Ms Maev Nic Lochlainn:

I pass on the apologies of the Minister for Transport, Tourism and Sport, Deputy Shane Ross, who, unfortunately, has an engagement this morning and cannot attend. I am here in response to an invitation from the joint committee to assist in its consideration of the general scheme of the railway safety (amendment) Bill as submitted recently to and approved by the Government for publication and drafting by the Parliamentary Counsel in the Office of the Attorney General.

A key role for the Minister is to develop robust legislation to underpin railway safety in Ireland. First, I will give an overview of the various agencies that operate under that legislative framework. Each has an important role in railway safety. The prime duty to ensure safety in the day-to-day safe operation of railways rests with the railway operators, in accordance with the Railway Safety Act 2005 and a wide range of EU laws. They include Iarnród Éireann and Transdev, the company that operates Luas. All railway organisations are obliged to implement statutory compliant safety management systems.

As an independent specialist regulator, the Commission for Railway Regulation, CRR, is the national safety authority for the rail sector. It is charged under the 2005 Act with oversight of the safety of the heavy and light rail organisations which provided over 80 million passenger journeys in 2017. It approves and audits the safety management systems of the railway operators and takes enforcement proceedings, where necessary.

The Railway Accident and Investigation Unit, RAIU, is an independent investigation unit that conducts investigations into accidents and incidents on railways in Ireland. Investigations are carried out in accordance with the Railway Safety Act 2005 and EU law. The purpose of RAIU investigations is to make safety recommendations in order to prevent future accidents and improve railway safety.

This comprehensive framework is in place because railway safety is critical for passengers, railway workers and all who come in contact with the rail network. One aspect of railway safety involves safeguarding against impairment of safety critical workers as a result of intoxicant use. The main provisions in the general scheme as circulated propose important amendments to the drug and alcohol provisions of the 2005 Act. The general scheme also has some miscellaneous amendments to the 2005 Act, in addition to one amendment to the Public Transport Regulation Act 2009.

I will focus first on Part 9 of the 2005 Act which provides for the implementation in the workplace of a statutory code of conduct for drugs and alcohol for railway safety critical workers. Not all employees are safety critical workers. Under the Act, a safety critical worker is one who performs safety critical tasks, including tasks to control the movement of trains, encompassing train drivers and signal operators, as well as tasks to control the movement of persons, for example, at railway crossings on platforms, in addition to maintenance tasks. The code sets out the workplace policy for testing these workers for intoxicants. Disciplinary sanctions apply for non-compliance, up to and including dismissal. Under these provisions, Iarnród Éireann and Transdev, the current Luas operator, have both agreed codes of conduct for drugs and alcohol. Random testing is undertaken, in addition to testing for cause – for example, after an incident. Iarnród Éireann has 2,421 safety critical workers employed. In the three years to the end of 2017, 710 employee tests were undertaken, with eight positive results. None of the positive results was after an incident and all were dealt with under disciplinary procedures. Transdev has 246 safety critical workers employed. Since the commencement of Luas operations in 2004, four Luas safety critical workers have had positive results. None has continued in employment or returned to work for Transdev. Iarnród Éireann has indicated that the introduction of the drugs and alcohol policy and the associated testing has been extremely effective in developing its safety culture. It seems that workplace testing and the culture of awareness of intoxicants can be considered as factors in the continued positive record of railway safety in recent years.

While the provisions of Part 9 are working well, the general scheme addresses some issues of concern. The alcohol limits set in the 2005 Act mirrored the provisions that applied under road traffic Acts at the time. However, the alcohol limits under road traffic Acts have evolved since 2005. The Railway Safety Act has not kept pace. Road traffic legislation has been amended to reduce the statutory alcohol limits for all drivers and introduced a "specified person" category which includes professional road drivers such as drivers of buses or taxis. This means that train drivers and other railway safety critical workers are currently permitted to have four times more alcohol in their blood than the equivalent professional road driver. Following a CRR recommendation, the general scheme proposes that statutory alcohol limits consistent with those specified under Road Traffic Acts for "specified persons" apply to all railway safety critical workers under Part 9. Other changes are proposed to clarify procedures. For example, the amended Part 9 will make it clear that a doctor is not required to be present when a urine sample is given. It is also proposed to expand the provisions to introduce a role for a nurse in sampling.

Part 10 of the Act provides for criminal sanctions. It is proposed to amend the provisions in order that the procedures under Part 10 will be used only following an accident causing harmful consequences such as one involving fatalities. Just as for Part 9, the proposal is to ensure statutory alcohol limits consistent with those under the road traffic Acts for "specified persons" will apply to all safety critical workers on the railways. Under Part 10, the sanction will involve criminal offences with potential penalties, on conviction in court, involving a fine or imprisonment, or both. As they are currently exempt, the general scheme also proposes to extend criminal sanction provisions to heritage train operators where they are operating on the rail infrastructure of another rail organisation – for example, when a steam train runs day trips on the Irish Rail mainline.

Road traffic legislation was expanded in 2016 to provide for analysis of blood samples to establish the concentration level of certain drugs such as cocaine. A Schedule to the Road Traffic Act 2010 sets out the relevant drugs. In regard to drugs, it is proposed that the approach under Parts 9 and 10 differ. Workplace testing will continue to provide for a simple Yes/No test for the presence of drugs. The more sophisticated approach involving sampling by the Garda and analysis for concentration of specified drugs by the Medical Bureau of Road Safety will be used only in the criminal context. If in the future either the statutory alcohol limits or the list of specified drugs set out in Road Traffic legislation are amended, the Bill provides that all such changes will automatically carry through for application for railway safety also.

Since the general scheme was circulated to the committee, we have been liaising with the Office of the Parliamentary Counsel. It has begun considering the many associated issues and complexities. In opening discussions the Parliamentary Counsel highlighted the intricate interplay between Part 9 which is broadly based on employment law and Part 10 which constitutes criminal law, as it did in the original 2005 Act. Initial views suggest that, in order to safeguard the ability to prosecute successfully under the criminal provisions, there may be a need to deal with those provisions separately or to apply a different legislative approach. The Parliamentary Counsel has also noted that the general scheme was developed to closely mirror the drugs and alcohol provisions of the Road Traffic Acts, while adjusting them to fit the context of railway infrastructure, rather than public road, and to consider railway safety critical tasks being performed, rather than a car or road vehicle being driven.

While the Office of the Parliamentary Counsel has not yet finalised its analysis, it seems possible that the outcome of deliberations may be to recommend an approach that will be simpler than the full mirroring of the road traffic provisions, which is evident in the heads circulated. While we cannot be definitive in that regard just yet, I highlight for the members of the committee that these considerations are ongoing and that the approach currently applied in the heads may evolve.

In respect of the commission, the Bill includes provisions that recognise the expanding remit of the CRR, and some streamlining of administrative procedures. Due to changes in EU law, there is a need to ensure the RAIU continues to have adequate powers. Post-transposition of the EU Fourth Railway Package, the RAIU would be unable to conduct investigations on light rail or metro, if this change in the Bill was not made. There is also an amendment which provides for possible future international rail agreements.

The amendment to the Public Transport Regulation Act 2009 brings commercial school bus services which operate outside the scope of the school transport scheme under the Department of Education and Skills, and back within the scope of NTA’s licensing regime. These services were inadvertently excluded due to the definition of public bus passenger service which was amended in the 2009 Act. The new provision corrects this.

I thank the Chairman and committee members for inviting me to make this presentation and look forward to hearing their views.