Road Safety Authority (Commercial Vehicle Roadworthiness) Bill 2012: Report and Final Stages

I remind Senators they may speak once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded.

I move amendment No. 1:

In page 14, between lines 38 and 39, to insert the following:

"(5) The Minister, having considered the information notified under this subsection, shall respond within 28 days.".

The amendment arises from our very useful discussion the last time we debated the Bill. It refers to items the Minister was taking back for consideration over the weekend and referred to people in the western province of the island. Have there been developments in that regard? If there are, I would be willing to support the Minister's amendments. One issue was the period in which the Department would reply to applications. The Minister said he was open to considering that issue. Other matters were issues underlying regulatory risk rating and the legal and other problems that might arise. If the Minister has thoughts on what has happened since we last met I am happy to cede the floor to him.

I have not tabled any amendments and will explain why.

We will allow other speakers to contribute. The Minister can then reply and Senator Barrett can advise me if he is pressing his amendment.

This amendment arises from our previous discussion. I perceived a door was ajar rather than shut.

Important commercial decisions need to made and people need a response. When I spoke to the Minister he did not, in principle, have a problem with the response time. He referred to a different number of days, something which I am willing to accommodate. My concerns arise in regard to getting responses and improving procedures. I refer to the Swords Express case. The judgment was handed down by Mr. Justice Bryan McMahon on 20 July 2010.

One application arrived in the Department on 19 April 2005 and was awarded on 30 October 2007. Another application was lodged in February 2008 and was rejected in July 2010. The tradition of sitting on applications is not what we need as we try to reform the country after the IMF had to rescue us. The Minister has requirements that when he corresponds with people they should reply.

Without labouring the point or discussing the judgment of Mr. Justice McMahon too much, we have to respond more quickly. Part of his worries about the case were that a Dublin Bus application was submitted on 5 June 2008 and was responded to by 12 June 2008. Undoubtedly, the treatment of the application, as Mr. Justice McMahon said, doubly disadvantaged the applicant. Let us have a simple system to deal with applications and a prompt system of responding to them.

We should not have to cite the judgment of the court in the House again. We should be so famed for promptly turning around applications and requests that the issue will never again arise in court or become controversial. We all have lots of other things to do to reform the country, move from the IMF rescue programme and recover our sovereignty. It is a simple administrative matter, about which I do not know if I need to say much more.

The track record is not good and should be better. We want a highly professional and safe bus and road fleet. We broadly have that, as we saw from the data. There is about one bus fatality and 70 truck fatalities per year. Let us make the system as professional as possible. The professionals who invest hundreds of thousands of euro in vehicles should deal with a professional Department. Unhappy cases such as those described should not arise.

I second the amendment.

The issue the Senator raises in his contribution relates to private bus operators applying for licences to operate a route. That was certainly the case in regard to Swords Express and, while that is not pertinent to this legislation, I share his view in that regard. Since that function has been transferred from my Department to the NTA and the system has been changed and resources improved, by and large, licence applications are dealt with pretty efficiently. Certainly, in my period as Minister, I can count on one finger of one hand the number of complaints I have received about licences not being adjudicated upon quickly enough. While I have had a number of complaints about licences being refused and people not being happy they did not get a licence, I have seen only one with regard to turnover time being an issue. Things have improved since the transfer to the NTA, which is an independent regulator as opposed to the Department of Transport, which has a more intimate relationship with CIE, being the parent Department.

I understand the philosophy behind the Senator's proposal. He said on the last occasion that if the Government requires people to send information in to deadlines, then it is only reasonable the Government should also stick to deadlines. That is the reason I wanted to accept the amendment, in principle at least. What I had hoped to do was to insert the term "as far as practicable" but I was advised by the Attorney General's office and the Office of the Parliamentary Counsel that "as far as practicable" has no meaning in this context and would have knock-on effects for other amendments.

With regard to the period of 28 days, the RSA told me it would not be sufficient time for it to turn around and check information. For example, if information has been given about a past conviction or other matters, the RSA does not believe 28 days is a sufficient turnaround time in this regard. For that reason, I will not accept the amendment.

I welcome the Minister's commitment that all bodies under his aegis should promptly reply to correspondence, particularly where people are seeking to invest, given we are trying to get this country going again. Has the RSA suggested a period longer than 28 days or do we know what it has in mind? Investors would like to have some prospect, when they seek to invest in this very important area, that there will be a response. While we know from the Minister's reply it will not happen within 28 days, we have to set a target. We have to develop a dynamic, competitive economy. Delays in responding to applications, as in the unhappy historic situation the Minister described, which has now been transferred to the NTA with a dramatic reduction in response rate, are not acceptable. Should we not require prompt responses? The RSA can always plead there are special circumstances for not reaching the target but should it not have a performance target in terms of good governance?

I am sorry the Attorney General advised against what we had hoped would happen. As he was also advising against measures to promote competition policy, which we were discussing with the Minister of State, Deputy O'Dowd, earlier, it seems the Attorney General is already working on the abolition of the Seanad and is certainly not interested in any ideas that come out of here. I would like to have the Minister's response on whether there is some idea of a time limit. Have we any idea if a different number was substituted for 28 days? The RSA presumably wants these powers and successfully persuaded local authorities and the Minister to transfer them from the local authorities. Therefore, it must have had some idea how it would exercise the duties it is seeking in this Bill and how it would respond to people.

I remind Senators this is Report Stage and it is not usually a case of back and forth questioning. As an exception, if the Minister is willing, I will allow him to respond.

That is fine. I appreciate the fact Senator Barrett is trying to improve the legislation, which is why I am happy to debate the point back and forth. The RSA did not give me a timeframe — perhaps I should have asked for one but I did not. It said it does not want to be tied to 28 days in legislation because that would put it in a position where it would have to make a decision within 28 days and it might not necessarily be the right one. If the period was 28 days, it would then need a mechanism in legislation to give a reason for it taking longer than 28 days. To take the example of An Bord Pleanála, it has a period of 18 weeks to make a decision but there is then provision in legislation for it to look for more time. That would need to be written in also.

The Senator's point about having a target is well made. What I am willing to do in that regard is to write to the chair and CEO of the RSA setting a target of six weeks for reply. If we find this becomes a problem, we can then legislate for it in future. As I am rapidly learning, there is road traffic legislation all the time; therefore, there will be plenty of opportunity to do so if the target cannot be achieved.

I thank the Minister. I withdraw the amendment. The Minister can say to the RSA he met some very awkward Senators who kept on insisting on a date and that is why he had to overrule the advice that this should not be time-limited.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 30, between lines 30 and 31, to insert the following:

(10) The Authority will ensure that all data generated by the "risk rating system" is maintained as confidential and that an up-to-date list of data controllers and data processors is provided to the Minister.

The amendment concerns risk rating, which we discussed twice before, with the better contribution on the last occasion being made by the Minister rather than by me. The Bill introduces, as I see it, three verdicts in Irish law — guilty, not guilty and risk rated. There is no procedure for appeal and my informal advice is that to do this without an appeal procedure risks a constitutional challenge. I do not know whether our friend, the Attorney General, has given the Minister advice on that, but this could be seriously damaging to firms that are given risk rating.

While I have no problem with keeping lists of what people are actually convicted of, this has commercial implications and may have implications for the State if we give a very high risk rating to somebody and it damages his or her ability to carry out business, or give a very low risk rating to somebody who subsequently has an accident. I do not know why we embarked on this path except that it came under an EU directive. We should have discussed the issue of whether we can do this to people under our type of Constitution and also what is the point of doing so.

The people targeted are professional bus operators, who have their relationships with insurance companies to keep them safe. In addition, they do not want to be prosecuted. To have a risk rating made by an administrative body about people in commerce is a minefield. It is not a very accurate actuarial science and the fact one thinks somebody might be involved in an accident does not mean it will happen. The scientific basis of this measure seems to be open to question. As I said, I am legally informed that to do it without any appeal procedure risks a constitutional challenge.

I would not bother with risk rating as I believe it is done in the industry by the insurance companies. We walked into the commitment due to an EU directive. If we have to do this, steps should be taken to ensure it does not damage the financial investments of those who have a good safety record and a good bus operating record by assembling such a risk rating about perfectly normal commercial businesses which do not have any offences or convictions against them.

Is the Senator formally moving the amendment?

Yes. I put forward the amendment based on my concerns about risk rating in general. If it must be done, it should be highly confidential and retained within the Road Safety Authority.

I second the amendment.

I will deal with the official advice before I move on to the meaty stuff. The advice we have from the Office of the Parliamentary Counsel and the Attorney General is that the terms "data controllers" and "data processors" are not defined and do not appear anywhere else in the Bill. Therefore, we cannot accept the amendment. It refers to two sets of people, data controllers and data processors, who are not defined. There is a difficulty with the term "confidential" since it is envisaged that information will be shared with licensing authorities in other member states. That is a difficulty.

There was a useful debate on risk rating last week. On foot of the debate I endeavoured to spend some time examining the matter further to reassure myself and the House in respect of some of the issues raised. I hope I will do so. The rating system is part of the commercial operator vehicle information system, COVIS. Access to the system will be confined to authorised personnel from the Road Safety Authority, RSA. The RSA will be able to share information with An Garda Síochána and the road transport licensing section of the Department of Transport. The information can also be exchanged with licensing authorities in other member states on request. The authority is not required to do so but the information can be shared with other members states. These are the only people who will have access to the information. The regulations made will enable those being rated to have sight of the data, which will show how their rating was determined. It will be based on a range of information.

During the last debate I suggested that soft information would be used. In fact, hard information and factual findings will be used. These findings are in the legislation and they are the result of commercial vehicle roadworthiness, CVR, tests, roadside inspections, convictions, the accuracy of annual declarations and the detention of vehicles. All of this is in the legislation. It is not soft information but data on findings, convictions and facts. These are the factors that build up one's risk rating. The Minister can add other matters but these are the matters in the legislation.

Some other issues were raised during the last debate. The point of this measure is to allow the authorities to focus enforcement on those who have a history of non-compliance. Rather than carry out random checks on everyone, they will be able to focus their checks and enforcement, which is limited given resource issues, on those who have a history of non-compliance and against whom there are factual findings.

The risk rating system will not be accessible to the public. However, the Senator raises a good point which we should bear in mind. There is nothing preventing consignors, those who wish to avail of the services of transport operators, from seeking the information. There is a possibility that consignors and potential clients could ask transport operators to make the information available voluntarily. I imagine those with a low risk rating would be willing to do so and those with a high rating would not. That is the only potential commercial concern. The upside is that this will encourage operators and others to maintain a low risk rating under the system, to be compliant and not to have findings against them. I stated during the last debate that the information cannot be used in court.

The Senator made an argument about the actuarial accuracy of these things. It is numerical but it is based on factual findings and not grey area issues or soft information. Under this system one's status will be classified as red, amber or green, corresponding to representing a very serious risk, a serious risk or a minor risk. This is not dissimilar to the Senator's proposal last week that people should be categorised on the basis of above average, average and below average.

The requirement for a risk rating system derives from European law, specifically Article 9 of Directive 2006/22/EC. This obliges member states to introduce a risk rating system for transport undertakings based on the relative number and severity of tachograph and driver hour infringements that individual undertakings have committed. We are going a little further by extending risk rating to encompass the results of annual roadworthiness and premises checks. Some people argue that we are taking a European regulation, gold-plating it and taking it too far. My view is to the contrary in that this risk rating system makes sense. It is only based on real findings of fact against the people concerned. It is confidential and cannot be used in court. Crucially, it will allow the RSA to focus its enforcement on operators, drivers and vehicles with a history of non-compliance and adverse findings rather than spending a great deal of time and resources doing random checks, especially on operators with a good record.

There is a certain irony in a bankrupt State carrying out risk ratings on those in a private sector who are trying to make a living. The principle that State agencies can apply risk rating to other sectors without a right of appeal is one I am reluctant to accept. Are we to risk-rate doctors, economists or engineers next? It is bizarre. I appreciate the Minister's distinction between hard and soft information. Hard information may or may not result in convictions. The other data appear to be intrusions on the basis of statistical risk which may not have any great validity.

I am unsure what weightings will be used. The original proposal was to come up with a number. Some offences are so serious that they result in a conviction. Could one accumulate a series of minor penalty points? Will we use the penalty points system? How will the information be presented? What plans does the RSA have in mind? Since it is such a serious matter, consideration should be given to some appeal mechanism against risk rating.

These are professional businesses which do not feature prominently in accidents. They are not boy racers or speeding motorcyclists. There will be much discussion on those fields in the next round of the road safety strategy. These are professional and insured drivers. They carry 99% of the freight and 95% of the passengers, the railway share having declined remarkably in both markets. The idea that we have almost a secret police assembling files on people who have not committed a crime, on the basis that they might sometime and on the basis that the data are good predictors that they will, causes me unhappiness. I appreciate the Minister has taken out the soft information. I appreciate his work on confidentiality. I appreciate that the data cannot be used in court and assessment is based on real findings of fact. This brings the debate back to the question of whether these people have a criminal record. That matter has been tested in the courts.

I am unhappy with this development. I would be unhappy were it targeted at the wrong sector. I would be most unhappy were it to be extended to other areas of Irish life to the point where civil servants assembled risk ratings about people without having to prove anything before an independent panel or court. The Bill has improved and I have made my points against risk rating in general. The approach probably comes from continental law rather than common law in this jurisdiction. I thank the Minister for what he has taken on board. It is legitimate for Senators to express concerns when these developments take place. I will not press the amendment.

Amendment, by leave, withdrawn.
Bill received for final consideration and passed.