Dáil debates

Wednesday, 5 October 2005

Railway Safety Bill 2001: Report Stage.

 

5:00 pm

Joe Sherlock (Cork East, Labour)
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I wish to inform the House that arising from the decision to recommit the entire Bill, amendments Nos. 1 and 2 on the published list, being amendments to the Long Title, will be dealt with at last. As is standard procedure on Committee Stage, we will, therefore, commence consideration of the Bill at section 1, postponing consideration of those amendments until all other amendments and sections have been disposed of.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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If that is the procedure, it is fine with me.

Sections 1 to 3, inclusive, agreed to.

SECTION 4.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 3:

In page 10, between lines 5 and 6, to insert the following:

"(2) Notwithstanding section 69 of the Transport (Railway Infrastructure) Act 2001, this Act applies to any railway works authorised by a railway order under section 43 of that Act".

The purpose of this amendment is to make clear that the Bill applies to workers authorised by railway orders under the Transport (Railway Infrastructure) Act 2001. The Luas system was pursuant to such an order. While section 69 of the 2001 Act was not intended in any way to exclude application of this Bill to work such as that connected with the Luas, it is prudent to make clear that the section cannot be misinterpreted.

Amendment agreed to.

Section 4, as amended, agreed to.

Sections 5 to 7, inclusive, agreed to.

SECTION 8.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I move amendment No. 4:

In page 10, lines 32 and 33, to delete all words from and including "the" where it firstly occurs in line 32 down to and including "Iarnróid," in line 33 and substitute the following:

"An Coimisiún Sábháilteachta Iarnróid or, in the English language, the Railway Safety Commission,".

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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There is no hard and fast rule in this area. While it has been common practice until a short time ago to state, first, the name by which the body being established will be known, in practice, and, most commonly, the English version of the name, I note that some recent Bills have departed from this precedent. This issue arises in a number of other areas in the Bill. I would like to make appropriate changes in the Seanad and I, therefore, while accepting the point he makes, invite the Deputy to consider withdrawing the amendment.

Amendment, by leave, withdrawn.

Section 8 agreed to.

Section 9 agreed to.

SECTION 10.

Joe Sherlock (Cork East, Labour)
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Amendments No. 5, Nos. 42 to 54, inclusive, No. 56, Nos. 58 to 75, inclusive, Nos. 77 to 81, inclusive, Nos. 88 to 90, inclusive, and Nos. 104 and 147 are related and will be discussed together. Is that agreed? Agreed.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 5:

In page 11, to delete line 3 and substitute the following:

"(b) to enforce this Act and any other legislation relating to railway safety, and".

While 43 amendments may appear to be a large number to take together, I am satisfied that they are largely technical and interrelated and should logically be grouped together. First, I will explain the origin of these amendments. The Bill, as passed on Committee Stage, lays a number of functions on the commission. These include the enforcement of railway safety, prosecution of offences and the investigation of accidents in certain cases. Accidents are to be investigated using a no-blame approach. The Bill, as passed on Committee Stage, requires that certain classes of railway accidents are to be investigated by the railway incident investigation unit, while remaining classes of accidents may be investigated by the commission itself.

Upon reflection, I have come to the view that the commission should have no role as regards the investigation of accidents. It is necessary to ensure that the investigation of accidents and the prosecution of possible offences arising from such occurrences are not undertaken by the same entity, namely, the commission. We must ensure that witnesses to a railway accident and railway workers who are somehow relevant to an investigation have full trust in the accident investigators and feel free to speak without fear of prosecution. At the same time, those who have committed an offence which contributed to or caused an accident must be brought to justice.

The amendments I am proposing will, therefore, clarify the role of the commission, transfer all accident investigation functions from the commission to the railway incident investigation unit and leave the investigation and prosecution of offences and other enforcement action to the commission. This strict separation of roles in respect of accident investigation and prosecution of offences will more clearly define the roles of the commission and the investigation unit.

Amendment agreed to.

Section 10, as amended, agreed to.

Sections 11 and 12 agreed to.

SECTION 13.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 6:

In page 13, lines 18 and 19, to delete all words from and including "any" in line 18 down to and including "Act)" in line 19 and substitute the following:

"its functions as he or she considers appropriate".

This is a technical amendment. Its purpose is to simply align the wording of section 13(5) with that in section 13(1). The latter provides that I may give general policy directions to the commission in respect of its functions, whereas section 13(5) provides that I may give policy guidelines to the commission as regards the functions assigned to it by law. The difference in language used in the two subsections when referring to the functions of the commission suggests a different interpretation was intended. That is not the case. The textual change proposed in amendment No. 6 makes the wording of section 13(5) similar to section 13(1).

Amendment agreed to.

Section 13, as amended, agreed to.

SECTION 14.

Joe Sherlock (Cork East, Labour)
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Amendments Nos. 7, 8 and 111 are related and may be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 7:

In page 13, to delete lines 23 to 34 and substitute the following:

"14.—(1) The Commission shall consist of at least one but not more than 3 members.

(2) Each member of the Commission shall be known as a Commissioner for Railway Safety and is in this Act referred to as a 'commissioner'.

(3) The person who holds, immediately before the establishment day, the position of Chief Railway Inspecting Officer of the Minister, shall, subject to his accepting such period for his holding office on such terms and conditions as fixed under subsection (5), on the establishment day, become and be a commissioner and is deemed appointed under this subsection.

(4) A commissioner (other than the person referred to in subsection (3)) shall be appointed by the Minister.

(5) A commissioner shall be appointed to hold office in a full-time capacity for a period of not less than 3 years and not more than 7 years on such terms and conditions, including remuneration, as the Minister, with the consent of the Minister for Finance, may fix.".

These amendments relate to the appointment of commissioners and staff of the commission and their purpose is to clarify and improve the text. The Bill, as amended on Committee Stage, provides that the person who currently holds the position of chief railway inspecting officer in my Department will become the first commissioner. With regard to the chief inspector's term of office as commissioner and any other terms and conditions of his appointment, it was intended that his appointment would be subject to the standard terms and conditions for such appointments as set by the Minister under section 14(1). Amendment No. 7 makes this clear.

Amendment No. 8 relates to other railway inspecting officers and any persons recruited specifically for a job with the commission. The latter group will transfer to the commission on its establishment. Other railway inspecting officers may be transferred to the commission if they are willing to opt for transfer or may be retained in my Department.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Although this issue did not arise on Committee Stage, it is an important point. What grade is the position of commissioner? Why will no open competition be held for the post? Has the Minister sought legal advice on this arrangement? It is peculiar, to say the least, that the Minister will appoint someone to a position as important as this. Surely the appointment should be handled by the Local Appointments Commission. In the light of these concerns, I am unable to support the amendment.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I understand the holder of the office in the interim arrangement will be appointed by the Minister to the commissioner function in the new arrangement. At the end of his term of office, will the post of commissioner be publicly advertised or will the appointee be recruited from within the Civil Service?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The Deputies have made an important point. The chief railway inspecting office has been earmarked for automatic appointment as commissioner on establishment day. This would involve promotion from principal officer equivalent to assistant secretary equivalent without competition. The chief inspector is eminently qualified for the commissioner post. With regard to the chief inspector's term of office as commissioner and any other terms and conditions of his employment, it was intended that section 14 would apply. As drafted, however, this intention may not be clear and hence the need for a redraft in the amendment. I understand the position will be open to public competition.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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At what point will a public competition be held?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It will be held at the end of the commissioner's term of office.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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How long is the term of office?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It is between three and seven years.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Will the Minister be precise?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The decision rests with the Minister and will depend on how the appointee performs.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Does the Minister accept it is bad practice for him to hold the power to appoint someone to a senior Civil Service position such as assistant secretary and to make such appointments behind closed doors without holding an open competition? What is the view of the trade unions representing senior management in the public service on this approach to doing business? While I accept one could argue that continuity is required during the early years of the new body's operations, will the Minister give a commitment to open up the position to competition following the shortest possible period, perhaps three years? Without such a commitment, the Minister will find himself in serious trouble for retaining control of a position of this nature and refusing to allow it to go to a public competition. Does he accept that, in principle, it is bad practice to do as he proposes?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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While I do not necessarily accept the latter point, I agree with some of the Deputy's other points. She is correct that the appointment raises an important issue. Two other commissioners will be appointed and both positions will be immediately open to public competition. I have no desire to be involved directly or indirectly in these kinds of appointments, nor am I involved in them in any other area. It was decided in discussions that the approach I have outlined was the best option in this case, that is, the person currently acting in the capacity of commissioner should be appointed and two other commissioner positions would be open to public competition. The purpose of the amendment is to implement that decision.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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What is the appropriate term of office?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I am informed that the person to be appointed is eminently competent and qualified to hold the position of commissioner. I agree that the shortest possible period should elapse before the position is the subject of open competition. As the Deputy will be aware, it will take considerable time to bed in many of the provisions of the legislation.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Is three years a sufficient transition period?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I hope it will be sufficient.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Does the Minister intend to hold a public competition after three years?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I do not want to pre-empt what may happen in three years' time. Who knows who will be Minister for Transport at that point?

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Surely the Minister does not want positions to be filled by appointees.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The position will be open to public competition following the initial appointment.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Will that occur after three or seven years?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It will happen within that timeframe.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Will it be after three or seven years?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It is a reasonable timeframe. I have given the reasons for the decision taken regarding the appointment and the Deputy has backed them up. My preferred option is to have a public competition after the shortest possible period. If, after three years, there was widespread agreement among independent observers that the commissioner was doing an excellent job, I would leave him in the position to allow him to bed in the new system.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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One way around this problem would be to offer the appointee a three year contract which the Minister could extend at his discretion.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The provision gives effect to the agreement.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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What agreement?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It was agreed that this was the best way to deal with the position of commissioner.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Agreements on senior posts in the public service, particularly the position of assistant secretary, should not be made behind closed doors. The length of the term of office and the point at which others can expect to have an opportunity to compete for the office should be made clear. The three to seven year period is too long. The Minister should indicate when he intends to open up the position to competition.

6:00 pm

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The principal reason for taking this approach is to ensure continuity. One must also consider the knowledge the appointee possesses. It is not easy, and may not be easy in future, to recruit someone to a short-term contract. We may have to offer a substantive contract to attract the necessary person with the requisite qualifications and standing to do the job. We have opted for an interim position, which is a reasonable and balanced decision. Of the three commissioners to be appointed, the current chief railway inspecting officer will assume one position and the two other posts will be filled through a fully open competition. The third position will be the subject of open competition at a later date. It is clear that the maximum period the person I appoint can serve is seven years, after which the position will be open to public competition.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I intend to return to this issue on Report Stage.

Amendment agreed to.

Section 14, as amended, agreed to.

Section 15 agreed to.

SECTION 16.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 8:

In page 15, to delete lines 1 to 5 and substitute the following:

"(1) The Minister—

(a) shall designate his or her officers recruited specifically for transfer to the Commission, and

(b) may designate such and so many of his or her officers who are Railway Inspecting Officers,".

Amendment agreed to.

Joe Sherlock (Cork East, Labour)
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Amendment No. 9 is in the name of Deputy Shortall. Amendment No. 148 on the substitute and additional list dated 4 October is related. Amendments Nos. 9 and 148 to be discussed together.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 9:

In page 15, line 24, to delete "2001" and substitute "2003".

This is a technical amendment which would merely entail deleting "2001" and substituting "2003". The reason for so doing is to update the reference to the Redundancy Payments Acts to account for the Redundancy Payments Act 2003 which was passed in the time this Bill was lying around.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I thank the Deputy for this amendment. Obviously, I can accept it.

Amendment agreed to.

Section 16, as amended, agreed to.

Sections 17 to 23, inclusive, agreed to.

SECTION 24.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 10:

In page 20, line 46, to delete "21,".

This is a technical amendment to correct a drafting error caused by the deletion on Committee Stage of sections 19 and 21 from the Bill as initiated.

Amendment agreed to.

Section 24, as amended, agreed to.

Section 25 agreed to.

SECTION 26.

Joe Sherlock (Cork East, Labour)
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Amendment No. 11 is in the name of the Minister. On the list of additional and substitute amendments dated 4 October, this amendment is in substitution for amendment No. 11 on the principal list of amendments dated 4 October. I ask the Minister to explain.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 11:

In page 21, line 12, to delete "2004" and substitute "2007".

Section 26 enables the Railway Safety Commission to impose an annual levy on railway undertakings to recoup some or all of the cost of its regulation of railway safety. Section 26(2) of the Bill, as amended, on Committee Stage states this levy may not be imposed before 31 December 2004. The purpose of this amendment is to extend that date by three years because of the delays in enactment of the Bill.

Amendment agreed to.

Section 26, as amended, agreed to.

Section 27 agreed to.

SECTION 28.

Joe Sherlock (Cork East, Labour)
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Amendment No. 12 is in the name of the Minister. Amendments Nos. 13, 14, 15 and 17 are related. Amendments Nos. 12 to 15, inclusive, and amendment No. 17 will be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 12:

In page 22, line 21, after "Oireachtas" to insert the following:

"within 3 months of its receipt by him or her".

On Committee Stage Deputy Naughten, in his amendments Nos. 14 and 17, made some suggestions on the annual report of the commission. I thank him for those useful suggestions. I am proposing amendments Nos. 12 to 14, inclusive, in response to the issues raised.

Amendment No. 12 provides that the annual report of the commission must be published within three months of its receipt in my Department, while amendment No. 13 allows the Minister to give directions to the commission on the format and content of the annual report but will safeguard confidential, sensitive or delicate information. Amendment No. 14 addresses the issue of the provision of information by the commission for the Minister on the performance of its functions. Section 28(4) already requires the commission to supply such information to the Minister. This amendment adds the protection suggested by Deputy Naughten on Committee Stage.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I thank the Minister. I take it amendment No. 15 in my name which was submitted originally by Deputy Naughten is being accepted. I also take it the Minister is not accepting amendment No. 17 which would require the Minister to be accountable to and answer parliamentary questions in the Dáil on the performance of the functions of the commission. Am I correct in stating the Minister is not accepting it?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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Yes, the Deputy is correct.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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Will he state why, bearing in mind that he will be on this side of the House some day?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I was over there for many years.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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And will be again. I need hardly say to the Minister that it seems every other day we pass legislation which makes us less relevant as a body. More parliamentary questions are being disallowed by the Ceann Comhairle because the Minister is not responsible for this, that or the other. We have seen this occur with the National Roads Authority and a myriad other bodies and, most recently, with the Health Service Executive, in respect of which we cannot find out what is going on in the health service. This is yet another body where it will be impossible for elected Members of this House to get information. Perhaps a caveat similar to that in amendment No. 14 needs to be included in amendment No. 17. I certainly would be happy to insert it on Report Stage. It would be similar to the wording used in amendment No. 14, stating "provided that such information would not, in the opinion of the Commission, be prejudicial to the performance of its functions". I can understand some information could be sensitive but the vast percentage of the information sought by Members is not sensitive in the sense that it would not impinge on anybody's privacy. That caveat might be included. It makes no sense to keep legislating to make ourselves irrelevant. I ask the Minister to reconsider.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I appreciate and understand the sentiments expressed by the Deputy but it is clearly established practice that the Minister is responsible and answerable in this House for policy. In terms of the commission and other matters, it is the relevant Oireachtas committee to which the commission is answerable. I have no mandate to change this procedure in terms of the way in which the Houses operate and the strengthened committee system in place. I do not have any proposals to unilaterally change it on this occasion.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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It is not accepted that the Minister is accountable to the House. He clearly will not be accountable to the House under this legislation.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I am fully accountable to the House for policy in respect of this body.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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In the same way that the Tánaiste and Minister for Health and Children is accountable for the health service, yet we wait six or nine months for an answer. It is unsatisfactory.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I support Deputy Mitchell on amendment No. 17. The Minister knows that the system does not work that way. Rail safety is a valid public interest issue. As public representatives, we should have the right to raise such issues in the Dáil and the Minister should be accountable to it for performance on rail safety.

This is part of a general development that has taken place under the Government and its predecessor, where ever increasing numbers of outside agencies are being set up at arm's length from the Minister with no accountability to the Dáil. It is bad practice which, as Deputy Mitchell stated, makes this House more irrelevant. It also lets the Minister — Deputy Cullen must bear in mind that he will not always be the Minister — off the hook entirely. It is all very well to say the commission can be invited to appear before the Joint Committee on Transport. As the Minister will be aware, that may happen once a year or less frequently. There is a need to put a mechanism in place whereby there can be accountability on an ongoing basis to those of us who represent the public. I ask the Minister to seriously reconsider his position on this amendment in the interests of democracy and accountability.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I have taken on board many of the proposals made by Deputies Naughten and Shortall previously but I am not in a position to change procedures unilaterally. I am fully answerable for anything I have ever done in the House and this has always been my experience. I know there are issues that lead to frustration for Deputies. I have also been frustrated when trying to deal with day-to-day issues. I am fully responsible for all of the agencies and answer questions here regularly by way of parliamentary questions and Adjournment debates. This area is my responsibility.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Not on the performance of any of the agencies.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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The Minister never even receives the questions; they are disallowed before he even sees them.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I do not wish to be disingenuous, but I am not in a position to go any further on this.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Why not? What is the problem with going further?

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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There seems to be no barrier to the Minister being accountable to the Dáil for the Railway Safety Commission.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Why is the Minister not prepared to be accountable to the Dáil for the Railway Safety Commission?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I am. I have made the point that I am fully accountable.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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The Minister is contradicting himself.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The Houses of the Oireachtas, for which I have the greatest respect, has a role also. We do not want the same role to be performed here and at an Oireachtas committee.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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The Minister may accept amendment No. 15 which would require the commission to furnish the Minister with information. However, the same courtesy is not being provided for Members and the Minister will not convey the information to them. All we require through this amendment is that the Minister should answer parliamentary questions and give to the House information he has been given by the commission. I cannot understand his problem that he cannot change procedures. The procedure has always been that the Minister is responsible to the House and provides information for it. It is farcical for him to tell us that we can receive information at an Oireachtas committee. As Deputy Shortall said, that might happen once or twice a year. A myriad of issues must be discussed at committees. By the time a particular matter might be discussed, it would probably be irrelevant. It is when an issue is live that we need the Minister or the commission to be accountable. This is where it is supposed to happen, but the Minister is deliberately thwarting it.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I do not accept that any of my colleagues or I are not held to account for anything for which we have responsibility. We are sometimes held to account for matters for which we do not have responsibility, but that is another argument. The Railway Safety Commission is being set up on the same basis as all other agencies under my aegis, for which I am fully responsible. I have set out in section 31(3) exactly what those responsibilities are with regard to the policy of this organisation. It is the same with all other agencies under my aegis.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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Policy, function and performance.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I do not propose to change this, despite the Deputy's good amendment which would radically change the position.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I intend to raise this issue again.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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There is an important point of principle at stake. Will the Minister explain why he is not prepared to share information from the commission with Members and why he refuses to take responsibility for the commission and answer Dáil questions?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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My remit, without Deputy Mitchell's amendment, is more than satisfactory to enable me to give all the information regarding policies that I am duty bound to give to this House. I have no difficulty with coming into the House to provide Members with as much information as possible on policy at all times. I am happy to do so.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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On policy, performance and functions.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I have no difficulty in doing so.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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The way he does with the NRA, the RPA and all the other agencies one cannot get near.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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If the House wants to change this, I am not against it.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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We have tried to change the procedure.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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There are issues between the Government and Opposition on a range of matters to do with the House and its functions. We would be well served if we could reach agreement on them.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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This side of the House is agreed on this. We want the Minister's agreement. That is why we are here.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I am making a wider point.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 13:

In page 22, between lines 21 and 22, to insert the following:

"(4) The Minister may give directions in writing to the Commission in regard to the format and content of a report under subsection (3), but such directions shall not require the Commission to include in such report details which could, in the opinion of the Commission, be prejudicial to the performance of its functions.".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 14:

In page 22, line 24, after "request" to insert the following:

"provided that such information would not, in the opinion of the Commission, be prejudicial to the performance of its functions".

Amendment agreed to.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I move amendment No. 15:

In page 22, between lines 29 and 30, to insert the following:

"(6) The Commission shall furnish to the Minister such information about the performance of its functions as the Minister may from time to time require (other than information the provision of which under this subsection would, in the opinion of the Commission, be likely to prejudice the performance of any of its functions).".

Breeda Moynihan-Cronin (Kerry South, Labour)
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Is the amendment agreed to?

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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No. This is the amendment we have been discussing.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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We were discussing amendment No. 17.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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Amendment No. 15 would have the same impact.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I thought it was the same as the Minister's amendment.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I am sorry, its import is covered in amendment No. 13.

Amendment, by leave, withdrawn.

Section 28, as amended, agreed to.

Sections 29 and 30 agreed to.

SECTION 31.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 16:

In page 23, to delete lines 21 to 24.

Amendment agreed to.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I move amendment No. 17:

In page 23, between lines 28 and 29, to insert the following:

"(4) The Minister shall supply to one or both Houses of the Oireachtas such information regarding the performance of the Commission''s functions as may from time to time be required by a member of either House.".

Amendment put and declared lost.

Section 31, as amended, agreed to.

Sections 32 to 38, inclusive, agreed to.

SECTION 39.

Breeda Moynihan-Cronin (Kerry South, Labour)
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Amendments Nos. 18 to 20, inclusive, are related and will be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 18:

In page 25, line 25, after "and" to insert the following:

", after consultation with the Council, railway undertakings and such other persons as in the opinion of the Commission may be relevant,".

Section 39(4) provides that the Railway Safety Commission may produce guidelines on the appropriate contents of a safety case to be prepared by a railway undertaking, and on appropriate technical principles and specifications. Amendment No. 18 imposes a requirement on the commission to consult railway undertakings and the Railway Safety Advisory council before it publishes such guidelines. The section also states a railway undertaking must have regard to these guidelines in preparing a safety case. However, it is also appropriate that a railway undertaking has regard to such guidelines in its application for new works approval under section 42, new rolling stock approval under section 43 and generally in managing its affairs in order that it complies with its duty of care under section 36. Amendments Nos. 19 and 20 are drafted to achieve this objective.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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This relates to consultation on the preparation and publication of guidelines and the various interests to be consulted. I suggest worker representatives should be consulted. I do not know why it is necessary to raise this. I would have thought it was standard practice to engage in consultation with the representatives of the organisation's workers. I propose that we amend the Bill accordingly.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I have provided in amendment No. 18 for consultation with the proposed Railway Safety Advisory Council. As the railway unions will have at least three representatives on the council, they will have opportunities to raise issues. Everybody is satisfied that this is the position. The unions will have at least three positions on the council and it was felt that it was the suitable body. Everybody is party to this.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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It will not necessarily work like that simply because the unions will have representatives on the council. If guidelines are to be introduced, it would seem to make sense that it should be standard practice to have some kind of consultation with the representatives of the workers involved.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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That is why there will be three of them on it.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I know that. However, it does not necessarily mean that the people who are most affected by specific guidelines will be consulted on them. It is a form of arm's length consultation. I wonder why some kind of procedure has not been put in place to ensure that the workers who are most affected by the guidelines will be formally consulted, as is normal in most organisations.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It has been recognised that I have made provision for consultation with railway unions throughout the Bill, where I have felt it to be relevant and appropriate. However, guideline documents, the contents of a safety case and technical principles and specifications are technical railway safety matters, rather than what might be called "on the ground" safety matters which are of interest to the railway unions. I do not believe that consultation with the unions on this issue would serve any useful purpose. Having said that, I reiterate that I have provided for discussions with the proposed railway safety council. There are at least three representatives of the unions on the council. The unions are satisfied with this. They will be more than au fait with exactly what is going on. The matters I have mentioned can be seen as highly specific technical issues, rather than "on the ground" issues which might necessitate direct consultation with the unions. When such consultation is required in respect of certain issues, I have clearly provided in the Bill that direct consultation should be recommended with the unions. My understanding is that everybody is happy with the approach I have adopted.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I do not intend to make an issue of this. I do not understand what the Minister means when he says the matters in question relate to "technical" issues, as opposed to "on the ground" issues. Technical issues need to be considered by people on the ground who are involved in the technical side of the work. We cannot be sure that the three representatives will have expertise of the technical matters in question. There can be a two-stage process of consultation. Those who think that technical issues are different to the issues with which workers deal on the ground are engaging in a strange form of thinking.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I do not necessarily mean to convey the point I was making in a manner that would cause us to split hairs. As I have considered this matter, I have been open-minded about the sort of issues on which the unions have shown a strong interest in being consulted. I have provided for such consultation throughout the Bill. The Deputy is right to state that some workers will be keen to meet to seek advice on certain technical issues. It is important, for that reason, that the unions will be represented by the three good people who will be proposed as members of the Railway Safety Advisory Council. This is an example of an instance in which it is better to deal with an issue not by talking to every different grouping, thereby avoiding making the entire system over-cumbersome. In drawing up this legislation, there was a need to avoid making things too complicated. We are happy to consult various groups when it is deemed absolutely necessary and right to do so. The people involved in drawing up the legislation felt that the unions need to be involved in the proposed railway safety council so that they can keep abreast of the various issues. We have facilitated this.

Amendment No. 1 to amendment No. 18 not moved.

Amendment No. 18 agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 19:

In page 25, line 28, after "shall," to insert the following:

"for the purposes of complying with its duty under section 36,".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 20:

In page 25, line 29, after "case," to insert the following:

"and for the purposes of complying with sections 42 and 43,".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 21:

In page 25, line 35, to delete "name and address of a" and substitute the following:

"title and office address of one".

This is a technical amendment. I can give the Deputies further information on it if they wish.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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No.

Amendment agreed to.

Section 39, as amended, agreed to.

SECTION 40.

Breeda Moynihan-Cronin (Kerry South, Labour)
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As amendments Nos. 22, 31 and 32 are cognate, they may be discussed together.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 22:

In page 26, line 44, to delete ", by leave of the court,".

These three amendments seek to address the growing legislative trend to remove the right of appeal to the Supreme Court. The Bill provides that appeals will be allowed on the basis of questions of law but not on the basis of questions of fact. It provides that no appeal will be permissible unless it is sanctioned by the High Court. I do not see the justification for such a provision. If the party concerned wishes to appeal a case to the Supreme Court, I do not see why it should be prevented from doing so. The Minister is providing in this Bill that a case can be taken to the Supreme Court if the High Court gives leave to do so. It is poor practice. I do not understand the rationale behind it.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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There is established precedent in other legislation for the High Court to be given the discretion to allow, or not to allow, an appeal to the Supreme Court on a point of law. That discretion is there to ensure that the limited resources of the Supreme Court are not taken up by groundless appeals. I am reluctant to interfere with or restrict that discretion, particularly in light of the practice that has been established in other legislation, such as section 88(9) of the Safety, Health and Welfare at Work Act 2005, section 32 of the Electricity Regulation Act 1999 and section 38 of the Aviation Regulation Act 2001. For the reasons I have outlined, I invite the Deputy to withdraw her amendment.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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The Minister has agreed with my point that the introduction of provisions of this nature by the Government and its predecessor has become a trend in recent years. The intention behind such provisions is to limit people's rights under the law, a move for which there is no justification. The Minister has quoted a few examples of this form of provision but that does not provide a justification or a rationale for it. I do not see why a person should have to seek the approval of the High Court to take his or her case to the Supreme Court. It seems that an important principle is at stake. People's rights under the law have been restricted in legislation passed in recent times. I do not think it constitutes good practice.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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It is clear that the Judiciary is totally independent in its functions from the Oireachtas or the Executive. I am not trying to limit people's rights under the law.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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The Minister is limiting those rights.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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No. The courts can decide whether a decision can be appealed.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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Yes.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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If we declare open season for people to try to appeal High Court decisions to the Supreme Court, it is reasonable that we should ensure there are reasonable grounds for the appeal. We should not have an open season that automatically allows everything decided on in the High Court to be sent to the Supreme Court. Such an approach would cause the entire system to become clogged up and we would never get anywhere.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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There is a need for a wider debate on this matter because an important principle is at stake.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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That may be the case.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I do not think a provision of this nature should be slipped in by the back door, as has been the case in recent legislation.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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That is a fair point, although it is part of a wider debate. I have outlined my position on the issue as it applies to this legislation.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Section 40 agreed to.

Section 41 agreed to.

SECTION 42.

Breeda Moynihan-Cronin (Kerry South, Labour)
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As amendments Nos. 23 to 28, inclusive, and amendment No. 30 are related, they may be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 23:

In page 28, line 1, to delete "bring into operation" and substitute the following:

"commence construction, installation or assembly of".

The amendments before the House make a number of changes to sections 42 and 43 of the Bill, which relate to the approval of new works and rolling stock by the commission. The purpose of the amendments is to make sections 42 and 43 more effective in terms of public safety and more reasonable for railway undertakings. In amendment No. 23 I propose to amend section 42(1) in order that a new works approval must be sought before construction commences, a change with which I think all Members agree. Amendments No. 24 and 25 are consequential.

Existing 19th century legislation and the present text of section 42(1) of the Bill, which mirrors it, require approval before works are brought into operation. Experience has shown that the majority of risks arise during construction. However, I am also providing that approval to bring the works into operation must still be sought. This phased approval process is in line with best practice.

Section 42(5) of the Bill, as passed on Committee Stage, allows a railway undertaking seven days to amend its safety case where new works are approved by the commission. On reflection, 21 days is a more reasonable time period to allow for this task and I am providing for this in amendment No. 26.

Sections 42(10) and 43(10) of the Bill, as passed on Committee Stage, allow the commission three months to make a decision on an application for new works or new rolling stock approval. Railway undertakings have complained that a three month timeframe for approvals will delay projects, which is a fair point. The informal practice of the interim commission in recent times has been to make a decision within 28 days. The interim commission believes such a turnaround time is achievable in most cases. I am, therefore, agreeable to changing the three month statutory deadline to a statutory objective of 28 days. I am providing for this in amendments Nos. 27 and 30.

Section 42(13) of the Bill, as passed on Committee Stage, specifies the type of works on a railway which will require new works approval from the commission. The commission is given power to make regulations adding other works to those listed in section 42(13). On reflection, the power to make regulations specifying other works which would require approval is a policy matter and is more appropriately reserved to the Minister of the day. It is also appropriate that the Minister be required to consult the commission and railway undertakings before making such regulations. I am providing for these matters in amendment No. 28.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment 24:

In page 28, lines 14 to 16, to delete all words from and including "the" where it firstly occurs in line 14 down to and including "safety," in line 16 and substitute the following:

"a new works assessment, or in a revised new works assessment under subsection (3), is not adequate, or the Commission is not satisfied——

(a) that the proposed method of construction, installation or assembly is adequate to ensure, in so far as reasonably practicable, the safety of persons during that construction, installation or assembly, or

(b) as to the expected operational safety of the new works,".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 25:

In page 28, to delete lines 22 to 26 and substitute the following:

"(4) Where, on the basis of the information contained in a new works assessment or in a revised new works assessment under subsection (3), the Commission is satisfied——

(a) that the proposed method of construction, installation or assembly is adequate to ensure, in so far as reasonably practicable, the safety of persons during that construction, installation or assembly, and

(b) as to the expected operational safety of the new works,

the Commission shall communicate in writing its acceptance of a new works assessment to the railway undertaking concerned.

(5) A railway undertaking shall obtain the consent of the Commission before bringing into operation the completed new works.".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 26:

In page 28, line 27, to delete "7" and substitute "21".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 27:

In page 29, to delete lines 13 to 18 and substitute the following:

"(10) It shall be the duty of the Commission to ensure that it carries out its functions under this section as expeditiously as may be, and for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in its performance of its functions under this section.

(11) Without prejudice to the generality of subsection (10), and subject to subsection (8), it shall be the objective of the Commission to ensure that it issues a notice under subsection (2) or a communication under subsection (4) within—

(a) 28 days, beginning on the date of receipt by the Commission of a new works assessment or a revised new works assessment or receipt of all information or clarifications requested under subsection (12), or

(b) such other period as the Minister may specify by order, after consultation with the Commission and railway undertakings.".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 28:

In page 29, line 34, to delete "Commission" and substitute the following:

"Minister, after consultation with the Commission and railway undertakings".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 29:

In page 29, between lines 34 and 35, to insert the following:

"(14) Where a railway undertaking proposes to replace the gates at a specific level crossing with barriers, lights or other automatic devices or appliances, and

(a) it has submitted a new works assessment in respect of those works which has been accepted by the Commission under subsection (4), or

(b) where the Commission has given a generic or specific exemption under subsection (6) in respect of such works,

any obligations to make or maintain gates at that crossing do not apply.

(15) Subject to subsection (16), section 23 of the Transport (Miscellaneous Provisions) Act 1971 applies to works under subsection (14) as if those works had been required by an order under section 22 of that Act.

(16) Subsection (15) does not apply to a level crossing to which section 47 of the Railway Clauses Consolidation Act 1845 or section 6 of the Railway Clauses Act 1863 applies.".

Under existing legislation dating from 1958 and 1971 — section 9 of the Transport Act 1958 and section 22 of the Transport (Miscellaneous Provisions) Act 1971 — which I propose to repeal, a statutory instrument is required each time Iarnród Éireann wishes to upgrade a level crossing to an unmanned automatic signalled crossing. Under this Bill, all other significant works on the railway simply require new works approval from the commission. Automation of level crossings should not be treated differently — a point with which the House would agree. The new section 42(14) in amendment No. 29 will remove an unnecessary administrative burden.

Amendment No. 29 also proposes two saver provisions. Under section 23 of the 1971 Act, a road authority is required to fund 50% of the cost of level crossing works authorised by an order under section 22 of that Act. This applies to the upgrade of unmanned crossings only. These technical amendments provide that such cost sharing arrangements will continue to apply.

Amendment No. 156 repeals the existing provisions in the 1958 and 1971 Acts which provide for the making of orders for upgrade of level crossings. I had originally intended transferring functions in regard to these provisions to the Railway Safety Commission via Schedule 2 to the Bill but now propose instead to repeal them. Amendment No. 159 is a technical amendment to delete them from Schedule 2 to the Bill. Amendment No. 156 also repeals section 29 of the Transport (Miscellaneous Provisions) Act 1971. This section relates to regulations to be made in regard to medical assessment of locomotive drivers. I propose to delete this section as no such regulations have been made since enactment in 1971 and I propose alternative more detailed medical assessment provisions in regard to all safety critical railway workers in amendment No. 144 which we will debate shortly.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I accept the Minister's explanation of amendment No. 29. However, on a reading of the amendment, it does not seem to mean what he says it means. It states: "Where a railway undertaking proposes to replace the gates . . . any obligations to make or maintain gates at that crossing do not apply."

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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The amendment seeks to cover a continuation of upgrading of gates. Many unsafe manually operated gates have been removed. The measure is to allow for this. Administratively, it is cumbersome when dealing with such gates to seek all the necessary approvals. This should be dealt with as satisfactorily as other issues have been dealt with.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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Therefore, a barrier or other automatic device is not a gate.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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That is correct.

Amendment agreed to.

Section 42, as amended, agreed to.

SECTION 43.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 30:

In page 31, to delete lines 1 to 6 and substitute the following:

"(10) It shall be the duty of the Commission to ensure that it carries out its functions under this section as expeditiously as may be, and for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in its performance of its functions under this section.

(11) Without prejudice to the generality of subsection (10), and subject to subsection (8), it shall be the objective of the Commission to ensure that it issues a notice under subsection (2) or a communication under subsection (4) within—

(a) 28 days, beginning on the date of receipt by the Commission of a new rolling stock assessment or a revised new rolling stock assessment or receipt of all information or clarifications requested under subsection (12), or

(b) such other period as the Minister may specify by order, after consultation with the Commission and railway undertakings.".

Amendment agreed to.

Section 43, as amended, agreed to.

SECTION 44.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 31:

In page 32, line 24, to delete ", by leave of the court,".

Amendment put and declared lost.

Section 44 agreed to.

Section 45 agreed to.

SECTION 46.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 32:

In page 35, line 8, to delete ", by leave of the court,".

Amendment put and declared lost.

Section 46 agreed to.

Sections 47 to 50, inclusive, agreed to.

SECTION 51.

Breeda Moynihan-Cronin (Kerry South, Labour)
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We move to amendment No. 33. Amendments Nos. 34 and 35 are related. The amendments may be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 33:

In page 40, line 13, after "injury" to insert the following:

"or extensive damage to railway infrastructure or rolling stock or the environment".

On Committee Stage Deputy Naughten made useful suggestions related to notification of railway accidents. These amendments are intended to address the issues raised by the Deputy. Amendment No. 33 which amends section 51(d) of the Bill addresses the issues raised by the Deputy in regard to notification of accidents which damage infrastructure etc., but borrows the language used in the EU railway safety directive, Directive 2004/49/EC. Amendment No. 34 provides that the Minister, as well as the commission, may also make the regulations mentioned in section 51(d). Amendment No. 35 addresses the issue of a timescale for notification of accidents to the investigation unit. The present text of the Bill requires that notification be made by the quickest practicable means. I am adding to this that the investigation unit may specify a timeframe within which such notifications must be given.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I welcome the amendment.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I thank the Deputy.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 34:

In page 40, line 14, after "Commission" to insert "or the Minister".

Amendment agreed to.

Section 51, as amended, agreed to.

SECTION 52.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 35:

In page 40, line 23, after "means" to insert the following:

"(or within such timeframe as may be specified by the Investigation Unit)".

Amendment agreed to.

Section 52, as amended, agreed to.

SECTION 53.

Breeda Moynihan-Cronin (Kerry South, Labour)
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We move to amendment No. 36 on the list of additional and substitute amendments dated 4 October. This amendment is in substitution for amendment No. 36 on the principal list of amendments dated 4 October 2005. Amendment No. 36, amendment No. 1 to amendment No. 36, amendments Nos. 38, 41, 86, 87, 102 and 103 and amendments Nos. 1 and 2 to amendment No. 103 and amendment No. 105 are related and may be discussed together.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 36:

In page 41, between lines 3 and 4, to insert the following:

"(3) A person who is being interviewed under subsection (2) may, if he or she requests, be accompanied—

(a) where the person is a member of the staff of the railway undertaking, by one other member of the staff,

(b) where the person is a member of the staff of another person engaged by the undertaking, by one other member of that staff,

(c) by one person from an organisation which represents, as the case may be, the staff of the undertaking or the person engaged by the undertaking, or

(d) at his or her own expense, by a legal or other adviser.".

On Committee Stage, my predecessor agreed with Deputy Shortall's suggestion in her amendment No. 31 that a worker should be allowed trade union representation when being interviewed by a railway undertaking or by the commission in connection with the investigation by either party of a railway accident. Amendments Nos. 36 and 103 are intended to address this issue. These amendments provide that a person may at his or her request be accompanied by a colleague or trade union official when being interviewed by a railway undertaking or by the commission's investigation unit in respect of a railway accident. A person may also be accompanied when being interviewed by the commission in respect of any other matter. I am also providing that the person may also be accompanied by his or her legal adviser in these situations.

Amendment No. 102 is a consequential amendment to section 73(3)(k) of the Bill deleting a commission inspector's power of discretion over whether to allow a person be accompanied when being interviewed. Section 73 specifies the powers of the inspectors of the commission. Deputies Shortall and Crowe have tabled amendments providing for similar matters. I, therefore, invite the Deputies to withdraw their amendments Nos. 38, 41 and 105. This amendment arises directly from Deputy Shortall's intervention on Committee Stage. I am following through on what my predecessor agreed.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I welcome the Minister's amendments which are in the spirit of the amendment I tabled originally. Why does he not use the term "trade union"? The word "organisation" seems strange. I welcome the fact this will be established as a right both in terms of trade union representation and legal advice in the case of an investigation. I will withdraw my amendment.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I will withdraw my amendment No. 41. The Minister's amendment has clearly taken on board the concerns we had.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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Deputy Shortall's question is interesting and I asked it of myself. There is no accepted definition of "trade union". That is the reason. People have different interpretations of it and it was agreed that the word "organisation" was the best description.

Amendment No. 1 to amendment No. 36 not moved.

Amendment agreed to.

Breeda Moynihan-Cronin (Kerry South, Labour)
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Amendment No. 37 is in the name of Deputy Mitchell. Amendment No. 39 on the substitute and additional list of amendments dated 4 October 2005 is related to amendment No. 37. Amendments Nos. 37 and 39 and amendment No. 1 to amendment No. 39 may be discussed together.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I move amendment No. 37:

In page 41, between lines 3 and 4, to insert the following:

"(3) Where a member of staff of a railway undertaking furnishes relevant information to the Commission or an inspector—

(a) following a railway incident,

(b) which, in the opinion of the person, may lead to a railway incident,

the person shall not be subject to disciplinary or any other action by the railway undertaking.".

I believe the Minister's amendment No. 39 takes on board the spirit of amendment No. 37 which I very much welcome. Perhaps "whistleblower" is not the right word to use but I believe workers who are at the coalface must be in a position to point out any deficiencies in the workings of any aspect of rail safety procedures. Safety must be a joint venture between management, staff and the commission. Complete transparency and freedom to speak is important as is protection for those who speak out.

Amendment, by leave, withdrawn.

Amendment No. 38 not moved.

Section 53, as amended, agreed to.

NEW SECTION.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 39:

In page 42, between lines 41 and 42, to insert the following:

"54.—(1) Where a member of staff of a railway undertaking or a person working under a contract of services with a railway undertaking becomes aware of——

(a) information relevant to the investigation of a railway incident, or

(b) a risk arising from the operations of the undertaking which in his or her opinion is not adequately controlled or mitigated by the undertaking,

he or she shall inform the railway undertaking of the information or as the case may be the risk and of his or her opinion.

(2) Where, having informed a railway undertaking under subsection (1), the member of staff or other person is of the opinion that the action, if any, taken by the undertaking is inadequate to comply with the general duty on the undertaking under section 36 or to comply with any requirement on the undertaking under this Act, he or she may inform the Commission in writing of that opinion.

(3) Where a member of staff of a railway undertaking or other person working under a contract of services with a railway undertaking informs the Commission of his or her opinion in accordance with subsection (2), he or she shall not be disciplined, be held to be in breach of contract or in any other way disadvantaged for the fact that he or she has informed the Commission.".

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 1 to amendment No. 39:

In subsection 1, line 9, after "shall" to insert "(unless he or she has reasonable excuse to the contrary)".

Perhaps the Minister will respond.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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We partially covered this point in the previous discussion. My amendment No. 39 is drafted to avoid undermining the company's own safety procedures. What the Deputy proposes would allow a person to do just this. It is the way it has been constructed. I cannot approve giving statutory protection to a person, therefore, in such circumstances to what is agreed procedure in the company or procedures on how to deal with matters.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

SECTION 54.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 40:

In page 42, lines 43 and 44, to delete "this section" and substitute "section 56".

This is a drafting amendment to correct a drafting error.

Amendment agreed to.

Amendment No. 41 not moved.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 42:

In page 43, to delete lines 1 to 7 and substitute the following:

"(3) The Minister shall make regulations specifying the classes of railway incidents which shall be investigated by the Investigation Unit.

(4) Subject to subsection (3), the Investigation Unit may, where it considers that an investigation is warranted, investigate any railway incident.".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 43:

In page 43, to delete lines 18 to 21.

Amendment agreed to.

Section 54, as amended, agreed to.

Section 55 agreed to.

SECTION 56.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 44:

In page 44, between lines 21 and 22, to insert the following:

"(5) An inspector of the Commission, who is not a member of the staff of the Investigation Unit, may, at the request of the Chief Investigator and with the approval of the Commission, assist the Chief Investigator with the investigation of a railway incident, where, in the opinion of the Chief Investigator, this does not lead to an actual or potential conflict of interest.".

Amendment agreed to.

Section 56, as amended, agreed to.

SECTION 57.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 45:

In page 44, line 22, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 46:

In page 44, line 31, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 47:

In page 44, to delete lines 33 and 34.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 48:

In page 44, line 36, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 49:

In page 44, line 38, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 50:

In page 44, line 45, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 51:

In page 45, line 1, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 52:

In page 45, line 5, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 53:

In page 45, line 8, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 54:

In page 45, line 12, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 55:

In page 45, to delete lines 16 to 20 and substitute the following:

"(13) Where, during the course of its investigation, the Investigation Unit becomes aware of any implications for railway safety which, in its opinion, warrant consideration by a railway undertaking or other person, in advance of the publication of the report of its investigation, the Investigation Unit may make such interim recommendation as it considers to be warranted and feasible for the avoidance of railway incidents or otherwise for the improvement of railway safety. In section 62 a reference to a recommendation includes a reference to an interim recommendation under this subsection.".

On Committee Stage my predecessor accepted the merit of Deputy Naughten's amendment No. 36 which proposes that a railway undertaking should be required to carry out works as soon as practicable when notified by the commission of any implications for railway safety which come to the attention of the commission during the course of its investigation of an incident. This amendment provides that the investigation unit may make an interim recommendation in advance of publication of its investigation report. Under section 62, a person, to whom a recommendation or interim recommendation is addressed, must, as soon as is practical after receiving it, notify the commission action has been taken or proposed or explain why no action will be taken.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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This is a welcome amendment.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 56:

In page 45, line 21, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 57:

In page 45, between lines 24 and 25, to insert the following:

"(15) The Investigation Unit may, before commencing an investigation under this section, make enquiries to determine whether an investigation is warranted.

(16) A railway undertaking shall, as soon as practicable following notification under subsection (14), provide to the Investigation Unit details of all records held by it, and all information known to it, that may be relevant to an investigation under this section and shall immediately thereafter notify the Investigation Unit of any further relevant records which come into its possession and any further relevant information that becomes known to it.

(17) An answer, statement or declaration given to an inspector as part of an investigation under this section shall not be admissible as evidence in civil or criminal proceedings.".

The new subsections proposed are a practical measure to avoid the railway incident investigation unit of the commission launching a formal investigation with all the attendant requirements before it is clear that an investigation is warranted. Some simple initial inquiries may save unnecessary work. The new subsections proposed provide that following notification of the commencement of an investigation, a railway undertaking must provide for the investigation unit details of relevant records held by it and information known to it that may not be recorded. Any further records or information that arise must also be notified to the investigation unit.

On Committee Stage my predecessor accepted the merit of Deputy Naughten's amendment No. 35 which proposed that a railway undertaking be obliged to furnish all relevant documentation following the commencement of an investigation. However, I was concerned that the commission could be inundated with unnecessary documentation. Hence the requirement for the notification of the records rather than provision for them.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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We are grateful the Minister has accepted this proposal.

Amendment agreed to.

Section 57, as amended, agreed to.

SECTION 58.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 58:

In page 45, line 25 to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 59:

In page 45, line 29, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

SECTION 59.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 60:

In page 45, line 33, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Section 58, as amended, agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 61:

In page 45, line 36, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 62:

In page 45, line 39, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 63:

In page 45, line 45, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Section 59, as amended, agreed to.

SECTION 60.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 64:

In page 46, lines 7 and 8, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Section 60, as amended, agreed to.

SECTION 61.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 65:

In page 46, line 21, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 66:

In page 46, line 27, to delete "Commission" where it firstly occurs and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 67:

In page 46, line 27, to delete "Commission" where it secondly occurs and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 68:

In page 46, line 29, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 69:

In page 46, line 32, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 70:

In page 46, line 33, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 71:

In page 46, line 36, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 72:

In page 46, line 39, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 73:

In page 46, line 40, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 74:

In page 46, line 44, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 75:

In page 46, line 45, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Labour)
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I move amendment No. 76:

In page 47, line 2, after "disclose" to insert the following:

"(other than by way of disclosure to his or her legal or technical advisers subject to an enforceable condition of confidentiality)."

This amendment relates to the preparation of draft reports on an incident. There is a tight confidentiality provision in the section. Technically, it is so tight I believe it would prevent a person affected from seeking technical or legal advice. That is a nonsense which is not the Bill's intention. However, that is how it can interpreted, as drafted. The question of strict confidentiality should not apply to a person's legal or technical advisers subject to an enforceable condition of confidentiality to protect the information. Obviously, the person concerned needs to be protected.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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Section 61 requires the commission to allow affected parties to see a draft of a commission investigation report before publication. Section 61(7) prohibits such a person disclosing the draft to any other person. This provision is designed to prevent a report from being leaked to the media. Deputy Shortall's amendment proposes that such a prohibition on disclosure would not apply to a person's professional adviser. While this is probably implied in any case, I am happy that the Deputy's amendment is a good one and I will accept it.

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 77:

In page 47, lines 3 and 4, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 78:

In page 47, line 5, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Section 61, as amended, agreed to.

SECTION 62.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 79:

In page 47, line 14, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 80:

In page 47, line 19, to delete "Commission" and substitute "Investigation Unit".

Amendment agreed to.

Section 62, as amended, agreed to.

SECTION 63.

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 81:

In page 47, line 23, after "Commission" to insert the following:

"and the Investigation Unit".

Amendment agreed to.

Breeda Moynihan-Cronin (Kerry South, Labour)
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Amendments Nos. 82, 84 and 85 will be discussed together.

7:00 pm

Photo of Martin CullenMartin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
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I move amendment No. 82:

In page 47, line 30, after "commissioner" where it secondly occurs to insert ", the Chief Investigator".

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, some aspect of it or a legal expert. In amendment No. 82 I propose the chief investigator will also be qualified to be an assessor. He or she may be the best qualified person for such a function. On Committee Stage Deputy Naughten proposed some restrictions on who would be eligible to chair a tribunal of inquiry into a railway accident. In order to put the impartiality of the chair beyond question, I propose to go further than what the Deputy suggested.

Amendments Nos. 84 and 85 propose that all serving staff of the commission and investigating unit will be barred from chairing a tribunal, including the commissioner and chief investigator. All serving and former staff of a railway undertaking involved in the accident will also be barred from the chair. In addition, any other person with a conflict of interest will be barred from the chair. This may include former staff of the commission or consultants who at some point worked for the railway undertaking.

Debate adjourned.