Road Safety Authority (Commercial Vehicle Roadworthiness) Bill 2012: Committee Stage
Sections 1 to 3, inclusive, agreed to.
SECTION 4
I move amendment No. 1:
In page 8, subsection (2)(f), line 5, after “tests” to insert the following:
"may be determined by the Minister with the advice and consent of Seanad Éireann".
I welcome the Minister. We had a very good debate on these issues yesterday, including the Minister's response to the points we made. We were developing ways to bring road safety down to a lower level and looking at particular target groups, such as pedestrians, motorcyclists, cyclists and single vehicle car accidents, comparing the high rate of accidents on undivided highways with those on divided highways.
I tabled this amendment in that spirit, where I propose there is an exchange of views. Section 4(2) (f) will now state: “the persons, and the qualifications and training of persons, who may validly carry out test, may be determined by the Minister with the advice and consent of Seanad Éireann”. It is very important that we have people of the required standards carrying out these tests. It is fair to say that the industry has become more professional in recent times and the testers should be at least as good as the people they are testing. In the PricewaterhouseCoopers report I noted with some concern that the Department of Transport, Tourism and Sport testers were reduced from between five and six to one in the years up to 2006. The general principle is that when people go into the test centre and test vehicles they should immediately impress people there. These are people from whom we can learn and who add value to the process.
Section 4 provides that the regulations may make provision for persons and the qualification and training of persons who may carry out CVR tests. I as Minister will make the regulations and they will be laid before the Houses of the Oireachtas. The House, if dissatisfied, will then have an opportunity to annul them within 21 days. This is the safeguard provided by section 3.
Prior advice and consent from the Seanad to determine the provisions in secondary legislation would be unusual as the Oireachtas delegates powers to Ministers to make secondary legislation. I am not aware of situations where a partial delegation of powers to one House by regulation would exist and it may be that a requirement to seek the advice and consent of the Seanad prior to making specific provisions in regulations would be unconstitutional under the separation of powers doctrine. Accordingly, I am not in favour of accepting this amendment as I am confident that the legal basis for dealing with persons who would carry out tests is sufficiently provided for in this Bill. I will ensure that considered attention will be given to the making of the associated regulations within the policy framework of the Bill. Essentially what we will do is when we produce the regulations in the normal way, they will be laid before the Houses, allowing the Houses to annul them after 21 days. It would be unusual to require a Minister to get the prior consent of one House before making regulations. I do not propose to accept the amendment.
I thank the Minister for his response and will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6
I move amendment No. 2:
In page 9, subsection (4), line 23, after "consent" to insert "and that the Garda Síochána were so notified".
The Minister and I discussed previously in the House the scenario envisaged in this amendment. If somebody pleads that his car was stolen or was used without his consent, it would help if he told the Garda Síochána, rather than use this as his defence when the vehicle is involved in a crime or in an offence. I am trying to strengthen the hand of the Garda so that it is at least notified that the vehicle is stolen, before it is used for criminal purposes. How can the Garda look for vehicles that are stolen if it has not been notified? Then it must try to deal retrospectively with the crimes in which the vehicles were involved. It is a requirement, if one wants to use the defence that the vehicle was stolen, that the Garda should have been informed, which would assist it in solving crime.
We discussed this issue before when the Minister was introducing earlier safety regulation. I would be interested to hear his response on whether it is possible to use this as a requirement if somebody wishes to use the defence that his vehicle was stolen and he did not know who was driving it.
We did discuss this suggestion during a debate on previous legislation. I understand the Senator's intention in this regard but I do not agree with his logic. Essentially, what this would mean is that people can use as a defence the fact that their car was stolen. Cars get stolen and are then used for a crime. If I were to accept this amendment, the person making the defence, would have had to inform the Garda that his car was stolen. One might not know that the car had been stolen. I have ministerial transport and I have not seen my own car in ten days. I actually do not know whether it is still there. It could be gone and it could have been used in a crime in the past ten days for all I know. It could happen in families that one of the children or a spouse could take the car and commit a crime and the owner would not know that at the time and would not have told the Garda at the time, therefore could not use that as a defence. I understand the Senator's intention but I think his logic is false.
I assume the Minister would notify the Garda were he so unfortunate. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 3, 12 and 13 are related and may be discussed together.
I move amendment No. 3:
In page 9, subsection (5), lines 27 to 29, to delete all words from and including ",without" in line 27 down to and including "Authority," in line 29.
The purpose of the amendments is to delete the provisions that dilute the State's role.
I agree with the wording of section 6(5) up to the word ‘shall': "A certificate purporting to be signed by an officer of the Authority and to certify that on a specified day or days, or during the whole of a specified period, no certificate of roadworthiness was in force in respect of a specified CVR vehicle shall...". However, the State's role is diluted by the following words "without proof of the signature of the person purporting to sign the certificate or that he or she was an officer of the Authority,". That is current in the adjoining jurisdiction in regard to extradition warrants. Should we not do the documentation properly? The vehicle could be worth €200,000 and if we want to restrain it, the documentation should be properly certified. I do not know the reason that we would wish to do this without proof of the signature of the person or without proof that the person was so authorised. It seems a strange exemption for the State to seek in implementing the provisions of the Bill. I think the onus should be to do things by the book.
These amendments propose to delete wording from section 6(5), section 22(7) and section 23(2) and that would have the effect of requiring personnel from the Road Safety Authority to be present in court every time there is a need to prove that a certificate of roadworthiness was not in force at the time of the offence, as in section 6, or that a person was not authorised, as purported to be a CVR test operator or a tester in section 23.
Similarly the proposed amendment to section 22(7) could place a considerable burden on the authority if an officer required to approve the validity of a signature on a document containing a decision by an appeals officer. The wording of the provisions published is consistent with existing legislation, including road transport legislation and to change these provisions in line with the Senators suggestion would place an unworkable burden on the Road Safety Authority. The current wording places the burden on the defendant to prove that the signatures or declarations are some how invalid. The removal of this text would result in further evidential requirements on both the authority and the Garda when taking prosecutions and as such would increase the administrative burden and reduce the efficiency of handling prosecutions in cases. Essentially our concern is that, as may have been the case in the past, Garda and road safety officers would be summonsed to court on every occasion to verify their signature. We are all concerned about the amount of time that Garda and other officers already spend around the courts waiting for cases. This would essentially allow a solicitor to insist that everyone turn up and prove that the signature was his or her signature. That would be impractical. I ask the Senator to withdraw the amendments on that basis.
I agree with the Minister. My concern was that it should not be used to opt out of proper procedures nor should we tie up an entire Department.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Section 7 agreed to.
NEW SECTION
Government amendment No. 4:
In page 10, before section 8, to insert the following new section:
"8.—The Minister may make regulations requiring persons applying for a licence under section 1 of the Finance (Excise Duties) (Vehicles) Act 1952 in respect of a mechanically propelled vehicle—
(a) to make such declaration and produce such evidence as is necessary to show whether the vehicle is or is not a CVR vehicle, and
(b) where it is a CVR vehicle, to produce a certificate of roadworthiness or provide evidence of such which will be in force in respect of the vehicle when the licence comes into operation.”.
This is a drafting amendment and does not change the policy of the section. The wording of the provision, as published, provided that an application for motor tax would have been accompanied by a certificate of roadworthiness, where appropriate, before the motor tax could be issued. The word "accompanied" was restrictive and would have caused problems for online motor tax applications. Accordingly, the amendment broadens the provision and a decision has been taken to reflect more closely on a similar provision already in legislation regarding the requirement to have an NCT certificate. The underlying principle has not been changed and the amendment simply seeks to improve the format of the provision.
Amendment agreed to.
Section 8 deleted.
Sections 9 and 10 agreed to.
SECTION 11
Amendments Nos. 5, 8, 11 and 15 are related and may be discussed together.
I move amendment No. 5:
In page 13, subsection (3)(d), line 1, after “have” to insert “trained personnel as per section 4(2)(f),”.
My amendment refers to section 4(2)(f) where the Minister decides the qualification and training of persons who may validly carry out tests and I want to extend the provision to this section. It is vital that all people that work in the sector meet the training requirements that the Minister has the power to introduce under section 4(2)(f). I want an assurance that trainers and testers are the same standard as that we aspire to achieve in the industry.
When I read the amendment I thought designated qualifications was a good idea. The amendment asked for experience that is superior to the minimum required for appointment under section 4(2)(f) which designated a certain level of experience. Does the Minister think a superior knowledge is required? Qualifications should be designated when a person is testing anything.
The amendment proposes the inclusion of a reference to section 4(2)(f) that relates to people who carry out CVR tests. The proposed amendment to section 11 is not required as section 11(1)(d) provides that the Minister shall not authorise a person to be a CVR test operator, or amend or renew an authorisation of a CVR test operator, unless the Minister is satisfied that a person has access to the testers necessary for carrying out the tests. All such testers will need to be authorised as a CVR tester under section 17 which explicitly requires compliance with any regulations made under section 4(2)(f).
The amendments to sections 21 and 22 cannot be accepted as the provision deals with the designation of deciding officers who will make decisions and authorisations related to both CVR test operators, the person or body corporate operating the test centre and the CVR tester, the person in the test centre who physically carries out the test. Section 4(2)(f) relates to the training and qualifications of people who carry out the tests and does not relate in any way to the deciding officer provisions in sections 21 and 22.
Again, the proposed amendments to section 33 are incorrect. The section provides for appointing persons to CVR inspectors who have responsibility for roadside vehicle inspections and reference to training and qualifications of personnel who carry out tests in test centres would not be applicable here. Accordingly, I ask the Senator to withdraw his amendment.
I hope I am correct in my belief but Members may have mixed up two sets of people in the amendment.
Senator Barrett wanted the designated qualifications and criteria listed increased from what is contained in section 4(2)(f). Is that correct?
I used the legal analogy that the Minister can appeal to a higher court. In that sense, the deciding officers and appeals officers should be at least as skilled as the people who test the vehicles in the first instance. I am concerned that it would become an administrative role and detract from the operation of the system by saying that the inspector fellow was not bad but the guy deciding on the appeal had never seen a truck before or driven a bus in his life. I am trying to re-enforce the credibility and operation of the system.
To give a wider background and in the minds of economists, the Wright report outlined how few qualifications in economics were held by people working in the Department of Finance. The Bill has the important task of promoting road safety and the people adjudicating on appeals should have the necessary skills. It works in the courts because judges of the Supreme Court are senior to the High Court and District Court. My amendment aims to build in that level of professionalism and Senator Keane seeks it also. The Minister should consider that in order for the system to work, the hauliers and bus people who appear in these circumstances should experience a level of expertise that makes the process credible and believable for them. I mentioned courts but I do not want people to lodge a court appeal subsequently. It is a difficult task but the deciding officer must command the respect of all of the parties to such a dispute. I leave those considerations for the Minister and ask him how best we can work them out. This is a highly professional area and general administration, talents and qualifications may not be enough. I await the Minister's response.
With regard to the responses by Senators Barrett and Keane seeking higher qualifications for deciding officers, is that not already in the job description? Anyone taking up the post would have to meet the job specifications, pass an interview and have attained certain qualifications before securing the job. I presume such requirements would be already built into the job specifications. A tester position is a promotion and a successful candidate would need certain qualifications and knowledge which an interview would reveal.
The Senator is correct because the standards required for a deciding officer and appeals officer post will be very high and set by the Minister. They could be somebody who is a little different. It is often the case that somebody who is asked to review a decision, an appealed decision or even sit in the place of an appeal judge, does not necessarily have the same skills or come from the same background as the people on whom they are making an appeal or decision. I do not want to restrict us to only having appeals or deciding officers who have come through the system. We would like the flexibility of having other people who are appropriately qualified to decide such cases.
I accept the Minister's consideration and withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 13, subsection (4), line 11, after "decision" to insert the following:
"within the period referred to in section 13”.
Section 13 refers to a period which is not specified and is at the Minister's discretion. In the section he requires people to respond to him and my amendment tries to ensure the he also responds to people and that the same turnaround time for a response to correspondence applies to the Minister as the applicant. When I raised the issue with the Minister before he said there is a quick turnaround time. By way of background, the judge presiding over the Swords Express case mentioned that the delay by a Department had doubly disadvantaged the applicant. The Minister is entitled to require people to respond to him and I hope that he will give an undertaking that he will be equally diligent in responding to them.
The Senator makes a very valid point. If the Senator is willing to withdraw the amendment, we can return to it on Report Stage. We may in our own amendment require the Minister to reply within a defined period or as soon as is practicable. I do not want to commit necessarily to the period referred to in section 13. In principle, I agree with what the Senator is proposing. There was but a short period between Second and Committee Stages and, therefore, I would like the Senator to resubmit the amendment on Report Stage and allow us the week in the interim to consult the Road Safety Authority and Office of the Parliamentary Counsel with a view to accepting it or proposing an alternative form of words that would achieve what the Senator proposes.
I agree wholeheartedly with what the Minister has said. We will return to this amendment on Report Stage. I thank the Minister very much.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12
I move amendment No. 7:
In page 14, subsection (3), between lines 27 and 28, to insert the following:
"(f) the elapse of time since the offences and any penalty or sentence suffered on foot of the conviction.”.
I am somewhat concerned that after people pay their fine or serve some time in jail, they find themselves debarred from certain activities and career paths. I support the Government on not building Thornton Hall but believe that prisoners should have some possibilities to develop their careers on their release. If a very long time has elapsed since an offence and the penalty has been paid, can we say that the individual in question has discharged his or her debt to society and can therefore engage in the activities covered in this Bill? We referred to driving trucks in this regard on the last occasion.
There have been some legal cases concerning taxi licensing. People who served jail sentences can go straight back into business after having paid their penalties. The Garda has found it difficult to persuade many judges on this matter. The judges have a view that there are penalties and that we should not keep adding extra penalties and prohibiting people for a very long time from re-entering the commercial world on having discharged their debt to society. If somebody has had a clean record for a very long time, it should be covered, as proposed in my amendment. There ought to be some occupations that people are allowed to have after having discharged their debt to society. That is the purpose of the amendment.
We are confident that the amendment is not necessary, for two reasons. First, many of the issues will be covered under the spent convictions Bill, which is progressing and will be returned to the Cabinet on Tuesday. This will mean many of the convictions in question will be considered spent.
Second, somebody with a conviction must submit five pieces of information: the nature of the offence; whether the conviction is one of a number of convictions for the same or different offences; any penalty or sentence suffered on foot of the conviction; any disqualification or forfeiture imposed on foot of a conviction; and whether the offence was committed in the course of or in connection with a business concerned with the testing, inspection, maintenance or repair of vehicles. We are confident, based on this Bill, existing legislation and other criteria, that the phrase "the nature of the offence" meets the Senator's concern. When somebody is giving the information required, he or she will be required to state whether the offence was committed 15, 20 or 30 years ago, for example.
I thank the Minister and withdraw my amendment. I obviously did not know this matter was going to the Cabinet on Tuesday. The Minister has superior knowledge.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Sections 13 to 20, inclusive, agreed to.
SECTION 21
Amendment No. 8 not moved.
I move amendment No. 9:
In page 18, line 8, after "suspension" to insert ", given an increased risk rating under section 39”.
This was a matter on which the Minister made important points on risk rating. Section 21 states: "The Minister shall designate persons in writing to be deciding officers for the purpose of deciding on the issue, offer, amendment, renewal, suspension and revocation of an authorisation." I want to include a phrase such as "or to appeal risk rating". I refer to a general procedure of the jurisdiction of the deciding officer.
I am unhappy in general — the Minister indicated many words to this effect himself — that we are heading towards circumstances where there are three verdicts: guilty; not guilty; and risk rated. If we are to have risk rating, as referred to under section 39, could it come within the jurisdiction of the deciding officer? I am unhappy about the whole idea of it for the reasons I have outlined. The Minister outlined some of them yesterday. Somebody will have to decide the risk rating and there will have to be an appeals procedure for those who do not like their rating. The view that seemed inherent in section 39, that it somehow involves a highly scientific technique and is definite, does not hold true. It should be open to appeal, probably in the review of the deciding officer, or perhaps not included at all given the dangers I have mentioned in respect of a system with the verdicts guilty, not guilty and risk rated. The fear is that if an individual were rated as being of extremely high risk, the decision would be appealed. If an individual is given an extremely low rating and there is an accident, is the State liable for rating that individual at the bottom the scale of danger? I am generally unhappy about the risk rating idea. Many of the views in this regard were expressed by the Minister yesterday.
I refer to risk rating in general, not just risk rating pertaining to transport. Actuarial science has not advanced to the degree that we can declare people to be risky or not risky on a scale of one to nine without going through due process. Perhaps the Minister will consider dropping the provision. Decisions on risk rating will be of major importance to people in the transport industry. Perhaps risk rating should be part of the deciding officer's functions. That is the purpose of the amendment. Alternatively, perhaps risk rating should not be in the Bill at all. This is a radical alternative. I was most interested in hearing what the Minister said yesterday on risk rating and will be interested in hearing his response in this case also.
Is the Senator referring to amendment No. 9?
On amendment No. 9, section 21 relates to the appointment of the deciding officers. The proposed amendment would restrict the power of a deciding offer to suspend based on risk rating alone. The section that provides for suspensions and authorisation and the criteria to be applied is section 18. The amendment would undermine the powers of the deciding officer. Section 18 is the key in that it establishes the basis on which the Minister may suspend an authorisation as a CVR test operator or CVR tester where the Minister determines that the person is so authorised. A large number of criteria are outlined in the section. From my reading of the legislation, this means the power to suspend is not based on risk rating. A risk rating is just soft or supporting information, and a suspension could not happen based on risk rating alone in any case. The criteria on page 17 would have to breached for somebody to be suspended.
I welcome the Minister's response. Is there a danger of a de facto suspension in that if we rate somebody as extremely risky, he will be out of business anyway?
Section 18(1) is on the suspension of authorisation, in respect of which there are a number of criteria:
(a) is in breach of one or more of the conditions of the authorisation or has not carried out tests under the authorisation during the period of 6 months immediately preceding the suspension,
(b) is in breach of this Part (including any regulations made under this Part) or the guidelines,
(c) is, or has been, convicted of an offence under the Safety, Health and Welfare at Work Acts 2005 and 2010,
(d) is in breach of a direction, or
(e) is no longer, having regard to section 12, a fit and proper person to hold the authorisation.
I thank the Minister for his response. I am just concerned it could nearly be as damaging to give someone a high risk rating as a de facto suspension. I accept the Minister’s points and that risk rating is covered later; therefore, it can be discussed again.
Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22
Government amendment No. 10:
In page 18, subsection (3), line 17, to delete "of the Minister".
This is a minor technical amendment to bring clarity to section 22(3). It is my intention that this function to appoint appeals officers will transfer to the Road Safety Authority. This small amendment aims to avoid any confusion when the function transfers from the Minister to the authority.
Amendment agreed to.
Amendments Nos. 11 and 12 not moved.
Section 22, as amended, agreed to.
Amendment No. 13 not moved.
Section 23 agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28
I move amendment No. 14:
In page 21, subsection (3), line 42, after "Authority" to insert the following:
"following prior consultation with the Data Protection Commissioner".
While fully supporting the idea of increased communication and the sharing of information, I am also concerned about the rights of the individual and check and balances. Will the Minister agree to insert a clause whereby the Data Protection Commissioner will be consulted about the important issue of information sharing relating to this section?
Section 28(4) provides for regulations to be made on the use of information, transferred, shared and exchanged under section 28. It is my intention that the Data Protection Commissioner will be fully consulted in the development of these regulations. Paragraphs (c), (d) and (e) of section 28(3) allows the Minister to prescribe additional persons who can have access to and use of the integrated information technology system that will be in place called CoVIS, the commercial vehicle information system. The Data Protection Commissioner will be consulted if additional such persons are prescribed under section 28(3). I hope this commitment is sufficient for the Senator to withdraw his amendment.
Amendment, by leave, withdrawn.
Section 28 agreed to.
Sections 29 to 32, inclusive, agreed to.
Amendment No. 15 not moved.
Section 33 agreed to.
Sections 34 to 37, inclusive, agreed to.
SECTION 38
Question proposed: "That section 38 stand part of the Bill."
I do not see the point of the issuing of guidelines as provided for in this section. It seems to be unnecessarily bureaucratic. If we want to make something an offence we should go ahead with it. I do not see the worth of these guidelines.
I suppose the Senator has a principled objection to guidelines. This provision simply allows the authority, like any other State agency, to issue guidelines from time to time. We had considered putting these into the Schedule. However, on balance, it makes sense to allow for some degree of flexibility when it comes to guidelines which are not part of the legislation. A public authority should be allowed to issue guidelines. Saying that, one will meet people in the industry who will argue a matter is in legislation but could guidelines be issued to explain in common sense terms what it means. The Road Safety Authority needs to be able to issue guidelines for users affected by the legislation as to what certain provisions mean.
Question put and agreed to.
SECTION 39
I move amendment No. 16:
In page 28, subsection (1), line 28, to delete "is given a numerical rating" and substitute the following:
"is given a broad category of "above average risk", "average risk", "below average risk"."
This concerns the risk rating provisions which have already been discussed. It appears to be part of an EU requirement. My amendment proposes not to give a numerical rating in this regard. To impose a penalty on somebody by statistical inference elevates actuarial science to a level it does not have, particularly compared to the law. Either a person has a conviction or not. The numerical rating comes from regulations laid down by the European Parliament. I propose we break it down into three categories, "above average", "average" and "below average".
I do not mean to make silly analogies but last Saturday at Aintree the actuarial and statistical evidence claimed a favourite would win the Grand National when it was in fact won by a horse at odds of 33 to one. This shows how inexact the evidence was on one afternoon. I do not believe in imposing statistical penalties on people. They are innocent until proven guilty. Imposing penalties on someone because there is a statistical risk that something could happen seems to be strange. If they have committed offences, these should be recorded, a penalty which I support.
This proposal, however, introduces another category to guilty or not guilty — risk rated. I am concerned this approach is gaining credence which could do serious injustice to people. They might look like people who may get up to dangerous activities but they have not yet done so and may surprise us in the end. This brings statistical inference into the law which is undesirable and elevates actuarial science to a status which it should not have. That is my general concern about all of section 39.
My concern is at a much more grassroots level. How will the introduction of the risk rating system work? Will it be put on a certificate of roadworthiness? Will the test operator be required to put a sign up on their business? How will people know what is happening? The legislation states, "a vehicle, premises or person is given a numerical rating based on the relative number and severity of any infringements of requirements" and, therefore, "a higher rating is checked more closely and more often than vehicles, premises or persons with a lower rating." Do the premises relate to the test operators or are they the premises where the vehicles are kept?
Am I right in assuming this is a transposition of European law? The Bill cites directives of the European Parliament and the Council, and the European Communities (Road Transport Activities Checks) Regulations 2007. If this system is introduced, might it prejudice a haulier's ability to generate business because competitors may claim they have a safer record based on infringement rates and risk ratings? The infringements could be minor or technical, however. I am curious about the background to and justification for this measure. Can the Minister provide further information on why it is being introduced in Ireland?
The measure derives from a European policy which we have signed up to as a nation. The general view is that it makes more sense to focus enforcement activities on those with a high risk of offending than to carry out random checks. This principle applies for everything from soft information in potential child abuse cases to transport enforcement, and it allows those who have a clean record to go about their business without being subjected to frequent enforcement checks. The authorities, in turn, are able to focus their enforcement procedures on those who carry the highest risk ratings based on past infringements and penalties.
The question that arises is whether the rating system is robust. We do not want to see a situation whereby somebody gets a rating that cannot stand up to scrutiny. I am assured that ratings will be based on objective criteria. To the best of my knowledge it will not be a requirement to display the risk rating number and it will not necessarily be public knowledge. However, individuals will have access to their own ratings and associated information.
I raise the issue because of the potential for the ratings to be used in an anti-competitive manner if they are publicly known. Perhaps they will be subject to the Freedom of Information Act, for example. The personal information held in the penalty points system is not released into the public domain other than where individuals are required to provide information for insurance purposes.
I am curious to learn more about the experience in Europe where, presumably, the system is already in operation. As the Minister noted, the question arises of how robust it can be made. Taking up Senator Barrett's point about being guilty or not guilty, there is a grey area which seems to suggest that if an individual's rating is higher than his or her competitors, the latter could use it for anti-competitive purposes. It is a new concept for Ireland but we have signed up to it and I want to tease it out. I am sure it will work properly in practice. I do not want to hold up the Bill unnecessarily but it might be helpful to the House if the Minister were to provide further information.
Similar measures are in place in other areas of road transport law. For example, an individual who has committed a number of tachograph offences carries a higher risk rating and is more likely to be targeted by the enforcement authorities based on his or her previous form. This measure is simply an extension of that. It is designed to allow targeted enforcement against those with form and less enforcement against those with a good record, in accordance with the EU directive.
I have been informed by my departmental officials that while every individual or operator will have access to his or her risk register, the information will not be open to others. It will be kept private, like penalty points.
Can the information be used in a court case to argue that a defendant has a high risk rating, even though he or she has no convictions?
Is the Senator asking whether it could be used as evidence against somebody?
We might return to some of these considerations on Report Stage because, as Senator Mooney pointed out, this is a new measure in Irish law. I welcome the Minister's assurance about the number not being published or used as evidence. I now understand that the information will be held internally in the RSA to help it decide where it should allocate resources and it will not adversely impact on operators in the transport industry. That would require a conviction to be secured.
The general background has to be borne in mind. The vehicles used in the industry are expensive and the insurance industry also carries out policing. Somebody who forms a partnership with an insurance provider will be rewarded for good behaviour. I appreciate that the provision came to us from Europe but safeguards existed heretofore in the insurance industry and our safety record was relatively good. Less than 10% of fatalities are caused by the buses and trucks covered by the measure.
The new powers appeared to be draconian and I would not generally support the introduction of this principle to any wider application of the law. However, if this is normal intelligence that helps the RSA to determine where breaches are most likely to occur it puts the matter in a better light. I withdraw my amendments on risk rating for this reason and perhaps we will consider the matter again given that it is a new principle in Irish legislation to allow an enforcement agency to retain information about citizens who were otherwise not guilty of any offence.
Our debate on section 39 has focused on subsections (1) and (2) but subsection (3) goes into considerable——
We are discussing amendment No. 16. I will let the Senator speak on the section when we come to it.
Amendment, by leave, withdrawn.
Government amendment No. 17:
In page 28, subsection (1), line 30, after "requirements" to insert "relating to matters".
This amendment will not change the meaning or intention of the provision. It is merely a small drafting amendment to bring further clarity to the provision.
Amendment agreed to.
Amendments Nos. 18 to 20, inclusive, and 22 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 18:
In page 28, subsection (3), between lines 44 and 45, to insert the following:
"(c) the registered owner (within the meaning of section 56 (inserted by section 2 of the Roads Act 2007) of the Roads Act 1993) of a CVR vehicle,”.
These amendments do not change the meaning or intention of the provisions but are small drafting amendments to bring further clarity to them. The provision in subsection (10) is being moved to subsection (3) and the amendment of subsections (4) and (5) take account of that move. The amendments will bring further clarity regarding who the risk rating system may relate to under the Act and were recommended by the Office of the Parliamentary Counsel.
Amendment agreed to.
Government amendment No. 19:
In page 29, subsection (4), lines 3 and 4, to delete "paragraphs (a), (b) and (c)” and substitute “paragraphs (a), (b), (c) and (d)”.
Amendment agreed to.
Government amendment No. 20:
In page 29, subsection (5), lines 22 and 23, to delete "paragraphs (d), (e) and (f)” and substitute “paragraphs (e), (f) and (g)”.
Amendment agreed to.
Amendments No. 21 and 23 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 21:
In page 30, subsection (7), between lines 7 and 8, to insert the following:
"(d) an appeal procedure against the risk rating contended.”.
This section states that the Minister may make regulations for a number of things that are listed. Some of them refer to the risk rating. My amendment seeks to provide for an appeal procedure for risk rating to add to the other provisions in the section. As other Senators have said, this could be extremely damaging to a person's business. If he is given a rating, he will know it and he may wish to achieve a better rating. Given the damage that could be done even in the restricted circumstances the Minister mentioned in his last contribution, there should be some way of appealing that risk rating should it be unsatisfactory to the applicant.
Given the short time we have had between Second Stage and Committee Stage, I ask the Senator to withdraw the amendment to give us some time to consider it. At the moment there is no appeals mechanism for somebody who has a risk rating. The amendment proposes introducing such an appeal mechanism. The legislation provides that a person may make submissions stating that a risk rating is unfair and that the number should be reduced. The Senator is proposing something stronger, which is a proper mechanism of appeal. I would like to consult the RSA before making a final decision on whether to accept the amendment. I ask him to withdraw the amendment and table it again on Report Stage.
I thank the Minister and will withdraw it, pending Report Stage.
I endorse what Senator Barrett said and I am also grateful to the Minister. Section 39(7) states:
The Minister may make regulations providing for—
(a) the making available to a person referred to in subsection (3), on payment of a prescribed fee, of information as to how a risk rating was determined,
(b) the making of submissions by such a person to the Authority in relation to the risk rating, and
(c) the revision or maintenance of a risk rating following consideration of submissions.
There seems to be scope for the Minister to tweak the legislation slightly. However, I take his point that he needs further consultation on it. Having established a structure as outlined in section 39(7) to permit it to go to the gates but not push it through, there may be an argument for permitting some form of appeal.
I can find no reference to sanctions. Having already established that the risk rating is now at a point where the individual obviously feels that it is unfair, I assume if a person believes it is unfair and therefore incorrect he or she is will go down the road as prescribed in the legislation of paying the fee, getting the information and putting in a submission that it may have some adverse effect on his or her business. For example, he or she may ultimately be prevented from taking the vehicle on the road. If a person is availing of the facility provided for in the legislation, it would seem to suggest that the risk rating has reached such a point that it is actually interfering with his or her business and there may be sanctions. That is why I am interested in ascertaining what are the sanctions. If the risk rating is at a high level, is the vehicle put off the road? Unless it was having some adverse effect on a person's business, why would he or she seek information as to how the risk rating was determined? I may not be making myself totally clear. The facility provided for in the legislation seems to suggest that it is permitting somebody who has received a high risk rating that is going to have an adverse effect on him or her, or his or her business, to take these steps. What are the Minister's views in that wider context?
There are no sanctions in having a high risk rating other than that the person will be targeted for enforcement. That vehicle will be stopped more often and the relevant test centre may be inspected more often. The mechanism allows for a person, who feels he or she is being unfairly targeted, to challenge his or her risk rating. Between now and Report Stage we need to ascertain whether the provisions to make submissions and seek to have the risk rating changed go far enough or whether we need a formal appeal mechanism. A high risk rating does not result in sanctions — it just means the person will be targeted more often for inspections and enforcement.
I wish to take this discussion to its ultimate conclusion. If the risk rating is high enough that the inspectors more regularly inspect the individual, the test centre or the vehicle, does it reach a point of no return? Given that there are no sanctions, how long will that process continue until the inspector says: "Sorry, but your risk rating has continued to be high and you have not taken the necessary steps"? I presume this is to do with maintenance of the vehicle as much as anything else to ensure it is roadworthy and it is not a danger to the public or the driver. Where does it eventually arrive if the risk rating continues to be high? If the inspections are becoming increasingly more frequent, at what point does the inspector say it is enough and instruct the owner to take the vehicle off the road or have it fixed?
There cannot be any sanction based on a high risk rating. It just means inspections will be more frequent. As the number of inspectors is limited, there are not as many inspections as we might like. There will not be thousands of inspectors out there spending all their time on one set of premises. It just means that some people may not be inspected regularly and others may be inspected more regularly. If, for example, a vehicle or operator had a very high risk rating and as a result was subject to ongoing inspections and nothing was found, it would indicate the risk rating was wrong. Therefore, such an operator should not be sanctioned just for having a high risk rating.
While I understand Senator Mooney's concern, if the risk rating applies to a vehicle, that can surely be rectified through proper maintenance so that when the vehicle is inspected again and is satisfactory the risk rating should drop. An individual can amass penalty points when driving a car. Can an individual's risk rating be reduced at any stage? Under the penalty points system, they expire after three years. Will a similar provision apply to an individual's risk rating?
The Bill does not go into that level of detail but it will be based on objective criteria and obviously if previous offences from a long time ago gave an individual a high rating, then the person's risk rating may reduce. It is not a case that an individual's risk rating would keep increasing up to a certain point. The Bill does not go into that level of detail and it would not be appropriate to do so.
With road traffic offences a driver reaching 12 penalty points is suspended from driving. How far can an individual go with risk rating? A maximum point may need to be specified.
Penalty points relate to actual offences which reach a certain point at which sanctions are imposed. This is different and is a risk rating that has been ascribed to an individual based on history, form and information.
This is not in the legislation. It must be done by regulation and worked out in more detail. I imagine that every couple of years a risk rating would be ascribed to an individual or an operator based on their form and the information held on them in the preceding five years.
Following up on Senator O'Neill's very good point perhaps the weakness of the Bill is that while it prescribes for a risk rating it does not prescribe for a way in which it can be reduced.
It does in the sense that somebody can make a submission. What was referred to earlier is that one can apply for information and make a submission requesting that it be reduced based on the information being wrong. I presume one would want it reduced rather than increased. The Bill does provide for this.
As we will discuss this issue again on Report Stage, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 22:
In page 30, lines 16 to 18, to delete subsection (10).
Amendment agreed to.
Amendment No. 23 not moved.
Section 39, as amended, agreed to.
Section 40 agreed to.
SECTION 41
Question proposed: "That section 41 stand part of the Bill."
I have a brief question on people found guilty of an offence under these sections. Does this relate in any way to the earlier discussion on risk rating? Is it to do with the roadworthiness of the vehicle or the fact that the test centre did not carry out the test properly? To what do these penalties and prosecutions relate?
Will the Senator ask the question again?
To what do the sections quoted here relate with regard to summary convictions and class A fines? To what do these relate in the context of the proposed legislation? Is it to do with the roadworthiness of the vehicle or the incompetence of the driver, test centre or test operator?
They relate to offences under section 4(4), 12(6)——
It is not a major problem if the Minister does not have the information to hand. I was merely curious as to whether it related in any way to risk rating but the Minister has clarified it does not.
No, it does not. These are actual offences.
Question put and agreed to.
Section 42 agreed to.
SECTION 43
Government amendment No. 24:
In page 32, lines 4 to 7, to delete all words from and including "amended—" in line 4 down to and including "following:" in line 7 and substitute the following:
"amended by substituting for paragraph 15 the following:".
This amendment will not change the meaning or intention of the provision. It is solely a technical drafting amendment.
Amendment agreed to.
Section 43, as amended, agreed to.
SECTION 44
Question proposed: "That section 44 stand part of the Bill."
I seek clarification. This section amends the Road Traffic Act 2002 whereby using a vehicle without a certificate of roadworthiness will incur penalty points. How many penalty points?
Five penalty points, the same as at present.
Question put and agreed to.
Sections 45 to 48, inclusive, agreed to.
SECTION 49
Question proposed: "That section 49 stand part of the Bill."
If my heart ruled my head it would urge me, like my colleagues, to oppose this in principle because in effect it will transfer driving licence operations from local authorities to the Road Safety Authority. The Minister has explained this and one of the key points he made which encouraged me and which I thought was very relevant is in the context of the concerns expressed about the removal of driving licence administration from local authorities and centralising it. Concerns are still being expressed about a loss of jobs but the Minister has gone some way to suggest under the Croke Park agreement there will not be a loss of jobs. Another point worthy of airing, which had not occurred to me and I had used the argument in reverse, is with regard to local authorities having become leaner and more efficient because of the reduction in staff. The Minister suggested, and perhaps he will confirm this, that the transfer to a more centralised form of driving licence administration will release and free up existing local authority staff to work in other areas. I am sure this must be a good step. I presume this is what the Minister stated.
It is. Under the Croke Park agreement there will be no compulsory redundancies so people will not lose their jobs. Many people are leaving local authorities and retiring and the number of people working in local authorities has fallen considerably in recent years. Local authorities are now quite stretched. This measure will reduce the number of people required to run the system from 200 to 60. Therefore, 60 will transfer to the RSA and 140 can be redeployed within local authorities to other functions, whether housing or planning. Staff will be freed up in local authorities to work in sections which are now very stretched.
As a matter of interest, how will the transfer of the 60 staff members be achieved? Will they be recruited through the local authority system from existing local authorities? Because of the embargo they cannot be recruited from outside; therefore, I assume they will come from the existing workforce. Has a methodology been worked out for this? Will the unions be involved? Has this point been reached or is it something the RSA will be obliged to do rather than the Minister?
I have a general question on driving licences. I welcome the introduction of the credit card-type licence with a photo ID. I know it will be an official document but has any agreement been reached with other companies whereby it will be accepted at airports?
To answer Senator Mooney, and I will double check this in case I am wrong, but my recollection is that the 60 staff will be based in the RSA in Ballina and they will transfer from local authorities in the area such as Mayo and Sligo and other government offices in the area. People are willing to go because the RSA is considered to be a good place to work.
With regard to driving licences I have had preliminary discussions and Aer Lingus will accept it for travel in the common travel area with the UK and it will be accepted broadly as an ID. Ryanair has indicated it will accept it when it becomes well known and accepted throughout the EU which I suspect will not take too long because it will be the standard licence for the entire EU from 1 January 2013.
In the same way that a passport has an individual number and is tied to an individual will the new driver licence be linked through a PPS number to an individual?
I welcome the Minister's confirmation that the Croke Park agreement will be adhered to in this instance and there will be no compulsory redundancies. Senator Mooney referred to the further diminution of the role of local authorities. I hope this will not be a recurring theme in his Department or any other Department.
What will be on the driver's licence is set down in an EU directive and includes name, date of birth, address and other information. It does not include the PPS number. We considered it and ideally in the future perhaps we can merge the new social welfare ID with the driving licence and have a single ID. In large parts of the United States the Department of Motor Vehicles, which is the driver licensing authority, is effectively the authority which produces IDs. The licence has a slash through it if one is not allowed to drive. However we cannot do this yet because we are governed by the directive and it does not include the PPS number.
With regard to local authorities it will not become a trend. I have some sympathy with the Senator's comments in that regard. My Department has been transferring some functions to local authorities. For example and as the Senator knows, harbours have been transferred. As part of the reforms led by the Minister for the Environment, Community and Local Government, Deputy Hogan, we will propose to transfer a number of other functions to local authorities. They do not want some but we will see what their response is.
They could not get rich anyway.
We have given local authorities tax-raising powers through the household charge and the property tax, with which they are delighted.
Question put and agreed to.
SECTION 50
Government amendment No. 25:
In page 34, to delete lines 28 to 33 and substitute the following:
""Second or any subsequent offence under the same section or first offence where previously convicted under the other section",".
This amendment brings clarity to the existing provisions, particularly where a person has been convicted of a drink driving offence under one section, for example, driving while under the influence of an intoxicant, and subsequently convicted of a drink driving offence under another section, for example, being in charge of a vehicle while under the influence of intoxicants.
Amendment agreed to.
Government amendment No. 26:
In page 35, between lines 2 and 3, to insert the following:
"(g) in section 33(3B)(a), by substituting “and” for “or”,”.
This is a minor amendment to address a drafting anomaly in existing legislation that was discovered while examining the provisions in the context of the developing Bill. This small change will ensure that a person will not be available to undergo a driving test unless he or she has displayed on the front of the windscreen of his or her vehicle a motor tax disc and an NCT disc. It changes "or" to "and".
Amendment agreed to.
Section 50, as amended, agreed to.
NEW SECTION
Government amendment No. 27:
In page 35, before section 51, to insert the following new section:
"51.—The Act of 1961 is amended by repealing section 37.".
This amendment creates a new section 51, which will delete section 37 of the 1961 Act. Section 37 relates to the transfer and endorsement of new licences and will not apply following the introduction of the plastic card licence in January.
Amendment agreed to.
Sections 51 to 54, inclusive, agreed to.
SECTION 55
Question proposed: "That section 55 stand part of the Bill."
The sections to which the House has agreed, namely, section 50 onwards, effectively close down an era that started with the foundation of the State when local authorities were exclusively responsible for the provision of licences. The end of that era should be recorded.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
When will the next Stage be taken?
Report Stage ordered for Tuesday, 24 April 2012.
When is it proposed to sit again?
