I welcome the Minister of State back to the House and assure him how much we appreciate the discussions we have here.
Taxi Regulation Bill 2012: Committee Stage (Resumed)
SECTION 7
Debate resumed on amendment No. 9:
In page 11, subsection (4), lines 37 and 38, to delete paragraphs (b) and (c).
I appreciate them as well.
The objective from this side is to have a Bill embodying any wisdom we can give to the Minister, but the choice is for the Minister of State to make, because we recognise who he is.
Section 7(4) states "The Authority, in making regulations under this section, may set different requirements and conditions", and then lists several, which we are not commenting on because they are accepted, those relating to including small public service vehicles and certain drivers and licences. Section 7(4)(b) relates to "different circumstances". The request is that these be specified. Is it too broad a power? We may have asked if this could be considered on Report Stage. The notion is rather broad; everything happens in different circumstances.
Section 7(4)(c) mentions "different areas of the State". I feel stronger about pressing this deletion because we abolished different areas of the State for the taxi sector. The entire country was deregulated, mostly due to the decision of Mr. Justice Roderick Murphy, but it was upheld in three other High Court decisions emanating from Mr. Justice Paul Carney, who did the judicial review of the Murphy decision, Mr. Justice Hugh Geoghegan and Mr. Justice Declan Costello. I am unsure why we are trying to reintroduce area licensing. The courts deregulated the sector for the entire country and the section seems to contradict that decision. The decision of Mr. Justice Roderick Murphy meant that people have the right to enter a sector for which they have the skills and training and that the public has a right to the services of such people. There were two addendums to the judgment: first, that the idea of restricting entry contradicted the notion of public service; and second, a warning that most of the people in the then system, on the inside of an insider-outsider system, were citizens of this State, while in a single European market most of the people outside were probably not Irish and in this way we were probably contravening European law in persisting with the previous system, under which the issuing of licences was confined to incumbents, with a minuscule number for others.
Entry to the sector nationally was opened up by that decision. I am informed by the legal people whom I consult on occasion that it is not permissible to introduce in a Bill something that is at variance with or seeks to contradict a court ruling.
It was pointed out in our last discussion that some parts of the country are perceived to have a shortage of taxis on the open market. The entire country has seen a large increase in the number of taxis since the courts opened the market for us. The increase in taxi numbers outside Dublin was larger than within the city. I tried to relate the current stock of small public vehicles in the province of Leinster to the population figures recorded in the latest census. They do not seem to follow any particular pattern. I do not know what problem this is supposed to address. The results differ for counties Carlow, Laois and Kilkenny but a taxi can easily travel between these counties.
I do not see the point of this section and my legal advice is that it will contravene what the courts decided when they opened the entire country to the market. I do not see any flaw in the working out of that decision and I do not understand how restricting the numbers or confining them to particular geographic locations agrees with the decision of the High Court. We are compelled to avoid a situation where, due to mistakes made between the late 1970s and 2000, pieces of paper called taxi licences acquired values of €100,000 or more because we did not issue enough of them. All of the partial deregulation schemes proved to be far less radical than what actually happened in the market and I look askance at any attempt to unpick a decision of the High Court backed by three other decisions. What is the point of area licensing and does it contradict the aforementioned decisions?
I understand why the provisions under paragraphs (b) and (c) were included in the Bill. They will tie in with future legislation that the Minister of State may propose in regard to all aspects of rural transport. One licence may not fit all of Ireland. Rural Ireland stacks up very differently against urban Ireland and this will give the Minister of State flexibility if, for example, he needs to introduce regulations to provide hackney licences to publicans who transport people home. I ask Senator Barrett to reconsider his amendment.
This legislation will require taxi drivers with certain criminal convictions to apply to the court to maintain their licences. My county is adjacent to counties Monaghan, Meath, Dublin and Louth but, as a Border county, we are also adjacent to counties Down and Armagh. Will applicants from Northern Ireland who have convictions also be covered by the legislation? Will the same provisions apply and will it be possible to trace convictions back to Northern Ireland?
I cannot agree to amendment No. 9, which seeks to amend section 7(4), which allows the NTA to make regulations setting different requirements and conditions with regard to different categories and classes of vehicle, small public service vehicles, drivers and licences, and, under paragraphs (b) and (c), for different circumstances and different areas of the State, respectively. Paragraph (b) enables the NTA to make regulations, if needed, to deal with items such as drivers operating in the voluntary sector or other such circumstances. Paragraph (c) enables the NTA to make regulations for the area of restrictions that currently exist with regard to standing or plying for hire.
A number of Senators spoke on this when we met to discuss this previously, so I am trying to remember and cover some of their comments. Many Senators are correct that this flexibility is required for a number of reasons. One of those reasons is that we are looking at provisions relating to different hackney licenses for rural Ireland. This provision will allow that flexibility. I am aware there is market failure in some parts of the country. Where I come from, in Tipperary, there are virtually no taxis. We need to look at what licensing arrangements we can make so that we can deal with the social issues that exist as a result of isolation and the lack of transport facilities that can be availed of by people living in urban areas. This is a legitimate and worthwhile move and people will appreciate it. This is the reason we need this flexibility.
A number of Senators have raised the issue of the areas to which taxi licences apply. There is an issue in this regard, and I note Senator Barrett has figures on this. We must take into consideration the conurbations that exist in Ireland and whether they are part of the greater Dublin area, Cork, or another area. Many people operating in Dublin do not live in Dublin. Probably we need some filtration done on the figures. We also need flexibility when it comes to distinguishing between limousines, taxis, hackneys and so on.
The Senator should appreciate the spirit of the legislation. From an area point of view, we need to ensure those driving taxis are knowledgeable about the area in which they operate. That is the reason we need different licensing for different areas. If somebody drives a taxi in Tipperary, Cork or Dublin, that driver must know how to get the passenger to his or her destination. A Sat Nav system does not always do the business. I am always worried when I get into a taxi and the taxi driver is relying on the Sat Nav to get me to my destination. I had an experience in Dublin a few months ago in which I got into three taxis, one after the other, but the drivers did not know where I wanted to go. That is unacceptable.
I hope Senators will accept this legislation in the spirit in which it is meant and accept that the flexibility allowed under this section is there for a reason.
According to the Goodbody report, there are 394 small public service vehicles in Tipperary, 503 in Clare and 1,231 in Galway, which borders Tipperary. There are 262 in Laois and 289 in Carlow. I do not see the need for area licensing and I oppose its reintroduction.
The Minister of State is interested in rural transport and he suggested the use of the school bus service when he was here previously. I showed my support then and I still support that. However, I do not believe area licensing is the way to solve the rural transport problem. The idea of the school bus service being available during the day and at other times is well worth developing and I support him on that, but I do not wish to withdraw the amendment on area licensing.
Perhaps the Minister of State will answer my question about criminal convictions in Northern Ireland.
It does not arise under this section and that is the reason I did not respond.
Perhaps the Minister of State will respond regarding the figures.
There is an issue in this regard. It is clear to most people that the Senator and I come from different philosophical backgrounds with regard to this issue.
As has been reported in a number of reviews, there is an over-supply in many areas. However, we simply do not have enough taxis in some areas and we will have to consider how we can license vehicles in certain areas to meet that failure. That is a simple fact. If the Senator cares to visit my part of County Tipperary and tries to get a taxi at certain times, he will quickly find that the supply is not sufficient. It is necessary to provide for flexibility, from a licensing point of view, to ensure we can address these issues into the future.
I have a problem. None of these issues is mentioned in the screening regulatory impact assessment of the Bill. This completely inadequate document was published approximately six weeks after the Bill was published. It does not attempt to analyse in any way why the Minister wishes to be at odds with four High Court decisions, documents published by the previous regulator in this sector and with the Goodbody report. Can we have a proper regulatory impact assessment, rather than this highly inadequate document of two and a half pages which was published after a delay? I am running up against obstacles all the time and I am not sure the Department has worked through the implications of this measure. It seems to be throwing out things in an ad hoc manner. We should have protested at the time because the regulatory impact assessment was totally inadequate. One cannot include things in the Bill that are not included in the assessment. No mention has been made of the case for this provision. We are relying on the Minister of State's good faith, which I share. Has any thought being put into some of these provisions? Why is the Department so at odds with four decisions, the Goodbody report and the work of Kathleen Doyle when she was the regulator? It is not enough to say, "We decided to do it, so we did it." The Minister of State must agree that the regulatory impact assessment of the Bill is entirely inadequate. If we could have a new assessment in advance of Report Stage, that might soften my attitude towards the introduction of provisions which do not appear to have any economic rationale.
We will move on because we have many more sections with which to deal.
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Government amendment No. 10:
In page 12, lines 3 to 5, to delete subsection (6) and substitute the following:
"(6) A person shall not rent or lease to or from another, or operate, a vehicle or equipment associated with it contrary to any restrictions regarding such in licensing regulations.
(7) A person who contravenes subsection (6) commits an offence and is liable on summary conviction to a class A fine.”.
This amendment has already been discussed with amendment No. 7.
I will be brief. Leasing was criminalised in the 1950s when the policy we are trying to reintroduce was being pursued.
This amendment has already been discussed. The Senator can speak to the section if he wishes.
If the Acting Chairman says it has already discussed, I will accept his ruling.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8
I move amendment No. 11:
In page 12, subsection (1)(b), lines 15 and 16, to delete all words from and including "in" where it firstly occurs in line 15 down to and including "licence" in line 16 and substitute the following:
"in the area of a passenger journey and in-vehicle navigation and guidance systems to guide route selection".
The Minister has dealt with this matter. When we discussed the legislation previously, he said standards would be tough. He wondered whether many Deputies or Senators would be able to find their way around their neighbourhoods and constituencies. This amendment queries whether applicants should have to learn all of the street names and numbers, etc., and proposes that technology be used. The Minister of State has said his Sat Nav did not work the last time he used it. Is this almost like the requirement to be preceeded by a person with a red flag when the first cars were on the road? Technology will evolve to allow people to find their way around.
I allow that this is permitted "in the area of a passenger journey and in-vehicle navigation and guidance systems to guide route selection". That is the purpose of the amendment. People can find their way around using technology rather than learning it off by rote.
I believe I accidentally answered this on the previous amendment. I cannot agree to this amendment. The existing paragraph (b) in section 8(1), to which the amendment refers, relates to a regulation concerning the assessment of area knowledge of a licence applicant with regard to the area in respect of which the licence is being sought. Section 8 of the Bill provides for the NTA to make regulations concerning the assessment of applications for licence, including the person's suitability to hold the licence; knowledge of geography etc. in the area of the licence; knowledge and ability to meet the needs of passengers, including people with disability or reduced mobility; and knowledge of the SPSV regulations and standards and requirements for SPSV driving and operation. Standards set already by regulations, including the area knowledge tests, which were made up under section 34 of the Taxi Regulation Act 2003, are saved for the purpose of this section.
I would like to refer to Senator Barrett's previous comments which implied there was an attempt by the NTA or, indeed, under this legislation to return to area-based licensing control as operated in the past under the responsibility of the local authorities. It is wrong to compare a regulatory standard for drivers to have knowledge of the area of SPSV operation with the licensing system prior to liberalisation, whereby the number of licences issued to local authority areas was, in effect, controlled by the local authority.
The real issue is that we cannot have a situation where we are relying on technology. While I come from a technological and IT background, as I said previously, we must have the regulations and legislation as set out to ensure a consistent approach. I do not consider that a reliance on technology would be acceptable despite the fact the accuracy of such technology is improving all the time.
I agree with the Minister of State on the use of technology. When I was canvassing for the Seanad, I was travelling in the Minister of State's area close to Birdhill and the Sat Nav sent me the wrong way. If I had been a taxi driver, I would have charged close to €15 extra in fares. I believe Senator Barrett is wrong to include this. Sat Nav can be a help but there has to be local knowledge because Sat Nav always sends the driver on the main road, not the shortest route.
It brought Senator O'Neill to Leinster House in any case.
I do not even know whether I got the vote when I made it to Birdhill.
It was a very superior Sat Nav that brought Senator O'Neill here and we should all be indebted to it. I will not press the amendment. However, we should allow, as the Minister of State does, that technology develops and that learning it out of a book may seem a bit bizarre in five years time.
Amendment, by leave, withdrawn.
Amendment No. 12 has already been discussed with amendment No. 5. Does the Senator wish to add to what has been said?
I move amendment No. 12:
In page 12, subsection (6), line 49, after “Authority” to insert the following:
“in consultation with the National Disability Authority”.
We may have a lot in common on this amendment also. Line 20 details various requirements to be determined "by the Authority in consultation with the National Disability Authority". All I require when the guidelines are being prepared, which is dealt with at line 49, is that they are prepared “in consultation with the National Disability Authority”. The Minister of State might consider this on Report Stage.
Section 8 contains a requirement under subsection (5) for applicants to disclose information to the licensing authority relating to the assessment of their physical or mental capacity to hold a licence to drive an SPSV, and the NTA may issue guidelines in this regard, as provided for under subsection (6). To acknowledge the Senator's comments, we do share some common ground on this issue. I do not know whether I got the vote when I got to Birdhill.
I will agree to amendment No. 12 but with the following text change, which I hope he will support.
Government amendment No. 1 to amendment No. 12:
In page 12, subsection (6), line 49, after "Authority" to insert the following:
"after consultation with the National Disability Authority".
Amendment to amendment agreed to.
Amendment No. 12, as amended, agreed to.
Section 8, as amended, agreed to.
SECTION 9
I move amendment No. 13:
In page 13, lines 44 and 45, to delete subsection (10).
This is a fairly fundamental amendment that proposes to delete lines 44 and 45, which read as follows: "The licensing authority may, when granting a licence, attach such terms and conditions to the licence as it sees fit." As I said previously, that is what happened with SI 250 of 2010, in which the conditions for new entrants were made so onerous - by directing them to wheelchair-accessible vehicles, so that it cost them much more to enter the business than it cost incumbents - that they constituted a barrier to entry and contravened the decision of the courts to open up the sector. It is too open and draconian and the track record is bad on using it. It will be and has been used to set up barriers to new entrants. We previously asked the Minister whether he would accept an amendment that would ensure quantity licensing was not reintroduced. He said he would not reintroduce it, but that he would not accept the amendment. Again, the regulatory impact assessment makes no reference to this or to the four court decisions we spoke about. If this is a way to keep out new entrants, I will keep proposing the amendment, because the Bill gives the body a power that contradicts the decisions of the courts. My legal advice is that one cannot use legislation that is at variance with or seeks to set aside, undermine or negate the decisions of the courts. Quantity licensing was reintroduced by SI 250 of 2010, and this was the wrong decision.
Section 9 of the Bill provides for the licensing authority, subject to its assessment of suitability under section 10, to grant or not to grant an application for a licence. Section 9(10) provides that when granting a licence, the licensing authority may attach such terms and conditions to it as it sees fit. This seems to be an integral part of the functioning of a licensing authority. This reflects the similar provision under section 34(1)(e)(i) of the Taxi Regulation Act 2003 allowing the NTA to regulate on matters relating to licences, including terms or conditions relating to the granting of a licence. Among such terms and conditions attached to a licence are the areas of operation of a SPSV driver. This amendment may arise from the unfounded concerns of Senator Barrett, to which I have referred on numerous occasions, that there is an attempt to control the number of licences in any area of the country. There is no such attempt, and therefore I cannot accept the amendment.
SECTION 10
Amendment, by leave, withdrawn.
Section 9 agreed to.
Amendments Nos. 14, 18 and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 14:
In page 14, subsection (1), line 20, after "licence" to insert "under section 9".
These are technical amendments concerning cross-referencing in sections 10 and 12 of the Bill. The amendments do not change the substance of the sections. Section 10(1) states that the licensing authority shall not grant a licence and this is now clarified by reference to section 9, which is the relevant section of the Bill under which the licensing authority can grant a licence or not. Section 12(1) cross-references sections 9 and 11, which were considered to not provide additional clarity to the interpretation of the provision.
As a result, they are to be deleted. The amendments are purely technical in nature.
Amendment agreed to.
I move amendment No. 15:
In page 14, subsection (2)(b), line 27, to delete "the Authority or".
We discussed this amendment previously. I am keen to retain the functions relating to the Garda Síochána. That is why the amendment proposes to delete the phrase "the Authority or" on the basis that if there is a view within the Department - there appears to be - that this is a problem of criminality, the Garda should be aware of it. However, I will not press the amendment because we discussed the matter which must have arisen in the context of an earlier section at some length on the previous occasion. If I recall correctly, the Garda Síochána remains in charge until an order is made to take it out of that area of responsibility. That was the purpose of the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 14, subsection (2)(c), line 30, after "convictions" to insert "other than spent convictions".
I have tabled this amendment in order that I might ask the Minister of State whether the Bill is compatible with what the Minister for Justice and Equality, Deputy Alan Shatter, is doing in respect of spent convictions. If it is, the amendment is redundant and there will be no need to proceed with it. The Minister for Justice and Equality came before the House with legislation designed to do away with spent convictions, thereby making life more liberal in nature and assisting individuals in regaining their place in society. I just want to ensure the Minister of State and the Minister are ad idem on this issue.
I thank the Senator for highlighting this matter. There is joined-up thinking on the part of the Government on this matter. We are involved in discussions. Section 10 of the Criminal Justice (Spent Convictions) Bill expressly provides that the general effect of section 5 of that legislation which relates to the right of non-disclosure of certain convictions shall not apply to applications for certain licences, including applications for SPSV licences under the Taxi Regulation Act 2003. The requirement for disclosure of convictions set out in the Bill before the House relates to convictions to which the mandatory disqualification provisions apply. In accordance with amendment No. 43, the Minister may make regulations requiring disclosure of convictions for other offences into the future. These disclosure requirements are essential to put in place the necessary measures to protect the safety of passengers, which, as I am sure all Senators will agree, is paramount.
The provision in section 10 to which amendment No. 16 relates concerns the assessment of the suitability of persons to hold licences. In that context, the licensing authority can have regard to convictions of which the Garda has knowledge. In undertaking assessments licensing authorities will not be limited to considering those convictions which applicants are required to declare. If the Senator is proposing - I believe this is no longer the case - that spent convictions should not be taken into account, I am afraid I would not be in a position to agree with him. In fairness, he did qualify his position.
There is a requirement on licensing authorities to be measured and reasonable in the assessments of suitability which they undertake. If they were to do otherwise, it could render their decisions liable to being overturned on appeal. All decisions on the refusal to grant, revoke or suspend a licence can be appealed in accordance with section 12. I am satisfied that this provides for an appropriate balance in seeking to protect the interests of consumers in the context of ensuring there will be no unjustified treatment of applicants or licence holders.
I thank the Senator for raising the issue.
Does Senator Barrett wish to comment?
I thank the Minister of State. As we attempt to let bygones be bygones in respect of convictions, as the Minister for Justice and Equality was doing, it will be difficult for many of those people to get employment, so self-employment is very important for them. The Minister of State has shown himself to be fully aware of that. I will not be pressing my amendment.
There must be some occupations in which people can engage, given the difficulties they face in trying to get paid employment, otherwise it is almost a case of lock them up and throw away the key. We could create a permanent underclass in society. I am sure that is not the Minister of State's goal.
Is the Senator pressing his amendment?
No, I will not press it.
Amendment, by leave, withdrawn.
Section 10, as amended agreed to.
NEW SECTION
Amendments Nos. 17, 29 and 45 are related and may be discussed together by agreement.
Government amendment No. 17:
In page 15, before section 11, to insert the following new section:
11.—(1) A person who makes an application for a licence to drive a small public service vehicle shall, if he or she is engaged in another occupation which involves—
(a) driving a vehicle, or
(b) working such number of hours at an employment which exceeds the amount specified in regulations made under subsection (8),
in making his or her application—
(i) inform the licensing authority of this fact, and
(ii) show evidence to the satisfaction of the licensing authority that he or she has informed any employer of his or hers who is connected with that occupation of his or her intention to make an application for such a licence.
(2) The holder of a licence to drive a small public service vehicle, if he or she becomes engaged in another occupation which involves driving a vehicle or working in excess of the hours specified in regulations under subsection (8), shall—
(a) inform in writing the licensing authority of this fact, and
(b) show evidence to the satisfaction of the licensing authority that he or she has informed any employer of his or hers connected with that occupation that he or she is the holder of a licence to drive a small public service vehicle and carries on the business of driving a small public service vehicle for hire or reward.
(3) Where a person who is the applicant for or the holder of a licence to drive a small public service vehicle is engaged in another occupation which involves driving a vehicle or working in excess of the hours specified in regulations made under subsection (8), the licensing authority may—
(a) attach a condition to the licence restricting the number of hours that, or the times when, the person may drive a small public service vehicle for hire or reward after having been driving a vehicle or working a specified number of hours while engaged in that other occupation, or
(b) if it considers that the other occupation is such that the person as a result of the number of hours the person is required or is likely to drive a vehicle, or is required to work in the other occupation and the person were to drive a small public service vehicle after being engaged in that other occupation could pose a risk to the safety of passengers in a small public service vehicle and other road users—
(i) in the case of an applicant, refuse the licence, and
(ii) in the case of a licence holder, revoke the licence or, until such time as the holder is no longer engaged in that other occupation, suspend the licence.
(4) The licensing authority may issue documentation to a person for the purposes of subsection (3) which shall be carried by the person when he or she is driving a small public service vehicle for hire or reward. The person shall produce any such documentation, if requested to do so by an authorised person, to the authorised person.
(5) Where a person who has been issued a document for the purposes of subsection (4) is not carrying the document with him or her in the vehicle when driving the vehicle for hire or reward, it shall be presumed until the contrary is shown, that he or she at the material time was driving the vehicle in contravention of the condition attached to his or her licence to drive a small public service vehicle in respect of the hours or times when he or she may drive such a vehicle for hire or reward.
(6) Where an authorised officer has reason to believe that a person is driving for hire or reward a small public service vehicle during the hours or times the person is restricted from driving the vehicle for hire or reward under conditions attached to the licence to drive such a vehicle held by the person, the officer may require the person to cease driving the vehicle for hire or reward and not to ply for hire with the vehicle during the restricted hours or times.
(7) A person who fails to comply with a requirement of subsection (4) or (6) commits an offence and is liable on summary conviction to a class A fine.
(8) The Authority may by regulations specify the number of hours for the purposes of subsection (1)(b) and different hours may be specified for different occupations and in different circumstances.
(9) A member of the Garda Síochána may, where the member is of the opinion that a person has failed to comply with a requirement of an authorised officer under subsection (1), arrest the person without warrant.".
Amendment No. 17 introduces a new section to the Bill that places an obligation on an applicant for or holder of a licence to drive a special public service vehicle, SPSV, to inform the licensing authority of any other occupation of his or hers involving driving vehicles and so on.
This amendment derives from a recommendation under action 3 of the taxi regulation review report 2011 which aims to ensure in the case of part-time drivers, that there is improved compliance with working time legislation. Senators will recall that this issue came under the spotlight in the "Prime Time Investigates" programme in May 2011, whereby part-time SPSV drivers were found to be engaged in other employment, driving public service vehicles and were driving excessively long hours at a risk to the safety of passengers, to themselves and to other road users. This is a very serious issue.
This new section provides for a system of notification to the NTA by SPSV driver licence applicants or holders concerning their alternative employment, involving driving. The licensing authority, where it is considered appropriate and necessary, can attach conditions to the licence which relate to the permitted SPSV driving hours. The amendment also provides for a related offence concerning breaches of the permitted driving hours attached to a licence and powers for authorised persons to request an SPSV driver to cease driving if the authorised persons consider that the SPSV driver is in breach of the permitted driving hours as well as powers for members of An Garda Síochána to arrest, without warrant, an SPSV driver who fails to comply with such a request of an authorised person.
Amendment No. 29 provides that the NTA can make regulations concerning the display of signage indicating the permitted driving hours under the new section 11 for the purposes of identification and enforcement. Amendment No. 45 provides that the offence under section 11(7) for non-compliance with the permitted driving hours requirements is a specified demerit offence for the purposes of Part V of the Bill.
I oppose the amendment. This is a fundamental change to the Bill as circulated on 3 December 2012. However, the proposed new section was circulated as late as Monday of last week. The proposed change is not covered in the regulatory impact assessment which was circulated on 17 January. I am advised this violates people's contracts of employment. It violates privacy. I am told the provision in subsection (1)(ii) that he or she has informed any employer of what he or she will be doing infringes the rights to privacy under the European Court of Human Rights. One is allowed to have part-time jobs, as the Minister of State said, as there is no law against having more than one job. Why is an employee compelled to tell his or her employer that he or she has another job?
The effect restricts part timers, who are vital. Some 85% of the business is transacted between Thursdays and Sundays. Those who enter as part-timers are serving the market. There is no point in having rules stipulating they should sit around on Monday morning at 9.30.
I am advised this amendment is probably unconstitutional. It is definitely designed to set aside the decision of the High Court to open up the business. It infringes upon the rights of part-time workers, Article 8 of the European Convention on Human Rights and Article 40.3 of the Constitution. I cannot agree to introducing such draconian measures by way of amendment at short notice. I cannot agree with requiring people to disclose information to their employer that has no bearing on their employment, bearing in mind that disclosure is not in their contract.
This should have been brought to our notice before last Monday week. It should have been in the highly inadequate regulatory impact assessment. Given its implications for the laws that I have mentioned, I am advised that I should in no way accept this amendment.
I agree with Senator Barrett on certain aspects of the section. I ask the Minister to withdraw the amendment until Report Stage. There is doubt about certain aspects of this section. I refer to people involved in agriculture, who may be working in a field all day driving a tractor, and those who commute to work, for example. There is no table produced on the number of hours one may work. While the hours worked by the driver of a truck or school bus, for example, can be determined through a tachograph, one should consider the hours worked by others in any ordinary form of business, such as a salesman who may travel in his vehicle for four or five hours per day. Will the number of hours the latter can work as a part-time taxi driver be affected under the legislation? A table needs to be produced on this. I ask the Minister of State to withdraw the amendment until Report Stage.
The amendment will not be withdrawn. No issue arises over privacy, nor does one arise over contracts of employment. This legislation has been examined by the legal advisers in the Office of the Attorney General. What we are doing is addressing an issue of safety. It is quite clear that if somebody’s job requires driving for a long time, his driving a taxi after work - which would involve continuous driving - would comprise a serious safety issue.
We are empowering the National Transport Authority to make provisions in regard to the hours one can work. The legislation is not an attack on part-time drivers. The industry needs them. I come from an area where the job of taxi driver is a part-time occupation in most cases. On Report Stage, I will be elaborating more on this matter so as to meet the request of my learned colleague.
If I were a biscuit maker during the day, could I drive a taxi in the evening? Would I have to tell my employer? What business is it of my employer what I do after 5 p.m.? I appreciate that my employer would not want me to make biscuits for a rival biscuit maker but it would be none of his business if I were active and entrepreneurial enough to earn some money in an industry in which demand has peaked, as the Minister stated, and if I were not doing anyone any harm. I would be serving customers and contributing to customer waiting time reductions worth €780 million, as calculated by Goodbody. Is the measure as draconian as it appears, such that everybody who does as I describe must inform his other employer?
I appreciate that the Minister of State received advice from the Office of the Attorney General.
The purpose of the university Senators is to seek the advice of their colleagues and my colleagues in the law school in TCD find this in breach of everything in terms of people's right to privacy and they see it as breaching the European Convention on Human Rights and as a way to assist incumbents at the expense of the part-timers. Could we not have it in contracts of employment that people who drive buses cannot drive rather than a blanket ban on everybody else from driving and requiring them to register that with their current employer? The Department, either advertently or inadvertently, is trying to get rid of the part-timers who perform such a valuable role.
Despite what Senator Barrett has said on numerous occasions, the Department does not have all encompassing powers in regard to all bus operators. That would be a matter between them and their employees. From a legal point of view, the Attorney General is quite happy with this. This empowers the National Transport Authority. I want to re-emphasise that it is not a draconian move but it is for people who drive a considerable amount for their living. The detail of that will have to be dealt with through the regulatory role of the National Transport Authority and this is to empower it to do that.
Amendment put:
The Seanad divided: Tá, 29; Níl, 12.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Brennan, Terry.
- Burke, Colm.
- Clune, Deirdre.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Cullinane, David.
- Cummins, Maurice.
- D'Arcy, Jim.
- D'Arcy, Michael.
- Gilroy, John.
- Harte, Jimmy.
- Hayden, Aideen.
- Healy Eames, Fidelma.
- Henry, Imelda.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Moloney, Marie.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Donnell, Marie-Louise.
- O'Keeffe, Susan.
- O'Neill, Pat.
- Reilly, Kathryn.
Níl
- Barrett, Sean D.
- Crown, John.
- Daly, Mark.
- Leyden, Terry.
- Mooney, Paschal.
- Mullen, Rónán.
- Norris, David.
- O'Sullivan, Ned.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- van Turnhout, Jillian.
- Walsh, Jim.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and John Crown.
Amendment declared carried.
Section 11 agreed to.
SECTION 12
Government amendment No. 18:
In page 16, subsection (1), line 18, to delete “under section 9".
Amendment agreed to.
Government amendment No. 19:
In page 16, subsection (1), line 19, to delete “under section 11”.
Amendment agreed to.
Amendments Nos. 20, 21 and 23 are related and may be discussed together.
Government amendment No. 20:
In page 16, subsection (2), line 31, after “(3)” to insert the following:
“ and that the decision does not take effect until the expiration of the period referred to in subsection (3) in the event of an appeal not being made within that period”.
Amendments Nos. 20, 21 and 23 address areas of representation and appeals under section 12 where there was procedural ambiguity and thereby strengthen the legality of the process, if challenged. Taken together, amendments Nos. 20 and 21 provide for the commencement date of any suspension or revocation of a licence on foot of a decision of a licensing authority to commence after any appeal to the District Court has been determined. Where an appeal is not made, the suspension or revocation commences on the expiration of the appeal period of 28 days. To enable the licensing authority to determine the commencement date in each case, amendment No. 23 ensures a person notifies the licensing authority whether he or she has made an appeal to the District Court. These are purely procedural amendments.
Amendment agreed to.
Government amendment No. 21:
In page 16, between lines 37 and 38, to insert the following subsection:
“(4) Where an appeal is not made within the period referred to in subsection (3), the decision takes effect upon the expiration of that period and, in the case of a licence holder, the licence stands revoked or suspended, as the case may be.”.
Amendment agreed to.
Amendments Nos. 22 and 24 are related and may be discussed together.
Government amendment No. 22:
In page 16, subsection (4), lines 38 and 39, to delete “suspend or revoke” and substitute “revoke or suspend”.
Amendment No. 22 is a textual amendment to correct a minor drafting error and does not entail any change to the substance of the section. Amendment No. 24 concerns a technical legal matter.
It provides that the representation and appeals process under section 12 does not apply to a revocation of a licence by a court consequent upon conviction for an offence as provided for under section 43, i.e., the decision of a District Court judge to revoke the licence in such cases is final. Clearly it would not make sense for a court decision to be appealed to the same court. Decisions of the District Court could, naturally, be appealed to a higher court in the normal way.
Amendment agreed to.
Government amendment No. 23:
In page 17, between lines 10 and 11, to insert the following subsection:
“(10) Where a person makes an appeal under this section he or she shall at the same time notify in writing the licensing authority of the appeal.”.
Amendment agreed to.
Government amendment No. 24:
In page 17, between lines 20 and 21, to insert the following subsection:
“(12) This section does not apply to a revocation under section 43.”.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13
Question proposed: "That section 13 stand part of the Bill."
Reference was made to this before. I understand the Minister of State has indicated that people made representations to him, and Senator O'Sullivan also commented on it. The section deals with the prohibition on the transfer of a licence. The representations made to the Minister of State related to what was deemed to be a family business, if I recall correctly. I imagine the Minister of State will make his own statement on it. Senator O'Sullivan may have had something similar in mind as well. Section 13(1) states: "A licence, whether granted before or after the commencement of this section may not be transferred or assigned or be mortgaged or otherwise encumbered." Section 13(2) states: "The prohibition on the transfer of a licence under this section does not affect a licence lawfully transferred before the commencement of this section." I do not intend to deal with the property rights aspect that other Senators have mentioned but the economic aspects of it are most important. I believe this section is probably unenforceable as well. The advice we got outside was that ingenious lawyers will find a way around this section.
The interest of economists in the transfer of licences arises because it reflects the degree of monopolistic rent inherent in a licence and those who hold licences achieve what is termed regulatory capture over the licence-issuing body. That is occurring in this case. A disagreement arises between the parties involved. We say deregulation was a great success but those who oppose it are attempting to re-regulate the sector in several areas. It is most useful to know that taxi licences in Ireland sold for €100,000 at one stage, although they were simply pieces of paper with no intrinsic value save for the fact that the Government would not issue any more. That is because Governments always listen to producers and never listen to consumers. There is a mountain of literature on regulatory capture.
The aviation industry captured the Department of Transport, Tourism and Sport and turned it into a downtown office. CIE has turned the Department into a downtown office as well. The Department was found to have twice disadvantaged the Swords Express company on the issue of bus licences in a decision by Mr. Justice Bryan MacMahon in the High Court. It is a Department prone to capture by producers.
We knew the degree of incompetence and excess costs incorporated into the licensing regime precisely because people were willing to pay €100,000, or €130,000 in some cases, for a piece of paper called a licence. This market is remarkably valuable because it enables us to keep an eye on the current and future Ministers in order that they do not yield to the degree of capture that occurred in the country previously and which the courts - we keep coming back to this - addressed by abolishing quantity licences. The fact that a licence commands a premium is a useful measure and suggests that the Minister is issuing too few licences. Economists value this information and we know some cities that carried out reports on the sector sought to compare favourably with us.
We know the cities that ban new entry. In New York a licence owner can earn $1 million worth of super-normal profits. Hence, he pays for the licence. It is a huge barrier to entry. At one stage it cost €100,000 to get a licence here, but at that price we could have put five or six vehicles on the road. The licence price is absolutely crucial to know who is making a shambles of taxi regulation. It is valuable information that economists seek. In our case, one could have bought a taxi vehicle and a couple of books for €100,000 but the taxi licence was not included. Lawyers will find a way through this; that is what lawyers are for. We cannot stop people selling a business. If it has a monopolistic rent built in due to the way the Department of Transport, Tourism and Sport always caves in to producers, then those licences will have an intrinsic value. Trying to pretend the problem of excessive restraints on new entry does not exist will not solve it.
Since it is 5.15 p.m., in line with the order of the day, Senator, will you report progress?
Progress reported; Committee to sit again.
When is it proposed to sit again?
Tomorrow at 10.30 a.m.