Wednesday, 30 November 2005
Dáil Eireann Debate
Mary Coughlan: This is a minor amendment to include in section 3 a reference to section 92, which provides for the making of a commencement order for Part 10 of the Bill. Section 3 makes reference to the various sections of the Bill provided for commencement orders. Unlike other orders regulations, commencement orders cannot be annulled by resolution of the House. This is just normal legislative practice.
This amendment relates to certain miniature railways operating in fair-
ground-type situations which, because their gauge size is in excess of the 350 m, would otherwise fall within the scope of this Bill. These miniature railways are already covered by regulations made under section 239 of the Planning and Development Act 2000 and the Certification of Fairground Equipment Regulations 2003. Under section 239 and the related regulations all fairground equipment which includes military railways, must be certified as safe by an authorised person appointed by the Minister for the Environment, Heritage and Local Government. I am providing in this amendment that this Bill will not apply to such miniature railways unless the commission believes this is appropriate and that it should in a particular instance.
This gives direction to the commission to apply the provisions of the Bill where it seems that the risk involved in the operation of miniature railways is more akin to general railway risk than to a funfair.
Mary Coughlan: These amendments were tabled in response to suggestions made in this House on Report Stage. The amendments amend the Bill so that the Irish language version of the commission and advisory council names are placed before the English language version.
Mary Coughlan: The purpose of this amendment is to update section 10 of the Bill in light of the enactment of the Safety, Health and Welfare at Work Act 2005. This required updating of the reference to the Health and Safety Authority in light of the official name change arising from the 2005 Act. I have deleted the old paragraph (c) referring to the making of an agency agreement with the HSA and as the agency agreement concept in the Health and Safety Act 1989 is not repeated in the 2005 Act. I have also added a new section 4, giving the commission the legal power to perform any functions it takes on from the HSA or any other body. I understand the legal advice suggests this is necessary and that there is similar provision in the Health and Safety Act 2005.
Mary Coughlan: This was recommended on Report Stage in the Dáil. The change is a reference in section 43(5) from seven days to 21 in line with a similar amendment made on the Dáil Report Stage to section 42(6).
Mary Coughlan: In this amendment I have deleted the power of the commission to make regulations as regards the matters covered in section 51(d). Both the Minister and the commission cannot have power to make regulation as regards the same matters as this could result in contradictions.
Mary Coughlan: The purpose of this amendment is to cater for the prolonged absence of the chief investigator through ill health or otherwise and to provide for the possibility of this position being vacant at a particular point in time. This amendment will allow the Minister to appoint a suitably qualified consultant to carry out the function of the chief investigator temporarily, pending his or her return, or the recruitment of a permanent replacement.
Ms Shortall: I do not have any difficulty with the principle of this, but there is no time limit on it. A situation could arise whereby a person who is not recruited through the normal channels is appointed to act as a temporary investigator and could be left there indefinitely under the terms of this amendment.
Mary Coughlan: I assume that the normal employment legislative framework would be involved in the appointment as a temporary measure. This would only be done in the case of ill health or in particular issues that may arise for the provision of that position. Not being familiar with the text, I assume that it would done on a temporary basis which would be for a short period.
Ms Shortall: That is all very well, but in five years’ time there is little point in saying that the Minister stated that it would be short. What does “short” mean? We need a proper definition for it. The Minister claims it will be in the event of someone being ill, but it may not be that. The position may be vacant and the Minister can still make a temporary appointment. It is not good practice that it be left open-ended like that.
Mary Coughlan: The purpose of this amendment is to provide that the Minister may transpose a European directive relating to railway safety international law through regulations made under this Bill rather than using the European Communities Act 1972. The advantage of this is that the railway safety commission will have its full powers available in connection with its functions under the directive. Consistency of language between this Bill and transposing regulations is also assured.
Mary Coughlan: The Bill provides in section 73 that the commission may appoint any of its staff as inspectors. All the enforcement powers of the commission are vested in the inspectorate of the commission. It is logical that these powers should be available to the highest officer of the commission, that is, a commissioner. However, there is no mechanism for a commissioner to be appointed as an inspector. This amendment corrects this oversight by providing that a commissioner will automatically become an inspector on his or her appointment.
Mary Coughlan: These amendments, on the advice of the Parliamentary Counsel, make some changes to penalties for offences. The financial penalty for summary offences is increasing from €3,000 to €5,000 in line with the recent increases in the jurisdictional limit of the District Court. The penalties for indictable offences are rebalanced. The maximum financial penalty is increased and the maximum prison term is reduced. These changes result in more appropriate penalties for the offence in question.
Mary Coughlan: This amendment inserts a new subsection (5) in section 111 which relates to the offence of dangerous working on a railway. This new subsection is based on section 53(4) of the Road Traffic Act 1961. This allows a jury to find a person charged with dangerous working guilty of the lesser offence of careless working under section 110. This gives the system useful and appropriate flexibility and leniency.
Mary Coughlan: This amendment inserts a new offence in Part 12. This new section requires a person to report immediately any railway safety hazard which he or she causes through some accidental or negligent act. I have in mind an incident in Selby in the UK a few years ago, where a Land Rover left the road and came to rest on the railway. This incident caused a catastrophic rail crash. Other incidents have happened in this country where trucks have dislodged the side parapet stone on a bridge causing it to fall on to the railway below. In such instances, this section will require the person responsible to report immediately the incident to stop rail traffic and avoid an accident. A person will be guilty if he or she fails without reasonable excuse to report the incident.
Ms O. Mitchell: That is fine. I welcome this amendment which I raised on an earlier Stage of the Bill. Given that there is so much more traffic on the roads these days, especially heavy traffic, the amendment is essential. I am glad to see it is an offence not to report such incidents because reporting is the absolute minimum required. The fine of €5,000 is quite a small amount. I know of a case of bridge strike on the M50 which cost much more than €5,000 to put right. One of our new intercity trains collided with a cow and has been out of action since. I am sure that damage cost considerably more than €5,000. I do not suggest that this was intentional. However, that fine may not be sufficient to cover the kind of damage that is being caused on a daily basis by some of the heavy goods traffic on our roads. To stamp out these bridge strikes, the fine must be onerous. Some of the bridges that are particularly vulnerable should have CCTV cameras so that culprits can be detected.
Mary Coughlan: I will hand over now to the Minister for Transport in case I give away too much. I had hoped that I could have introduced an amendment so that we could have had a railway to Donegal. On that point, the €5,000 fine, which is commensurate with the District Court’s fines, only reflects the previous section.
Mary Coughlan: No. That pertained to something falling on a line. This would reflect a failure to report that could be consequential. If this was taken to court, the Judiciary would make an assessment as to what the implications might be, as opposed to a minimum fine.
Minister for Transport (Mr. Cullen): Like all such matters, the question is how one can get the information into the public domain and how one advises people. There is probably a greater level of public awareness in respect of many of these issues than was the case heretofore. However, both the Department and the companies directly involved will endeavour to do everything possible to get that message out and to seek assistance in making the public aware.
Mr. Cullen: This is a technical amendment to change section 23(1)(e) in order to provide that the commission may send urgent notifications to railway undertakings by e-mail. As Members are aware, fax machines are rapidly becoming obsolete and e-mail is now the normal means by which written documents are communicated. This might have arisen when Members discussed the matter.
Mr. Cullen: The purpose of this amendment is to increase the level of CIE’s guaranteed borrowing power from €317 million to €600 million. The current borrowing limit was set by the Transport Act 1985 and has been in place for 20 years. This increased borrowing limit will allow the speedier progression of management of projects by providing additional cash flow facilities. While the investment programme outlined under Transport 21 will be funded by the Exchequer and private funding, as a commercial body, CIE should be provided with adequate borrowing levels to fund projects from its own resources. It is doing quite an amount of that at present.
Mr. Cullen: This is a technical amendment to correct an anomaly in section 40 of the Transport (Railway Infrastructure) Act 2001. The current subsection (1)(b)(iv) provides that submissions in regard to a railway order may be made to a Minister within 14 days of the end of its period of public display. However, subsection 3 provides for a submission period of 30 days. I intend to correct this anomaly by amending subsection (1)(b)(iv) to 30 days. This will provide consistency.
An Leas-Cheann Comhairle: Seanad amendments Nos. 48 and 49 are related, while Seanad amendment No. 53 is consequential on both. Hence, Seanad amendments Nos. 48, 49 and 53 will be discussed together by agreement.
Mr. Cullen: While this new Part 17 will form part of the Road Traffic Acts, the main reason for the amendment is to address the extremely serious risks to the railways posed by the continual striking of rail bridges by vehicles. Iarnród Éireann and the road authorities throughout the country have become increasingly concerned about the number of bridges struck by high vehicles each year. I share that concern. For example, rail bridge strikes for the years 2001 to 2004 numbered 96, 136, 122 and 123, respectively. Provisional figures for 2005 suggest that this trend has continued and is increasing.
In terms of road bridges, Deputies will recall the disruption caused when a HGV struck a flyover at Rathcoole as well as another, similar incident in the Jack Lynch tunnel. Potentially, a bridge strike could cause the structural collapse of the bridge, resulting in a catastrophic accident and major loss of life. Old stone and arched railway bridges, being generally lower than road bridges, are particularly vulnerable. I find this level of imported risk to be unacceptable. Therefore, Seanad amendment No. 49 creates two new offences in respect of bridge strikes by high vehicles. I want to make such bridge strikes a serious offence. The second offence relates to a failure to comply with the requirement to immediately notify a bridge strike. An unreported bridge strike is even more dangerous than a known one.
Ms Shortall: It is somewhat rich to listen to the Minister talk about his concern regarding bridge strikes. While there are an alarming number of them, three years have passed since the Minister of State at the Department of Transport promised to reintroduce height limits for trucks. Since then, the Minister has only talked about it. There does not appear to be any political will to tackle this issue. The current Minister of State at the Department of Transport has reiterated his intention to take action in this regard and is consulting everyone under the sun. While he produces endless reports on the matter, there is a serious lack of political will to bite the bullet and make the decision. When the Dublin Port tunnel was planned, height restrictions were in place, as was common throughout Europe. The Minister, or his colleagues, have promised to do this for the past three or four years. He should simply end this debate by reimposing height restrictions. Members are continually being lobbied about this issue and the nonsense that transpired in respect of the height of the Dublin Port tunnel is a case in point. The solution is to ban the so-called super cube trucks and to reintroduce the height limit. The Minister should take responsibility and do so.
Ms O. Mitchell: I am pleased to see that something is being done in this regard. In many cases, crashing into bridges preceded the advent of supercube trucks. I agree with Deputy Shortall that some decision must be made about such trucks because unless we are absolutely definitive in our approach to them now, they will increase in number.
When the House discussed hazards falling on to a railway under a previous section, the issue of surveillance cameras in the vicinity of bridges was raised. Certain bridges are continually struck by vehicles. In many cases, the drivers of such vehicles get away with it and are never found, despite leaving much paint behind. I understand that the truck responsible for the strike at Rathcoole was never found. Is that correct?
Ms O. Mitchell: When one considers a fine of €50,000, one may be certain that it costs much more to repair a bridge. In the Rathcoole case, the bridge had to be virtually rebuilt. Hence, this is extremely costly for taxpayers. The cost of CCTV cameras would be minor when compared to the cost of constantly repairing these bridges. Nevertheless, I support the amendment.
Mr. Cullen: I thank the Deputy for that. I do not disagree with Deputy Shortall. While this is a delegated function, I wish to bring some clarity to the issue. My understanding is that the average height restriction on trucks throughout Europe is approximately 4.2 m, while I believe the tunnel is limited to a height of 4.65 m. I restate that I believe that we must reintroduce a height restriction in Ireland.
Mr. Cullen: The Minister of State has a delegated function in this regard. However, I want to bring this issue to a conclusion quickly. I am determined, as Minister for Transport, to so do. I agree there has been ample time for debate. Everyone has had a good and wide-ranging discussion on the issue and it is time for a resolution. The impact of this provision will have a limited effect on a small number of trucks. It is important for all of us, no matter where we live, that these supercubes not be allowed on our routes. I subscribe to that view and I am also of the opinion that a height restriction should be reintroduced.
Mr. Cullen: This amendment repeals section 55 of the Transport (Railway Infrastructure) Act 2001, which extends the drink driving provisions of the Road Traffic Acts to tram drivers. The House will be aware of the extensive provisions in Parts 9 and 10 of this Bill dealing with drug and alcohol testing of safety-critical railway workers. These provisions also apply to tram drivers and it would not be appropriate legally to have two separate laws applying to the same issue. I am, therefore, repealing section 55 of the Transport (Railway Infrastructure) Act so all the provisions, applying to all drivers, will be in the one Act.
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Mr. Cullen: This amendment transfers to the Railway Safety Commission the functions of the Minister under section 15A(a) of the Roads Act 1993. That section requires the consent of the Minister for the construction of a bridge over a railway. The purpose of this consent function is to ensure railway safety and, as such, it is more appropriately performed by the commission rather than a Minister.
Ms O. Mitchell: I thank the Minister for his courtesy during the passage of the Bill or at least during the Stages for which I was present. I thank the staff for their help and unfailing courtesy. They made every effort to explain a Bill that is truly complex and they will not be sorry to see it being passed. It was an opus of monumental complexity and had an uncommonly long gestation.
This is very important legislation, particularly in light of the fact that we are entering a period of great investment in our railways, during which the network will be expanded. I hope it will make a contribution to ensuring the increased safety of those who work and travel on our railways and result in a fair and professional investigation process.
I do not like to be churlish on occasions such as this but I must say the way in which we dealt with this Bill was not appropriate. It was published in 2001, introduced in the House and then shelved for two years. Consequently, there was no continuity of treatment of the Bill. The Minister did not introduce it and I certainly did not deal with it in its early stages. I am not sure whether Deputy Shortall did so. If she did, she is the only Member present who was involved in the early stages. Even if we had all been present for the entire process, we would have noted that it took too long. There were too many changes and the legislation should have been reintroduced as an entirely new Bill and taken from the start.
Normally when we conclude dealing with a Bill, those of us who have participated on Committee and other Stages have some confidence that it is robust and will achieve what it was intended to achieve when passed. Whether we agree with every provision therein, at least we feel we have done our bit such that it will stand up to scrutiny. However, I do not know if this is the case regarding the Bill before the House. I trust it is but I have not had the opportunity to scrutinise the legislation in the way I would have liked. I speak for everybody in the House when I say that.
Ms Shortall: I thank the officials from the Department for their assistance and for the time they have devoted to the legislation. I also thank the Minister for taking on board a number of amendments suggested by the Opposition. However, I protest at the manner in which this Bill has been handled. As Deputy Olivia Mitchell stated, it was published in 2001. Committee Stage was very tortuous and was taken on several sessions in 2003. We returned to it two years later with a raft of amendments and it had to be recommitted. More unexpected amendments were tabled at the end of this process and we have just dealt with a further 53 amendments made in the Seanad. It is clear that the Bill has not been handled properly. I do not know why that was the case or whether there was a problem providing the resources in the Department, such that the Bill was not accorded the priority it deserved.
One cannot deal with legislation in this kind of start-stop manner in which rafts of new amendments are sprung on the Opposition. There were two years in which to consider what changes were necessary and, therefore, they should not have been presented to the Opposition in the past month. At a minimum, this is disrespectful to other Members. I agree with Deputy Olivia Mitchell that we do not know how the legislation hangs together because it has been dealt with in such a piecemeal way. This is very bad practice.
Procrastination, dithering and changing tack are becoming features of Deputy Cullen’s Ministry. It is difficult to believe that he has a clear focus in respect of many of his areas of responsibility. For example, he published a Bill to allow for the driver testing and standards authority, which we debated on Second Stage in the House, but announced some time later that he would not proceed to establish the authority but would produce another set of amendments to change the Bill in order to establish a different authority, namely, the road safety authority. One wonders whether the Minister has thought any of these ideas through or whether he is just making them up as he goes along.
A strong commitment was made in the programme for Government to establish a Dublin land use and transport authority, which is obviously needed. A year later, the Minister abandoned this idea but it suddenly dawned on him, in the wake of launching Transport 21, that a transport authority is actually required. Rather than having the proposals for such an authority ready when announcing all the other grand proposals in Dublin Castle, he said that such an authority is needed after the event and referred to the setting up of a team to determine its role and powers. This means that it will be well into next year before the authority is established.
The Minister will forgive us, therefore, for believing that he has no vision of what he wants to do in his Department and that he has not thought through his responsibilities. He is chopping and changing all the time, as is evident in respect of the three major areas to which I have drawn attention. It is not acceptable practice to deal with legislation as he has dealt with this Bill and I regret that. It seems he will repeat this in two other major areas and, therefore, he needs to get his act together.
Dr. Cowley: I just wanted to make the point because, after two years, it is time the Minister stated openly whether he feels the west is worth supporting at all, particularly in light of the underspend of €200 million, with which he could commence work on the western rail corridor ab initio.
Deputy Shortall is absolutely correct that I seem to be characterised as somebody who actually makes decisions. Based on what she said, I should make no decisions. I defy anybody to question the decisions I have made in only 12 months in the Department of Transport, particularly as such decisions were not made in previous decades. The Deputy is correct that I had a choice regarding this Bill. The choice was simple. If I did nothing and opted to produce a new Bill, it certainly would not have seen the light of day during the lifetime of this Dáil.
I am criticised for seizing the opportunity to try to do something positive. I accept some of the criticisms made by both Deputies that one would hope to do it better. I subscribe to that view in terms of having Opposition Deputies briefed. I have been in that position many times. One wants to know what is happening and to have as much time as possible to deal with a matter but one cannot allow an indefinite amount of time. I am not unfocused in any way and I took the decision to use this Bill as an opportunity. The Bill could be strengthened immeasurably and it has been for the benefit of the public. The highest safety standards should be subscribed to by those who operate the public transport system — specifically the railways — in this country. I believe I did the right thing, although it was not the perfect way to do it.
The Deputy is correct that this Bill has been around since 2001. It could have been around for another three years if I did not take action. I sought the support of the House for doing that. In fairness to both Deputies, who were primarily responsible for the Bill, there was a good discussion on many aspects of its provisions. Everyone will subscribe to the view that it will work well. I sincerely hope so. It is good legislation. Inevitably some legislation is challenged but I believe this was the right thing to do.
With regard to the decisions I have taken in terms of the investment in transport, the Deputy is wrong to state that I suddenly woke up after launching Transport 21 and decided that I had better do something else. I had spoken about this months in advance of Transport 21. I would not have had the credibility to get somebody of the stature of Professor Margaret O’Mahony to take on the task she has undertaken if the Government had not made the decision. One must be in a credible position. Deputies will note that I do not make press announcements about these issues. I work out what the decision should be and when I have made it, I make the announcement. That might be somewhat different from how others do business but it is my way.
I accept that people can disagree with my decisions. That is their right and I do not have a problem with it. However, at least let my term in office in any Department be characterised by making decisions, right or wrong. Let me be criticised for actually making decisions. I will always accept that. What I will not do, and I hope have never done, is sit back, take the script and do nothing. I have no interest in doing that. I never had an interest in taking that approach in politics. If that is the basis of the criticism, so be it. I reject it and am proud to do so on the basis of my record, particularly during the past 12 months in the Department of Transport.
This Bill will make a fundamental difference. The investment of €1.4 billion in the 15-year safety programme that began in 1999 is allowing us to do a great deal in public transport that we would have only dreamed of doing in previous years. All parties in the House are guilty of ignoring the railways in the past. That has changed in every way possible. Having the safety infrastructure in place allows us, under Transport 21, to invest a huge amount in rolling stock and quality facilities to encourage the public to use these services. Yesterday and today, I was with Iarnród Éireann and Bus Éireann to announce a huge increase in the number, quality and capacity of their services, which will make them far more attractive to the public.
I agree that more must be done but, irrespective of who will be on this side of the House in the coming years, some of these major infrastructure projects will take time to deliver. For the first time in the history of the State, however, we have a Government decision, a plan and the money that is required. That was never the case in the past and I defy anybody to suggest otherwise. That is the position.
If I am to be damned — the Deputy is correct that I will be — for opting to do something more important, broad-ranging and far-reaching by changing the Driver Testing and Standards Authority Bill to the Road Safety Authority Bill, it is still the right thing to do. Again, I am faced with the option of not bothering. Given what the Deputy said, my life would be much easier. I would not be subject to criticism for doing these things if I did nothing. It is when one is prepared to put one’s head above the parapet that one is criticised. That does not bother me. I am happy to do these things.
I know precisely what I am doing with public transport and with the investment in transport across the delivery modes. I look forward, on 1 January next, to taking on this country’s ports and to dealing with maritime safety issues. I hope this is seen as an acknowledgement that we in the Department of Transport know what we are doing. In fairness, the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, and the Taoiseach agreed with me that the correct, cohesive and cross-cutting treatment in respect of this issue was to place it within the remit of the Department of Transport.
I thank the officials who worked extremely hard on the Bill. Members will accept that, given the frustration of trying to get this Bill to fruition and through the Oireachtas, enormous credit is due to them for not losing focus. I saw that effort and the desire to get this task done and I had no intention of waiting for another two or three years while nothing happened. If I am to be damned for that, so be it.
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