Martin Cullen (Waterford, Fianna Fail)

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.

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 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.

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