I welcome the Minister for Transport, Deputy Brennan, and his officials to the meeting. I suggest we consider the Bill until its conclusion or until 12.30 p.m. If it is not concluded by then, I suggest we adjourn. Is that agreed? Agreed. At our last meeting we agreed section 80. We will resume consideration at section 81.
Railway Safety Bill 2001: Committee Stage (Resumed).
Section 81 agreed to.
SECTION 82.
I move amendment No. 70:
In page 61, subsection (1), to delete lines 34 and 35.
This has already been discussed with amendment No. 2. I apologise for delaying the committee. My officials and I were detained. I also want to clarify an assurance I gave to Deputies Shortall and Naughten at the previous meeting. We withdrew seven amendments and I indicated that I was doing so because they were not safety critical and, therefore, not suitable for this legislation. I said that I would consider introducing them under separate legislation.
It is now, however, my intention to include these amendments in the Bill, but to do so on Report Stage. I gave the impression that there might be another Bill, but that was inaccurate and I do not want to mislead the committee. I intend to bring forward amendments on these seven matters - in respect of which the seven original amendments were withdrawn - on Report Stage. I cannot proceed with them on Committee Stage because, under Dáil regulations, they must go back to the Dáil by way of a motion for permission to introduce them on Report Stage. That is a technical rule. They will not be discussed in the Dáil, but the Dáil must give approval so that I can introduce them on Report Stage.
I accept what the Minister says, but it is not good parliamentary practice to introduce amendments that extend the scope of legislation without the prior approval of the Dáil. I ask the Minister to ensure that a guillotine will not apply on Report Stage so that we have an opportunity to debate the new amendments.
I will try to organise that with the Chief Whip.
Amendment agreed to.
I move amendment No. 71:
In page 61, subsection (1), to delete lines 36 and 37.
This amendment has also already been discussed.
Amendment agreed to.
Section 82, as amended, agreed to.
SECTION 83.
Amendments Nos. 73 and 74 are related to amendment No. 72 and they will be taken together by agreement.
I move amendment No. 72:
In page 62, subsection (1), line 21, after "public" to insert "or freight".
The purpose of these amendments is to clarify that the intoxicants provision applies to passenger and freight railways and specifies staff of those railways as safety critical staff, but not to heritage or industrial railways - such as the Bord na Móna railway - or to their staff or volunteers. The Bill applies only to those parts of industrial railways that have an interface with other railways. The purpose of these amendments is to ensure the Bill also applies to freight railways.
Amendment agreed to.
I move amendment No. 73:
In page 62, between lines 21 and 22, to insert the following subsection:
"(2) This Part does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used or intended to be used solely for industrial use.".
Amendment agreed to.
I move amendment No. 74:
In page 62, subsection (2), line 23, after "undertaking" to insert "to which this Part applies".
Amendment agreed to.
Section 83, as amended, agreed to.
SECTION 84.
Amendment No. 91 is related to amendment No. 75 and they will be taken together by agreement.
I move amendment No. 75:
In page 63, subsection (1)(c), line 13, to delete “limit” and substitute “level”.
This amendment and amendment No. 91 are technical in nature and their purpose is to correct drafting errors.
Amendment agreed to.
Section 84, as amended, agreed to.
SECTION 85.
Amendments Nos. 76 to 79, inclusive, and 81 are related and amendments Nos. 82 and 92 are consequential on amendment No. 81. Therefore, amendments Nos. 76 to 79, inclusive, 81, 82 and 92 will be taken together by agreement.
I move amendment No. 76:
In page 64, subsection (1)(b)(iii), line 24, after “specimens” to insert “where such a test provides more than an indicative reading”.
Amendment No. 76 is a technical amendment in respect of the definition of sampling. Under section 85 (1)(b)(iii), the means of sampling will be by provision of a breath test or blood or urine specimens or more than one of such means. The amendment provides that the indicative tests used by the Garda, such as blowing into a bag for a breath test, would not be used to prove that a person is above the legal limit. It is not used in a court of law, under road traffic legislation, and it should not be used here. Any test that is used should provide more than an indicative reading and should give an accurate reading of a person’s blood alcohol level. The technology is used on a day to day basis by the Garda and there is no reason it should not be used in these circumstances.
Amendments Nos. 78 and 79 clarify the bodies that analyse the tests and how the samples are handled. It should be the responsibility of the commission to ensure that a responsible and competent authority is appointed and it should also be its responsibility to ensure the integrity of that testing agency. That is the reason I have tabled these amendments.
Is amendment No. 80 included in this group?
No.
I tabled amendment No. 81 because the person administering those tests or carrying out the sampling must be independent of and not employed by the railway undertaking. There must be an element of independent adjudication. There is a concern among staff that if the person administering the test - and responsible for the integrity of the test and the sample - is a member of staff of the company, their responsibility will be to protect the company rather than the employee. There would be a concern in that regard and that is why I tabled the amendment. The other amendments tie in with amendment No. 81.
My legal advice is that these amendments are already covered and that, therefore, it is not necessary to specify these procedures. As the Deputy knows, the Bill already provides for a general acceptance by the commission of the code of conduct and the procedures for sampling proposed by the railway undertaking. In other words, the Bill already provides that the commission will lay down a code of conduct and procedures. In doing so, it will deal with the issues - such as the location of sampling and so on - raised in the Deputy's amendments.
Section 85(2) states that a railway undertaking is required to submit to the commission, for acceptance, a code of conduct in respect of intoxicants and its procedure with regard to the provision of samples. I am sure we can make it clear in the establishment of the commission that it should deal with the type of issues the Deputy envisages in his amendments. In my opinion, this would cover all aspects of the matter.
Section 85(3) specifies that the commission can accept the code of conduct and the procedures only where the commission is satisfied that they are sufficient to enable the company to discharge its duties in respect of the use of intoxicants. It seems, therefore, that specific approval for the procedures in regard to location and the analysis of a sample would be covered by the code of conduct and the procedures and that it is not necessary to lay it down in a separate section. That is the advice I have been given. As stated earlier, we can ensure that the commission gives particular attention to the issues the Deputy has raised.
Before accepting the code of conduct, it is worth pointing out that the commission would need to be totally satisfied that the role of the authorised person is sufficiently defined to ensure that the authorised person can carry out his or her functions in an impartial manner. In other words, the commission could not tolerate somebody doing that work if it is not fully satisfied that such a person is totally impartial.
I have tabled an amendment to the effect that samples of blood or urine may be taken only by a medical practitioner, which is highly appropriate.
The remainder of the Deputies amendments are consequential drafting amendments. My advice is that the legislation fully takes on board what the Deputy seeks to achieve, which is, to tighten up the situation in regard to location and authorised persons.
I take the point the Minister has made, but the problem is that the code of conduct is not legally binding. Due to the fact the Minister is changing the emphasis of this legislation by inserting a new Part 10, the code of conduct will be worthless if challenged. Numerous challenges will be taken in respect of this legislation. In light of what the Minister is putting forward in the new Part 10, section 85 is totally inadequate to deal with the rights of employees and the protection of those rights. The code of conduct will not be strong enough in that regard. I presume the code of conduct will be discussed by the commission and the railway undertaking and that prior to this, it will be discussed by the undertaking and the unions representing the staff. What happens if a person is not a member of a union? I understand the code of conduct is not legally binding in respect of an individual who is not involved in the negotiations and who is not represented by a union.
While the code of conduct is not legally binding - the Deputy is correct in that regard - the commission will be legally required to satisfy itself that its code of conduct and its procedures are impartial and allow it to carry out its duty as a railway safety commission under the legislation. As I said, my advice is that this deals with the issues. Rather than being totally prescriptive, it places a legal duty on the commission to satisfy itself that these things are done as opposed to laying down what must be done. That is the approach adopted in the legislation. There is a legal duty on the railway safety commission to ensure impartiality and fairness. It is legally required to adopt a code of conduct, although the content thereof is left to its discretion. I think we have to leave that flexibility.
I accept that, but the point I am trying to make is that in the context of the change in the ethos of the Bill, he will have to revisit section 85. It leaves this open to interpretation and to legal challenge. One of the key issues will be the independence of the individual taking the sample. If the Minister or I were stopped by a member of the Garda Síochána and a sample was taken, we would want to ensure the integrity of that sample and the independence of the individual taking the sample. We would not want that person to have a vested interest, as they would have in the context of this legislation.
This will be challenged in the courts because section 10 is so prescriptive in relation to the impact a test could have on a individual. We have seen what has happened in respect of road traffic legislation. In that area, everything is set out in the minutest detail, yet it has been challenged, and cases have been thrown out or have been pursued through the court system. It is not set out in such detail here, but we are expected to accept the Minister's point that it will not be open to challenge in the courts. I believe it will and that section 85 is not strong enough to deal with it. The amendments I have tabled are basic andset out minimum requirements in relation to section 85.
I accept the Deputy's assertion that there have been many legal challenges to road traffic legislation. We regularly see drink driving cases being challenged in the courts. I suppose all legislation, including that before us, is to open to challenge in the courts. This Bill has been drafted with the best legal advice available to me. It puts a duty on the commission to satisfy itself in regard to matters such as impartiality and codes of conduct. If the Deputy wishes, I will give the matter some thought between now and Report Stage and will talk to my legal advisers about it. The current legal advice is that what the Deputy seeks to achieve is fully covered by placing the duty on the commission to ensure it is satisfied it can meets its legal duties, which include impartiality and a code of conduct. The latter requirement is fair. If the Deputy wishes, I will consider the matter between now and Report Stage, although I do not want to give any commitment at this stage.
Amendment, by leave, withdrawn.
I move amendment No. 77:
In page 64, subsection (1)(b)(iv), line 26, after “sample” to insert “provided that the person taking the sample of urine or blood is a medical practitioner”.
Amendment agreed to.
Amendments Nos. 78 and 79 not moved.
I move amendment No. 80:
In page 65, between lines 5 and 6, to insert the following subsection:
"(3) The Commission shall in the case of a heritage railway facilitate the undertaking in drawing up a draft code of conduct and in implementing its duty under sections 84(2) and 86(1).".
This relates to a point I made earlier about the heritage railways. The Minister stated regarding the previous amendment that it is now covered. I ask the Minister to examine it regarding heritage railways so that we do not have a procedure that overburdens them.
Part 9 of the Bill does not apply to heritage railways.
Amendment, by leave, withdrawn.
Section 85, as amended, agreed to.
Amendments Nos. 81 and 82 not moved.
Section 86 agreed to.
SECTION 87.
We now come to amendment No. 83. Amendment No. 84 is related. Amendments Nos. 83 and 85 are consequential on amendment No. 86. Amendments Nos. 87 and 88 are related. Amendment No. 88 is an alternative to amendment No. 87. Amendments Nos. 83 to 88, inclusive, will be discussed together, by agreement.
I move amendment No. 83:
In page 66, subsection (1), between lines 18 and 19, to insert "or".
This section deals with the question of testing. We all appreciate what the Minister is trying to achieve. The outcome of a strict regime is obviously desirable. However, I have difficulty with those aspects of the section that relate to random testing. Specifically what legal advice has the Minister had from the Office of the Attorney General in this regard? Every year significant numbers of people die or are seriously injured on our roads as a result of drink driving, and we still have not introduced random blood testing of drivers coming out of pubs late at night. Clearly there is a constitutional problem with so doing. While the idea of random testing has been mooted on a fairly regular basis, no action has been taken because of those constitutional difficulties. Why is it that the Minister seems to think he can dispense with those constitutional difficulties regarding rail workers? If it was possible to carry out random testing constitutionally we would have had it in our road traffic legislation. I would like to Minister to be very specific regarding his legal advice on this issue.
It is important to bear in mind the atmosphere in which this legislation is being drawn up and the record that is there. There is a good safety record within the railways. Over the past 30 years, alcohol has not featured in any accident on the railways. It is important to bear in mind that there is a strong safety culture there and there is no indication that alcohol is a problem regarding rail safety.
If random testing is introduced in relation to rail workers, it amounts to discrimination against a particular set of workers. Random testing does not apply regarding maritime workers, airline workers or any other workers, whether in the transport or any other area. There are many people doing critical work on a daily basis on which other people's lives and welfare depend and there would be a serious problem if anybody carrying out that work had unacceptable levels of alcohol in his or her bloodstream, but we have not introduced random testing. That argument could be made in the case of, say, doctors, surgeons in particular, where they literally have somebody's life in their hands, and yet we would never suggest random testing of doctors. Another example is teachers where a lot of damage could be done. There are many areas one could think of where there is an argument for introducing random testing but nobody ever suggests that we do it.
Why is the Minister introducing it now? It is not as if there is a history of problems regarding alcohol among rail workers. There is no such history. It has not featured in any accident. To do this is constitutionally problematic, but it also discriminates against a particular group of workers.
Another point is that part of the reason there has been such a good safety record among rail workers here is that they are obliged to undergo a strict medical examination every five years. In my view that is adequate and history shows it has been adequate. On grounds of fairness and of constitutionality, I oppose those elements of this section that relate to random testing. It is wrong and I would like to hear the Minister's legal advice on it.
I agree that this is a major issue. As the legislation is presently drafted - and I will return to the subject later - we are not talking about criminality. The present wording of the Bill deals with internal discipline if there is any issue of alcohol or other intoxicants.
We are dealing with the right to carry out random testing.
There is no criminal sanction in the Bill as it is drafted. I will come back to that. I have to return to Government on this issue also before I finalise the Bill. I will be talking to the Dáil about possible criminal sanctions in this area, but I am not in a position to do that today.
To deal with what is before us, the introduction of random sampling without criminal sanction, the Deputy raised the issue of the correctness or otherwise of random sampling. The fact that airlines do not do it is wrong. The Army does it. The airlines should do it. Let us not forget we are developing a Luas system which will carry 14,000 or 15,000 people an hour; a metro system, commencing with a section to the airport which will carry similar numbers; and 15 to 20 years hence we will have a fully-fledged metro system in the city which will deal with enormous numbers of people, thousands of people every hour. We are putting €400 million a year into railway systems and substantial amounts into commuter lines and the volume of people travelling to Maynooth, Kildare, Drogheda and other such commuter areas will grow phenomenally over the next ten or 15 years. In those circumstances, given that we have a Railway Safety Bill before the House, it would be reckless to let this legislation go on the record as a railway safety Bill - the contribution of this Dáil and its Members to railway safety - and not deal with the tough issues, but only deal with what worked up to now. What would we say to families in five or ten years' time if a metro, a Luas or a Drogheda train came unstuck and we discovered that random testing could have solved the problem?
It is not a major imposition on an employee of a company. The procedures are laid out in the Bill. An employee can offer a reasonable excuse as to why he or she cannot do it. He or she is given a proper amount of time to do it and is allowed a substantial say in the timing and mechanisms of it. It is not an undue burden on anybody who believes in the need for safety. At airports we all go through the security gate. I remember a time when we would have had a debate in this House about the invasion of privacy of having one's suitcase opened for inspection or having to walk through the security doors. A committee meeting of this House 20 years ago would be in uproar at the notion that one would be frisked at an airport but we have got used to these procedures. They are impositions. They are awkward and they are not nice but they are necessary to ensure everybody can travel more safely. The balance is right in that we are putting a duty on people who work day in, day out in railways into the future. This legislation is not for next week. It is for the next 20, 30 or 40 years and it is right to put an extra duty on those in responsible positions for the benefit of the vast majority of people. The balance is the correct one and we should implement this measure.
I propose to recommend to the Government that we introduce random testing for road safety also. Random testing for road safety is necessary. Currently a garda has to form an opinion that someone is under the influence of alcohol. In some cases it is easy to form that opinion but in many cases it is difficult. If a garda forms that opinion and is subsequently proved to be wrong, that garda will look silly in the courts. The Garda do not like that. It is better to do this through the legislation so that a garda can stop a motorist and carry out random sampling in such a way that the garda does not have to form the opinion. That is another debate which I will not start here but imposing some inconvenience on people in important positions for the general public good is not a bad principle.
Random testing has worked fairly well in Australia in reducing the number of road deaths. It should be looked at here after a weekend where 16 people were killed on our roads.
I am concerned about the implication of this, that people are abusing alcohol or drugs. Deputy Shortall said that over the past 30 years there is no evidence that the abuse of drugs or alcohol were the cause of serious accidents. I would be concerned about fatigue with many drivers being forced to work up to 18 hours rather than something that may happen in the future. A major concern of the workers is that they are being forced to work long hours.
Many of us are familiar with the whole area of drug testing because of the projects in some of the areas in which we live but that is not always clear-cut. Someone could take drugs at the weekend which would not show up in the test on a Monday. The drugs might be still in the system but it does not necessarily affect the person's ability to work. The metabolites may still be in the system but it does not impair the person's actions. The test merely shows that the person is abusing a substance. For instance, someone could take marijuana on a Saturday and go into work on the Monday. The drug will still be in the system but it is not having any effect. The effect of the drug will have worn off by the Monday.
This test also highlights other medical conditions, for instance, pregnancy. A worker might not necessarily want to know she is pregnant but the urine test will show that. This is an invasion of people's privacy. I accept what the Minister said about the concern that someone will abuse alcohol or drugs in the future but the major problem now is fatigue or even overcrowding on trains. There is more chance of an accident being caused by overcrowding on the Luas than by the driver being on drugs.
The Chairman made the point I had intended to make. I have no difficulty with random testing, citing the recent Australian experience of random testing of road drivers which has been highly successful. There is no reason we should not also extend it to random testing on our roads, but that is a separate issue.
At the last meeting Deputy Naughten said we ought to ensure that the Bill embraces the highest international standards in terms of safety. It a Bill is to stand the test of time it would be unreasonable not to introduce a simple measure such as this one. I accept the point Deputies Shortall and Crowe made about a possible invasion of privacy but the section is predicated on the basis that the authorised officer has to act in all cases in a reasonable manner and with reasonable cause. If an authorised officer were to abuse the power given under section 87, obviously it would be open to challenge if he acted in an unreasonable manner.
The Minister talked about bringing in random sampling in respect of the road traffic legislation. Will he elaborate on the legal advice he has received on this section? On the drug testing, I am aware that the Garda has been examining this question yet there is no standardised test because, as Deputy Crowe said, metabolites can remain in the system for a number of days or weeks. They would show up on a test but the drugs would not impair the person in terms of the performance of his or her work.
The Minister said there is no criminal sanction being provided for at this stage but is it not the case that amendments Nos. 96 and 97 come into play in this proposal? That is my interpretation of it. It states that this Part applies to any person who is working in the course of the operation of a railway undertaking. Surely someone under the influence would be considered either a careless worker or to be dangerously involved in work. Perhaps the Minister would elaborate on that aspect.
I asked the Minister about legal advice but he did not answer that question. I would like him to be specific on that. I am not opposed to the principle of random testing in respect of road traffic legislation but my understanding is that there is a constitutional difficulty in that regard. We are unusual in this country in having a Constitution. It is all very well citing examples of other countries but——
Australia has a constitution.
Yes, but it depends on the provision of that constitution. Many countries do not have a constitution and my understanding is that there are constitutional difficulties with introducing random testing, which is the reason it has not been introduced for drivers.
Somebody made the point earlier that there are sufficient safeguards in the legislation. That is not the case. It is open to abuse. Paragraph (c) states “an authorised person may, for the safe operation of the undertaking, at random and in circumstances that are reasonable whilst persons to whom this Part applies are working in the course of the operation of the undertaking”. Who decides what circumstances are reasonable? That is a carte blanche to an authorised person to select people at random and test them randomly. That is a fairly severe infringement on the rights of a particular group of workers when we have not sought to introduce those type of strict standards in relation to any other group of workers or citizens. I would like the Minister to tell us specifically the view of the Attorney General’s office.
Deputy Crowe asked about the problem of fatigue. An agreement was concluded between the company and the unions in recent times to reduce the hours of work, mainly of train drivers. Fairly successful negotiations on that issue have taken place between unions and management in recent years and a good deal of progress had been made. I accept that fatigue is an issue, particularly in concentrated work such as this. The agreements concluded are fairly satisfactory all around.
In regard to the legal advice sought by Deputies Naughten and Shortall, the Attorney General cleared the wording of this section. Originally there was an inquiry from the Department to the Attorney General about possibly including this provision by way of an option. The Attorney General insisted that could not happen and that it had to be laid down in primary legislation. The wording of this section is as a result of those consultations between the Attorney General's office and the Department. Our advice is that this section is fully constitutional and fully in accordance with the principles of law. I could double check that for the Deputies if they wish me to do so.
I acknowledge that the road safety area has been fraught with challenges, but I do not want that to deter me from laying down safety measures. My duty is to ensure and insist that Irish railways are safe. If I have to err on one side, I want to err on the side of being tougher and safer. If I err on the other side, it would be foolish. This is a balance between individual rights and the common good. That is an age old debate into which I will not enter now.
With regard to section 87(1)(c), one of the Deputies said that all the circumstances must be reasonable. That is putting it as bluntly as possible. Under the legislation, authorised officers cannot behave unreasonably.
Deputy Naughten and Crowe asked about the problem of drugs. There is a difference in legislation in regard to provisions relating to alcohol and other intoxicants. In the case of alcohol, legislation provides that one should not have a presence of alcohol above the specified level in one's body at a material time. I take the point made that one could have taken medication over the weekend and it could still be in one's bloodstream on Monday or Tuesday or one might have taken some intoxicants on Saturday or Sunday - which is a different debate - and might be going to work on Monday. The legislation provides that a person should not be unfit through an intoxicant to carry out his or her work and not be under the influence of an intoxicant to such an extent as to expose a person, including himself or herself, to danger or risk of danger as a consequence of being under such influence. That covers the Deputies' point, in that, one can have a substance in one's body, but as long as the view is taken that it is not making one unfit, one is not exposed in regard to the provision in the legislation in this regard. In other words, it is not an offence to have such a substance in one's body, rather it is an offence to be unfit because it is in one's body. Alcohol is treated differently because we have well laid down limits which we do not have in respect of other intoxicants. In the case of other intoxicants, one cannot easily set a limit because it would vary depending on the drug or medication one is on. That covers the Deputies' point. As long as one is not unfit, legally one can be taking other intoxicants. That is the best we can do in this regard.
Deputy Naughten asked about amendment No. 97 to section 89. That amendment is aimed at addressing the problem of dangerous or careless working on the railway. The Deputy argued that if one were intoxicated, that would constitute dangerous of careless working. I take that point, but it is too substantial a point to tuck in under the provision in regard to dangerous or careless working. This is a substantial point which needs to be dealt with separately. One could argue that if one is under the influence of alcohol or other intoxicants, by definition one is being dangerous or careless.
I raised that point because the Minister said that at this point there is no criminal sanction, but we will shortly debate a measure in regard to such a criminal sanction.
We will in regard to dangerous or careless working, although not in regard to the taking of intoxicants at this stage. I do not have an amendment before the committee today to criminalise the taking of intoxicants or alcohol in this regard. It is my intention to move in that direction pretty soon. I have proposals before the committee today to criminalise the act of dangerous or careless behaviour.
The Minister is splitting hairs in this regard.
I am not. The procedures are such that I would like to get to a stage where we could do both, that the taking of drugs or alcohol and dangerous or careless working in this regard would be a criminal offence. In respect of those four cases, I would like to get to the stage where such acts would be a criminal offence. I can only achieve the second part of that today because I have to discuss the matter with Government and I have to take other legal and official advice in regard to the criminalisation of the alcohol element in this regard, having regard to the points raised about how fraught road safety issues are under this heading.
Will the Minister clarify if it his intention to introduce additional amendments on Report Stage?
That is my thinking at this stage.
Given that this Bill has been around for the past two years, why are amendments that will substantially change the thrust of it being tabled at the last minute?
The Bill has been drafted a number of years, but I only got down to examining it carefully in the past few months. I took the view that the provisions in it needed to be much tougher.
I am sure the Minister accepts it is unsatisfactory from our point of view and from that of the workers who will be directly affected by this legislation for such amendments to be made at the last minute without adequate time to debate them. He is talking about a significant amendment to criminalise persons who have a certain level of alcohol in their blood.
One does not need to go on a week's seminar to make one's mind up on this. It is a simple enough issue.
We would like reasonable notice of his intention to table amendments.
I mentioned this the last time we met. It has been in the newspapers many times and has been spoken about. I raised it on Second Stage in the Dáil and invited Deputies to let me have their views. Therefore, this has been an issue for a long time.
With due respect, we should not have to depend on press releases. It is difficult to keep up with all the Minister's press releases.
The Deputy does okay.
If the Minister intends to significantly amend legislation, he should follow proper parliamentary procedures and table amendments within a reasonable time.
I will follow proper parliamentary procedures.
The Minister is not doing so in respect of criminalising people who have certain levels of alcohol in their blood.
I am as aware of parliamentary procedures as the Deputy. It is open to Members to table amendments on Report Stage.
Maybe it would have been better if the Minister had finalised his thinking on this——
Of course it would.
——rather than what appears to be thinking on the hoof.
I have been fairly consistent about this. I do not have an amendment ready for Committee Stage because I want to take further legal and official advice and to engage in some further consultations, perhaps with the trade union movement and others, before I finalise it.
Does it make sense to continue with Committee Stage if the Minister is planning significant amendments to the Bill? The Minister started well by consulting widely and people were pleased about that. He followed proper procedures and took a partnership approach. However, he is now talking about rushing through significant amendments.
No.
There is this aspect of it and the random testing. Now the Minister informs us that he is planning to criminalise people who are found to be above a certain level. There is also the section that was not discussed with any of the interests involved.
Deputy Shortall is correct that there is no amendment before the committee today to make the alcohol intoxicant issue a criminal offence. The provision before the committee today is to make it an internal disciplinary matter and that is what we are discussing.
Yes, but the Minister is telling us that he intends to amend it on Report Stage.
I am informing the committee, because it is correct to do so, of my intentions. On Report Stage or in the Seanad, I propose to examine the possibility of introducing amendments to make it a criminal offence for a critical safety worker to be above the limit for alcohol intake. I have said this consistently. I am aware that it would be better if this had been included in the Bill from the outset, but the reason there are five Stages in the passage of legislation, and also a requirement for a presidential signature and the option of referral to the Supreme Court, is to allow amendments and changes to be made along the way. Nobody said legislation should be 100% correct on the day it is introduced. As I understand the system, it allows for changes as we proceed.
The Minister has had two years to think about it.
I am using the system, not abusing it.
That is not true. The Minister knows perfectly well that we will not have an opportunity to debate Report Stage amendments in detail. There also will not be an opportunity to consult with people directly affected by this legislation.
I gave an undertaking earlier that I would discuss with the Government Chief Whip the possibility of not having a guillotine on Report Stage. I will do that. With regard to consultation, between now and Report Stage there should be ample time to consult on the net issue of whether alcohol intoxicants should be a criminal offence. I am 100% clear on the answer.
Is the Minister giving a clear undertaking that he will consult with workers' interests before he tables the Report Stage amendment?
We already have the views of workers' interests and the trade union movement. At a number of stages in the preparation and consultation process there were consultations with workers' representatives.
The Minister knows people were concerned about the concept of random testing. He is adding significantly to that concern by talking about criminalising offences in that regard. Will the Minister give an undertaking that he will consult with workers' interests on that issue and on the new Part 10, on which there has been no consultation? Will the Minister give a commitment that he will meet with the relevant unions to discuss both issues prior to Report Stage?
Of course. We have regular consultations with the workers' representatives and we will be happy to do that again between now and——
Specifically on those two issues.
We will be happy to do that.
In light of what the Minister said about creating a criminal offence with an amendment on Report Stage and what we discussed earlier in the context of section 85, is he confident that the wording, as it stands, is sufficiently watertight should a case be taken through the courts? Has he considered this in the context of the road traffic legislation and the anomalies and constitutional issues that have arisen in that regard? The parliamentary counsel and the Attorney General read the Bill - as we all did - in a different context from the current one. A month ago, it was likely that most of this legislation would not be challenged in the courts. One can be guaranteed, however, that these sections will be challenged every inch of the way. Is the Minister confident that this is watertight legislation? I have serious concerns at this point that it is not.
I have already acknowledged the difficult legal area in which we are operating. We are dealing with privacy, personal rights and road safety. I also indicated that we will double check our legal advice on the different aspects of the Bill between now and Report Stage. We would do it anyway, but, in view of the committee's concerns, it will be specific. I would not be prepared to state that any legislation is watertight because that would involve turning myself into a Supreme Court judge, which I am not. We work within the advice of the Office of the Attorney General. What is before the committee is, I am assured, constitutional and within the principles of law.
This section on sampling, including random sampling, related to a code of conduct and a certain standard applies in relation to a code of conduct. Where it relates to a criminal offence, a different standard is required. I am not satisfied that this section meets that standard, given the Minister's intentions.
If this section is approved when the Minister amends it, I am not satisfied that the results of tests, particularly those carried out randomly, are adequately protected. If a person in a railway company is in a position to get a blood test and the results of a blood test from any employee they choose, I am not satisfied it is sufficiently prescribed in the legislation what information can be taken from that blood test and what protections there are for that information. It is, therefore, wide open to abuse. Deputy Crowe referred to the possibility of pregnancy showing up in a blood test. He also mentioned the possibility of somebody using drugs on a Saturday night and that information showing up in a blood test on the following Monday morning.
I do not believe that is possible. With a blood test one looks for certain things, one does not just come up with them.
That is not prescribed in the legislation. With random testing we are opening a huge can of worms. It is wide open to abuse and I am not satisfied there are sufficient safeguards, particularly as the Minister is proposing to criminalise breaches.
I cannot accept Deputy Shortall's argument. The legislation provides that the procedures be established under it. The detail of the procedures is not set out in the legislation and the duty on the undertakings, under the legislation, is to establish the procedures, such as where the samples may be taken, the location, the analysis, the privacy concerns, the procedures in relation to the integrity of the sample. It would be up to the person or body establishing those procedures to set these matters out in clear detail, having taken strict and comprehensive legal advice to ensure that these issues are dealt with. They are not dealt with in the legislation, nor would there or should there be a need to put them into the legislation.
The issues of concern to the Deputy are not fleshed out in the legislation. It will be the responsibility of the undertaking body to fill in those details after taking the appropriate legal advice.
We are talking about creating a new criminal offence. They have to be set out clearly.
I am talking about the issues of concern to the Deputy in respect of the integrity of the sample and privacy. They do not relate to criminal matters. They would be part of the detail in the procedures to be laid down under the legislation. That is my understanding of this, although I might be wrong.
Perhaps I can be of help to Deputies in this regard. If the proposal is made to make it a criminal offence, it will require a new section. We will not amend this section. I accept what the Deputies said. A substantially higher level of proof is required for criminality compared to disciplinary matters. The wording of the legislation must be substantially more precise to cover the type of issues the Deputies mentioned. If it comes before the Dáil or Seanad, the new section will be comprehensive. We must examine it to ensure it is fully aligned with road safety legislation. The higher degrees of proof and compliance required in such a move would have to be clearly laid down. The Deputies' comments that the wording of this section is not enough will be dealt with. We would not be able to rely on this section because it would be more serious to make something a criminal offence. There are procedures and precedents regarding the type of standards which must be reached to make something a criminal offence in legislation. All those safeguards will be built in if we go in that direction. We would not rely on the wording before the committee.
Is the Deputy pressing the amendment?
Yes.
Amendment put and declared lost.
I move amendment No. 84:
In page 66, subsection (1), lines 19 to 24, to delete paragraph (b) and substitute the following:
"(b) subject to subsection (5), where a railway incident occurs connected with the operation of the undertaking and whilst attending the site of the incident, he or she forms the opinion that the sampling of a person to whom this Part applies who is directly or indirectly involved with the movement of a train involved in the incident is or may be relevant to an investigation into the cause of the incident, or”.
Amendment agreed to.
Amendment No. 85 not moved.
I move amendment No. 86:
In page 66, subsection (1), lines 25 to 28, to delete paragraph (c).
Amendment put.
The Select Committee divided: Tá, 4; Níl, 7.
Tá
- Breen, Pat.
- Crowe, Seán.
- Naughten, Denis.
- Shortall, Róisín.
Níl
- Brady, Martin.
- Brennan, Séamus.
- Ellis, John.
- Glennon, Jim.
- O’Flynn, Noel.
- Power, Peter.
- Ryan, Eoin.
Amendment No. 87 has already been discussed with amendment No. 83.
I move amendment No. 87:
In page 66, subsection (2)(b), line 39, to delete “request” and substitute “require”.
Amendment agreed to.
Amendment No. 88 not moved.
Amendments Nos. 89 and 90 form a composite proposal and may be discussed together.
I move amendment No. 89:
In page 66, subsection (2)(b), line 40, to delete “to”.
Amendment agreed to.
I move amendment No. 90:
In page 66, subsection (2), line 41, before "require" to insert "to".
Amendment agreed to.
I move amendment No. 91:
In page 66, subsection (3), line 43, after "alcohol" to insert "in excess of the specified level".
Amendment agreed to.
Section 87, as amended, agreed to.
SECTION 88.
Amendment No. 92 not moved.
I move amendment No. 93:
In page 68, subsection (5), line 23, after "alcohol" to insert "or any other intoxicant".
This is a technical amendment to redefine it as "alcohol or any other intoxicant".
My advice is that the provision is based on a similar one in the Road Traffic Acts. The Attorney General has advised that the intention of the reference to alcohol is to give guidance as to the intent of the provision and, therefore, it is not exclusive, as such. I can try to tidy it up, if the Deputy so wishes.
At the moment road traffic legislation does not include a reference to intoxicants other than alcohol. As the Minister is talking about other intoxicants, it seems to be a sensible amendment.
I will take advice on the matter and return to it on Report Stage, if the Deputy agrees.
I will withdraw the amendment with leave to reintroduce it on Report Stage.
As I have the same objective as the Deputy, it is a matter of how we do it.
Amendment, by leave, withdrawn.
Section 88 agreed to.
NEW SECTIONS.
I move amendment No. 94:
In page 68, before section 89, but in Part 9, to insert the following new section:
89.-In any disciplinary hearing under section 88 or in any proceedings, a certificate, issued under section 87(6), purporting to be signed by a person employed or engaged in the analysis of samples provided under section 87(1) at an analysis body, stating the capacity in which the person is so employed or engaged and stating any one or more of the following, namely-
(a) that the person received the sample sent under section 87(6) to the analysis body,
(b) that, for such period as is specified in the certificate, the person had in his or her custody the sample so sent,
(c) that the person gave to such other person as is specified in the certificate the sample so sent,
(d) that the person carried out the analysis of the sample, and
(e) the results of the analysis, shall, unless the contrary is shown, be evidence of the matters stated in the certificate.”.
This new section is added to Part 9 which deals with intoxicants. The section provides that, unless the contrary is shown, a certificate issued by an independent body which carries out the analysis of a sample of blood or urine will be taken as evidence of the results of the analysis and the integrity of the sample while in the custody of the analysis body. The amendment is to ensure the certificate is proof of analysis.
The word "independent" is not stated. It is a technical issue but under the legislation as it stands - as we have agreed, the code of conduct is not legally binding - the company could carry out the analysis. It is legally possible.
Section 82(9), on page 61, line 28, states, "analysis body means a person who, in the opinion of a railway undertaking concerned and the commission, is competent to carry out an analysis of a sample and is independent". That will cover it.
Amendment agreed to.
Amendments Nos. 95 to 98, inclusive, are related and may be discussed together.
I move amendment No. 95:
In page 68, before section 89, but in Part 9, to insert the following new section:
"PART 10
Offences by person working in course of operation of railway undertaking
90.-(1) This Part applies to a person who is working in the course of the operation of a railway undertaking-
(a) as a driver, guard, conductor or signalman or in any other capacity in which he or she can control or affect the movement of a train, or
(b) in a maintenance capacity or as a supervisor of, or look-out for, persons working in such capacity, in the course of his or her employment with or under a contract of services with the undertaking or in the course of his or her employment with a person who has a contract of services with the undertaking or voluntarily or otherwise.
(2) For the purposes of this Part, a person works in the course of the operation of a railway undertaking in a maintenance capacity if his or her work in the operation involves maintenance, repair or alteration of-
(a) trains,
(b) the permanent way or other means of guiding or supporting trains,
(c) signals or any other means of controlling the movement of trains, or
(d) any means of supplying electricity to trains or to the means of guiding or supporting trains, or involves coupling or uncoupling trains or checking that they are working properly before they are used on any occasion.”.
The new section details the class of railway workers to whom the new Part 10 applies. Essentially, these are the same people to whom Part 9 which relates to intoxicants applies, in other words, it applies to safety critical workers. This Part applies to such workers in all railway undertakings to which the Bill applies, that is, passenger railways, freight railways, heritage railways, and those parts of industrial railways which have an interface with the public road or another railway.
This new Part creates a number of new offences for careless or dangerous behaviour while working on a railway. These arise mainly as specific offences for breaches of the general duties imposed under Part 3 of the Bill and are largely based on existing provisions of the Road Traffic Acts. This Part also prohibits working on a railway while knowingly suffering from serious impairments.
The new section set out in amendment No. 96 makes it an offence for the specified class of railway workers to fail to carry out their work with due care and attention for the safety of the railway and public safety. This is a summary offence only.
With regard to dangerous work on the railway, the new section set out in amendment No. 97 makes it an offence for a specified class of railway workers to work in a manner that is dangerous to the safety of the railway or the public. When the offence causes death or serious injury, a person convicted on indictment may face up to ten years' imprisonment and fines up to €10,000. This is in addition to any manslaughter charge that may be brought. A summary conviction where no death or injury is caused carries a lesser sentence. The Garda Síochána is given a power of arrest without warrant where it forms the opinion that a person has committed this offence and caused death or serious injury. A prosecution under the section is most likely to occur following a serious railway accident.
The new section set out in amendment No. 98 prohibits specified classes of railway workers from working in a safety critical function if they are suffering from any serious impairment that they know of, and makes it a summary offence to do so. To avoid abuse of this provision, a railway undertaking may require such a worker to undergo a medical examination which may declare him or her fit for work. A worker suffering from an impairment may still be employed on the railway in a non-safety critical role.
I do not accept that this is the right way to do business. We are discussing a significant new part of the Bill, about which there has been no consultation. The Minister began well on the question of safety. The intention was to have a voluntary scheme to be accepted by all, as has happened with the railways over many years, but with an acknowledgement that there needed to be higher safety standards. People proceeded on that basis in a voluntary capacity and worked together to ensure higher standards. Following investigations of incidents or accidents there was an emphasis on co-operation and being open and frank about the surrounding circumstances. There was agreement on ascertaining the facts rather than seeking to lay the blame on individuals.
That is the atmosphere and culture on which we understood the Minister was trying to build. However, his approach will destroy much of the goodwill among railway workers. His decision to take this new departure without prior consultation will create tensions and difficulties among the workers involved. He is also breaching the general standards set in terms of partnership and consultation with all of the partners involved. The manner in which he has introduced this Bill is unacceptable. There are established partnership procedures which are being breached because of his failure to discuss these aspects of the Bill with those who will be directly affected.
Where in the Minister's Department did these proposals originate? Nobody involved in the process leading to the drafting of the Bill has recommended criminalising breaches of safety. I am not aware that CIE or the inspectorate made them. Where did they originate and why is the Minister introducing them today?
I am also concerned about the impact the Minister's actions is having on the partnership process. The general secretary of the ICTU has written to him in severe terms regarding these proposals. The Minister's approach is not inclusive. It is the wrong one and will significantly damage the substantial goodwill and co-operation built among rail workers during the years.
Rail workers are already bound by health and safety legislation, including the 1989 Act. The obligations under the legislation do not carry criminal sanctions. The emphasis is rightly on the prevention of problems by imposing a significant duty of care on employers and employees. The Minister's proposals represent a significant diversion. I ask him to explain the reason he has taken a different approach from what has proved to be a good and effective one in terms of partnership.
The proposed provisions do not apply to any other group of workers in the transport sector or elsewhere. This constitutes discrimination against rail workers. I am also concerned that if these amendments are passed, rail workers could take the blame for an accident, serve a prison sentence and pay a substantial fine while there is no similar sanction for employers and the management of rail companies. While there is provision for the imposition of fines, there is no provision for prison sentences for employers who may ultimately be most responsible for low standards.
Amendment No. 96 proposes that, "A person to whom this Part applies shall not carry out work in the course of the operation of a railway undertaking without taking due care and attention for the safe operation of the undertaking or for the safety of persons". What is meant by the term "due care and attention"? Loose terms such as this are acceptable if they relate to a code of conduct but they are inadequate when dealing with potentially criminal offences. A number of minor breaches may not constitute not taking due care and attention. For example, if a shoelace is left open that causes an accident, the person concerned will not have taken due care and attention. Similarly with regard to dropping an apple butt on the ground or leaving a box that causes an obstacle. These are matters that are dealt with under a code of conduct, they are not matters for which a person should be criminalised. The proposals could lead to widespread abuse of the legislation dealing with criminal offences. It is not adequate to prescribe that a rail worker who does not take due care and attention can be criminalised without clearly specifying the breaches of safety that would constitute criminalisation.
I appeal to the Minister not to proceed with his proposals and rethink this section. I call on him to consult all those involved and not to do further damage to the partnership process. If he proceeds, he will do serious damage to industrial relations within the rail company. I appeal to him to rethink this section and consult those who will be most directly affected.
I do not wish to repeat Deputy Shortall's views but she has made a number of valid points. These sections will be used to scapegoat. They contradict the principle of the Bill. In the past five years nobody more than me in the House has teased out the issues surrounding rail safety. We are all agreed that the current system is totally inadequate and, in principle, all agree on the need for this legislation. However, the investigations proposed to be carried out under the Bill will be worthless because of these sections. One individual will be singled out to carry the can for the company or management. I provided a clear example of this in connection with a level crossing in County Roscommon. The forward signal was too near the level crossing gate, yet according to every investigation into the incident the driver was in the wrong. That cannot be the case when so many drivers happen to go through the same level crossing on a frequent basis. There must be something wrong with the system. It is the responsibility of management, yet the investigation singled out a member of staff.
I am very concerned that if these proposals are implemented, individuals will likewise be singled out. The sanctions on employees are in stark contrast to those on management. A manager could serve two years in jail for an improvement notice yet an employee could serve ten years, even though the result of the action would be the same. There is a blatant contradiction between this section and earlier sections. This will cause significant problems in investigations because the objective of the legislation is to bring about a culture of safety. There is such a culture within Irish Rail and there will be in whichever railway undertaking enters the market. However, there must be openness and frankness in investigations. That will not happen.
Under the Air Navigation Act statements given during an investigation cannot be used in a criminal case but they can be under this section. Under section 54(4) if a person is asked a question and states he or she is not prepared to reply, the reply cannot be used in a criminal investigation or prosecution. However, information given frankly to an investigator can be used in a criminal trial. That will impede the work of investigators when they look into even the smallest incident on a railway line. There will not be improvements or changes in procedures unless people are frank and the root cause of incidents is established.
The section contradicts the principle of the legislation. Its detail is inadequate. For example, amendment No. 98 proposed a new section 93 and states, "Subsection (1) does not apply if a medical practitioner nominated by the railway undertaking certifies that a person is fit to carry out his or her work." What happens if the person's GP or specialist certifies that he or she is fit for work? Why can that certificate not be used? There could be a history between the individual and the company GP and he or she may not want to attend that GP. However, there is no provision for such flexibility.
Under section 93(3) will it be an offence for an individual not to undertake a medical examination? It contains a broad definition, which one can interpret any way one likes. What is the purpose of the word "circumstances" given that they are not known or specified? There is an issue surrounding the constitutional right to bodily integrity. Who carries out the examination? Does the employee have a say in regard to which individual carries out the examination, the detail and results of the examination, which results are furnished and to whom they are furnished? Confidentiality is a major issue in this regard, which has not been addressed. Section 93(3) is vague on detail. It does not define "medical examination" and it has the potential to create significant difficulties.
There is a great deal of case law relating to road traffic legislation because it has been contested on numerous occasions. Section 93(3) will also be contested and I do not see how it can be constitutional given that a medical examination can be carried out for any procedure. The examination can be extended as broad as it is long and no protections are provided for the employee. The subsection does not hold water. The Minister made the case regarding alcohol testing that if criminal sanctions are to be introduced, the legislation needs to be strengthened. This subsection will not stand up in a court.
There are many issues involved, about which we need to be honest. I received a letter from David Begg, the general secretary of ICTU, and he asked that we would re-examine the legislation. I am happy to do so because of his letter and the statements of the Deputies. If the general secretary of ICTU is asking me to do that, it is the courteous thing to do and I am happy to examine it. However, the use of alcohol and intoxicants and dangerous work should be criminal offences. I do not accept the argument that such cases can be left to internal disciplinary procedures. However, I accept that the wording of the sections leaves management out of the picture and that should not be the case. David Begg pointed out the unfairness of dealing with workers but not management and I accept that. Management can also cause accidents through certain decisions or a failure to take decisions.
We have tried in this legislation to carve out safety-critical workers. When that is extended to layers of management, where does one stop? Are the internal auditor, chief executive officer, head of marketing or electricians safety-critical workers? Where does one stop? For example, if an extra 50 tickets had not been sold, the train would not have been overcrowded and, if it was not overcrowded, it would not have crashed and, therefore, the head of marketing should go to prison. We will try to get our heads around this issue. The inclusion of employers in this regard is a good point. It might be sensible to deal with the issue of criminality, although it is separate, at the same time. However, it might be wise to address it in the context of alcohol, intoxicants, carelessness and dangerous work. I will do it that way.
I will consult ICTU in this regard but we should turn these breaches into criminal offences because, while I do not want to be dramatic, they involve life and death. It is fine in the calmness of this room while the railways are safe and everything is grand. We have social partnership to protect and God forbid that it would be upset in the name of anything but particularly in the name of this legislation. Sometimes cosy arrangements between Government, unions and workers must be upset and if this upsets a cosy arrangement so be it. I would be better off facing a group of distraught parents and families in five or ten years time if I knew that during the passage of the legislation I was as tough as I could be, consistent with an individual's rights, and I did not lightly accept the argument that it worked up to now so why change it. I want to be reasonable and sensible about the legislation and not lightly accept it.
If something goes wrong on the Luas, metro or Maynooth lines in five or ten years, someone will open up the files and see that we, a crowd of geniuses, had a chance years ago to make a difference and put the boot in and say, "Dangerous and careless behaviour, including being under the influence of drink or intoxicants on railways, is not acceptable and those involved should suffer the consequences." I know where I stand on this issue and I will return to it. However, out of courtesy, I will, with an open mind, negotiate and talk to ICTU because I have a great deal of respect for Mr. Begg. I have dealt with him in the past and he is a fine leader of the movement. I have always found him very sensible to deal with but I make my views clear when I talk to him.
Deputies referred to railway workers being singled out. Bus drivers face criminal offences every day of the week. There are 1,500 buses in Dublin city. If any of them were to do something wrong, such as being caught with drink or intoxicants or behaving dangerously, he or she would be open to criminal charges. What is the difference?
I propose that Deputy Peter Power take the Chair as I must leave for a moment. Is that agreed? Agreed.
Mr. P. Power took the Chair.
May I ask the Minister a question? I do not wish to cut across him.
Before the Deputy does so, I wish to finish my point. I am not singling out railway drivers. Bus drivers face this every day and do not have a problem with it because they know how serious it is.
There are two other laws. At present a train driver can be charged with manslaughter, and it has happened. A second Act entitled the Non-Fatal Offences Against the Person Act, was passed in 1997 and allows for a person to be charged with causing accidents carelessly or dangerously. In the legislation under discussion, the major offence is where people die or serious injury is caused. These days, if a person dies or is injured and it is found to have been the result of someone behaving dangerously, that person who behaved dangerously must be charged under the law of the land. It cannot be a matter for some internal disciplinary committee. It should be a matter for the Director of Public Prosecutions and the courts where someone behaved dangerously in circumstances which led to the death of people. It is not enough to say it is a matter for the social partnership, unions or internal disciplinary committee.
That is my position. I will withdraw the section. It is my intention, subject to consultation, to introduce some proposals along these lines on Report Stage. I will listen carefully to and consult the ICTU to see what it has to say and see if it can convince me that I am on the wrong track, if you will pardon the pun. It is my view from having studied it and having taken advice from officials that these sanctions are already in law. That is not a legal opinion. They are already in law under the manslaughter Acts and the Non-Fatal Offences Against the Person Act. All this measure does is specifically apply them to railways to avoid doubt. That is a non-legal view. I will check whether that is a legally correct statement as well. I will return to it. I thank Deputies for their words on it. I withdraw the section at this stage if the Chair allows.
I accept what the Minister says and do not dispute it, but what he says and what is in the Bill in black and white are two different matters. That is where I have a problem with this, and this was the case with previous sections. The Minister is saying one thing but what is in the Bill is contrary to what he says. There is very little detail. The Minister made the point about bus drivers, but there are set procedures laid down in law relating to bus drivers and they are not included in this section. No detail in this regard is included in this section. The debate on previous amendments and sections has shown that the Bill is extremely weak in this regard, especially when dealing with an issue of criminal law. The necessary detail to deal with this issue is not included in the Bill.
The Minister cannot introduce the detail on Report Stage because it is an issue relating to criminal law. We need to tease it out on Committee Stage because serious sanctions are involved. The devil will be in the detail and it will be open to court challenge. Therefore, it is imperative it is dealt with on Committee Stage. We have to be given an opportunity to deal with it. It will not suffice to introduce for debate on Report Stage serious amendments that will change the principle of the Bill.
If the legislation had been in place five or six years ago when the Knockcroghery rail incident happened, who would have been found responsible?
I do not think I can give the Deputy——
Management could not have been, under the proposal before us.
I should not give an opinion on it.
Surely the person inspecting the line could not have been blamed when it was clearly evident that the line probably should not have been open at the time.
I hear what the Deputy is saying. I am assured that the explanations I gave him are fully reflected in the Bill. As I am withdrawing the section, we will run it through the wringer again in a very detailed fashion to see if it meets what I say. I am 100% clear in my objectives. I want to make sure that the small print and detail reflects those. I am driven by the objective, not by the detail, but the detail is critical and I accept that. I will ensure before the Bill is passed that the detail reflects what we want to achieve. For that reason, I am happy to withdraw the section.
I cannot answer the Knockcroghery question. It is not for me to decide who is to blame or to get involved in doing so.
I am not asking the Minister to answer it but for him to run that question by in his head when he reads through these sections.
I do not think there is a person in this room or in the House who disagrees with the objectives the Minister has set in the legislation. There is serious concern, however, about the manner in which he is trying to achieve them, specifically with regard to the language he uses and the lack of detail and specific language in respect of what constitutes a criminal offence.
Much work remains to be done on the legislation. Stricter and higher safety standards must be introduced, but in a way that respects individuals' rights, where the provisions apply evenly and fairly to everyone involved in a railway undertaking and where they have been brought about through consultation with all the relevant parties.
I welcome the Minister's decision to withdraw the section. I am not satisfied that a new section will be introduced on Report Stage. I have made the point several times during the course of the Bill that it is bad parliamentary practice.
Apart from these new sections, the other amendments with which we must deal are minor and will, I am sure, be dealt with in a few minutes. I propose that we suspend Committee Stage to allow the Minister time to consult all those interested, to table his amendments again or draft new ones and bring all or any amendments he intends to make to the Bill before the Dáil for approval and, in the normal course, before the committee for Committee Stage. I propose that formally and seek the Chairman's support.
There are other sections which do not relate specifically to the amendments withdrawn by the Minister.
We are obliged to consider the legislation section by section.
Not necessarily in numerical order.
We are.
I will take advice on that. Perhaps the Minister would address Deputy Shortall's proposal.
I have made it clear all along that I do not want to push this through in a hasty fashion. I want good legislation, but I am also strongly of the view that we need to take the criminal sanction issue seriously and deal with it. I accept that others disagree and they are entitled to do so. We can argue that out. I am open to whatever procedure is sensible but we should be clear that there are very important issues in the Bill about inspectors' powers and every week we fail to conclude it is not good in terms of putting these safety features in place.
We are not trying to hold up the Bill. Nobody is trying to delay it but we do not want sections rushed through which are unconstitutional or unfair. We want a chance to consider all the amendments.
I have no problem with that.
I am satisfied we are able to dispose of the remaining sections which do not relate to the withdrawn amendments. We have that power.
We should do that anyway if we can.
I am chairing the meeting so I do not have a view on it other than to point that out. Obviously the Minister wants to continue with the remaining sections, which do not touch on the withdrawn amendments. It is a matter for the committee now. The Minister obviously wishes to complete consideration of the Bill.
I am open to correction but my understanding is that Committee Stage must deal with a Bill section by section, working through it chronologically.
Standing Order 122 states:
In committee a Bill must be considered section by section. It shall be in order, however, for consideration of a section or sections, as entered upon, to move the postponement of a section or sections until another section or Schedules have been disposed of. Any section of a Bill may be amended in committee and new sections may be inserted.
My understanding of the Standing Order is that after amendments are withdrawn remaining sections may be dealt with. I understand the meeting was convened to complete the remaining sections of the Bill. If amendments are withdrawn by the Minister or others, so be it, but the remaining sections of the Bill have to be dealt with.
There are some sections that need to be reworked and others we have not seen yet. Apart from this new section, the other amendments are minor and non-contentious. They will be disposed of in two minutes at the next meeting.
Can we do them now?
Exactly. That was the point I was going to make.
I am concerned about the procedures. I do not see how a suspension is going to interfere with anything.
I am satisfied it is in order to deal with the sections at this stage. It is ultimately a matter for the committee to decide whether to proceed. We have a proposal as to whether we should proceed. Do we have a proposal to the contrary?
I propose that we proceed and deal with the remaining sections if it is in order to do so.
I am not satisfied with the procedures and I will seek independent advice on them. Not dealing with the remaining sections is not going to delay this. We will dispose of them in minutes the next day.
I accept the Deputy is right to take advice on that. Pending that advice I propose to proceed with the meeting. Alternatively, we can adjourn for five minutes and I can take advice on this.
I have been fairly reasonable about listening to the Deputy and taking her suggestions on board. I have withdrawn a section at the request of the Deputy and the Irish Congress of Trade Unions. The rest of these items are fairly non-contentious, as the Deputy said, and I cannot see why, when the committee decided at 9.30 a.m. to sit until 12.30 p.m.——
There is no advantage in doing so.
Why not take them now?
There is no advantage in doing so.
There is.
Let us have a suspension——
The advantage in taking them now is that they are dealt with.
We will give a guarantee we will not delay the Minister more than five minutes the next day.
I do not understand why the Deputy will not deal with this now.
We want to ensure there is a proper Committee Stage for this Bill and to give the Minister time to consult, redraft and get the approval of the Dáil for all his amendments and to bring them back here to be dealt with on Committee Stage properly and appropriately.
I am not interested in that. I made it clear the last day and today that I would rework some sections for Report Stage and I do not know of any Bill on which so many commitments have been given. I did not say I would rework sections for Committee Stage. I also said I would seek to ensure a full Report Stage debate in the Dáil. We should seek to finish Committee Stage and then move to the next stage, when we can get advice and introduce the necessary changes. That is what Report Stage and the Seanad are for.
Obviously there are contrary views on how to proceed. We started the meeting by saying we would conclude at a certain time, having dealt with our business. If the Deputy wishes, we can put this to a vote though it should not be necessary.
No, we started on the understanding that what we had was before us. The Minister then said he had significant new sections he intends to introduce. I am asking members to agree on a reasonable basis to suspend consideration of Committee Stage to allow the Minister time to consult and redraft and to return with the amendments.
We have debated that point and there are differing views among committee members as to how we should proceed. We can call a vote on the Deputy's proposal as to how we should proceed but I do not see why we should.
With all due respect, there are serious obligations on all of us as members of the committee to give adequate and due consideration to legislation. We cannot do that now and it is not possible generally to do so on Report Stage. All of us have a responsibility to the workers of Irish Rail to ensure they are treated fairly.
The point is that we are able to deal with all the remaining amendments and sections of the Bill in the normal way without reference to the issues raised by the Deputy.
We should not complete Committee Stage. We are not in a position to complete it.
We are not completing it.
We are. That is what the Minister said. This is the difference of opinion here regarding the completion of Committee Stage, which we oppose. Report Stage is not the same as Committee Stage, with limited speaking time and questions for the Minister. We are talking about serious legislation and criminal offences. With all due respect to the Minister, his officials and the draftsman, these amendments are inadequate and if we have similar amendments on Report Stage we will not have the time available to us, according to parliamentary procedures, to tease these matters out. This is a critical element of the legislation and it is pointless going ahead with the current wording as it will not achieve the goal of the Bill. The Minister said every day this Bill is delayed it is delaying the use of the investigative procedures. In fact, with the wording of the Bill and these amendments, those procedures will be no better than the current procedure. There is a critical difference of opinion between the Minister's and my interpretation of the Bill. That has to be teased out and the only way to do so is on Committee Stage, not on Report Stage.
I have listened to the views of Deputies as we have debated this issue. If Deputy Shortall wishes to press her proposal we can do so - her views have been made known, though I do not think it will proceed. Otherwise I propose to suspend for five minutes. I just want to clarify one point in relation to that, otherwise I propose we proceed and finish.
The issue at stake here is too important. We are talking about legislation which will apply for many years and the rights of workers in the rail company. There is also the matter of our responsibilities as parliamentarians, which we cannot discharge adequately in the current circumstances, so I am pressing this.
I propose a suspension of the meeting. Is that agreed? Agreed.
Sitting suspended at 11.40 a.m. and resumed at 11.55 a.m.
We will recommence the meeting. Does the Minister wish to speak?
I would like to finish Committee Stage today. It is important that we do so. I have had discussions with Deputy Shortall. If she submits a motion at the commencement of Report Stage to recommit the Bill for a period I will seek to have the Government agree to that proposal and I will discuss with the Chief Whip the possibility of a minimum of two hours discussion at that time. My advice is that the effect of that procedure is not to bring the Bill back to the committee but to make Report Stage, in effect, a continuation of Committee Stage. The Bill will be debated in the Chamber but the restrictive rules of Report Stage debate will not apply and there will be a more open discussion. I am happy to suggest that we proceed in that way and finish Committee Stage. I will seek the Government's approval of Deputy Shortall's proposal to recommit the Bill for a minimum of two hours on Report Stage.
Could we stretch that to three hours because they are substantial points?
I will guarantee two hours. After that I will have to negotiate with the Chief Whip's office and I know how awkward chief whips can be.
Is that agreed? Agreed.
Amendment, by leave, withdrawn.
Amendments Nos. 96 to 98, inclusive, not moved.
SECTION 89.
Amendments Nos. 99 and 101 are related and may be discussed together.
I move amendment No. 99:
In page 68, subsection (1), line 27, after "authority" to insert "or a person acting under contract on behalf of a road authority".
Amendment agreed to.
I move amendment No. 100:
In page 68, subsection (2), line 38, after "days" to insert "of notification".
Amendment agreed to.
I move amendment No. 101:
In page 68, subsection (3), line 40, after "commences" to insert "or authorises a person to commence under contact on its behalf,".
Amendment agreed to.
Amendments No. 102 and Nos. 104 to 106, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 102:
In page 68, lines 48 to 51 and in page 69, lines 1 to 4, to delete subsection (4).
This amendment is grouped with amendments Nos. 104 to 106, inclusive. The purpose of these amendments is to delete the requirement for a railway undertaking to consult with the roads authority in regard to proposed works on a railway which may affect the safety of a public road. This requirement is not consistent with section 53 of the Roads Act 1993, which requires the consent of the National Roads Authority or the Minister for works adjacent to or over or under motorways, busways or protected roads. However, to amend this section to require a railway undertaking to obtain the consent of a road authority would, in effect, give a road authority a veto over a railway works and that is not the intention of the provisions. In the circumstances, therefore, I have decided to withdraw the requirement for a railway undertaking to consult with a road authority regarding proposed works on the railway and rely, instead, on the general duty placed on the railway undertaking, under section 38, to ensure the safety of persons in the operation of its railway and on the new works assessment process, under section 43, which requires that the Railway Safety Commission be satisfied as to the safety of the proposed works.
In addition, amendments to section 89(6), under amendment No. 105, are intended to clarify that the danger which necessitates emergency works without prior consultation must be an immediate danger and to provide that a danger to property may also be valid grounds for emergency works. For example, in a case of a burst water main there may be no immediate danger to persons but there could be an immediate danger of flooding to property.
Is there still a requirement on the railway undertaking to give notice to the local authority of its intention to carry out works?
Not specifically.
There needs to be.
I presume they would anyway. It is the first thing they would have to do.
Yes, but it needs to be written in. If a local authority has difficulty regarding planned works, I presume there is a mechanism for the authority to go to the commission with it. It is imperative that there is an obligation on the railway undertaking to provide a notice to the local authority of its intention to carry out works.
I am happy to do that. I would assume they would do that. It would be normal practice.
It is imperative that it be written in.
Does the Deputy think it is not normal practice?
It is imperative that it is written in. There is a long history.
I hear the Deputy. We will put it in.
Amendment agreed to.
I move amendment No. 103:
In page 69, subsection (5), line 5, after "may" to insert ", after consultation with the Minister, the Minister for the Environment and Local Government and the National Roads Authority,".
This amendment requires the Railway Safety Commission, before publishing guidelines under section 89, to consult specified parties having a function in regard to roads.
Amendment agreed to.
I move amendment No. 104:
In page 69, subsection (5), lines 5 to 10, to delete all words from and including "to-" in line 5 down to and including "users" in line 10 and substitute the following:
"to any works on a public road in the vicinity of railway infrastructure which may affect the safe operation of the railway infrastructure".
Amendment agreed to.
I move amendment No. 105:
In page 69, lines 11 to 14, to delete subsection (6) and substitute the following:
"(6) Nothing in this section shall prevent a road authority or other person from carrying out works in advance of a requirement under this section where such works are necessary to eliminate or reduce an immediate danger or risk to persons or property.".
Amendment agreed to.
I move amendment No. 106:
In page 69, subsection (7), line 16, to delete "railway undertaking,".
Amendment agreed to.
I move amendment No. 107:
In page 69, subsection (11)(a), line 37, after “railway” to insert “or a road tunnel”.
This is a technical amendment to ensure that road tunnels under a railway are covered by the definition of "works".
Why specifically road tunnels?
We are adding road tunnels. The Bill will then read: "in the case of a public road, road excavation or resurfacing, road widening or narrowing, signage, road markings, traffic signallings, protective barriers in the vicinity of railway infrastructure, a railway level crossing or a road over or under a railway or a road tunnel." Road tunnels were omitted from the list.
Amendment agreed to.
Section 89, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 108:
In page 69, before section 90, but in Part 10, to insert the following new section:
"PART 11
GENERAL ENFORCEMENT AND OFFENCE PROVISIONS RELATING TO RAILWAY SAFETY AND CONDUCT OF PERSONS ON RAILWAYS
90.-A person who uses or attempts to use a train or other mechanically propelled vehicle on a railway, other than a light railway (within the meaning of the Transport (Railway Infrastructure) Act 2001) without the express consent of the railway undertaking concerned, is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or to both.".
This new section makes it an offence to use a train or other vehicle on a railway without the expressed permission of the railway undertaking. The kind of offence that would arise relates to a person who takes illegal possession of a train or a person who takes a car into a railway to joyride or to take a shortcut and so on. It also relates to a member of staff who uses a train without authorisation.
Why did the Minister not include a light railway?
It is already covered in the Transport (Railway Infrastructure) Act 2001.
Amendment agreed to.
I move amendment No. 109:
In page 69, before section 90, but in Part 10, to insert the following new section:
91.-(1) A person who deliberately or wantonly causes or attempts to cause damage to any railway property is guilty of an offence.
(2) A person guilty of an offence under this section is liable-
(a) in case the damage caused results in loss of life or serious personal injury to another person, on conviction on indictment to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 5 years, or to both, or
(b) in any other case, on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months, or to both.”.
This new section makes it an offence to damage or attempt to damage railway property.
Amendment agreed to.
I move amendment No. 110:
In page 69, before section 90, but in Part 10, to insert the following new section:
92.-(1) A person who deliberately or wantonly exposes another to danger on railway property is guilty of an offence.
(2) A person guilty of an offence under this section is liable-
(a) in case the exposure results in loss of life or serious personal injury to another person, on conviction on indictment, to a fine not exceeding *10,000 or to imprisonment for a term not exceeding 5 years, or to both, or
(b) in any other case, on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months, or to both.”.
This is another new section which makes it an offence to deliberately or carelessly expose a person to danger on a railway where the exposure causes death or serious injury, for example, by causing a railway accident. The person convicted on indictment may face up to five years imprisonment or a fine of €10,000 which would be in addition to any manslaughter or other charges. A summary conviction where no death or injury is caused carries a lesser sentence.
What is the state of play, subject to this being passed, in relation to agricultural crossings? How does one define "deliberate" or "wanton" damage? It is currently the responsibility of Irish Rail to ensure agricultural crossings meet particular standards and can take whatever machinery uses it. Could a landowner, following enactment of this legislation, who takes a combine harvester through a level crossing and damages it be found liable in this regard?
The amendment relates to any person, farmer or otherwise who deliberately exposes another to danger on railway property. Agricultural crossings are, technically, railway property but there are rights of way involved.
That is my point.
One is guilty of an offence if one exposes another to danger on railway property. The Deputy is asking if the right of way diminishes the offence even though the crossing is railway property?
To prove or disprove wanton damage may be awkward. It is currently the responsibility of Irish Rail to maintain those crossings and it is therefore its responsibility to ensure the crossings are laid out in such a way as to prevent damage being caused by the land owner. If damage were caused——
We are talking about somebody who deliberately causes damage. A farmer going about his daily duties would not deliberately expose another to danger. That is the test and it would be for the court to decide. The word "deliberately" is precise. The amendment provides for "deliberately" or wantonly" causing damage and suggests one would have to go out of one's way to cause exposure to danger to another on railway property. It is my assessment that the legal minutiae of a right of way does not interferes with that. The offence is of deliberately exposing another to danger. It might be a defence to suggest it was not railway property.
Amendment agreed to.
Amendment No. 118 is consequential on amendment No. 111 and both may be taken together by agreement. Agreed.
I move amendment No. 111:
In page 69, before section 90, but in Part 10, to insert the following new section:
93.-Where a railway undertaking provides an emergency cord or other system of emergency communication between the passengers and the driver of a train, any person who uses that cord or system without reasonable and sufficient cause is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 1 month, or to both.".
The new section replaces section 22 of the Regulation of Railways Act 1868. That section made mandatory the provision of an emergency cord or other system of emergency communication between the passengers and the driver of a train. However, this prescriptive approach to railway safety is not in keeping with the safety case approach being adopted by this Bill which requires a railway undertaking to satisfy the Railway Safety Commission, through its safety case, that it has the ability to properly assess and effectively control risks to the safety of persons in compliance with its general duty of care under section 38.
All modern railways would be expected to have a means of emergency communication installed. However, this may not be the case for heritage railways. A railway undertaking such as a heritage railway, which does not have a system installed on its trains, would be expected to demonstrate in its safety case that it has other means of safely managing and emergency on board the train. However, where a railway undertaking provides an emergency cord or other system of emergency communication, improper use of the cord or system will remain an offence.
Amendment agreed to.
Amendment No. 117 is consequential on amendment No. 112 and may be taken together by agreement. Agreed.
I move amendment No. 112:
In page 69, before section 90, but in Part 10, to insert the following new section:
94.-(1) A person, who without lawful authority, deliberately or maliciously-
(a) puts, places, casts or throws upon any railway property or across any railway track any wood, stone, vehicle or other matter or thing,
(b) takes up, removes or displaces any rail, sleeper, or other matter or thing belonging to a railway undertaking, or
(c) turns, moves or diverts any points, signals or other plant or machinery belonging to a railway undertaking,
to obstruct, damage or derail a train or to injure persons present on, using or working on railway property is guilty of an offence.
(2) A person guilty of an offence under this section is liable-
(a) in case the act results in loss of life or serious personal injury to another person, on conviction on indictment to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 5 years, or to both, or
(b) in any other case, on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months, or to both.”.
This new section replaces section 35 of the Malicious Damages Act 1861 which provides for similar matters which it is proposed to repeal. The thrust of the new section differs little from the 1861 Act and is principally updated in terms of language and the penalty for offences. It makes it an offence to damage or interfere with railway property or infrastructure with the intention of obstructing, damaging or derailing a train or of injuring persons on a railway. The amount of fine and terms of imprisonment are set out there.
What about people walking on railways?
It is an offence to expose anyone on railway property to danger. In doing so, one would also be exposing oneself to danger.
What about children?
Children would be considered to be trespassing under section 59(1) of the Transport Act 1950 and juvenile legislation would apply.
Amendment agreed to.
Amendments Nos. 113 and 119 are related and will be discussed together by agreement.
I move amendment No. 113:
In page 69, before section 90, but in Part 10, to insert the following new section:
95.-A member of the Garda Síochána may arrest a person without warrant where the member reasonably suspects that the person is committing or has committed an offence under-
(a) section 59(1) of the Transport Act 1950,
(b) section 25(1) of the Transport (Miscellaneous Provisions) Act 1971, or
(c) Parts 10 or 11.”.
This new section replaces section 11 of the Transport Act 1987 which provides for similar matters which it is proposed to repeal. A power of arrest without warrant in respect of offences under Parts 10 and 11 of this Bill is added to those of the 1987 Act. Parts 10 and 11 are new parts for which amendments are proposed dealing with offences by persons working on a railway and offences relating to railway safety generally and conduct of persons on railways.
Amendment agreed to.
I move amendment No. 114:
In page 69, before section 90, but in Part 11, to insert the following new section:
96.-Proceedings for an offence under this Act may be brought and prosecuted summarily by the Commission.".
This is a technical amendment to avoid a prosecution failing where the District Court refuses jurisdiction.
Amendment agreed to.
Section 90 deleted.
Sections 91 to 94, inclusive, agreed to.
NEW SECTIONS.
I move amendment No. 115:
115. In page 72, before Schedule 1, to insert the following new section:
"PART 12
PROVISIONS RELATING TO CÓRAS IOMPAIR ÉIREANN
95.-Section 17 of the Transport Act 1950 is amended by substituting for subsections (1) and (2) the following:
'(1) The Minister may, if and whenever he or she thinks fit, on the application of the Board, by order ("Acquisition Order") authorise the Board for the purpose of the exercise of its powers and duties or of the powers and duties of any of its subsidiary companies to-
(a) acquire compulsorily such land as may be specified in the order, or
(b) close, stop up, remove, alter, divert or restrict an existing means of crossing a railway as may be specified in the order.
(2) An Acquisition Order-
(a) shall provide for the payment of compensation by the Board to the several persons having estates or interests in the land to which the order relates,
(b) shall provide that any question of disputed compensation shall be determined, subject to subsection (2A), under and in accordance with the Acquisition of Land (Assessment of Compensation) Act 1919 and, for this purpose, the Board is deemed to be a public authority within the meaning of that Act, and
(c) may incorporate all or any of the provisions of the Land Clauses Acts, with such modifications and adaptations as the Minister thinks proper.
(2A) An official arbitrator appointed under section 1 of the Acquisition of Land (Assessment of Compensation) Act 1919 shall-
(a) in assessing compensation for the closure, stopping up, removal, alteration or restriction of an existing means of crossing the railway, have regard to any new means of access provided by the Board to affected lands and where appropriate to any existing means of access (where restricted or otherwise) that remains, and
(b) have jurisdiction to make a nil award.’.”.
This amendment to the Transport Act 1950 updates the compulsory acquisition powers of CIE to provide that it may, in addition to acquiring land required for the railway, also close or restrict a right of way over the railway. For example, where a bridge is built to replace a level crossing the right of way over the railway at the level crossing could be closed. In addition the amendment provides that an arbitrator appointed to assess compensation for the closure of the right of way to affected lands must have regard to any new means of access provided, for example a bridge, or to any other existing means of access, and must also have regard that the arbitrator may make a nil award.
The amendment is required as the existing provision in the 1950 Act deals with land acquisition only. It does not allow CIE to eliminate rights to cross the railway at accommodation crossings. CIE has advised that the amendments will be of considerable use in progressing the Iarnród Éireann level crossing safety programme. It is an important amendment from the point of view of tackling the safety aspects of accommodation crossings.
Irish Rail is proceeding with the closure of many of these accommodation crossings but from what the Minister says now it seems the procedures involved will be different. Up to now it was compulsorily purchasing lands through negotiation with the landowners and closing accommodation crossings on account of that. Now it will be able to do so without purchasing the land.
They will, but any arbitrator appointed will be authorised to assess compensation for the closure as opposed to negotiating a price for the land.
We shall come back to this on Report Stage.
I can see lawyers being consulted.
Amendment agreed to.
I move amendment No. 116:
116. In page 72, before Schedule 1, to insert the following new section:
96.-Section 25 of the Transport (Miscellaneous Provisions) Act 1971 is amended by substituting for subsection (1) (inserted by section 8 of the Transport Act 1987) the following:
'(1) Where a person fails to shut and fasten the gate of a level crossing or passage to which this section applies, as soon as he or she or any animal or vehicle under his or her care has passed through the level crossing or passage, he or she is guilty of an offence and is liable on summary conviction in respect of every such offence to a fine not exceeding €1,000.'.".
This amendment to the Transport (Miscellaneous Provisions) Act 1971 replicates the provision of that Act but it increases the penalty for summary conviction for failure to close level crossing gates to €1,000. The non-closure of gates at level crossings is a persistent problem and may have been a contributory factor in the number of level crossing incidents over recent years.
Amendment agreed to.
FIRST SCHEDULE.
I move amendment No. 117:
117. In page 72, between lines 7 and 8, to insert the following:
"
24 & 25 Vict.
c. 97
Malicious Damage
Act 1861
Section 35
".
Amendment agreed to.
I move amendment No. 118:
In page 72, column (3), line 8, before "Part" to insert "Section 22 and".
Amendment agreed to.
I move amendment No. 119:
In page 72, between lines 24 and 25, to insert the following:
"
No. 27 of 1987 Transport Act 1987 Section 11
".
Amendment agreed to.
I move amendment No. 120:
In page 72, between lines 24 and 25, to insert the following:
"
No. 55 of 2001 Transport (Railway
Infrastructure) Act
2001
Sections
11(1)(b) and
51
".
Section 11 (1)(b) of the Transport (Railway Infrastructure) Act 2001 gives a function to the Railway Procurement Agency to monitor and publish regular reports on the safety of light railway and metro infrastructure. This provision was intended as an interim measure pending the enactment of this particular Bill. The role of safety regulator will now fall to the railway safety commissioner who will be responsible for overseeing the safety of all railway infrastructure. This provision is no longer required and should therefore be repealed.
Section 51 of the Transport (Railway Infrastructure) Act 2001 provides that no part of a railway can be opened for testing or use unless an inspector appointed by the Minister under the Regulation of Railways Act 1871 is satisfied with the safety of the railway, of rolling stock and safety management system. That section has been replaced by the provisions of this particular Bill, in particular, Part IV of the Bill which deals with safety management systems and the safety case. The Railway Safety Commission, to be established by this Bill, will henceforth be responsible for regulating the safety of the Luas and other light railway and metro systems. It is therefore necessary to repeal section 51 of the Railway (Transport Infrastructure) Act 2001.
Amendment agreed to.
First Schedule, as amended, agreed to.
Second Schedule agreed to.
Title agreed to.
I thank the Minister and his officials for attending today's session. I also thank the members of the committee.