Railway Safety Bill 2001: Report Stage (Resumed).

Tuesday, 11 October 2005

Dáil Eireann Debate
Vol. 607 No. 59

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Bill recommitted to Committee Stage.

Debate resumed on amendment No. 82:

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 82 is being discussed with amendments Nos. 84 and 85.

Minister for Transport (Mr. Cullen): Information on Martin Cullen  Zoom on Martin Cullen  Amendment No. 82 relates to assessors who would assist a tribunal of inquiry into a railway accident in its work. An assessor would typically be an expert in railway safety or some aspect of it, or perhaps a legal expert. I propose in amendment No. 82 that the chief investigator should also be qualified to be an assessor. He or she may well be the best qualified for such a function.

On Committee Stage, Deputy Naughten proposed some restrictions on who should be eligible to chair a tribunal of inquiry into a railway accident. To ensure the impartiality of the chair beyond question, I propose therefore to go further than Deputy Naughten suggested. Amendments Nos. 84 and 85 propose that all serving staff of the commission and investigation unit, including the commissioner and chief investigator, should be barred from chairing a tribunal. All serving and former staff of the railway undertaking involved in the accident should also be barred from the chair. In addition, any other per[359]son with a conflict of interest should be barred. This may include some former staff of the commission.

Amendment agreed to.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I move amendment No. 83:

The purpose of this amendment is to clarify the position regarding affirmations. When I have tabled similar amendments in the past, the relevant Minister has claimed the issue is dealt with by the Interpretation Acts. That is not the case. The Interpretations Act does not say what everybody seems to imply. It provides that an oath includes affirmation for persons entitled by law to affirm. However, there must be a legal entitlement which is what we are seeking in this amendment. Recently, the Minister for Justice, Equality and Law Reform conceded that point during a debate on another Bill.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I thank the Deputy for the amendment. I can accept it.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I thank the Minister.

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 84:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 85:

Amendment agreed to.

Amendments Nos. 86 and 87 not moved.

Section 63, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 88:

[360]Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 89:

Amendment agreed to.

Section 64, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 90:

Amendment agreed to.

Section 65, as amended, agreed to.

Section 66 agreed to.

Amendment No. 91 not moved.

Section 67 agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 92, amendment No. 1 to amendment No. 92 and amendments Nos. 93 to 99, inclusive, are related and will be discussed together.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 92:

This group of amendments relate to the power of the commission to make regulations. On Committee Stage, having debated Deputy Shortall’s amendment No. 51, my predecessor agreed the commission should consult with railway undertakings and railway unions before making regulations under section 68. I am now providing for that in amendment No. 92. I am also providing that the Railway Safety Advisory Council should be consulted and anybody else who may be relevant. This will allow for wide consultation and result in better quality regulations. I, therefore, invite the Deputy to withdraw her Report Stage amendment which provides for similar matters. Originally it was her amendment.

Mr. Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I thank the Minister for taking those amendments on board.

[361]Amendment No. 1 to amendment No. 92 not moved.

Amendment No. 92 agreed to.

Amendment No. 93 not moved.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 94 has already been discussed with amendment No. 92.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I did not discuss it. When was it discussed?

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 92 to 99, inclusive, were debated together.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  May I discuss it now?

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Yes.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I move amendment No. 94:

This section provides that the commission be given the power to make regulations in a number of areas important to rail safety. What I am seeking is that the commission be allowed make regulations in respect of the maintenance and inspection of railway infrastructure, the permanent way, rolling stock and the rail track. It is strange that aspect appears to have been omitted from the Bill. Also the commission should be allowed make recommendations on the maximum number of hours people would work on railways. There are similar issues in the area of aviation. I understand that for some reason, traditionally, this has been omitted from rail safety legislation. It appears to me that it should be included in a new Bill and also the maximum carrying capacity. There is a point beyond which trains might be considered to be overpacked either with freight or passengers. Will the Minister respond to these points?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  In regard to paragraph (b) of Deputy Mitchell’s amendment No. 94 I am reluctant to allow the commission make regulations in regard to such matters. It would be a very prescriptive approach to tell railway undertakings how often they should inspect and maintain their infrastructure and trains. Railway undertakings are in the best position to know how often such inspections and maintenance need to be done to [362]ensure safety. The primary duty of care under this Bill is placed where it rightfully belongs on the railway undertaking. This principle is enshrined in the EU railway safety directive adopted in 2004. A railway undertaking knows best the condition of its infrastructure and trains. I would expect it to demonstrate to the commission in its safety case that its inspection and maintenance regimes are appropriate to the condition of its infrastructure and trains.

In regard to paragraph (c) of Deputy Mitchell’s amendment, my amendment No. 95 allows the commission to make regulations restricting the number of standing passengers in trains. In regard to paragraph (d ) of the Deputy’s amendment, I would expect a railway undertaking to be able to demonstrate in its safety case that the working patterns of its safety critical staff do not contribute to an increasing risk on the railway. In addition, the Minister for Enterprise, Trade and Employment last year made regulations SI 817 of 2004 extending the maximum 48 hour working week to transport workers——

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I was not aware of that.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  ——in line with the amended EU working time directive. On that basis I ask the Deputy to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 95:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 96:

Amendment agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 97 in the name of Deputy Mitchell has already been discussed with amendment No. 92.

[363]Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  The amendment has not been discussed.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Chair said we were taking amendments Nos. 92 to 99, inclusive, together.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  The Chair did not give me an opportunity to speak on them. This is the first opportunity I have had.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Deputy, I read out on the first round——

Mr. O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I understand that but now is my opportunity to speak.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Deputy was allowed to speak on amendment No. 94. The Deputy should have contributed on amendment No. 92 and discussed——

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I am contributing on amendments Nos. 92, 93, 94 and 95.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  No. When amendments are being taken together they are discussed together. They are not taken seriatim when they are grouped. Does the Deputy have a list of the groupings?

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I have several lists of groupings.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The list of groupings will show the Deputy that amendments Nos. 92 to 99, inclusive, were taken together.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  When did we discuss them?

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Minister proposed them and then Deputy Shortall came in. When we got to amendment No. 94 you pointed out that you did not have an opportunity to discuss them. The Deputy did not offer at that stage, so the Chair took her intervention at the first available opportunity.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  We can discuss it now or on Report Stage, but I think it is sharp practice.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  I suggest that we can discuss amendments Nos. 97 to 99, inclusive, now.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I only want to discuss my amendment briefly.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Deputy may do so, but we are not going to take them seriatim. From here on, we will have to go by the groupings.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Can somebody point out to me which is the latest edition of the groupings?

[364]An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Deputy will be supplied with a list of the groupings.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I have three of them at this stage.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  The list has not changed. I am still on the original one.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  The Minister is all right. He has plenty of people pointing out when he must speak and what he has to say.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I was trying to be helpful.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I move amendment No. 97:

I want to make a case for this amendment, which refers to situations—

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  I ask the Deputy to stand when she is making a contribution.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Is that necessary on Committee Stage? I want to make a case for this amendment, which refers to situations where there is an interface between the railway and roads infrastructure. It aims to regulate the situation in some way where, for instance, there may be a dispute or even unwillingness by either party to accept responsibility for safety improvements that may need to be made. The amendment seeks some system to dictate how boundary treatments are organised, as well as reporting, collating and recording accidents. This area is completely unregulated. I do not know if the Minister is aware that in Dublin trucks are constantly damaging railway bridges when they come into contact with them. This issue is likely to become even more prevalent if super-cubes are to be allowed on to our city streets. The regulation of this area needs to be tightened up.

[365]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  We share the same view on those trucks. I certainly do not want those super-cubes here.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I do not suggest otherwise. It is the one issue on which I agree with the Taoiseach.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  As regards paragraph (i) of Deputy Olivia Mitchell’s amendment No. 97, section 23 of the Transport (Miscellaneous Provisions) Act 1971 makes a provision concerning the apportionment of the costs of upgrading works at a level crossing between the railway undertaking and the local authority. Section 92 of the Bill before the House, as passed in committee, makes provision concerning the responsibility of any person carrying out works on a public road near a railway.

As regards paragraph (ii) of Deputy Olivia Mitchell’s amendment No. 97, section 92(4), as passed in committee, already provides the commission with power to prepare and publish guidelines on works on public roads that may affect the safety of a railway infrastructure. The interim commission is currently preparing these guidelines to be ready for adoption by the commission on its establishment. I hope that is helpful to the Deputy.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I thank the Minister and withdraw the amendment in that case.

Amendment, by leave, withdrawn.

Section 68, as amended, agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 98 has already been discussed with amendment No. 92.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 98:

Amendment agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 99 has already been discussed with amendment No. 92.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 99:

Amendment agreed to.

Section 69, as amended, agreed to.

[366]Section 70 agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 100:

On Committee Stage my predecessor accepted, in principle, Deputy Naughten’s amendment No. 55 which proposed that recommendations from the commission to the Minister regarding this Bill after its enactment or relating to proposed legislation affecting the commission, should be laid before the Oireachtas. I have addressed the issue in this amendment, which requires me or any other Minister concerned to lay before each House of the Oireachtas any recommendations concerning existing or proposed statutory provisions affecting the carrying out of the commission’s functions under this Act. This will allow the Oireachtas to be fully informed as to the relevant background to any legislative changes. I am happy to take amendment No. 55 into consideration. It is a good one.

Amendment agreed to.

Section 71, as amended, agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 101 has already been discussed with amendment No. 57.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 101:

Amendment agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 102, in the names of the Minister and Deputy Shortall, has already been discussed with amendment No. 36.

[367]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 102:

Amendment agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 103 has already been discussed with amendment No. 36.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 103:

Amendment No. 1 to Amendment No. 103 not moved.

Amendment No. 2 to amendment No. 103 not moved.

Amendment No. 103 agreed to.

[368]Section 72, as amended, agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 104 has already been discussed with amendment No. 5.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 104:

Amendment agreed to.

Amendment No. 105 not moved.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 106 has already been discussed with amendment No. 57.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 106:

Amendment agreed to.

Section 73, as amended, agreed to.

Sections 74 and 75 agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 107 to 109, inclusive, are related and may be discussed together by agreement.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 107:

On Committee Stage there was considerable discussion of Deputy Naughten’s amendments Nos. 63 and 65, which proposed that commercial considerations would not be grounds for an appeal against an improvement or prohibition notice. Deputy Olivia Mitchell raised a related amendment today. While I have much sympathy with Deputy Naughten’s proposal on Committee Stage, it would be inappropriate to impose restrictions on what a person could plead before the courts. However, I have examined the Bill to see if there is some workable and practical means of giving the appropriate weighting to commercial and safety considerations in the Bill, given the imperative requirements attaching to safety. I propose to address Deputy Naughten’s concerns through my amendments Nos. 107 and 109. These [369]amendments will require a judge or jury, in considering an appeal against an improvement or prohibition notice, to take into account the safety imperative implied in the duties imposed in sections 36 and 37 of the Bill, as passed in committee. Section 36 places a duty on a railway undertaking to ensure the safety of persons in the operation of its railway in so far as is reasonably practicable. Section 37 places a duty on others to ensure that a person is not exposed to danger on a railway by their actions or omissions, again in so far as is reasonably practicable.

Deputy Olivia Mitchell’s amendment No. 118 proposes that a railway undertaking may not consider cost when complying with its duty under section 36. Ultimately, under the provisions of this section it will be a matter for a judge or jury to decide what it is reasonable for a railway undertaking to do in a particular circumstance to ensure safety. Nobody can give an absolute guarantee of safety in anything we do. As a society we decide that there is a reasonable risk on a daily basis.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I thank the Minister for clarifying the situation. I have given the matter considerable thought and as the general duties of the railway undertaking transcend commercial considerations, the matter would be decided by a court. As the Minister says this is the only reasonable expectation we could have and I will not press my amendment.

Amendment agreed to.

Amendment No. 108 not moved.

Section 76, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 109:

Amendment agreed to.

Section 77, as amended, agreed to.

Sections 78 to 80, inclusive, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 110:

[370]This is a technical amendment to correct a drafting error.

Amendment agreed to.

Section 81, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 111:

Amendment agreed to.

Section 82, as amended, agreed to.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 112 to 119, inclusive, and Nos. 124 to 144, inclusive, and amendments Nos. 1 and 2 to amendment No. 144 are related. Amendments Nos. 120 to 123, inclusive, are alternatives to amendment No. 112. Amendment No. 1 is consequential. It is proposed to discuss amendments Nos. 112 to 144, inclusive, and amendment No. 1 together.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 112:

This is a fundamental and important issue. I would like to make a number of introductory remarks regarding the new Parts 9 and 10 which are before the House. My predecessor announced on Committee Stage the intention to introduce criminal sanctions for workers found to be intoxicated while working on the railway. The then Minister had earlier signalled on Second Stage his intention to look at this area by inviting Deputies to submit their views on the issue. Since the announcement on Committee Stage, the advice of the Attorney General and of the Office of the Director of Public Prosecutions has been obtained. Consultations have also taken place with railway unions, Iarnród Éireann and the Luas operator, Connex.

[371]It is a general societal view that drug and alcohol use is a significant problem and it is clear that any use of intoxicants by safety critical workers represents potential for significant operational risk. My Department has sought information on the position in other jurisdictions and while no uniform approach to managing the use of drugs and alcohol by safety critical workers on railways exists, many European countries, including the UK, have made it a criminal offence to be intoxicated while working on the railway. In a number of countries the railway undertakings themselves, recognising the inherent dangers of intoxicant abuse, have introduced, as part of their internal procedures, provisions which provide for testing for drugs and alcohol. Nearer to home, Connex, the operator of the Luas system, has provision for random testing and subsequent disciplinary actions built in to workers’ contracts.

Other examples are as follows. In the United States, legislation has been in place since 1991 that provides for drug and alcohol testing on a random basis covering all transportation workers. The US annual drug and alcohol testing rates for 2004 in respect of the Federal Railroad Administration was 25% for drugs and 10% for alcohol.

In Sweden, random testing is carried out by an independent body on behalf of the railway undertakings. Each station is tested on average four times a year.

In Northern Ireland, a voluntary code of conduct exists in Northern Ireland Rail which provides for random testing of drugs and alcohol. An offence can result in dismissal as can a refusal to take the test. In France, internal company procedures provide for testing for drugs and dismissal is an option for the company if a safety critical worker is found to be intoxicated.

In New South Wales, the 2002 Rail Safety Act requires rail operators to implement a drug and alcohol programme. The independent transport safety and reliability regulator can conduct random drug and alcohol testing of rail safety workers at any work site. I hope it will be clear that I have given careful thought and consideration to this matter before presenting the proposals before the House for amendment of the Bill regarding intoxicants.

I want to signal at this point that the new provisions, particularly as regards sampling for drugs in Part 9, are based on a partnership approach. The Bill requires that the sampling procedures, code of conduct and support services must be drawn up in consultation with unions and staff representatives and must be approved by the new independent railway safety commission provided for in the Bill.

I propose to delete the present Part 9 of the Bill which provides for matters relating to internal company sampling and disciplinary procedures for intoxicants and to substitute a new [372]Part 9 which provides for similar matters. I also propose a new Part 10 which provides for matters relating to criminal offences for intoxication while working on a railway. The new Part 10 also provides for certain other matters withdrawn on Committee Stage, namely, offences for careless and dangerous working on a railway and requirements regarding medical fitness for safety critical work on a railway.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I know that my colleague, Deputy Naughten, raised many concerns when these amendments were introduced on Committee Stage. However, as I am satisfied that the Minister has now taken on board those concerns, I am very happy to support him. These changes are necessary and I believe the required safeguards now exist.

Several different terms are used in respect of the person carrying out sampling. For example the terms “authorised person” and “suitably qualified” are used. In other cases “medical practitioner” is mentioned. Is it absolutely clear that an authorised person is a medical practitioner? The section states that an authorised person involved in sampling should receive training as determined by the undertaking.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  The person must be a medical practitioner.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Why would a railway undertaking train such a person?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  The person could be in for the first time.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Certain protocols might need to be put in place.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  The protocols regarding sampling would need to be agreed.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I am happy to support the amendments.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  On the last day we discussed how the Minister proposed dealing with the legislation. As we know the Bill was published in 2001. Last year when we eventually got around to taking Committee Stage, we had the most inept handling of legislation I have ever witnessed. After Deputy Naughten and I, along with others, had put considerable time into the Committee Stage discussion, one morning the Minister’s predecessor arrived with a new Part 9 and Part 10 which we had never seen before. In spite of our best efforts to block it, he pressed ahead. It then took the intervention of David Begg at the most senior level in Government to stop it, which is how the legislation was stalled for the past year. It is important to remind ourselves about the mis[373]handling of that matter by the previous Minister for Transport, Deputy Brennan, which led to the delay of a minimum of 12 months and was no way to do business. I recognise that discussions have taken place in the interim.

It is important to remember there is no history of intoxicant use or abuse within the railways. In none of the accidents was the cause found to be related to intoxicants of any kind. We must recognise that and give due credit to those working on our railways through the years who have maintained a high work standard. From the way the former Minister, Deputy Brennan, spoke on the matter, one would imagine it was a huge problem, but there is no intoxicant history there with regard to accidents. We should thank people for their commitment in that regard.

Many of the concerns we had when this Bill was sprung on us last year by the then Minister, Deputy Brennan, arose because it contained no clear definitions. It was very loose in terms of who would have access to the samples that could be taken and in terms of the definitions. I welcome the fact that this has been tightened up to some extent, and that those areas which have not been tightened are subject to discussions on protocols, code of conduct and so on.

It is difficult for anyone to object to the notion of public transport workers being subject to random testing because, clearly, a major safety issue is involved. However, it is a little rich to hear the Minister talk today of other countries where there is random breath testing among many different groups of transport workers. The Minister and his predecessor have consistently opposed any attempt or calls to introduce random breath testing for road users. Notwithstanding what he said about Connex, no other group of workers in the transport area is subject to random testing.

Any night of the week, one can see very busy car parks at any pub. People are in the pubs for lengthy periods of time and it is quite clear to all of us that considerable numbers of people are driving cars after imbibing intoxicants. There seems to be no political will to tackle the issue. We see road carnage on a regular basis, very often as a result of drink driving.

Some months ago the Minister had an opportunity to redress this by means of the Road Traffic Bill, when I proposed an amendment to provide for the introduction of random breath testing for drivers. He voted against it. On a number of occasions he has said he has faced difficulties, is awaiting legal advice and is getting various messages from the Attorney General, yet nothing has been produced.

The Minister’s predecessor promised that random testing was on the way. It was part of the road safety strategy and is a clear target in the current road safety strategy for introduction by 2006. The Government spokesperson, Deputy [374]Power, appeared on television last week, however, and clearly knew nothing about the matter nor had any plans to do anything about it. Similarly the Tánaiste, when asked about the matter during the Order of Business last week, knew nothing about it.

It is unfair to target one particular group of workers. If random testing is to be introduced, it should be introduced across the board. The Minister frequently notes constitutional and other legal problems with regard to introducing random testing for drivers yet he has no difficulty in introducing it for railway workers. Every excuse in the book is produced to explain why the Minister has not introduced random testing on the roads. Let us apply the testing evenly to all, across the board.

I hope the Minister will indicate his intentions. It is one thing to set down targets in a safety strategy but quite another to do something about them and ensure that the area is given priority, So far, there is no indication from the Department that the Minister is personally taking up the issue or making any attempt to champion it. Given his responsibility for road safety, this is an area where priority should be given. I welcome the Minister’s view and ask him to make a clear statement as to his intentions, and the timescale involved.

There are serious issues involved in Part 10 of the Bill with regard to criminalising what we would call carelessness. I have some concerns about definitions. The section has certainly been improved in so far as the offences apply to everyone working in a railway undertaking whereas previously, management was not deemed to have any role or responsibility in the area. However, I am concerned about the definition of carelessness. The penalties are very severe and I wonder if we are clear on whether there is potential for management, perhaps, or someone who has it in for a particular worker or group of workers to scapegoat someone on the basis of something as simple as failure to tie one’s shoe-lace adequately. Could that be deemed to be carelessness, and thus liable to be a criminal offence? There is some danger that people could be singled out, perhaps people who for one reason or another were not popular with management because of activities in which they were involved. Under the proposals before us it would be easy enough to frame someone. I would like to know what safeguards the Minister will put in place to ensure this does not happen.

Mr. Crowe: Information on Sean Crowe  Zoom on Sean Crowe  I support many of the points made by Deputy Shortall, particularly with regard to random testing, my main area of concern. The Bill refers to giving a person the power to oblige employees to provide samples and refers to “reasonable grounds for suspicion”. From outside, it seems reasonable to discuss such matters, but as [375]we know the difficulty is that there has been a poisoned relationship in the railway sector between management and many of the workers. There has been a public perception and a worry that this element of the Bill would be used by a less than perfect management as a tool of harassment or bullying. This concern has been expressed to me.

Random drug and alcohol tests are a violation of civil rights. The Minister mentioned the workers in Connex but the only other workers whom I know of who are subject to such tests are those in the Defence Forces. I am uncomfortable with this. I was also uncomfortable with the fact that the last Minister for Transport was pushing the notion of this random testing. As other speakers noted, there is no evidence to suggest that in the past 30 years, drugs or alcohol have been involved in any railway accident. That is not to say there might be such involvement in the future but it seems odd that this legislation supposedly had to be rushed through. The issue of random testing seemed to jump out at one. I did not get an answer from the Minister as to his reasons for its proposed introduction.

I object to random testing because of the thought process behind it. Such testing is invasive, and doubt hangs over its effectiveness. Driver fatigue is a bigger issue but it did not arise in any of the discussions. It certainly was not raised by the Minister. However, people who work in this area regularly talk about the long hours involved.

Random drug testing removes the assumption of innocence because the person subjected to the test must prove he is innocent by providing a clear sample. Where random drug testing is carried out, the person giving the sample is forced to strip and urinate into a cup in the presence of an observer to prevent cheating. I welcome the fact that the Minister has in mind a partnership approach with the unions and I hope that is not the type of random testing that will be undertaken. It would create major difficulties and human resources problems.

Random drug testing can also disclose information of a personal medical nature. It can inform an employer if an employee is on medication for a heart condition, epilepsy or other illnesses. It can also reveal if a female employee is pregnant, even if she is unaware of it and might not want to be aware of it. These are genuine and legitimate privacy concerns and the legislation has not taken sufficient account of them.

The test, if it produces a positive result, provides no evidence of present intoxication or impairment. It merely indicates that a person may have taken a drug at some time in the past. This issue arose in the United States. The American Civil Liberties Union has carried out a great deal of research on this issue in the face of attempts to spread random drug testing into the workplace [376]and schools. Commonly used drug tests have yielded false positive results of between 10% and 30%, according to the ACLU.

I do not believe there is a problem with drug and alcohol abuse in the rail industry. There is probably a bigger problem with driver fatigue and people being forced to work long hours. Perhaps the Minister will explain the partnership approach further. It appears that this section has delayed the Bill. I welcome the fact that there are ongoing discussions with the unions on this matter because people have a genuine concern that we are moving into new territory. I do not know where this move originated. I await the Minister’s comments.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I appreciate the responses of the Deputies. Lest Members consider this to be specific to railway safety critical workers, the Safety, Health and Welfare at Work Act 2005 contained the same provisions that are being introduced today. This is happening across the system in all types of work. In general, Deputies appear to believe we have taken the concerns on board, notwithstanding whatever issues arose as Deputy Shortall outlined previously. Knowing my colleague, I do not believe there was any malice aforethought. Perhaps it was just an effort to try and include it.

That debate threw up key issues and, as Deputies said, we have reflected on them. It is a partnership approach. I appreciate the concerns workers have about their rights, and they are right to have them. We have had much discussion in working out the protocols surrounding this and I believe we have reached a point of general satisfaction on the issue.

I wish to answer the question Deputies Shortall and Mitchell raised about random breath testing. The difference between rail and road random testing can be outlined as follows. I have received advice on how the weighting is done with regard to individuals on roads. Irish Rail, a service provided or funded by the State, employs approximately 5,500 staff, of whom approximately 3,800 work on safety critical tasks. These employees are responsible for the safe movement of over 35 million passengers each year. On the roads, driving is an individual responsibility for each person. The issue of proportionality arises with the introduction of random testing.

The Attorney General has advised that in the case of random testing for safety critical staff on the railways, the proposed random testing provision would withstand constitutional scrutiny on the basis that the balance struck between the private rights of individuals and those of the greater public is proportionate. This is a fundamental issue we must deal with on the introduction of random breath testing in the sense mentioned by Deputy Shortall. Deputy Olivia Mitchell has also raised this in the past.

[377]Under the Road Traffic Acts, gardaí are empowered to check all drivers involved in road collisions or detected committing any traffic offence, in addition to having the power to demand a test of a driver who, in the opinion of a garda, has consumed alcohol. We are way ahead of other countries in that.

I accept Deputy Shortall’s point in that I would rather get this item off the agenda, one way or another. I cannot sustain a position of giving the impression that I do not want to do anything about this. However, as both Deputies are aware, given that their parties have been in Government, one cannot come to the House with a provision, regardless of the issue, unless one has legal advice that it will stand. Road traffic legislation is probably the most often challenged legislation in the courts and there is no question that if we introduce random breath testing it will be challenged. I am not worried about that but I cannot knowingly introduce a measure that has almost no chance of success in the courts. That is the position.

There have been a number of proposals aimed at overcoming the proportionality issue and ideas are being examined. Some of them make sense in certain ways but in others they do not. I would like to reach a conclusion on this issue. For the present, I have a formula backed up by legal certainty that this has a good chance of success. Even though we know this legislation will probably be challenged it is worth legislating for on the basis that we believe it is robust enough to withstand a legal challenge in the courts. At present, the introduction of random breath testing in an untargeted way would, I am told, be unlikely to withstand a court challenge.

That is the position. There is no reticence on my part. I am not a legal practitioner and I am not trying to shift the blame but to resolve the issue. I want to be able to tell the House whether something cannot be done or what is the best that is achievable according to the legal advice. We are trying to narrow it to a couple of issues and I thank the officials and the legal personnel in the Attorney General’s office for their assistance with this. Members can see where it breaks down, and this is a good example. Given the responsibility in this area and the proportionality involved, it is likely that the balance is struck in doing it and this would have a good chance of withstanding a court challenge. At the moment, the advice is that simply random breath testing everybody who has an individual responsibility would be most unlikely to withstand a court challenge. On that basis, I cannot put it before the House with any confidence. That is the bind in which I find myself.

I am being open with the Deputies. I am reaching the point where I would like to say either that as far as I am concerned, it is off my watch because I cannot resolve this issue or that I have [378]a proposal to achieve it. If we find a proposal we believe to be workable, I will be happy to seek the Deputies’ thoughts on it even before proceeding with it.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  It is hard to accept that it is so difficult to do this.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  It has fallen apart in some countries. It was tried but failed. I will forward that information to the Deputy.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  It seems extraordinary that it cannot be introduced unless on a targeted basis.

If that is the core of legal advice and the basis for the Minister’s approach, then the next category of people would be bus and coach drivers, taxi drivers and so on. When, if ever, would it be applied to individual drivers?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I apologise to the Deputy if I gave that impression because, notwithstanding the logic of the Deputy’s response, that is not what I said.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  It may be targeted rather than random.

  6 o’clock

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  To avoid any misunderstanding, I was referring specifically to road users in general. There must be some form of proportionality applied. Some options have been suggested but I do not know if they are a good or a bad idea and I wonder how some of them would provide a solution. I do not wish to give the Deputy the impression that when I spoke about proportionality I was doing so in the comfort zone of picking out groups; I was talking specifically in reference to a solution about a general group.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  Is the Minister referring to proportionality in respect of the level of risk and the numbers of people involved? He referred to the numbers of people being driven by train drivers.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  No. I was referring to the train drivers as an example of a good, solid reason. They are responsible for transporting 35 million people and the proportionality stands up in this case. With regard to individuals, such as car drivers, I am informed it is probably impossible to introduce random breath testing, with which we would all be in favour. From recollection, constitutionally it has not been possible in other countries and it has failed in countries where it has been attempted. It is a question of how to approach the issue. Do other issues arise within that grouping which can be tackled? I do not wish to say more because it is then regarded as something that will be done and that is not the way to hold a debate.

[379]I will be happy to consider other options and to discuss the legal advice I have received and try to move the issue forward. There is not a way of legislating for it to be done on an open-ended basis.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  This is a very pressing national issue and it is one of the two main contributing factors to road fatalities. There is cross-party agreement that this problem needs to be tackled and many people are making a sincere effort to grapple with it. The Oireachtas Joint Committee on Transport will be dealing with this issue next week and a number of people have been invited to speak on the subject. The Minister has also agreed to meet the committee in a few weeks’ time.

The Minister has referred to and quoted his legal advice from time to time. Is he prepared to make this legal advice available to the Oireachtas Joint Committee on Transport because it seems to be the main stumbling block? The political will exists, as does the social acceptance of the need to do something about drink driving and, by and large, the media would be supportive of such action. The main stumbling block is the legality of the action or the legal pitfalls involved. If these have been examined and outlined to the Minister by the Office of the Attorney General, I ask that as a contribution to the debate, he would make that legal advice available to the committee for its meeting tomorrow week because it would be helpful to the national debate.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I hope the Deputy can see that I am engaged with this issue and on which I have had many discussions. It would be worth discussing the legal advice with the committee but I will refer to the Office of the Attorney General on that matter.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  One does not need a fait accompli in everything. We seldom have an open debate about things. It is accepted that this is a national issue which needs to be tackled. I acknowledge the Minister’s declaration of his good intentions in this regard and that it is a serious issue. It seems he has been provided with extensive legal advice. As a contribution to this debate and in an effort to move the debate forward, will the Minister publish that advice and let the House know about the problems? I suggest we all take legal advice on this matter and present our proposals for the Minister’s consideration. Why is it necessary to wait until everything is finalised and the Minister has presented his final proposal? There is a sense of urgency about this issue and much interest in it. He should put his legal advice in the public domain and we can take it from there. The Minister should accept that neither he nor the [380]Office of the Attorney General has the monopoly of wisdom in this area.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I accept the point made by the Deputy. There is no question that any legislation will be challenged in the courts. The first person caught under the random breath testing will go to the courts immediately as is their right. I do not wish to introduce a measure which has no chance of success and will result in an undermining of the road safety strategy and possibly other things.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  The Minister should allow us read the legal advice.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  Much of the advice is delivered orally in discussions of whether a method would be possible or be a success. The advice is given orally rather than the production of tomes of responses. I have put the principles involved clearly to the House in this debate this afternoon and I have done so in the past and provided examples. I will consider the point made by the Deputy but I will not go any further.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Is there a difference in law between random breath testing to detect whether or not a person has been drinking and random speed testing with a roadside speed gun?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  It is a good point but I am not a lawyer.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I merely wonder whether there is an answer.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I do not know the answer to that question. Given that there is random speed testing but not random breath testing, I suspect there are fundamental differences.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Even the speed testing is constantly being challenged.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I agree with the Deputy but it is so far, so good.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I apologise for returning to this issue but it has been kicked to touch for many years and after all the talk we should endeavour to bring it to some kind of fruition. The House does not know the legal principles and difficulties relating to this issue. Apart from discussing the issue of proportionality, we do not know about other difficulties which may exist.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  That is the core issue.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  Will the Minister allow the House read the legal advice? There is a general perception among the public that a close association exists between Members of this House and the publicans’ lobby and this point is often made [381]regarding members of the Minister’s party. A number of Members of this House are publicans. The longer it takes for any action at Government level, the more cynical the public become and the more they believe there is a vested interest and the political will to do anything about it is absent.

The Minister seems to be kicking to touch again today. I have asked him a straight question. The joint committee will consider this issue next week. I ask the Minister to provide the House with the legal advice in order to help the debate. If the Minister kicks to touch it is difficult to blame people for being sceptical about whether the Government has the political will to tackle this serious social problem. I implore the Minister to give favourable consideration to my request and to produce the legal advice in time for the committee meeting tomorrow week.

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 113:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No.114:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No.115:

Amendment agreed to.

[383]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 116:

[385]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 117:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 118:

[388]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 119:

[389]

Amendment agreed to.

Question, “That section 83 stand part of the Bill”, put and decided in the negative.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 120 cannot be moved.

Amendment No. 120 not moved.

Question, “That section 84 stand part of the Bill”, put and decided in the negative.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 121 cannot be moved.

Amendment No. 121 not moved.

Question, “That sections 85 to 87, inclusive, stand part of the Bill”, put and decided in the negative.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 122 cannot be moved.

Amendment No. 122 not moved.

Amendment Nos. 122a and 122b not moved.

Question, “That section 88 stand part of the Bill”, put and decided in the negative.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 123 cannot be moved.

Amendment No. 123 not moved.

Question, “That sections 89 to 91, inclusive, stand part of the Bill”, put and decided in the negative.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 124:

[390]Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 125:

[391]Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 126:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 127:

[392]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 128:

[393]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 129:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 130:

Amendment agreed to.

[396]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 131:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 132:

[397]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 133:

[398]

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 134:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 135:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 136:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 137:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 138:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 139:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 140:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 141:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 142:

Amendment agreed to.

[404]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 143:

in accordance with written rules or procedures of the railway undertaking concerned, where those rules or procedures specify the manner in which that task should be performed.

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 144:

Amendment agreed to.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  Is it appropriate for me to speak to that amendment?

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  No it is not because it has already been discussed. We will now deal with the amendments to amendment No. 144.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I move amendment No. 1 to amendment No. 144:

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I am sorry that we missed this earlier because I am favourably disposed to Deputy Shortall’s suggestion. I would like to consult with the Office of the Parliamentary Counsel before tabling a suitable amendment for Seanad Éireann. I am in agreement in principle, but I must ensure that the wording is correct. In fact, Deputy Shortall’s second amendment to the amendment deals with consultation with the Equality Authority and I am happy to accept that suggestion.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  There will be sufficient time to deal with this on Report Stage.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I will have to revert to the Parliamentary Counsel.

Amendment No. 1 to amendment No. 144, by leave, withdrawn.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I move amendment No. 2 to amendment No. 144:

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I am happy to accept this amendment.

Amendment No. 2 to amendment No. 144 agreed to.

Amendment No. 144, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 145:

[407]I propose to increase the penalty in section 92 for indictable offences relating to road authorities and others who endanger railway safety through failure to maintain works on a public road in the vicinity of a railway structure. I propose to increase this penalty from €100,000 to €500,000 as a failure to maintain works is a serious offence and is worthy of a higher penalty.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  I welcome the increase. The Minister is correct that the potential for damages is enormous. The port tunnel comes to mind. Does the definition of a public road include a tunnel? Would the port tunnel be covered and are there other kinds of infrastructure that would not come under that heading?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  A tunnel is a public road.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Is there other potential infrastructural work that would not come under the heading of a public road?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  Not that I am aware of. As the Deputy raised the point, I will look at it before going to the Seanad to see if there is a tighter or more specific definition. It is interpreted in terms of road use. It is a reasonable point.

Amendment agreed to.

Section 92, as amended, agreed to.

Sections 93 to 97, inclusive, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 146:

This is a technical amendment to correct a drafting error caused by the withdrawal on Committee Stage of a proposed amendment to insert a new Part 10 in the Bill providing for offences by persons working on a railway.

Amendment agreed to.

Section 98, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 147.

Amendment agreed to.

Section 99, as amended, agreed to.

Sections 100 and 101 agreed to.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I move amendment No. 148:

This is an amendment to update the reference to the Companies Act.

Amendment agreed to.

Section 102, as amended, agreed to.

Sections 103 and 104 agreed to.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 149 and 150 are related and amendment No. 2 is consequential. The amendments will be discussed together.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 149:

[409]

These amendments propose changes to the Transport Act 1950. The new section set out in amendment No. 149 provides in paragraph (a) for the amendment of section 21 of the Transport Act 1950 so that CIE may levy charges for parking on railway property and may levy fees for removal of clamps from vehicles parked in breach of by-laws. CIE may already have a common law power to do this, but it is generally best to confirm such powers in primary legislation.

Some of these issues have been dealt with previously. Paragraph (b)(i) of amendment No. 149 [410]amends section 22 of the Act and empowers CIE to make by-laws in regard to parking on their property, clamping of illegally parked vehicles and regulation of traffic generally.

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 150:

[412]

Amendment agreed to.

Section 105 agreed to.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 151, 155 and 157 are related and will be discussed together.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 151:

[413]

The purpose of the amendments is to update the law on fare evasion. The existing law on fare evasion is set out in sections 5 and 6 of the Regulations of Railway Acts 1889, as amended by section 10 of the Transport Act 1987, which I am proposing to repeal in amendments Nos. 155 and 157 and replace with the new section set out in amendment No. 151. The principles in the 1889 Act are still appropriate.

This amendment is essentially to modernise the legislation. Amendment No. 151 requires a person when requested by an employee of a railway company to produce a valid ticket for the journey made. If the person does not have a valid ticket, an employee of the railway company can require him or her to pay the correct fare or the standard fare for fare evasion levied by the railway company, or to give his or her name and address. A person who refuses this request will be guilty of an offence. It will also be an offence to wilfully evade the correct fare or to give a false name and address when requested. Conviction will carry a maximum fine of €1,000 and the offender will still be liable for the unpaid fare or standard fare levied. The prison sentence provided for in the 1889 Act is in excess of penalty and, therefore, I do not propose to include this.

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 152:

The amendment proposes a new section which provides an authorised officer appointed by Iarnród Éireann with the discretion to issue an on-the-spot fine for persons suspected of having committed a certain specified offence. The purpose of this new section is to reduce the burden on Iarnród Éireann of prosecuting many lesser offences. On-the-spot fines are established practice in many jurisdictions and they have the advantage of not clogging up the courts with minor prosecutions. Offences covered include trespass, failure to close a level crossing gate and proper use of the emergency chord, fare evasion, breach of a by-law and giving a false name and address to an authorised officer.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 1 and 2 to amendments Nos. 153 and 154 are related and will be discussed together.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 153:

[416]

[418]

he or she or a person acting under his or her direction may—

[420]

[421]

Amendments Nos. 153 and 154 update the Transport Railway Infrastructure Act 2001. All the provisions proposed in amendment No. 153 are standard provisions relating to by-laws for railway operation.

Amendment No. 153 replaces section 66 of the 2001 Act with four new sections. The first of these four sections replaces the present by-law provisions set out in section 66 of the 2001 Act. The new by-law provisions condense some new measures not included in the present text of the 2001 Act. These are that by-laws must be published. By-laws must be displayed conspicuously on the railway. By-laws cannot be made without the consent of the Minister and by-laws must be laid before each House of the Oireachtas. The RPA or railway undertaking may recoup the cost of any damage to the railway caused by the breach of a by-law, in addition to any fine imposed for the breach.

The second of these four new sections entitled “immobilisation, removal, etc. of unlawfully parked vehicles” relates to clamping and removing of vehicles.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 1 to amendment No. 153 has already been discussed. Is Deputy Shortall formally moving amendment No. 1?

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  It was not already discussed.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  It is under discussion.

[424]Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  I move amendment No. 1 to amendment No. 153:

The amendments proposes to delete subparagraph (i). It appears that it is illogical to give the power to clamp a car if it is parked on the railway line. It would appear obvious to move it and then clamp it. I do not see the point in giving power to clamp it in situ if it is parked on a railway line.

Ms O. Mitchell: Information on Olivia Mitchell  Zoom on Olivia Mitchell  Is it about parking?

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  It is about removing powers.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  It depends which way one looks at it. The first part of the Deputy’s proposal would have the effect of denying an authorised Luas staff member the power to clamp a vehicle which is in breach of by-laws or is otherwise causing a danger or nuisance. I note the Deputy is agreeable to such vehicle being towed away and clamped in another location as this is provided for in the subsequent paragraph. I do not see any reason to deny Luas personnel the flexibility to clamp the vehicle where it is parked rather than tow it and clamp it elsewhere. The second part of the Deputy’s proposal would reduce the cost of on-the-spot fines for specified offences from €100 to €60. They should not be reduced to less than €60. A vehicle could block the Luas line, which the driver would want to move, and that could be clamped while a vehicle parked near a Luas line could be clamped but not necessarily moved.

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  The Minister referred to proportionality earlier. The fine for not paying a €20 fare on a train is €100 but if one fails to pay a €2 fare on Luas, the fine is still €100, which is excessive.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I do not agree with the Deputy because we have moved to multiple new systems. Recently a person boasted about the number of times he had travelled on one of the systems without paying a fare. That is wrong even though the same numbers of inspectors as in the past are not available to provide a visible presence. People are on their honour. If they abuse the system, they must be hurt in some way. A fine of €100 will not break anybody but it will send a message. People would not avoid paying a few euro for a fare if they thought the fine for failing to pay was €100.

Amendment No. 1 to amendment No. 153, by leave, withdrawn.

Amendment No. 2 to amendment No. 153 not moved.

Amendment No. 153 agreed to.

[425]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 154:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 155:

52 & 53 Vict. c. 57 Regulation of Railways Act 1889 Sections 5 and 6

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 156:

No. 19 of 1958 Transport Act 1958 Section 9
No. 14 of 1971 Transport (Miscellaneous Provisions) Act 1971 Sections 22 and 29

Amendment agreed to.

[426]Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 157:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 158:

Amendment agreed to.

Schedule 1, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 159:

Amendment agreed to.

Schedule 2, as amended, agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 1:

Amendment agreed to.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  I move amendment No. 2:

Amendment agreed to.

Title, as amended, agreed to.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  When is it proposed to take Fifth Stage?

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  Now.

[427]An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Is that agreed?

Ms Shortall: Information on Róisín Shortall  Zoom on Róisín Shortall  No. Departmental officials kindly provided a briefing last week for Deputy Olivia Mitchell and myself, during which we discussed the schedule for taking the legislation. The understanding was that the Bill would not be before the House until next week. I did not receive a schedule of business for this week and it was only when one of the officials rang me before lunch that I discovered the Bill would be before the House today. I want to table Report Stage amendments, including an amendment that was not discussed on Committee Stage. I gave notice of my intention to table an amendment in that regard.

This is not a satisfactory way of dealing with legislation. Given that the Department sat on it for four years and that the Minister has sat on it for 12 months following a lengthy Committee Stage debate, it is unreasonable to spring Fifth Stage now and rush us into finalising the legislation. Another few days will not make a difference to the legislation.

[428]In deference to Members of the House and proper procedure, I ask the Minister to defer Report Stage to enable us to table amendments, as we are entitled to do under Standing Orders. It would be most unfair if the Minister pushed ahead and forced Report Stage through without giving us notice and, thereby, denying us an opportunity to engage in a debate on Fifth Stage.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Where a Bill has been recommitted, it is not the practice to have a separate Report Stage in respect of the amendments. Recommital is not a separate Stage of a Bill and it can only be invoked when a Bill is on Report Stage. If there is a disagreement on this point and if there is a view that a separate Report Stage should be provided for the proceedings, Report Stage would need to be adjourned to enable time to be given for the tabling of amendments. These circumstances pertain and, therefore, I will put the question.

Question put: “That Fourth Stage be now adjourned.”

[427]The Dáil divided: Tá, 50; Níl 62.

Information on Bernard Allen  Zoom on Bernard Allen  Allen, Bernard. Information on Dan Boyle  Zoom on Dan Boyle  Boyle, Dan.
Information on James Breen  Zoom on James Breen  Breen, James. Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  Broughan, Thomas P.
Information on Richard Bruton  Zoom on Richard Bruton  Bruton, Richard. Information on Joan Burton  Zoom on Joan Burton  Burton, Joan.
Information on Paul Connaughton  Zoom on Paul Connaughton  Connaughton, Paul. Information on Paudge Connolly  Zoom on Paudge Connolly  Connolly, Paudge.
Information on Joe Costello  Zoom on Joe Costello  Costello, Joe. Information on Seymour Crawford  Zoom on Seymour Crawford  Crawford, Seymour.
Information on Sean Crowe  Zoom on Sean Crowe  Crowe, Seán. Information on Jimmy Deenihan  Zoom on Jimmy Deenihan  Deenihan, Jimmy.
Information on Damien English  Zoom on Damien English  English, Damien. Information on Eamon Gilmore  Zoom on Eamon Gilmore  Gilmore, Eamon.
Information on Tony Gregory  Zoom on Tony Gregory  Gregory, Tony. Information on Joe Higgins  Zoom on Joe Higgins  Higgins, Joe.
Information on Michael D. Higgins  Zoom on Michael D. Higgins  Higgins, Michael D. Information on Philip Hogan  Zoom on Philip Hogan  Hogan, Phil.
Information on Brendan Howlin  Zoom on Brendan Howlin  Howlin, Brendan. Information on Enda Kenny  Zoom on Enda Kenny  Kenny, Enda.
Information on Kathleen Lynch  Zoom on Kathleen Lynch  Lynch, Kathleen. Information on Pádraic McCormack  Zoom on Pádraic McCormack  McCormack, Padraic.
Information on Shane McEntee  Zoom on Shane McEntee  McEntee, Shane. Information on Dinny McGinley  Zoom on Dinny McGinley  McGinley, Dinny.
Information on Finian McGrath  Zoom on Finian McGrath  McGrath, Finian. Information on Paul McGrath  Zoom on Paul McGrath  McGrath, Paul.
Information on Paddy McHugh  Zoom on Paddy McHugh  McHugh, Paddy. Information on Liz McManus  Zoom on Liz McManus  McManus, Liz.
Information on Olivia Mitchell  Zoom on Olivia Mitchell  Mitchell, Olivia. Information on Catherine Murphy  Zoom on Catherine Murphy  Murphy, Catherine.
Information on Gerard Murphy  Zoom on Gerard Murphy  Murphy, Gerard. Information on Denis Naughten  Zoom on Denis Naughten  Naughten, Denis.
Information on Dan Neville  Zoom on Dan Neville  Neville, Dan. Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  Ó Caoláin, Caoimhghín.
Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Ó Snodaigh, Aengus. Information on Fergus O'Dowd  Zoom on Fergus O'Dowd  O’Dowd, Fergus.
Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  O’Sullivan, Jan. Information on Séamus Pattison  Zoom on Séamus Pattison  Pattison, Seamus.
Information on Willie Penrose  Zoom on Willie Penrose  Penrose, Willie. Information on John Perry  Zoom on John Perry  Perry, John.
Information on Ruairí Quinn  Zoom on Ruairí Quinn  Quinn, Ruairi. Information on Pat Rabbitte  Zoom on Pat Rabbitte  Rabbitte, Pat.
Information on Eamon Ryan  Zoom on Eamon Ryan  Ryan, Eamon. Information on Seán Ryan  Zoom on Seán Ryan  Ryan, Seán.
Information on Róisín Shortall  Zoom on Róisín Shortall  Shortall, Róisín. Information on David Stanton  Zoom on David Stanton  Stanton, David.
Information on Billy Timmins  Zoom on Billy Timmins  Timmins, Billy. Information on Liam Twomey  Zoom on Liam Twomey  Twomey, Liam.
Information on Mary Upton  Zoom on Mary Upton  Upton, Mary. Information on Jack Wall  Zoom on Jack Wall  Wall, Jack.



[427]Níl
Information on Noel Ahern  Zoom on Noel Ahern  Ahern, Noel. Information on Barry Andrews  Zoom on Barry Andrews  Andrews, Barry.
Information on Seán Ardagh  Zoom on Seán Ardagh  Ardagh, Seán. Information on Niall Blaney  Zoom on Niall Blaney  Blaney, Niall.
Information on Johnny Brady  Zoom on Johnny Brady  Brady, Johnny. Information on Martin Brady  Zoom on Martin Brady  Brady, Martin.
Information on John Browne  Zoom on John Browne  Browne, John. Information on Joe Callanan  Zoom on Joe Callanan  Callanan, Joe.
Information on Pat Carey  Zoom on Pat Carey  Carey, Pat. Information on John Carty  Zoom on John Carty  Carty, John.
Information on Mary Coughlan  Zoom on Mary Coughlan  Coughlan, Mary. Information on Brian Cowen  Zoom on Brian Cowen  Cowen, Brian.
Information on Martin Cullen  Zoom on Martin Cullen  Cullen, Martin. Information on John Curran  Zoom on John Curran  Curran, John.
Information on Noel Davern  Zoom on Noel Davern  Davern, Noel. Information on Síle de Valera  Zoom on Síle de Valera  de Valera, Síle.
Information on Noel Dempsey  Zoom on Noel Dempsey  Dempsey, Noel. Information on Tony Dempsey  Zoom on Tony Dempsey  Dempsey, Tony.
Information on John Dennehy  Zoom on John Dennehy  Dennehy, John. Information on Jimmy Devins  Zoom on Jimmy Devins  Devins, Jimmy.
Information on John Ellis  Zoom on John Ellis  Ellis, John. Information on Frank Fahey  Zoom on Frank Fahey  Fahey, Frank.
Information on Michael Finneran  Zoom on Michael Finneran  Finneran, Michael. Information on Dermot Fitzpatrick  Zoom on Dermot Fitzpatrick  Fitzpatrick, Dermot.
Information on Seán Fleming  Zoom on Seán Fleming  [429]Fleming, Seán. Information on Pat the Cope Gallagher  Zoom on Pat the Cope Gallagher  Gallagher, Pat The Cope.
Information on Jim Glennon  Zoom on Jim Glennon  Glennon, Jim. Information on Noel Grealish  Zoom on Noel Grealish  Grealish, Noel.
Information on Mary Hanafin  Zoom on Mary Hanafin  Hanafin, Mary. Information on Seán Haughey  Zoom on Seán Haughey  Haughey, Seán.
Information on Máire Hoctor  Zoom on Máire Hoctor  Hoctor, Máire. Information on Joe Jacob  Zoom on Joe Jacob  Jacob, Joe.
Information on Billy Kelleher  Zoom on Billy Kelleher  Kelleher, Billy. Information on Tony Killeen  Zoom on Tony Killeen  Killeen, Tony.
Information on Seamus Kirk  Zoom on Seamus Kirk  Kirk, Seamus. Information on Tom Kitt  Zoom on Tom Kitt  Kitt, Tom.
Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Lenihan, Brian. Information on Michael McDowell  Zoom on Michael McDowell  McDowell, Michael.
Information on Tom McEllistrim  Zoom on Tom McEllistrim  McEllistrim, Thomas. Information on John McGuinness  Zoom on John McGuinness  McGuinness, John.
Information on John Moloney  Zoom on John Moloney  Moloney, John. Information on Donal Moynihan  Zoom on Donal Moynihan  Moynihan, Donal.
Information on Michael Moynihan  Zoom on Michael Moynihan  Moynihan, Michael. Information on Michael Mulcahy  Zoom on Michael Mulcahy  Mulcahy, Michael.
Information on M. J. Nolan  Zoom on M. J. Nolan  Nolan, M. J. Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  Ó Cuív, Éamon.
Information on Seán Ó Fearghaíl  Zoom on Seán Ó Fearghaíl  Ó Fearghaíl, Seán. Information on Charlie O'Connor  Zoom on Charlie O'Connor  O’Connor, Charlie.
Information on Willie O'Dea  Zoom on Willie O'Dea  O’Dea, Willie. Information on Liz O'Donnell  Zoom on Liz O'Donnell  O’Donnell, Liz.
Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  O’Donovan, Denis. Information on Noel O'Flynn  Zoom on Noel O'Flynn  O’Flynn, Noel.
Information on Ned O'Keeffe  Zoom on Ned O'Keeffe  O’Keeffe, Ned. Information on Fiona O'Malley  Zoom on Fiona O'Malley  O’Malley, Fiona.
Information on Tim O'Malley  Zoom on Tim O'Malley  O’Malley, Tim. Information on Peter Power  Zoom on Peter Power  Power, Peter.
Information on Dick Roche  Zoom on Dick Roche  Roche, Dick. Information on Noel Treacy  Zoom on Noel Treacy  Treacy, Noel.
Information on Dan Wallace  Zoom on Dan Wallace  Wallace, Dan. Information on Joe Walsh  Zoom on Joe Walsh  Walsh, Joe.
Information on Ollie Wilkinson  Zoom on Ollie Wilkinson  Wilkinson, Ollie. Information on G. V. Wright  Zoom on G. V. Wright  Wright, G.V.

[429]Tellers: Tá, Deputies Neville and Broughan; Níl, Deputies Kitt and Kelleher.

[429]Question declared lost.


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