Vol. 1 No. 2
This meeting has been convened for the purpose of consideration of the Railway Safety Bill 2001. I welcome the Minister for Transport, Deputy Séamus Brennan, and his officials.
I suggest that we consider the Bill until its conclusion or until 5.45 p.m. If we have not concluded by then I suggest we adjourn for 45 minutes and reconvene at 6.30 p.m. and continue until 8.30 p.m. or until consideration of the Bill is completed. Is that agreed?
It is not agreed. This is the first time I have seen these amendments. The book of amendments was on our desks when we came in this morning. It was not circulated beforehand.
Yesterday, I got a copy of the draft amendments from the Minister. This is a substantial document of 67 pages. Those amendments were not numbered and it was difficult to find one's way around them. A number of those amendments are substantial ones and completely change the thrust of the Bill. When I checked again with the Bills Office today I was informed that a number of the Minister's amendments have been withdrawn because the Minister did not seek the approval of the Dáil to table those substantive amendments.
This is no way to treat a select committee, Chairman. It is a very unsatisfactory way of doing business. I propose that the committee adjourn its consideration of the Bill under Standing Order 124, on several grounds. The 12 amendments have had to be withdrawn because notice had not been given to the Dáil under Standing Order 125 to allow for the expansion of the scope of the Bill. The likelihood is that these amendments will be brought before the Dáil at a later stage and will be introduced on Report Stage. We all know how difficult it is to allow time for debate on substantive amendments on Report Stage and the likelihood is that the guillotine will come into force and we will not be allowed time to debate those very significant amendments in detail. The correct practice would be for this committee to adjourn until the Dáil meets and approves the substantive amendments. The committee could then meet again to consider all the amendments.
I am also seeking the adjournment of this committee on the ground that the volume of the Minister's amendments and the time allowed for consideration of them is inadequate for members. I received the Minister's amendments only yesterday and there was no time for consultation with the various people who have a direct interest in the content of this Bill. That flies in the face of the consultative process established in the early stages of drafting this Bill. That is not the way to do business; it is not what partnership is about.
I propose we adjourn, follow proper procedure and arrange an alternative date for consideration of Committee Stage of this Bill.
We can deal only with what is on the green list.
I have not read the green paper and neither has anybody else in this room.
The amendments were circulated in the normal way.
They were not. This is the first we have seen of them.
That is normal procedure.
They have not been circulated in the normal way. The green document was not in our pigeonholes this morning. I checked my pigeonhole on the way to this meeting and the document was not there even at that late stage.
What was not there?
The document listing in chronological order the amendments to be tabled today. This is significant legislation. It is imperative we deal with it but the situation in which we now find ourselves where members of this committee have only just been circulated with the amendments as they are to be tabled, is unacceptable. The list contains significant amendments which change the principle of the legislation. The Minister has withdrawn 12 substantial amendments. It is unacceptable that the amendments were circulated to us in draft form yesterday. I only received my copy of them this morning. There are 69 ministerial amendments and it has been virtually impossible for anyone to go through them. We have only just received a copy of the amendments in chronological order and for that reason I second Deputy Shortall's proposal that we adjourn this meeting. We need to tease out the amendments, particularly those which propose significant changes and the introduction of a new Part X.
It is the responsibility of the Bills Office to circulate members with the amendments. I gather it has not done so.
Amendments were withdrawn this morning.
It is the responsibility of the Bills Office to circulate the amendments. From what members are saying, it appears that did not happen. It is up to the committee to decide what we do now.
I do not wish to put the committee under any undue pressure. This is railway safety legislation. It is urgent. Many of the measures contained in it could save lives.
It was first introduced in 2001. It cannot be that urgent.
I am entitled to my view. Every week we delay - I am not being dramatic about it - could cost lives. Some of the measures are very necessary and urgent. I note the Deputy's comments regarding partnership and I know she is referring to the fact that some of the trade unions have difficulties with these measures. We should discuss them honestly and openly.
I understand the Bills Office had copies of the amendments available mid-week. I regret Deputies did not receive them. Many of the issues in the Bill are ones with which Deputies are totally familiar. We should be well able to make some progress in the next couple of hours. If we arrive at an amendment on which Deputies feel they wish to consult with interested parties we will deal with it then. We should try to make progress this afternoon. We are all aware of the general thrust of the Bill. I am aware of the contentious issues and the Deputy can consult on them when we reach that point. It would be a pity not to make progress on this critical legislation.
No one disputes that this is critical legislation. The Bill was published in December 2001. It was dragged through Second Stage and was not delayed by the Opposition. The Chief Whips' office appeared to have a difficulty in scheduling the Bill for debate. It passed Second Stage a considerable time ago. It is not acceptable that members of the committee are only now being circulated with the chronological list of amendments. It is totally unacceptable that spokespersons had first sight of the amendments yesterday or today in some circumstances. The amendments were not circulated electronically. Those not resident in Dublin would have received them only today. It is totally unacceptable to ask us to deal with critical legislation having only received the amendments a short time ago. It is disrespectful to the committee and would set a dangerous precedent in dealing with Committee Stage consideration of legislation.
Standing Orders state that the Minister must have his amendments in the House before 11 a.m. the previous day. The Minister met that deadline. We are trying to find out why the Bills Office did not circulate them until late today.
I beg to differ with you, Chairman. Standing Order 125 states that "in the event of an amendment that proposes the expansion of the scope of a Bill——
The Deputy is referring to amendments not contained in the current list.
The problem is that we do not know if those amendments are contained in the current list because we have not had a chance to read it.
They are not contained in the list. The Minister met the deadline.
I want to confirm - this will be confirmed by my colleagues also - that this is the first we have seen of the green booklet. We were circulated with another document of unnumbered amendments. Some 12 amendments contained in that document have been withdrawn by the Minister and we do not know which ones they are.
If they have been withdrawn then they are no longer before the committee. What is the problem?
The problem, as I have already outlined, is that those amendments will be brought before the Dáil and re-introduced on Report Stage and we will not have had an opportunity to debate them.
The Deputy is discussing something that does not arise in this committee.
It is quite clear the Minister intends to amend the Bill.
That matter is not before the committee.
The Minister clearly intends to amend the Bill along the lines suggested in the 12 amendments which have been withdrawn.
If it was clear we would be getting on with our business. It is not clear.
It is clear that the Minister intends to introduce those amendments on Report Stage at which point we will not have an opportunity to debate them. That is not an acceptable way of doing business and for that reason I propose we adjourn this meeting.
I accept the point made regarding the circulation of amendments by 11 a.m. on the previous day. We did not receive the green document by 11 a.m. on the previous day. We have only received it now. That is the factual situation.
I will provide the factual situation. The Minister is obliged to have his amendments in the Bills Office by 11 a.m. on the previous day. He has done so. It is a matter of courtesy for the Bills Office to circulate those amendments to Members. The amendments have been in the Bills Office since yesterday for Members to collect if they so wished.
A number of the amendments are out of order.
That is procedure and they are the rules.
The Minister has made the entirely reasonable suggestion that he will be amenable to members who have issues with some of the amendments which may come before us later today. That seems reasonable to me, especially when the Minister and his officials are here to deal with issues with which we are already familiar.
In my experience, both in and out of Government, the Minister of the time often says he will come back on Report Stage to deal with an issue. He can do the same here today. I do not see why——
Equally, the Chairman knows that the guillotine applies on a regular basis and we do not get the opportunity to debate amendments. I do not want the situation to arise on Report Stage where significant amendments are brought before us and we do not get the opportunity to debate them. The Minister has already said we can consult at that point. He knows there is no opportunity to consult then. The consultation is done during Committee Stage. Let us have it all on the table and do not hold back significant amendments which will have to be tabled on Report Stage.
As the Chairman has pointed out, there are always amendments on Report Stage. I plan to make some announcements today under some sections about my intentions on Report Stage. I wanted to hear the committee's views on some issues today so that I can be better informed as to what to bring forward on Report Stage. That is reasonable. The issues involved are serious life and death issues which I will lay out later. They are complex legal issues with which we must deal. I would like to hear the committee's opinions on the way forward. On Second Stage I invited Deputies in the Dáil to give their opinion on certain issues such as the use of intoxicants by safety critical staff on trains, whether or not train drivers are permitted legally to be intoxicated. That is a key issue which is on the minds of Deputies and of the trade unions. I do not intend to dodge the issue but I need to get to it. It does not need much consultation. If we get to it today I will inform the Deputy of my general intentions in that regard. The Deputy will be better informed if we can get on with business.
This is obviously important legislation and that is all the more reason it should be dealt with properly. This is my first experience of this process. To hear the Chairman and the Minister expound on the fact that the green list of amendments is only circulated here as a courtesy is ridiculous. This would not be acceptable in a local town council. We have just seen this green list since we came into the room. I support Deputy Shortall's proposal that we adjourn because the legislation is too serious to be dealt with in the manner proposed.
The committee must make the decision whether to continue and use the green list.
We made our views known. The Minister has made a reasonable suggestion and we are prepared to deal with the business before us.
I do not want to hold up business and we have set aside seven hours to deal with this today. However, we should make sure procedure is correct but unfortunately it is not. I ask that the Minister list the amendments which have been withdrawn and that he give us the references from this document so that we know where we stand before we start consideration of the Bill. I suggest then that we consider the Bill up to Part 9. Part 10 is an extremely problematic area and there has been no consultation on it. Subject to the Minister's list being available and having some minutes to consider it, I propose we take the Bill up to Part 9 as a compromise.
The Minister has been quite fair in what he has said. He is prepared to have any substantial amendments circulated prior to Report Stage. Perhaps the best resolution of the issue is that the amendments be circulated a week before Report Stage in order that people have time to go through them. That compromise could resolve the problem.
However, we will not have time for debate on them. That is the difficulty. There will be no time on Report Stage for consultation with the various interests.
They can be debated on Report Stage.
There will be a guillotine on Report Stage. The fact is that we have not been given the courtesy of having the amendments circulated prior to the sitting of the committee today. This is a basic courtesy that is afforded to every committee. We have been awaiting Committee Stage for three or four months yet we are only now seeing the amendments.
Deputy Shortall has made a proposal which will get us to section 80. We would not go much further than that in any event.
May I respond to Deputy Shortall? I am informed that five amendments were withdrawn. The Deputy mentioned 12 so we will try to track down the other seven. This five were withdrawn because they were not to do with safety and the legal advice was that they should not be included in this Bill.
Can the Minister give references for those?
One example was an offence to do with the non-payment of fares on public transport. We were advised this had no place in a safety Bill and it was withdrawn.
As this is the document we are to work from can the Minister give us the references?
We will identify the information for the Deputy. There were five items which it was decided were not to do with safety and they were therefore withdrawn. There is no plot.
The Bills' Office said there were about 12.
We will try to reconcile that. The only reason they were withdrawn was that they did not fit in a safety Bill. We were advised to concentrate on safety issues and that if we wanted to advance those issues they should be advanced by way of separate primary legislation.
I would welcome the references in the next few minutes. My proposal still stands.
We will try to arrange them for the Deputy. From the Government's point of view there is no guillotine on this Bill. I have not asked for a guillotine. I want to explain to Members what is on my mind concerning the legislation and what it is about. I want Deputies to say their piece on it. If my view is different from the Deputy's then this is the place to have it out in the open. I have strong views on the legislation and no doubt the Deputy has also. Let us get them into the open. There is no guillotine on the legislation.
We are planning to sit next Wednesday. We will go as far as amendment No. 69 and we can complete it next week in line with Deputy Shortall's proposal.
Does that take us up to Part 9?
It does. The Deputy may trust me. I would not mislead her.
It is not easy to find one's way around this.
Is that agreed? Agreed.
I draw the attention of members to an error on the amendment list. The heading above amendment No. 115 should read Schedule 1 and not New Sections. It is just a typographical error. To save time I suggest that as some of the amendments are of a technical nature the Minister could just move the amendment rather than reading out the technical detail. Is that agreed? Agreed.
I have a question on one amendment.
Amendments Nos. 1 and 9 may be taken together by agreement because amendment No. 1 is consequential on amendment No. 9.
I move amendment No. 1:
In page 8, subsection (1), to delete lines 6 and 7 and substitute the following:
" 'heritage railway' means a person who only operates train services or railway infrastructure of historical or touristic interest or such other person whom the Commission has by regulations undersection 4(4) specified to be a heritage railway;”.
Amendments Nos. 2, 37 and 70 form a composite proposal. Amendments Nos. 3 and 71 form a related composite proposal. These amendments may be taken together by agreement.
I move amendment No. 2:
In page 8, subsection (1), between lines 9 and 10, to insert the following:
" 'international service' means the operation of a railway service between the State and another state;
'intoxicant' means alcohol and drugs and any combination of drugs or of drugs and alcohol;".
I move amendment No. 3:
In page 8, subsection (1), between lines 13 and 14, to insert the following:
" 'medical practitioner' means a person registered in the General Register of Medical Practitioners;".
I move amendment No. 4:
In page 8, subsection (1), line 14, to delete "Public Enterprise" and substitute "Transport".
I move amendment No. 5:
In page 8, subsection (1), line 27, to delete "for monetary gain".
Amendments Nos. 6 and 8 form a composite proposal and may be taken together by agreement.
I move amendment No. 6:
In page 8, subsection (1), line 31, to delete "railway which" and substitute "infrastructure that".
These are technical amendments to correct conflicting terminology between different sections.
I move amendment No. 7:
In page 9, subsection (1), to delete lines 13 and 14 and substitute the following:
" 'road authority' means-
(a) in the case of a national road, the National Roads Authority, and
(b) in the case of a regional or local road, the city, county, borough or town council, in whose administrative area the road is located;”.
I move amendment No. 8:
In page 10, subsection (3), lines 1 and 2, to delete "person to be a railway undertaking" and substitute "infrastructure to be a railway".
I move amendment No. 9:
In page 10, between lines 4 and 5, to insert the following subsection:
"(4) The Commission may by regulations specify any person to be a heritage railway for the purposes of this Act where, in the opinion of the Commission, it is appropriate to do so in the interest of the safety of persons.".
I have a query. An EU directive has been accepted in relation to rail safety which will bring a uniform level of standards for rail safety procedures throughout the European Union. Does this Bill tie in with that directive or will this Bill need to be amended in the future to implement that directive?
It brings it largely up to date but not completely. There are a number of European directives which still need to be transposed into legislation and it will take some time. It brings it substantially up to date.
Amendment No. 10 is in the name of Deputy Shortall. Amendments Nos. 11 and 12 are similar so the amendments may be taken together by agreement.
I move amendment No. 10:
In page 15, subsection (4)(a), line 18, to delete “1991” and substitute “2001”.
This amendment corrects a drafting error where each of those years should be changed to 2001 to reflect the updated legislation.
I thank Deputy Shortall for her vigilance and I accept those amendments.
I move amendment No. 11:
In page 15, subsection (4)(b), line 20, to delete “1991” and substitute “2001”.
I move amendment No. 12:
In page 15, subsection (4)(c), line 21, to delete “1993” and substitute “2001”.
Section 19 requires the Railway Safety Commission to draw up a code of conduct to guide the ethical behaviour of staff and requires staff at a specified level to make a declaration of their interests. There is no need for this section because these sanctions are already included in section 10 of the Standards in Public Office Act 2001. Section 10 of the Standards in Public Office Act makes it clear that this area will apply to public bodies.
This is the same issue. The declaration of interests by staff members of the Railway Safety Commission can be dealt with under the Standards in Public Office Act and therefore this section is not required.
I move amendment No. 13:
In page 22, subsection (4), line 6, to delete "and" and substitute "or".
This is a technical amendment to correct a drafting error.
Amendments Nos. 14 and 17 are related and may be taken together by agreement.
I move amendment No. 14:
In page 23, lines 25 to 29, to delete subsection (3) and substitute the following:
"(3) The Commission shall, not later than 3 months after the end of each year, present a report to the Minister about the performance of its functions and other activities of the Commission in that year, and the Minister shall cause a copy of the report to be laid before each House of the Oireachtas within 2 months of receipt of the report.
(4) A report under subsection (3) shall include information in such form and about such matters as the Minister may direct but nothing in that or this subsection shall be construed as requiring the Commission to include in such a report information the inclusion of which therein would in the opinion of the Commission, be likely to prejudice the performance of any of its functions.”.
This is an issue of accountability which many members encounter in tabling questions about a number of organisations including one under the remit of the Minister, the National Roads Authority. We receive standard replies which say: " I regret to have to disallow the following question tabled by you as the Minister has no official responsibility to Dáil Éireann for this matter. The subject matter of your question falls under the remit, for example, of the rail safety commission and you may wish to contact that body in this regard."
At present the railway inspecting officer is accountable to the House through the relevant Minister. My concern is that we will get standard replies from the Ceann Comhairle such as the example I have read out unless this amendment is accepted. It allows replies to parliamentary questions to be furnished to Members of the House when asked of the relevant Minister. It allows the commission to have discretion in furnishing information where it may prejudice the performance of its functions. I ask the Minister to accept this amendment.
I am a little confused by the Deputy's intentions here. His amendment simply asks that the commission shall, not later than three months after the end of each year, present a report to the Minister about the performance of its functions and the Minister shall cause a copy of the report to be laid before each House of the Oireachtas. It goes on to state that a report under subsection (3) shall include information in a particular form. It does not deal with replies to parliamentary questions.
Amendment No. 17 is related and deals with this. It relates to the furnishing of information that would be requested by the Minister.
Is it amendment No. 17 we are dealing with?
Yes.
We are taking amendments Nos. 14 and 17 together.
Amendment 17 asks for the commission to furnish to the Minister such information about the performance of its functions as the Minister may from time to time require. I do not see reference to parliamentary questions here. I was disposed to accept the principle and content of amendment No. 14 in the name of Deputy Naughten. However, I have some difficulty with the wording. I was concerned the reference to the "functions and other activities of the Commission". It should not be operating outside its functions so there should not be any other activities. While there are some drafting issues I would like to address, I do not have any difficulty with the content of amendments Nos. 14 and 17. However, they do not address the issue to which the Deputy has spoken.
The Deputy might like to come back to this on Report Stage.
Yes. I have no difficulty with the Minister introducing an amendment with his own wording. However, in previous legislation, these were the amendments - particularly amendment No. 17 - which were tabled by the parliamentary draftsman to ensure that the Minister would be accountable to the House in relation to parliamentary questions. I flagged this principle on Second Stage and the Minister has not tabled any amendment on that.
It is fundamental that the commission remains accountable to the House. We do not want to have the same problems as we have with the National Roads Authority at present. If the Minister is prepared to consider this and come back with an amendment that addresses the points I am raising under some other form of wording, I would be prepared to withdraw these amendments. The kernel of the issue is to avoid receiving replies from the Ceann Comhairle similar to the one I read out earlier. The Tánaiste tabled these amendments to the Company Law Enforcement Bill to allow for replies to parliamentary questions to be furnished to the House. The Minister should accept the principle that the commission through the Minister should be accountable to the House in response to parliamentary questions.
I have sympathy with that and I will come back with some fresh proposals for the Deputy. A balance needs to be struck here. I recall the days when a Deputy seeking a telephone for a constituent had to table a parliamentary question to the Minister. The same was true about bus routes. We do not want to go back to those days and have the Dáil clogged up with such operational details. Subject to that reservation, I have sympathy with what the Deputy seeks here.
I do not know whether the Deputy has noticed a change in the replies he receives. In answer to questions about the National Roads Authority for example, the first paragraph will state that the issue is a matter for the National Roads Authority. I have instructed my Department to commence the next paragraph with the words that I have been informed by the National Roads Authority of the information that follows. This means I seek the information for the Deputy and insert it into the reply. I have done the same for questions about CIE. I am making the point that there is no legal requirement to do this; it is my policy to go and get the information on all these issues.
When did that procedure change?
In the last few weeks.
It had not changed on the last sitting day of the Dáil.
I will take a look at that. When Deputies seek information, the easy answer is to say the particular authority has no responsibility to the Dáil. However I have instructed my officials to give the information if it can be obtained quickly from the authority. However, that does not address the legal issue. We need to find a balance between interfering in every operational aspect of bodies and being accountable to the Dáil on a policy basis.
I welcome the Minister's initiative.
My second issue is related. If a serious rail incident occurred next week prior to the passing of this Bill, the Minister is answerable to the House and would have to furnish the House with as much information as possible on that. Will that change with the passing of this legislation?
Not really. One of the powers I will have under this legislation is to establish a tribunal of inquiry. I would have to go to the Dáil to do that. In that regard it does not dilute what the Minister would report to the House.
The commission might seek information from, for example, Irish Rail as soon as possible. We can debate the technicalities of that later. Can that information be then furnished to the House through the Minister?
We are talking about investigations. If an investigation is commenced by the railway safety commissioner, or a tribunal of inquiry is established, information will almost certainly be sought during the conduct of that investigation. It would not be correct nor would the Deputy seek to have one-sided information placed before the Dáil where it could be misinterpreted publicly without the complete picture being available to the railway safety commissioner. I favour, as is possible under this legislation, the information coming before the Dáil at the appropriate time, but not on an issue by issue basis, which may be a submission by one side or the other. There may be legal issues.
I am happy that the degree of accountability to the Dáil is appropriate and that the Dáil cannot be abused in the sense of information coming out of that public forum in such a way as to prejudice the next information that somebody might submit to an investigation. Because it is an investigation, the timing of coming into the public arena has to be balanced.
Amendment No. 17 contains the phrase: "in the opinion of the Commission, be likely to prejudice the performance of any of its functions". My amendment was worded so that factual information could be furnished and could enter the public arena following such an incident, which would not prejudice the investigation. The same is true for replies to parliamentary questions on the functioning of the commission. I will withdraw with leave to reintroduce on Report Stage and I look forward to the Minister's amendments in this area.
I move amendment No. 15:
In page 24, subsection (1), line 10, after "General," to insert "attend before and".
This is largely a technical amendment to clarify that the commissioner must attend in person to give evidence before the Committee of Public Accounts, as opposed to being represented by a nominee or making a written submission.
I move amendment No. 16:
In page 24, lines 28 to 31, to delete subsection (2).
The purpose of this amendment is to remove section 33(2), which states:
In the performance of his or her duties under subsection (1), a commissioner shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government on the merits of objectives of such a policy.
It is imperative that this be deleted so that the commission would have a degree of independence and could make comments in this regard. The basic purpose of the Bill is to appoint a body with sole responsibility for safety. If there is legislation or a policy decision by Government that could jeopardise that, there is an onus and responsibility on the commission to furnish the Oireachtas with such information. The forthcoming EU directive on rail safety refers specifically to functional independence of the investigations unit of the commission. We will come to that issue later. However, it is pointless to have functional independence in that context if the commission does not have independence to furnish recommendations to the Minister or express its opinion on policy directions.
Perhaps the best recent example in that regard was the information furnished to the Houses of the Oireachtas by the Ombudsman on a proposed Bill. It is imperative, if we are to secure the integrity of the commission and the safety of our rail network, that this provision would be deleted.
I support this amendment, having tabled a similar amendment. Essentially, it would appear that the purpose of the subsection is to gag the members of the commission. The purpose of the amendment is to remove that gag. Over time, members of the commission will have built up a great deal of expertise in rail safety. It is entirely appropriate that those people would be in a position to give their opinions and comment on policy with regard to rail safety. Having built up a valuable resource of expertise, it makes no sense to prevent the people concerned from giving their views and opinions based on experience. That should be helpful to the Oireachtas and the Minister.
I also support the amendment.
I wanted to hear the comments of Members before giving my final view on the matter. The Bill provides, later on, for the commission to make recommendations of a policy nature to the Minister. Accordingly, the Minister would not be without such policy recommendations in any event. The issue in this regard is a broader one for the Oireachtas. We should not consider it in terms of my party being in Government or another party being in Opposition. I have listened carefully to what Members have said on the matter. The issue is as to whether an individual appointed under a statute and charged with implementing a Government policy - in this case railway safety - is entitled to come before a committee and second-guess, question or criticise such Government policy and to do so under the heading of carrying out their functions.
My instinct is that, since we are dealing with safety legislation, everything should be 110% open and transparent. I am well disposed to considering removal of the provision on Report Stage. However, I am anxious that members should be aware of the implications. We did not dream this up in relation to this Bill. It is already contained in the Employment Equality Act and the Electricity Regulation Act. In the case of existing regulators who are charged by the Houses of the Oireachtas with carrying out duties, they are instructed to do so under the policy laid down. They are not entitled, under existing legislation, to second-guess those policies, thereby, arguably, causing considerable confusion in the public mind. However, there is a mechanism for them to put their concerns to Government by way of regular reports. That being said, the balance is that if a commissioner of safety has something to say which is critical of Government policy, we should be big enough to take such criticism and let the commissioner have his or her say. On balance, I am disposed to going along with the Deputy's position in this regard but I wanted to point out that there is nothing sinister involved and there are good public policy grounds for taking the view that people charged with implementation should focus on that, rather than on policy issues. I will return to the matter on Report Stage.
We will be dealing with this in section 9 in relation to the responsibilities being placed on the employees of a railway undertaking, who could incur ten years imprisonment in the context of implementing, or not implementing the procedures laid down by the commission. It seems unusual that, where the commission identifies an issue of safety, it cannot report that to the Houses of the Oireachtas. On the basis of the Minister's comments, I withdraw the amendment while reserving the option to reintroduce it on Report Stage.
I move amendment No. 18:
In page 25, subsection (1), line 28, to delete "or near".
This amendment is intended to correct a drafting error. I can explain it in detail if necessary. It relates to a phrase "on or near a railway" and there are some issues around the meaning of being near a railway.
I move amendment No. 19:
In page 26, subsection (3)(c), line 23, after “undertaking” to insert “including the impact of operations on the rail track and permanent way”.
The relevant provision relates to the operations of a railway undertaking but does not appear to include the rail track or permanent way. Irish Rail is introducing a new maintenance regime for the rail network, whereby inspections will take place every fortnight, by vehicle, rather than the current procedure for inspection every three days on foot. There may be other procedural matters under which Irish Rail or, perhaps, some other company would have responsibility, at some future date, for the permanent way, as such. In relation to maintenance and inspection, there should be an onus on the commission to review those procedures in order to ensure they meet acceptable international safety standards. That is why I have tabled this amendment.
There is no difference between the Deputy and me. My objective is the same as his, namely, to include both the operations and permanent railway infrastructure. I suggest that the Deputy's amendment is not necessary because this is fully covered in the Bill. Section 41(3)(c) talks about identifying hazards arising from the operations. In that context, the Deputy may have taken operations to mean only that. However, the word “operations” is defined on page 8 in the definition section. It clearly states that it includes the operation of railway services or the operation of railway infrastructure, or both, and any other ancillary activities. I can see how, from a reading of section 41(3)(c), it might appear to only deal with operations but that word is earlier defined as including infrastructure. I put it to the Deputy that what he requires to be done is in the Bill.
I move amendment No. 20:
In page 26, subsection (7), line 43, after "ensuring" to insert ", and has sufficient authority to ensure,".
The intention of this amendment is to ensure that the senior manager given responsibility for seeing that the railway undertaking implements its safety obligations has sufficient authority to bear that responsibility. It is necessary to ensure that the person who has that job has the authority to do it.
We move to amendment No. 21. Amendments Nos. 23 and 25 are cognate. Amendments Nos. 21, 23 and 25 may be taken together, by agreement.
I move amendment No. 21:
In page 28, subsection (14), line 5, to delete ", by leave of the court,".
Each of these three sections is part of a growing trend in recent legislation to remove the right of appeal to the Supreme Court. Under these three provisions, not only would there be no appeal on questions of fact but only on questions of law, but there would be no appeal unless the High Court gave approval to an appeal from its own decision. This sets a bad precedent and we should enshrine the free right of appeal in all of our legislation. I propose that we delete ", by leave of the court,".
This may require some legal teasing out. I have no difficulty with the objective of the amendment. Access to the Supreme Court on a point of law is standard. I want to make sure we keep that and have no argument in this regard. With regard to access to the Supreme Court on other issues, I am not seeking to widen or reduce the present scope. If the wording here does something other than what is intended, I will look at that but I am not seeking——
It is by leave of the court.
What does the Deputy's amendment seek to do?
To delete the phrase: ", by leave of the court,".
In other words, people would have access to the Supreme Court on a point of law without having to get permission from the High Court for that.
Yes, and on a point of fact also.
So people would have direct access to the Supreme Court.
Yes.
That is an issue on which I need to take legal advice.
On that amendment, I can see where the Deputy is coming from but my understanding is that this sort of provision is in many Bills and is incorporated into the common law for very good reason. That is because otherwise - this will be found particularly with regard to criminal cases - anybody could appeal any criminal case all the way to the Supreme Court on all of its issues, other than by leave of the court. It has been introduced to diminish the administrative overload which had been evident with regard to the Supreme Court in the 1950s and 1960s. This sort of provision began to be used at that stage.
If the court does not allow the appeal, or if the judge who has heard the entire case says the appeal to the Supreme Court is an unreasonable one, that decision can be appealed to the Supreme Court. This does not mean there is no appeal on those issues but is a purely administrative position which is now found in many Bills.
It is always handy to have a lawyer in the house.
Will this Bill not make that much more cumbersome?
If the Deputy wishes, I will come back to her on this.
That is fine.
I move amendment No. 22:
In page 28, before section 43, to insert the following new section:
43.-(1) A railway undertaking first established in another Member State ('foreign railway') which operates or proposes to operate an international service using only the infrastructure of another railway undertaking first established in the State, is deemed to have met the requirements of section 41 where-
(a) it has implemented a safety management system in compliance with the national requirements of the other Member State,
(b) it holds a valid safety certificate issued by the relevant competent authority in that other Member State, where it is required by that other Member State to do so, and
(c) it has an agreement under section 42(1) with the railway undertaking first established in the State.
(2) A copy of a safety certificate or other evidence of compliance, as the case may be, issued or given to a foreign railway by the relevant competent authority of another Member State and a copy of any agreement under section 42(1) between the foreign railway and a railway established in the State, together with any such other information as may be required by the Commission for the purposes of section 47(2), is deemed to be a safety case for the purposes of this Part.
(3) A safety certificate issued to a foreign railway shall specify that the safety certificate is in respect of that element of the international service within the State only.
(4) A reference to an amendment to, a revision of, audit of, or compliance with a safety case in this Act shall, in respect of a foreign railway, be construed as an amendment to, revision of, audit of, or compliance with the agreement under section 42(1) and of such other information provided by the railway undertaking under subsection (2).
(5) A foreign railway which is applying for a safety certificate in respect of that element of an international service within the State, shall provide to the Commission a copy of the safety case accepted by the competent authority of the other Member State or where no safety case was or is required by the other Member State, such documentary evidence of its safety management system as the Commission may direct.
(6) In this section 'Member State' means a Member State of the European Communities.".
An international service is defined in section 2 as a railway service between the State and another member state, that is, the Dublin-Belfast service. The purpose of this amendment is to address the existing cross-Border service and any possible new cross-Border services in the future, and is designed to ensure that the introduction of new legislation on both sides of the Border does not adversely impact on the running of these services. In short, this is to deal with the mutual recognition of the separate cross-Border safety regimes.
Is that part of the plan for Europe in which there will be an attempt to synchronise all of the railways within the European Union?
Yes.
I move amendment No. 24:
In page 33, subsection (6), line 18, to delete ", without reasonable excuse,".
It is a technical amendment to make the offence consistent with the other offences in the Bill.
I move amendment No. 26:
In page 35, subsection (1)(b), line 39, to delete “and” and substitute “or”.
This is a technical drafting amendment.
I move amendment No. 27:
In page 40, subsection (11), lines 6 and 7, to delete "liable on summary conviction to a fine not exceeding €3,000." and substitute the following:
"liable-
(a) on summary conviction, to a fine not exceeding €3,000, or
(b) on conviction on indictment, to a fine not exceeding €60,000.”.
The purpose of this amendment is to add an indictable offence to the summary offences already provided in the Bill. The provisions of the section are sufficiently important to warrant this. It increases the penalties and provides for an indictable offence to be added.
I move amendment No. 28:
In page 40, paragraph (d), line 20, after “injury” to insert “or threaten the integrity of the rail track and permanent way”.
The amendment deals with the definition of a rail incident. A rail incident under the current interpretation of section 52 is specified in paragraphs (a), (b), (c) or (d) but it does not include damage to the integrity of the rail track or the permanent way. That can have a serious impact on the safety of the rail line. There has been a considerable number of incidents in the past due to the poor quality of our permanent way where the integrity of the rail track has been compromised. Thanks to the significant amount of investment put in on most of the inter-city routes this has not arisen. Should it arise in the future in relation to the continuous welded rail it should be reported because it would have major ramifications for the integrity of the permanent way as a whole on the inter-city routes. Therefore it should be part of the definition of a rail incident and should be a reportable incident by the railway undertaking.
The Deputy is correct. My advice is that it is already covered in the section but to avoid doubt, if the Deputy wants me to put it in, I will do so. However, I wish to check the words "the integrity of the rail track and permanent way" to ensure they are legally acceptable. Subject to that I will be happy to include them.
I will withdraw the amendment with leave to reintroduce.
I move amendment No. 29:
In page 40, subsection (1)(a), line 30, after “means” to insert “but in any event not later than 2 working days after the date of the incident”.
This section and subsection provide that the commission must be informed at the earliest possible time following an incident but there is no specific time frame. There should be a specific time frame. Once an incident occurs it should be reported immediately or, if not, within at least two days of the incident. It is imperative that information is furnished in order that an investigation can be carried out forthwith. There is no point in reporting an incident on the permanent way within seven or eight days where repairs would be carried out to the permanent way.
I accept this amendment subject to an opportunity to double check on the wording and its effectiveness to achieve what the Deputy want to achieve.
I withdraw the amendment with leave to reintroduce.
I move amendment No. 30:
In page 40, between lines 44 and 45, to insert the following subsection:
"(3) Where a member of staff of a railway undertaking furnishes relevant information to the Commission or an inspector-
(a) following a railway incident,
(b) which, in the opinion of the person, may lead to a railway incident,
the person shall not be subject to disciplinary or any other action by the railway undertaking.".
This is a whistleblowers' protection where an employee of a railway undertaking comes across an incident or a practice within the company, that could jeopardise either the integrity of the permanent way or the safety of passengers or users of the permanent way, they can report it to the commission and not have disciplinary action taken against them. It is imperative that be written into the legislation because it is an issue of safety. Should an employee come across an incident or procedure which the company employs in the maintenance of its fleet that should be allowed to be reported without disciplinary action being taken.
I am well disposed to this amendment. However, I have to be careful that it is not open to abuse and that there is no disincentive for staff to bring their case to the company in the first instance. They should automatically inform the company if they suspect something is not right. We do not want everybody running to the commission when, in the first instance, they should report to the company. In regard to the wording of the amendment - I appreciate the Deputy has limited resources - "the person shall not be subject to disciplinary or any other action", in theory they could report themselves for something serious and, therefore, be debarred from any disciplinary action because they owned up. I appreciate that was not the Deputy's intention. I will accept this amendment subject to finding a suitable form of words. The Labour Party introduced a Whisteblowers Bill in the last Dáil. This area is fraught because it was abused. The cure is worse than the disease. In the area of safety where a person brings a matter to the attention of a safety commission he or she should not be subject to disciplinary action. If they were involved themselves in some way, one would have to take account of that. I accept the principle of the amendment and I will come back with a form of words that may suit the Deputy's purpose.
I withdraw the amendment with leave to reintroduce.
Amendments Nos. 31 and 39 are related. Amendments Nos. 45 and 60 are cognate with amendment No. 31. Amendment No. 57 is an alternative to amendment No. 56. Therefore, amendments Nos. 31, 39, 45, 56, 57 and 60 may be discussed together by agreement.
I move amendment No. 31:
In page 41, between lines 16 and 17, to insert the following subsection:
"(4) A person being questioned under this section shall be entitled to be accompanied by and to be assisted by his or her trade union representative or legal adviser when being so questioned.".
The purpose of this amendment is to insert a new subsection relating to representation of persons coming before investigations or inquiries. The whole idea of the amendment is to uphold the principles of natural justice in investigations or inquiries. It is interesting to look at other aspects of the legislation because in at least three sections there are provisions whereby admissions made in the course of the inquiry cannot be used in subsequent legal or other proceedings. That is an indication of how complex this area is. If we want people to participate fully in the investigations and inquiries they should have the right to have somebody accompany and assist them in responding to an investigation. Generally speaking, in the workforce, that person would be a trade union representative or they should also have the right to legal representation. I am not hung up on having both. I would be happy if the Minister would consider ensuring the right to trade union representation. If the Minister is prepared to accept the amendment it would strengthen the existing investigation procedures and people would be more likely to come forward and give a full and frank account of what has happened in an incident or accident.
This is an issue on which I want to hear the views of the select committee because there are two sides to the story. In a simple inquiry where a person is accompanied by his or her trade union representative and senior counsel, who will pay them? Before we know it we are into an enormous inquiry with half a dozen lawyers and half a dozen trade union officials and the entire procedure which should be over in a couple of days may be bogged down for weeks, months, perhaps, years. I take Deputy Shortall's natural justice point that if a person is accused of something, that person is entitled to be accompanied. However, there are two sides to this issue. If a railway inspector wishes to interview a person about a railway incident, and the person comes along with his senior counsel and trade union official we are into a new ambit, tribunal land. I make that point because I want to listen carefully to what Deputies from all sides have to say.
I agree with the point the Minister is making and we will tease that out regarding Part X. We could easily make the argument the Minister is making in respect of Part X. How could we have a situation where someone could end up in jail for being involved in a particular incident but not allow him or her to have any form of representation during the investigation?
My amendment No. 57 states that the inspecting officer would decide if he or she thinks fit whether the individual would have representation when questions are being asked at an inquiry. If we are to ensure the integrity of investigations——
In the current tribunals at Dublin Castle and so on, the presiding chairperson makes the decision as to whether one is entitled to legal representation. That is a well established legal position. If one is called up to Dublin Castle tomorrow, one cannot bring along one's senior counsel. The presiding chairperson decides whether one is entitled to legal representation.
It comes back to the point Deputy Shortall made regarding natural justice. As regards investigations taking place in Irish Rail, for example, it is current standard procedure that people involved in disciplinary hearings and so on are allowed to have representation. We are saying that on the basis of natural justice, and in light of the Minister's specific proposals on future prosecutions, it is imperative that an individual would have some representation when attending a meeting with an inspector during an investigation. I ask the Minister to consider the amendments before him.
I want to comment on the public relations background in Irish Rail and the problems the staff have reported to the union. One report from the Labour Relations Commission leaked to the Irish Independent claimed that there was aggression and obstruction on the part of a company official during the six months inquiry. The Labour Court is investigating that but it is clear that there is a problem with relations between the staff and management in the company. This proposal will reinforce the safety measures for the staff in Irish Rail. It is important that we have this measure in place because otherwise the climate in Irish Rail will deteriorate. There is a view that people have been picked on and selected either by their union or whatever but the climate in the company will get worse unless people have the support of the union going into inquiries or someone else who supports their side. The Minister has adopted the situation in regard to the conditions in Irish Rail. It is important that we provide safeguards in this Bill for the workers in Irish Rail and it is clear this proposal will provide that safeguard for our members.
I understand where Deputy Shortall is coming from with the amendment and her anxiety to protect employees' rights but the Minister has asked for views from all sides of the House and I intend to give a contrary one so that he can make up his own mind. My understanding is that if people are brought in to be questioned on a disciplinary matter or whatever, it is right and proper that they would be invited to have representation, that any matters laid before them be laid in writing and that they be given time to consider any issues before any meeting, despite the little argument we had earlier. That applies in all cases where the rights of individuals, be it their employment or constitutional rights or their rights under natural justice, may be prejudiced. Any investigating authority making accusations about an employee would have to proceed that way, irrespective of what is or is not included in any legislation. It would have to inform individuals that the accusations or points may be prejudicial to them and that they have the right to have a trade union or legal representative with them.
I take the Minister's point that in a major investigation of a serious railway accident with potentially dozens, if not hundreds, of witnesses, if the commission investigating the accident sends a written invitation to those witnesses to bring with them their lawyer or trade union representative, the potential for clogging up that investigation would far outweigh one's anxiety to protect the rights of the individual. The commission would have to give those rights of hearing to an individual in any event under the rules of natural justice, which we are seeking to protect. That is a contrary view so the Minister can assess both sides in the course of his deliberations.
I support the amendment. The Minister referred earlier to a simple inquiry but as we all know there is no such thing as a simple inquiry. It is important, both from a natural justice point of view and from the point of view of the integrity of the system, that a person would be happy to be in this situation. It would be unhelpful to leave people on their own in this type of situation whereas if they were represented by a trade union official it might be easier to get to the bottom of the matter being investigated. There should be representation and I would be happy to leave it at trade union representation.
If, God forbid, there was a major rail incident tomorrow morning or at some stage in the future and some other railway undertaking was involved, we can be sure that the management of that organisation would do everything in its power to ensure it was not found to be at fault for the incident. The management would have the resources of that particular company behind it and would try to do its utmost to put the blame anywhere else except on the management or the company. The first individual to be focused on would be the driver and putting the responsibility on the driver. While I have no doubt that the railway inspector will be independent, the management of that particular company would try to ensure it is not found to be responsible for the accident and perhaps face severe penalties. It would try to hang the employee out to dry. The employee should have the basic right of representation in an investigation to ensure due procedure is gone through and justice is done regarding the investigation. Those individuals found to be wanting are the ones who should be named in the final report as being responsible for the incident.
I will give an example of a case where a company is not found to be at fault. There is a particular level crossing in County Roscommon which ten or 12 trains have passed through on numerous occasions taking the gates with them. In every investigation that has taken place, the driver was found to be at fault. There is something seriously wrong with the infrastructure at that particular level crossing when ten trains have crashed through it. The employees have pointed out to me to me that the difficulty is that the signal is right on top of the level crossing, although that has now been addressed. It made the position virtually impossible for the driver and there were quite a number of narrow escapes. If an investigation had taken place, it would have been the driver who would have been found responsible even thought the basic infrastructure at that level crossing was causing the problem in the first instance. With regard to this incident, had this legislation been in place, the driver would have been questioned by the inspector, the driver would have had no independent representative or advocate acting on his behalf at that investigation and the company would have the full resources available to it to focus attention on the driver. The driver may have been found to be responsible for this, but there is clear evidence that the infrastructure at that junction was the difficulty.
I support that point made by Deputy Naughten. The concern among members relates to the rights of an individual employee in a post-accident or post-incident situation where the employee would be involved in an inquiry. We want to encourage people to be open and frank about what has happened. I disagree to some extent with Deputy Crowe in that there is a good culture of safety on our railways. That has been recognised and matters are improving all the time. To a large extent that has been achieved on a voluntary basis. That kind of goodwill needs to be maintained. Up to the amendments tabled yesterday, there was good consultation across the board in respect of how the industry and the Department would work together to improve safety standards. It is important that kind of culture and atmosphere is maintained.
In most investigations where an employee comes before an inquiry on his or her own to give evidence, he or she is pitted against the full might of the management of the company who has access to considerable resources in respect of legal advice, PR advice and so on. Therefore, it is an unfair contest. In that kind of atmosphere mistakes will occur, misinformation will be given and people will refuse or be loath to participate in the process. That is not the intention of this legislation; the intention of it is to ensure that people can come before an inquiry and speak honestly and openly about what has happened. One must bear in mind that a person may be quite traumatised after an accident or incident and that the atmosphere in a formal inquiry can be intimidating. It is unfair to put a person into a situation where he or she would have to come before such an inquiry on his or her own without the support of anybody else.
This principle has been accepted in Cabinet. It was accepted a number of years ago that a junior member of a coalition would always be entitled to take somebody with him or her to a Cabinet meeting. That was why we had a super junior Minister. At that time a small party was entitled to have only one Cabinet Minister. It was recognised that it was unfair to put a person on his or her own in such a situation without support, without somebody who could confirm what happened or help the person to recollect what happened and to get the incident clear in his or her mind.
The Minister proposes to put an employee into such a situation on his or her own with no moral, legal or trade union representation. That is unfair. That is a David and Goliath situation. I am happy to delete the reference in my amendment to legal representation because I appreciate the Minister's concern that once lawyers are introduced the bill can escalate out of control. However, I ask him to consider providing moral support for people who come before such inquiries. The most appropriate person to provide such support would be a trade union representative. Such a representative would not take over the proceedings, but he or she would accompany the person coming before the hearing and assist him or her.
I thank the members for their views. What I have heard is solid and I will give it a good deal of thought between now and Report Stage. I note what Deputy Shortall said about distinguishing between trade union representatives and the legal situation. Deputy Power also touched on this area. The intention was that if a matter were to proceed to a serious stage such as a full tribunal or a formal inquiry by the inspector, at that point we would need to bring in lawyers because one would not be able to keep them out of the proceedings because basic rights issues would quickly emerge.
The intention here was that at an early stage where fairly simple or routine inquiries are being made that we would not turn something very simple into something enormously complex and bog down the system. We had planned to leave it to the chairperson of the commission to decide whether a person could have legal representation, which would model a tribunal. If an individual could not have a lawyer representing him or her, neither could the company. There is also the issue of the financial remuneration of the legal advisers and from which area that would come. I will return to this matter on Report Stage. At this point I am disposed to permitting trade union representation and leaving the legal issues to the discretion of the chair. That is the direction in which I am heading, but I want to take more advice on it. I thank the Deputies for their thoughtful comments on this matter.
Is Deputy Shortall withdrawing her amendment?
I welcome the Minister's positive response and I will withdraw it pending his consideration of the matter for Report Stage.
Amendments Nos. 33 and 34 are related to amendment No. 32 and they may be taken together by agreement.
I move amendment No. 32:
In page 42, before section 55, to insert the following new section:
55.-(1) There shall be established a unit within the Commission which shall form part of the Commission and which, subject to this section, shall carry out its functions independent from the other functions of the Commission, to be known as the Railway Incident Investigation Unit and in this Act referred to as the 'Investigation Unit'.
(2) The function of the Investigation Unit shall be the investigation in accordance with this Part of all classes of railway incidents specified by the Minister.
(3) The Minister shall make regulations specifying-
(a) the classes of railway incidents which shall be investigated by the Investigation Unit, and
(b) other classes of railway incidents which may be investigated by the Investigation Unit at its discretion after taking account of any criteria which may be set out in the regulations.
(4) The Investigation Unit may for the purposes of undertaking an investigation engage a person in accordance with section 18 who in the opinion of the Investigation Unit is suitably qualified to undertake an investigation.
(5) The Commission shall ensure that within the resources made available to it for the performance of its functions, an appropriate and proportionate level of resources is made available to the Investigation Unit to enable it to discharge its functions under this Part.
(6) The level of resources made available to the Investigation Unit shall be subject to the prior consent of the Minister.
(7) A reference to 'Commission' in sections 55(1), 55(7), 55(12), 55(13), 55(14), 56(1), 57, 58(3), 59, 60, 61(1), 62 and 70(3) shall, where it relates to an investigation undertaken by the Investigation Unit, include a reference to 'Investigation Unit'.".
This amendment inserts a new section to provide for the establishment of a railway incident investigation unit. The section is designed to ensure that the railway safety regulatory framework being created by the Bill complies with the forthcoming EU directive on the safety of community railways. Deputy Naughten asked me about our compliance with EU regulations and EU directives. The purpose of this amendment is specifically to ensure that we comply with the forthcoming EU directive in this regard. It proposes the separation of the investigation unit from the commission. The investigation unit may have to investigate the commissioner. This is a provision of the EU directive. A good way to solve this matter is to insert in the legislation that the railway incident investigation unit within the commission should be statutorily independent in order that it can investigate its employee.
I move amendment No. 33:
In page 42, before section 55, to insert the following new section:
56.-(1) The Investigation Unit shall have a full-time chief investigator who shall be known and referred to in this Part as the 'Chief Investigator' and who will be responsible for directing the work of the Investigation Unit in accordance with this Part.
(2) The Chief Investigator shall be appointed by the Minister following a competition by the Civil Service and Local Appointments Commissioners who have selected him or her for appointment as the Chief Investigator.
(3) The Chief Investigator may be removed from office by the Minister if, in his or her opinion, the Chief Investigator has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour and the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for such removal.
(4) The Chief Investigator may, subject to the consent of the Minister and the Minister for Finance, appoint such and so many persons to be staff of the Investigation Unit as he or she considers necessary to assist him or her in the carrying out of the functions of the Investigation Unit under this Part.
(5) The terms and conditions, including terms and conditions as to remuneration and grading, of persons appointed under subsection (2) and subsection (4) shall be determined by the Minister with the consent of the Minister for Finance.
(6) The Chief Investigator, and at the request of the Chief Investigator other staff if any of the Investigation Unit, shall be appointed by the Commission as an inspector under section 70 for the purposes of carrying out his or her functions.”.
I move amendment No. 34:
In page 42, before section 55, to insert the following new section:
57.-(1) The Commission shall not influence or seek to influence an investigation by the Investigation Unit of a railway incident or the contents of a report prepared by the Investigation Unit in accordance with section 57 or section 58.
(2) For the purposes of the exercise of its functions under this Part, the Investigation Unit may, where it deems it appropriate to do so as part of an investigation into a railway incident, investigate any decision, action or omission of the Commission which the Investigation Unit considers may be relevant to its investigation and the Commission shall co-operate with the Investigation Unit.
(3) The Chief Investigator and other staff of the Investigation Unit shall not be involved in carrying out any other functions of the Commission where such involvement could reasonably be expected to lead to an actual or potential conflict of interest in the carrying out of an investigation into the cause or causes of a railway incident.
(4) Subsection (3) does not prevent the Chief Investigator and other staff of the Investigation Unit from carrying out other functions of the Commission where such functions are required for the proper administration of the Commission or where they could not reasonably be expected to lead to an actual or potential conflict of interest.”.
I move amendment No. 35:
In page 43, between lines 2 and 3, to insert the following subsection:
"(2) In the event of an investigation under this section a railway undertaking must furnish all relevant documentation to the Commission as soon as is practicable and shall furnish any further information or documentation, which comes into the possession of the railway undertaking subsequent to the commencement of the investigation.".
This amendment seeks to put a legal obligation on the railway undertaking to furnish all relevant documentation to the commission in carrying out an investigation. A situation could arise that a railway undertaking would furnish the inspectorate with the relevant information, that further information would then come into the possession of the railway undertaking and that it may not furnish that to the investigator because it may compromise the railway undertaking. This amendment seeks to ensure there would be a legal responsibility on the undertaking to furnish all relevant documentation irrespective of whether it is received prior to or during an investigation.
Section 70 provides that the inspector has the power to request any information which he or she thinks necessary to discharge his or her functions. That would include any records in regarding an investigation of a railway incident. On the passing of this legislation it will be a requirement of the undertaking to provide any information sought. Is the Deputy drawing a distinction between the information that is sought and the information which might be relevant and should be given?
Yes. That is the point I am making.
It depends on what question one asks.
Exactly. As regards a freedom of information request which any of us might submit, we might not ask the relevant question and, therefore, we would not be given the relevant documentation. It could be the case that some pertinent documentation is not made available to the inspecting officer at the start of the investigation, but he or she may come across such information during the course of the investigation and because he or she did not request it, it was not furnished. If the undertaking believes that documentation is relevant to an investigation, there is a responsibility on it to furnish it - there is a legal requirement for it to do so.
The Deputy has a point. There are many examples in the case of parliamentary questions where if one does not ask the right question, one will not get the right answer.
We all know about that.
We should all have learned that lesson. I will accept the Deputy's amendment, but I may have to revert to him on the wording of it, when I check the position with the Attorney General's office.
How stands the amendment?
I will withdraw it with leave to reintroduce a similar amendment on Report Stage.
I move amendment No. 36:
In page 43, subsection (13), lines 46 and 47, after "investigation" to insert "and the railway undertaking must carry out such work as soon as practicable".
The amendment relates to subsection (13). Where, in the opinion of the commission, an issue comes to its attention which requires action, such action should be taken immediately by the railway undertaking. Subsection (13) seems a little ambiguous. It provides that where, in the opinion of the commission, it is in the interests of railway safety to do so immediately, the commission may bring to the attention of the railway undertaking any implications for rail safety, but under this section no responsibility is put on the railway undertaking to implement what has been brought to its attention.
I can accept this amendment, but I will have to ensure that I align the text of it in respect of the proposed railway incident investigation unit. Subject to that textual qualification, I will accept it.
I will withdraw the amendment with leave to table a similar amendment on Report Stage.
I move amendment No. 37:
In page 44, lines 3 to 5, to delete subsection (15).
Amendments Nos. 46 and 47 are cognate to amendment No. 38 and may be taken together by agreement.
I move amendment No. 38:
In page 45, subsection (3), line 16, to delete "absolute".
These three amendments propose deleting the word "absolute". We all know what absolute power does. It is a bad idea to give anybody or any authority absolute power or absolute discretion, as proposed in the legislation, however reasonable that might seem. Discretion should never be absolute, rather it should be reasonably exercised. It is a mistake to specify that discretion would be absolute in these circumstances. There is rarely justification for anything being absolute. It weakens legislation and I hope the Minister will consider deleting that term.
I accept the amendment. Nothing is absolute.
I thank the Minister for that.
I move amendment No. 39:
In page 45, subsection (7), line 35, after "person" to insert "(other than his or her legal or technical advisers)".
I will withdraw the amendment with leave to introduce a similar amendment on Report Stage.
I move amendment No. 40:
In page 46, subsection (2)(a), line 12, after “person” to insert “or persons”.
This is a textual amendment to provide for the plural.
I move amendment No. 41:
In page 46, subsection (2), between lines 15 and 16, to insert the following:
"(b) where the tribunal relates to an international service, the Minister may appoint a person or persons nominated by the relevant competent authority in the other state, to act as an assessor to assist the inquiry,”.
This amendment is designed to facilitate the appointment of an inspector from Northern Ireland authorities as an assessor to assist a tribunal or inquiry investigating a railway accident on the Enterprise cross-Border service.
I move amendment No. 42:
In page 46, subsection (2)(c), lines 19 and 20, to delete “when hearing a prosecution for an offence under this Act,”.
The purpose of this amendment is to correct what I believe is a technical error which arises from the Minister's amendment to change the reference to District Court to High Court. As the High Court has now criminal jurisdiction under the Act, the reference to prosecutions is no longer appropriate.
The Deputy's amendment relates to the powers enjoyed by a judge of the District Court when hearing a prosecution for an offence. As I read it, the effect of her amendment would reduce the powers available to a tribunal of inquiry and could weaken the effectiveness of such an inquiry. There is established precedent in other legislation for this measure, for example, in section 18 of the Adventure Activities Standards Authority Act 2001, section 27 of the Dangerous Substances Act 1972 and section 47 of the Safety Health and Welfare at Work Act 1989. My advice is that, irrespective of the Deputy's intention in tabling this amendment, the effect of it would appear to reduce the powers available to a tribunal and, therefore, it might weaken an inquiry. That is my understanding of the effect of the wording of the amendment.
I found it hard to pick up what the Minister said. The sound level is bad in the room.
It is working now.
Is the air conditioning on?
Yes.
It is extremely difficult to hear what the Minister is saying.
I will speak up. I am not normally that quiet. I have never been accused of being silent.
How stands the amendment?
I will withdraw the amendment and note what the Minister has said for Report Stage.
I move amendment No. 43:
In page 46, subsection (2)(c)(ii), line 28, after “oath” to insert “or affirmation”.
This issue was raised previously in regard to other legislation and similar amendments have generally been accepted by Ministers. I seek to clarify whether an affirmation is more appropriate than an oath. This is a reasonable request.
I am advised by the Parliamentary Counsel that the Interpretation Act 1937 provides that references to an oath include references to an affirmation and, therefore, the amendment is not necessary legally.
I cannot quote the legislation but such an amendment has been accepted in recent years. Perhaps the Minister will re-examine it and take further advice.
I move amendment No. 44:
In page 46, subsection (3), line 35, after "expertise" to insert "but shall not be a person involved in any preceding investigation into the incident and shall not have worked with any railway undertaking involved in the inquiry within the previous 3 years".
The amendment relates to the definition of a "competent person". The competent person involved in the investigation should not have been involved with the railway undertaking or an inquiry in the previous three years. This would secure the independence of the competent person involved in the tribunal of inquiry.
That is sensible. I will accept the amendment subject to confirming that the text is legally sound.
I move amendment No. 46:
In page 47, subsection (10), line 16, to delete "absolute".
I move amendment No. 47:
In page 47, subsection (10), line 20, to delete "absolute".
I move amendment 48:
In page 48, subsection (5), line 36, after "applies" to insert "and this return shall be in the format specified by the Commission, after consultation with the Coroners Society of Ireland".
The amendment is designed to clarify that the railway safety commission will decide the format of written returns to be made to it by coroners inquiring into a fatality on a railway. The commission will be required to consult the Coroners Society of Ireland regarding the format of documentation. This has been brought to our attention by the society and it is a sensible amendment.
I move amendment No. 49:
In page 48, line 37, to delete "Railway Clauses Act, 1842" and substitute "Railway Regulation Act 1842".
The section refers incorrectly to the Railway Clauses Act 1842 and I have corrected this to read the Railway Regulation Act 1842. Sections 4, 5 and 6 of that Act deal with the approval by the Minister of the opening of a new railway. These sections will be repealed under the legislation as alternative procedures are provided.
Section 65 provides that where approval is given for the opening of a railway prior to the enactment of the legislation and the railway has not opened by the enactment date, the approval of the new work will be dealt with under the 1842 Act. This provision is included as a safeguard to ensure continuity, if required, during the transition period from the old legislation to the framework set out in this Bill. There are no applications for approval of new railway lines under the section currently.
The Luas system is not affected by this provision. Under section 51 of the Transport (Railway Infrastructure) Act 2001 the Luas cannot open for testing, commissioning or service unless it has been demonstrated to the satisfaction of the railway inspectorate that it is safe to do so. Accordingly, the Luas system will not require approval under the Railway Regulation Act 1842, as it is covered by the 2001 legislation.
My legal advice is that the section is not desirable. If notice of intention to open a new section of railway is given before the Bill is passed, the railway cannot be opened unless the Minister consents. If it is planned to open a new railway following the passage of the Bill, the Minister is out of the picture because the sections will have been repealed. It is a faulty section that does not make much sense.
It is intended to deal with transition arrangements. Luas is the only current project and the section clarifies that the 1842 Act applies until the new arrangements come into effect. My advice is that this is a transition arrangement to cover the 1842 Act, the 2001 Act and this legislation.
Will the sections that require the Minister's consent for the opening of a new railway be repealed?
The Luas will come under this legislation once it is enacted and all the safety requirements of the legislation will apply to Luas.
Perhaps the Minister will examine this issue again prior to Report Stage.
I will.
I move amendment No. 50:
In page 48, after line 47, to insert the following:
"(b) requirements for the maintenance and inspection of railway infrastructure, rail track, permanent way and rolling stock,
(c) the maximum carrying capacity for both passenger and freight trains,
(d) the maximum hours of work and the minimum hours of rest for safety critical staff,”.
The section outlines the regulations that can be laid down by the commission. I have tabled a number of amendments in this regard. Under the first paragraph of the amendment set procedures should be laid down to meet requirements for the maintenance and inspection of railway infrastructure, rail track, permanent way and rolling stock. This relates to an incident on the permanent way and the procedures involved, which I raised earlier. The commission should be responsible for laying down maintenance and inspection procedures in regard to both the rolling stock and the permanent way.
The second paragraph of the amendment relates to the maximum carrying capacity of both passenger and freight trains. There is none currently and as many people as possible can be crammed into rail carriages without safety being questioned. The intercity trains, in particular, are severely congested at weekends and there are serious question marks over safety. There are concerns over the Mark II carriages. For example, the Knockroghery rail incident led to improvement in the permanent way and the use of continuous welded rail. If that accident had occurred the previous night, Friday, there would have been a significant number of fatalities but, thankfully, the incident occurred on a Saturday morning when the train was not crowded. There should be a responsibility on the commission to set down limits on loads that can be carried on carriages.
Minimum rest hours and maximum work hours should also be set down by the commission for safety critical staff. This should be independent of the railway undertaking itself. Legislation and regulations cover maximum working hours and minimum rest hours for safety critical staff in the airline industry. Similar provisions should be in place for the rail network and the commission would be the competent authority to overseeit.
The Deputy is again being prescriptive about what the commission should do. We have taken a general approach to give the commission more discretion in ensuring safety in the areas it covers. I will think about what the Deputy said and I will come back to him on Report Stage. Overcrowding is a major issue, with which the Deputy is familiar. What is going on at the moment is unsatisfactory in that no legal limit is set down regarding how many people can be carried on a train. That needs to be addressed on safety grounds. There are substantial resource implications in selecting a number and, undoubtedly, there would be many disappointed people on platforms. However, safety comes first and, therefore, I am disposed to come back to the Deputy on Report Stage with a proposal to give the commission authority to act in this area. It may be that it will deal with criteria as opposed to numbers. It is a problem but we need to be aware of the implications in terms of the number of passengers who will be able to avail of the service if a strict interpretation is taken should the commission set down maximum numbers. However, trains that are overcrowded beyond a certain level are not safe. The commission could take a view on that and we should then go in that direction.
I thank the Minister and I am aware there are resource implications in this regard. However, it is critically important that a quality standard is set down for the rail network. There are regulations coming down the track at EU level regarding the rights of passengers and the obligations on railway undertakings. Given that these are coming down the line anyway, now is the time to take action. This issue could be flagged in this legislation and the resources would have to be provided to Irish Rail to ensure it could achieve those conditions. Regulations will not be introduced overnight and I take the Minister's point in this regard. Perhaps the Minister will table an amendment on Report Stage.
My amendment is not prescriptive because it states "the Commission with the consent of the Minister may make regulations in relation to all or any of the following. . . ". It is more inclusive and I ask the Minister to re-examine paragraphs (b) and (d), which relate to the requirement for maintenance and the inspection of railway infrastructure and maximum hours of work and minimum hours of rest for safety critical staff.
The legislation should be examined in the context of similar legislation covering the airline industry and the criteria therein. Significant numbers of passengers are carried on trains and we must examine the responsibilities people have in this regard. It is a basic requirement to address those two issues because other operators may use the rail infrastructure in the future. They will compete with Irish Rail and will seek a low cost base. These criteria will be squeezed unless regulations are laid down regarding working hours, maintenance and inspection.
I will examine the amendment between now and Report Stage.
I move amendment No. 51:
In page 49, paragraph (c), line 3, before “levels” to insert “with the consent of unions or staff associations concerned,”.
Under the section the commission, with the consent of the Minister, may make regulations relating to a number of issues. Under paragraph (c), the commission may make a regulation in respect of “levels of training, competencies and qualifications of staff of railway undertakings, including disability awareness training.” It is important that normal procedures should be followed. The section provides that the commission may regulate staff qualifications and apply to those existing staff without union consent but that is bad practice. This is contrary to the usual negotiation and agreement that takes place between all organisations and employees in respect of qualifications required by existing staff. I propose the insertion of the words “with the consent of unions or staff associations concerned” for that reason.
I have a problem with the wording. This may have been unintentional but the Deputy might reconsider it. I would be happy if it read "with the consultation of unions and staff associations." The phrase "with the consent of the unions" means that the commission's proposals regarding levels of training and qualifications could be vetoed by the unions. That would be the effect of the proposed wording. Requiring consultation in the normal way is the appropriate way to go. Requiring that the unions' consent be sought before the commission could lay down a qualification would be unusual. I do not know that the Deputy intended that to be the case. Consultation leaves it to go its own way.
I am concerned that it is not appropriate to introduce regulations regarding qualifications or training requirements retrospectively. If it is proposed to upskill staff, that must be done with the consent of trade unions and staff associations involved. Arbitrary decisions cannot be taken on the qualification requirements for existing staff.
I am not aware of the distinction between new and existing staff.
The section states the commission may make regulations on levels of training, competencies and qualifications of staff.
I am advised the Bill looks forward on this issue, not backwards. The legislation does not seek to lay down qualifications for existing staff.
Presumably, it applies to existing staff.
To which subsection is the Deputy referring?
Section 66 (c). The Minister said the commissioners have the power to make recommendations on training, competencies and qualifications.
The section refers to the staff of a railway company, safety and an independent railway commission laying down levels of training required by staff. That is eminently sensible. It would be a first in legislation if it were stated that a trade union could say something could not be done and that would be wrong. It would be the first time a trade union could say "We do not consent, therefore, you cannot do it." There are other means of recourse in the industrial relations world. The issue is not whether the regulation is retrospective, as the legislation is silent on that, but that would be worked out sensibly in the practical world.
The commission will say that before an individual can work in a railway undertaking, he or she must have a certain level of competency and training to do his or her job. Otherwise, he or she cannot be safe. It would be wrong to provide in legislation for the notion that a trade union official could second guess a railway safety commissioner and say he or she is not prepared to go along with the regulation no matter what the commissioner says about safety.
Has the Minister considered how that might work in practice? The commission could make recommendations about the level of qualifications required, which existing staff might not hold. Many companies have plans for upskilling staff but that is usually done through consultation with staff representatives.
We can seek a solution in terms of transitional measures from new to existing staff. However, we must be careful as it would be wrong to leave an existing staff member who in the opinion of the commission is not competent, in that position.
It is a question of the possibility of the commission setting a qualification requirement, which existing staff do not meet, not whether they are incompetent.
If the commissioner sets a minimum qualification on safety grounds and staff members do not hold it, should they continue to work because they are part of the old staff?
As the Minister said, there is a need for a transitional arrangement whereby the staff can upskill if they are given the opportunity to do so.
I am happy that can be worked out through consultation and negotiation but I am concerned about inserting that phrase in the legislation.
Perhaps the Minister will consider an amendment along the lines he suggested in regard to consultation.
I am advised an onus could be put on the company to provide training to achieve the necessary qualifications. We will have a go at that.
I move amendment No. 52:
In page 49, between lines 15 and 16, to insert the following:
"(h) requirements to avoid accidental obstruction of railway infrastructure by road vehicles by establishing-
(i) criteria for the apportionment of responsibility and cost of improvements to be made at locations where roads meet, cross or run close to railways,
(ii) guidelines on enhanced risk assessments and physical measures to reduce risk of vehicles accidentally leaving the road and obstructing railway infrastructure,
(iii) reporting mechanisms to identify relevant information on incidents involving vehicles, which obstruct railway infrastructure,".
The background to the amendment is the proposal to construct major motorways throughout the State. The commission should become involved in the design of bridges so that the integrity and safety of the rail network can be secured. The amendment contains the three recommendations made following the Selby rail incident in the UK in which 13 passengers died and 100 were seriously injured. A car driver who was towing a trailer crashed onto the main east coast rail line and an oncoming train was derailed when it ploughed into the car.
Every year there are approximately 1,000 fatalities at level crossings throughout Europe. The majority occur at interchanges between road and rail with less than 10% of fatalities occurring on the rail line. It is imperative, especially in light of the motorway construction programme, that the commission should lay down specifications for rail crossings or bridges so that the criteria set down in the UK can be enforced here. An agency should be responsible for the upgrading of junctions and overpasses, with which a risk could be associated, and the improvement costs involved. The amendment is intended to cover all options in this regard and now is the time to do it.
This issue is addressed earlier in the legislation. The section provides the commission with a specific power to make regulations relating to interfaces between railway infrastructure or trains or other vehicles or road. Part X addresses works on public roads in the vicinity of railway infrastructure and the commission will have enforcement powers in this area. What the Deputy wishes to achieve is covered by section 66(d) under which the commission can make specific regulations relating to infrastructure that interfaces between railways and roads.
I take the Minister's point. I ask the Minister to bring this issue to the attention of the commission as soon as it is established because one of its first functions should be to lay down specifications in this regard because motorways are being designed and constructed and now is the time to put the specifications in place rather than revisiting the projects in two or three years and implementing the necessary changes then at a significant cost.
I will do so and I will also bring the issue to the attention of the National Roads Authority.
I move amendment No. 53:
In page 49, between lines 20 and 21, to insert the following:
"(j) procedures for heritage railways as specified under section 10 and shall ensure in so far as is practicable that this does not put an undue financial burden on such undertakings.”.
The amendment is intended to ensure regulations laid down by the commission do not overburden community groups and organisations and small businesses that have established heritage or narrow gauge railways. There is a number of heritage railways in the State and they are a major tourism asset. Many of them are run on a shoestring by community groups and the last thing they want is the commission using a sledgehammer to crack a nut. Specific regulations should be made for heritage railways that meet the criteria and objectives of the commission but which do not mean that the groups will be overburdened with paperwork.
The amendment is covered by section 47(7) which provides that the commission, in assessing a safety case of a railway undertaking, shall have regard to the size and nature of the undertaking and shall take into account the size, nature and complexity of its operations, its interaction with other railway infrastructure or roads and the likely consequences of any incidents on its railway. This is designed to ensure the safety management system of a heritage railway does not need to be as extensive as that of a major railway undertaking. Section 50(16) provides that the commission may bear all or part of the cost of an independent qualified person appointed by a heritage railway to assess its own safety case. Section 51 provides that a heritage railway may be exempted from the requirements to engage suitably qualified persons to independently audit its safety management systems. Sections 47, 50 and 51 and Part IX provide for a substantially easier regime for heritage railways. To go any lighter on them would not be appropriate.
Is the Minister confirming that Thomas the Tank Engine is safe?
I withdraw the amendment.
I move amendment No. 54:
In page 49, line 22, after "undertakings" to insert ", the relevant road authority".
This is a technical amendment.
I think I can accept the amendment subject to consultations I want to have on the matter with the Minister for the Environment and Local Government. I will come back to the Deputy on Report Stage.
I withdraw the amendment with leave to reintroduce it on Report Stage.
I move amendment No. 55:
In page 50, between lines 13 and 14, to insert the following subsection:
"(4) Any such recommendations relating to this Act or proposed legislation shall be laid before the Houses of the Oireachtas.".
This amendment relates to subsection (3) and the review of legislation by the commission. When legislation is being reviewed by the commission, members of the Opposition should be furnished with that information which would facilitate the easy movement of the legislation through the Houses. It would also strengthen this legislation and the communication the commission would have with the Houses of the Oireachtas.
There is only one problem with that. When a commission or a statutory body wants to make a proposal to the Government, it makes the proposal and then gets the Government's response to it. At that stage the matter comes into the public domain by way of being laid before the Dáil. The import of the Deputy's amendment is that recommendations on their way to the Minister would also be made public. If the Deputy wishes I will consider it between now and Report Stage but it is purely a matter of timing. I have no difficulty——
I accept the principle in relation to the timing but that was not the point of the amendment. I am talking about when it is agreed by Government.
That is right. I said at the outset that it is essential that everything to do with safety is in the public arena so that the public has full confidence in our railway system. That is the principle I am operating on throughout this legislation and is the reason I have accepted a substantial number of the Deputy's amendments. It is important that everything be 120% public because it is a matter of confidence in the railway system. I will consider the amendment on that basis.
Amendment No. 58 in the name of the Minister is consequential on amendment No. 59 and it is proposed to discuss amendments Nos. 58 and 59 together, by agreement.
I move amendment No. 58:
In page 52, subsection (3)(q), line 8, to delete “and”.
These amendments are to facilitate the insertion of a new paragraph providing an inspector of the Railway Safety Commission with additional powers to require a railway undertaking to have any of its trains or equipment tested by the inspector if it is deemed necessary for safety reasons.
I move amendment No. 59:
In page 52, subsection (3)(r), line 14, to delete “use.” and substitute the following:
"use, and
(s) require any railway undertaking to have any train, railway infrastructure, equipment, system, or procedure examined and tested at the undertaking’s expense where, in his or her opinion, this is necessary for the purposes of this Act.”.
I move amendment No. 61:
In page 54, subsection (1), line 25, to delete ", for his or her approval,".
Under section 38, the duty of care to operate a safe railway rests on the railway undertaking concerned and, therefore, it is not appropriate for the Railway Safety Commission to approve a safety case. This amendment removes the reference to "approval".
I move amendment No. 62:
In page 54, lines 28 to 31, to delete subsection (2) and substitute the following:
"(2) Where an improvement plan is submitted in accordance with subsection (1) or re-submitted under paragraph (b), an inspector shall, within 30 days, write to the railway undertaking or person concerned-
(a) stating that he or she is satisfied with the remedial action proposed to be taken, or
(b) if he or she is not satisfied that the plan is adequate, directing that the plan be revised and resubmitted to him or her within a time specified in the direction.”.
This is largely a technical amendment and provides for the procedure to be followed where an inadequate improvement plan is revised and resubmitted to the Railway Safety Commission. It also provides for a timeframe within which the commission must notify the railway undertaking concerned of its assessment of an improvement plan.
Amendment No. 63 is in the name of Deputy Naughten. Amendment No. 65 is cognate and it is proposed to discuss amendments No. 63 and 65 together. Is that agreed? Agreed.
I move amendment No. 63:
In page 55, between lines 34 and 35, to insert the following subsection:
"(7) A railway undertaking shall not use commercial considerations as a cause for appeal to such a notice.".
Safety must be paramount over and above commercial considerations. Following the Clapham rail junction accident in 1998 in which 35 people died, one of the recommendations made at that time was that commercial considerations cannot outweigh the issue of safety. I will come to that point again in respect of the next amendment. I ask the Minister to accept the amendment. It is a core principle which must be part of this legislation if it is to be successful. There is little point in the commission making recommendations if the company can say it is not prepared to implement them on commercial grounds.
This is not a simple issue because what is being asked is that a railway company or undertaking going to the High Court shall not be allowed to plead commercial considerations in the court. I understand where the Deputy is coming from and I accept that commercial considerations should not be an excuse in terms of safety but on the other hand if a railway company goes before the High Court and says it does not accept what the safety commissioner is saying for the following reasons, one of which might be commercial, the High Court is wise enough to take into account whatever that may be. It is not wise to say something shall not be pleaded before a High Court. I have no difficulty with the principle that commercial considerations should not be an excuse for poor safety but it is a big jump from that to say that if I own a railway company and the inspector says I have to lay the tracks from here to Westport in gold, I cannot go to the High Court and plead that I cannot afford to do that. Perhaps occasionally the railway inspector might be unreasonable. To say the High Court cannot take all the circumstances into account would be unfair to the High Court, perhaps unfair to the inspector at the end of the day and unfair to the undertaking. I would have enough confidence that the High Court could minimise any excuses that are commercial and give the priority to safety. If there is a way of ensuring that in legislation, I would have no difficulty doing that but I would have difficulty with saying that one should not make the case to the High Court.
I accept the point the Minister makes, and I do not dispute it, but I come back to the Knockcroghery incident again. The rail lines to Westport probably should not have been open at that time. It was a lethal concoction of missing fish plates and rotten sleepers. At some stage in the future a company could say that for commercial considerations it cannot do something even though it seriously jeopardises the integrity and safety of the travelling public. I accept the point the Minister is making but I ask him to consider including this proposal in some other part of the Bill. It was one of the key recommendations made by Sir Anthony Hidden in respect of the Clapham Junction accident. There was good reason for that recommendation to be made after the deaths of 35 people. I ask the Minister to look at it again, perhaps not in this section, but it should be a core principle of the Bill.
It would be unfair to the Deputy if I were to tell him I would change my mind on this amendment. I will have a look at whether it is possible to tweak the emphasis of a High Court towards reducing the impact of commercial arguments.
I accept the Minister's point in regard to the High Court but I ask him to look at the Bill to see whether that could be written in at some other juncture, rather than compromising the High Court. The amendment has been tabled for the purpose of raising the issue. I have no problem with the Minister's point but I still think it should be included in the Bill at some point.
All over the legislation there is a requirement for railway companies to operate safely. That is a legal requirement in the legislation and it is written in strong language. I will take a look at the broader point made by the Deputy but I would prefer not to take it on board.
How stands the amendment?
I will withdraw it and I give notice that I may table a similar amendment at some other point in the Bill.
Amendments Nos. 64, 66 and 67 are related and may be discussed together by agreement.
I move amendment No. 64:
In page 55, after line 47, to insert the following subsection:
"(10) (a) Where a person or persons fails to comply with an improvement notice and where in the opinion of the inspector this failure may give rise to the loss of life or injury to a person, then the inspector shall issue a closure order.
(b) A closure order shall take effect, if the notice so declares, immediately the notice is received by the railways undertaking or person on which it is served.
(c) A person who fails to comply with a closure order is guilty of an offence and is liable-
(i) on summary conviction, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 12 months, or both,
(ii) on conviction on indictment, to a fine not exceeding €1,000,000 or to imprisonment for a term not exceeding 10 years, or both."
The reason for tabling this amendment is that section 74 needs to be strengthened. For example, section 74 compares with the Minister's amendment No. 96 where an employee of the company who is working the line or a driver can get a jail sentence yet competent individuals within the company do not get a jail sentence but only a fine. This comes back to the issue of commercial considerations because it may be cheaper for a company to get a summary conviction on behalf of a named individual, even a conviction on indictment of €300,000, than to implement the recommendations of the inspector. That is the reason for including the issue of imprisonment in the amendment. The improvement notice and the prohibition notices are vitally important but this Bill is not strong enough to ensure either of these two orders would be enforced.
Under the legislation as proposed a prohibition notice can be issued by the commission. A person who fails to desist from the practice in which he is engaged and fails to comply with a prohibition notice is liable on conviction on indictment to a fine not exceeding €1 million or imprisonment for a term not exceeding two years, or both.
Will the Minister point out where that is in the legislation?
It is contained in amendment No. 66. The Deputy is moving a prohibition order to a closure order.
Yes.
In a sense it is the same thing. If the commission prohibits a railway undertaking from running a train to Galway effectively it closes the line to Galway. There are severe penalties for refusing to comply. I think we are getting into semantics.
We are.
Prohibiting a railway undertaking from operating is the same as closure.
Yes. We are splitting hairs at this stage. I ask the Minister to look at his term of imprisonment.
I give an undertaking to look at the term of imprisonment aspect.
I move amendment No. 66:
In page 57, subsection (8), lines 40 to 45, to delete paragraph (c) and substitute the following:
"(9) On the application of the railway undertaking or other person concerned, an inspector shall confirm in writing if the circumstances giving rise to a prohibition notice no longer prevail or have been remedied to his or her satisfaction and if he or she so confirms, the notice shall no longer have effect.
(10) The Commission shall, unless in its opinion it is not appropriate in a particular instance to do so, make public details of a prohibition notice including the name of the person to whom the notice is addressed and the situation giving rise to the notice.
(11) A person who fails to comply with a prohibition notice is guilty of an offence and is liable-
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 three months, or to both, or
(b) on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 2 years, or to both.”.
Amendments Nos. 68 and 69 are related and may be discussed together by agreement.
I move amendment No. 68:
In page 59, subsection (3), lines 3 and 4, to delete paragraph (d).
The purpose of these amendments is to remove the commissioner for railway safety from membership of the railway safety advisory council in order to emphasise the independence and the difference between them.
I move amendment No. 69:
In page 60, between lines 15 and 16, to insert the following subsection:
"(16) A commissioner (or if membership is vacant, the deputy commissioner) may attend and be heard at meetings of the Council but may not vote on any matter being considered by the Council.".
Does the commissioner have voting rights?
The commissioner may attend as an observer but may not vote.
We have now reached the stage beyond which we have agreed not to proceed. I propose that business be concluded for today. Another meeting of the select committee will be held on Wednesday 7 May at 9.30 a.m. Is that agreed? Agreed.
I thank the Minister and his officials for being present. I thank the Minister for being open to accepting many of the amendments and his willingness to look at amendments at a future date.
