with the director of the National Museum of Ireland.
My Department and the Department of the Environment, Heritage and Local Government and the Office of Public Works are in ongoing consultation with the RPA and its consultants on the potential impacts to the green from these projects and have and continue to work to ensure that the impacts on this unique national monument are minimised to the fullest extent possible in terms of the continued protection of its archaeology, architecture and the natural environment. However, given the scale of these public transport infrastructural works, it is inevitable that there will be considerable disruption to the green for a number of years. Ministerial amendment No. 89 provides for the amendment of the Long Title to the Bill to reflect the effect of amendment No. 88.
The work that will take place on St. Stephen's Green is probably a symbol of the kind of change that Dublin will undergo in the future in order to get ready to meet the demands of a rising population and given the environmental demands placed upon us due to global warming. The debate that will begin regarding St. Stephen's Green will be long and emotional. The level of emotion raised on the work that took place in Eyre Square is a sign of what is to come when it becomes clear what will happen to St. Stephen's Green. That is an indication of the need for the Dublin transport authority, which is the reason I have tried to be supportive of the direction the Minister is going on this issue. We must have a body that will ensure that we do not face a situation in the future where major disruption will take place that could have been addressed in the past.
In terms of what will happen in St. Stephen's Green, two priorities are important. The first is the need for transparency. The Department of Transport and the Railway Procurement Agency must outline to the concerned public the stringent consultation they are undergoing with bodies such as the National Museum to ensure legitimate concerns about what is due to take place can be met. Second, we must ensure that what will be built in St. Stephen's Green in the coming years is genuinely beautiful. People must be able to walk into the new metro stop, the interconnector and the surrounding environment and believe that the disruption they have undergone and the temporary devastation of the green was a price worth paying for what they are enjoying. Those two priorities will be vital for dealing with what will be heated public debate.
Following the Minister's explanation I understand the reason it is necessary to make the changes to this legislation. I urge him to do all in his power to ensure that the process regarding St. Stephen's Green is transparent and that the very highest standards of design and beauty are met in terms of what will take its place in the future.
I thank the Senator for his approach to this enormously sensitive issue. There will be disruption to people and to the green itself. I agree with the Senator that the more open and transparent that is, the better it will be for everybody. Equally, we must be able to give an assurance, which we can, that when works are finished and the green is restored it will be to its former beauty. I give that commitment here.
I am conscious of much of the debate that took place recently regarding a draft plan that arose from the Oireachtas transport committee of which I am a member. Many people responded to that plan in respect of cars being taken out of the city centre and the effect of that not only on residents but on businesses also. The Minister is already aware of this point but I must take the opportunity to emphasise it. It is important that we do all we can to ensure that people do not have the perception that the city centre is closed for business. Many businesses are having a difficult enough time due to the current economic environment but they have done an amazing job of making our city centre a more vital and enjoyable place in which to shop. They have responded very well to the challenges from some of the out of town shopping centres that have huge support.
Not only must we do all the work necessary to ensure the concerns of the public and residents are allayed, we must ensure also that people do not take the view that our city centre is closed for business, whether it be St. Stephen's Green, O'Connell Street or the surrounding streets. If they have that perception, people might decide it is too high a price to pay. If we reach that tipping point, not only will we regret it for years to come but our successors will regret it also. It is important the Minister does all he can to ensure we do not get to that point.
Amendment agreed to.
Section 115 agreed to.
TITLE.
Government amendment No. 89:
In page 9, line 19 after "OFFICE" to insert the following:
", TO PROVIDE THAT SECTION 15 OF THE SAINT STEPHEN'S GREEN (DUBLIN) ACT 1877 DOES NOT APPLY TO INSPECTIONS, SURVEYS OR RAILWAY WORKS OR THE OPERATION OF A RAILWAY, LIGHT RAILWAY OR METRO UNDER THE TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 ON OR UNDER SAINT STEPHEN'S GREEN".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
On Thursday, 15 May 2008.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.