Wednesday, 23 November 2011
Road Transport Bill 2011: Second Stage
I move: "That the Bill be now read a Second Time."
The Bill is being brought to the House as a matter of urgency to deal with a number of issues arising from the coming into force of EU regulations on road transport operators on 4 December. I thank the House for facilitating me in this regard. To a large degree, the issues arise from the mechanics of the regulations replacing a previous EU directive.
In changing the basis for national implementation, some matters previously provided under national regulations now have to be provided for in primary legislation. I have also taken the opportunity in the Bill to put forward a small number of new provisions and to make minor amendments to provisions such as false declarations and conditions on licences.
I will give the House an outline of the road transport sector and the context for the EU and national legislation. We are talking about the commercial road transport sector, the sector that provides road haulage and road passenger transport for hire and reward. This encompasses a considerable amount of the freight traffic within the State and the greater part of public road transport, including Bus Éireann and Dublin Bus services. All operators for hire and reward require a licence from my Department and the licensing of operators is an EU requirement, currently under Directive 96/26 and shortly under EU Regulations 1071,1072 and 1073 of 2009. This reflects the trans-European nature of the business of many operators and the interests of all member states in the sector's reliability and safety.
There are approximately 7,000 licensed operators in Ireland using about 25,000 large vehicles. The sector is important to our economy in the movement of goods and people and as a significant employer. High standards in the sector - and the good reputation that goes with them - are important for its competitiveness at home and across Europe. It is important that the public has the assurance that the operators are licensed, safe, reliable and amenable to the law. It is equally important that legitimate operators are not undermined by those operating either without licences or without complying with the licence standards, including safety on the roads.
A strong and competitive road transport sector is important for our economy and road transport legislation must support that by setting standards, influencing positive and responsible behaviour and eliminating financial gain from non-compliance by setting effective deterrents. Road transport is regulated by various Road Transport Acts since 1933, augmented by EU legislation and national regulations. That diversity and the 70 year timespan creates an imperative to consolidate legislation and developments in the sector, in the nature of business, and in the EU dimension also drives the need for regular review from time to time. I am currently looking at all legislation with a view to bringing forward an updated and comprehensive road transport Bill next year, to replace the existing Acts and to set the direction for road transport policy for the coming years.
This Bill is a small step in that direction. While Deputies and Senators may have a number of more general proposals to make about the sector, I may not be able to take them into account in this Bill but I will consider them for the next Bill.
The Road Transport Bill 2011 will introduce three improvements immediately. First, it will strengthen the existing provisions regarding the fitness and suitability of operators to engage in the profession. Second, it will provide greater accessibility of information so that the general public can find out who is, or is not, licensed. Third, it will provide for much greater penalties for unlicensed operators and provide for new offences aimed at improving compliance by existing operators. The imperative for this Bill at this time is to ensure that certain existing provisions remain in force after 4 December.
There are four such key provisions. First, road passenger transport operations must be licensed, and operation without a licence will be an offence; second, fees can be charged for passenger transport licences; third, the appeal provisions where an application for a road passenger transport licence is refused or where such a licence is withdrawn will continue to apply; and exemptions from the requirement to have a road transport operator licence will continue to apply. These include the carriage of mail and funeral transport.
The reason these provisions will otherwise cease to have effect is somewhat convoluted but I can summarise it for the House in general terms. While the licensing of road haulage provisions is set out in primary legislation, certain passenger transport licensing provisions are provided in national regulations made under the European Communities Act, following EU Directive 96/26. As the new EU regulations will replace that directive with effect from 4 December, any national regulations relating to the directive cease to have effect on that date. The specific terminology of the new EU regulations and the fact that those regulations have direct application, mean that some existing national provisions cannot be restated under new national regulations but require primary legislation. I will go into more detail on the provisions when outlining the individual sections of the Bill.
I have mentioned three additional provisions which the Bill will introduce. The fitness and suitability of operators is one of the key criteria for obtaining and holding a licence, given the nature of the road transport business in transporting goods or passengers, travelling between states and across national boundaries, and high use of the road network. This comes under the heading of good repute and it is evident that not every applicant will satisfy this requirement. For example, certain convictions or penalties relating to road safety, vehicle defects, excessive driver hours or smuggling must raise questions about good repute in a road transport business and potentially give grounds for refusing an application or withdrawing a licence. This is already part of national policy and legislation.
Any convictions relating to a range of serious and violent offences such as murder, human trafficking and drug trafficking also have a very direct bearing on good repute. The Bill provides for this in primary rather than secondary legislation, it extends the range of positions within an operation to which it applies and it allows me to take any of the offences into account whenever they occurred. In doing this, my objective is to strengthen the good repute provisions and my powers to refuse applications or withdraw licences where this is necessary.
Existing national regulations relating to serious convictions are affected by the EU regulations. They will cease to have effect on 4 December and, even in a restatement, could not now provide for automatic disqualification for five years from the date of conviction as previously. The EU regulations permit applications to be made and require member states to engage in an administrative process whenever they are considering refusing or withdrawing a licence. In other words, a person cannot be prohibited from applying for a licence. The good repute consideration can be a rigorous process and an application can be refused. An appeal process to the District Court is already provided for in the Road Transport Acts regarding refusal or withdrawal of haulage licences and this has been restated in this Bill to update its provisions and to apply it to passenger licences.
The existing regulations related only to serious convictions of the operator but the Bill extends this to include other positions in the business such as directors, business partners and transport managers and crucially to drivers with passenger firms. This is particularly important since drivers can have access to children, the elderly and other vulnerable people in the course of their job and any convictions for serious or violent offences, such as murder or serious sexual offences, should quite rightly be taken into consideration in the licensing process.
The availability of information on who is or is not licensed is important for the public, as the users of the haulage and passenger transport services. A register of operator licences is already kept by my Department and is available for public inspection but its accessibility can be improved. In this day and age, such information should be available online, and the proposed amendment in the Bill does that. Online information will help identify to the public if particular operators, large or small, are currently licensed and if the vehicles they are using are authorised on the licence. Licensed operators have to meet certain financial and competence requirements, their vehicles must be compliant with all safety requirements and licensed operators are subject to checks and inspections. Unlicensed illegal operators are potentially less safe and less reliable, with consequent risks for any goods or passengers carried.
The Bill will also make it an offence for anyone to claim that they are a licensed operator when they are not. This should deter any operator from putting the words such as licensed haulier on a truck, when they have no haulage licence. Having the register in place will make it easier for enforcement authorities to confirm this and to enforce the licensing rules in general at checkpoints on the roadside.
Realistic penalties have to be in place to deter illegal activities and operators and the Bill significantly increases the penalties for operating without a licence and introduces some new offences. Currently, for example, the maximum penalty for operating without a haulage licence is €6,350, and there is no provision for a prison term. That penalty was set 25 years ago and is hardly a deterrent anymore. This Bill will provide that the maximum fine for operating without a licence is €500,000 or a prison term of three years, or both. We must show the illegal operators out there that we are serious in tackling illegal and unsafe operators.
The Bill will also provide the same maximum penalty for consignors who engage illegal operators. For every unlicensed operator flouting the law, there is an unscrupulous consignor willing to save a few euros by employing an unlicensed operator, thus putting unfair pressure on compliant and legally licensed operators and putting questionable vehicles on the road. The message I want to give out is that unlicensed operators are far more likely to be unsafe, less reliable and to be poor employers. Anyone giving them business is complicit in encouraging them and will be liable to the same stiff penalties.
This Bill will also introduce some new offences. Operating a vehicle which is not authorised on a licence, even if the operator is licensed, will be an offence with a maximum penalty of €500,000. It is important that the vehicles used are known and authorised, not just in regard to vehicle safety but also in regard to motor tax and insurance. This provision should discourage applications for licences with token vehicles.
Another new offence relates to making false declarations in order to obtain a licence, or forging or altering licences. This latter type of activity is on the increase and needs to be made an offence with appropriate penalties.
These and other provisions in this Bill will help my Department, the gardaí and the RSA to improve compliance in the sector. This should help the great majority of hauliers and passenger operators who are responsible and law abiding and willing to compete fairly on a level playing field. As I said earlier, I do not pretend to address all road transport issues or concerns in this Bill, given its particular time imperative. It is, however, my intention to take a wider and more long-term perspective on the sector in a road transport Bill next year.
Section 1 of the Bill contains definitions; these are standard provisions.
Section 2 outlines the obligation on operators to inform the Minister of certain convictions. This is the main section relating to certain serious convictions. It requires an applicant or a licensed operator to inform the Minister of certain serious convictions which apply to the operator, certain positions within the operation, such as director, business partner, transport manager, and drivers with passenger transport operations.
The serious convictions are, whether in Ireland or in another jurisdiction, murder; manslaughter; drug trafficking; certain non-fatal offences against the person; human trafficking; certain sexual offences; certain money laundering, theft and fraud offences; firearms offences; and aiding and abetting the said offences. The Minister is to be notified of certain details of the convictions, including the nature of the offence, the penalty or sentence, and whether the offence was committed in the course of or connected with a road transport business. Failure to inform the Minister or providing false information will be an offence and also grounds for refusing an application or suspending or withdrawing a licence.
Section 3 relates to the obligation to inform operators of certain convictions. This section requires those holding certain positions within the operation to inform the operator of any of the specified convictions which apply to them and makes it an offence to fail to do so.
Under section 4 the Minister is to consider certain convictions. This section provides that the convictions set out in section 2 are to be considered by the Minister in relation to the good repute of an applicant or operator. This is one of the four criteria for a road transport operator licence, the others being financial standing, professional competence of the transport manager and establishment in the State. The section restates the Minister's powers to decide, if good repute is not satisfied, that the application can be refused or the licence suspended or withdrawn.
Section 5 enables the current provisions relating to appeals to the District Court against refusal of an application or withdrawal or suspension of a passenger transport operator's licence to be maintained, once the current national regulations cease to have effect. It takes the opportunity to combine the appeal provisions for road haulage and passenger transport operator licences.
Section 6 sets out the nature of evidence of foreign convictions required in proceedings for an offence in section 2, which relates to failure to inform the Minister of the specified convictions.
Section 7 relates to continued compliance. For the avoidance of doubt, this section restates and clarifies existing provisions so the Minister may request and must be provided with any necessary information from an applicant or a licence holder, to be satisfied that the person meets or continues to meet the requirements for obtaining a licence. It also provides that the licence is the property of the Minister and must be returned on request where it is suspended or withdrawn.
Section 8 is a new provision which requires an applicant or licensed operator to notify the Minister of any changes in details or circumstances which would cause him or her no longer to meet the requirements for a licence. This would be relevant for example if an operator's circumstances changed and he or she no longer met the financial standing criteria, or if the operator no longer had a suitable transport manager.
Section 9 replaces existing provisions for passenger transport which now require primary legislation and it combines them with similar road haulage provisions which are already in primary legislation. It provides that a person may not carry on the business of a road transport operator without a licence; a licensed operator may not operate a vehicle that is not specified in the licence; a person may not engage the services of a road transport operator for hire and reward unless the services are exempted or the operator is licensed; and the types of carriage listed in the Schedule, such as carriage of mail, carriage of refuse, funeral transport, are exempted from the requirement to have a licence.
Section 10 is the prohibition on purporting to operate other than in accordance with an operator's licence. This section prohibits a person purporting to operate other than in accordance with a licence. It is a new provision for passenger transport operators but reflects existing provisions in relation to road haulage operators.
Section 11 outlines the obligation to carry copy of an operator's licence etc. and display a transport disc on a vehicle. This section requires operators to ensure that all appropriate documentation is kept in their vehicles, and that a transport disc is properly displayed on vehicles. It also empowers gardaí and transport officers to inspect such documents when required. Again, this is a restatement in primary legislation of a passenger transport provision and its combination with existing road haulage provisions.
Section 12 restates and adds to the existing provisions in relation to a register under section 10 of the Road Transport Act 1986, which it repeals. It repeats existing provisions establishing a register of operator licences and certificates of competence for transport managers, requiring the register to be open for inspection, and providing for copies of entries. It adds a provision that the register may be published on the Internet, ie the Department's website, and clarifies that the information provided may include vehicle details. The facility to publish on-line is currently not possible without primary legislation and will facilitate better public access to information on licensed businesses.
Section 13 replaces existing provisions for charging fees for passenger transport licences, as they now require primary legislation. It combines them with similar provisions for road haulage licences, and takes the opportunity to provide for the payment of fees for a wider range of documents, including duplicate or replacement documents, and fees for training, examinations and certificates of professional competence for transport managers which the Minister has authorised to be carried out on his or her behalf.
Section 14 extends the existing provisions relating to false declarations, statements or information in the context of obtaining a licence, certificate etc. to include alterations to documents and forgeries.
Section 15 restates the existing standard provision on offences by bodies corporate to cover offences under this Bill. The section also provides that a summary offence under the Bill may be prosecuted by the Minister or by the Road Safety Authority.
Section 16 restates the existing provisions in relation the powers of transport officers of the Road Safety Authority to include references to this Bill, the EU regulations, and any road transport regulations made under the European Communities Acts.
Section 17 restates existing provisions on road transport enforcement powers of RSA transport officers to search premises under warrant.
Section 18 relates to transport managers and combines existing provisions for requirements for transport managers of passenger and road haulage operations and combines them in primary legislation.
Section 19 amends the 2006 Act to include "established in the State" as a criterion for obtaining a road transport operator's licence, as required under the new EU regulations. The other criteria are good repute, financial standing and professional competence. It also takes the opportunity to provide that an application form may be determined by the Minister, rather than prescribed in regulations as is currently the case for passenger transport operations, and to state, for clarity, that any conditions attached to a licence must be complied with, and that the Minister may refuse to grant a licence until the applicant has complied with regulations under section 6 of the 2006 Act. This relates to details of the application process.
Section 20 amends a definition in the Road Transport Act 1999 to include reference to EU regulations.
Section 21 is a standard provision for the service of notices and notifications, such as in section 5 on appeals.
Sections 22 and 23 relate to expenses, the Short Title and construction. These are standard provisions. My intention is that the Bill will come into operation on signature.
The Schedule lists types of carriage which are exempted from the requirement to hold a road transport operator licence.
That summarises the Road Transport Bill. Road transport legislation is somewhat convoluted and I hope I have explained the provisions clearly. As I outlined at the beginning of my speech, the Bill is being brought to the House as a matter of urgency to deal with a number of particular issues that arise from new EU regulations on road transport operators which come into force on 4 December. A small number of additional provisions have been included to improve some elements of licensing. I fully recognise that the circumstances of the Bill do not allow a full consideration of the many and varied aspects of road transport, which could potentially provide material for lively debate, new ideas and amending legislation. However, in taking the approach in this Bill of dealing with the most urgent issues, I see it as the first step in a comprehensive review process, and I have a more detailed road transport Bill in mind for next year.
I look forward to the cooperation of the House in facilitating the passage of the Bill and commend it to the House.
I welcome the opportunity to contribute to the debate on this Bill. It is technical in nature and it is a requirement for it to be enacted by 4 December. I do not intend to delay the Bill's passage but I am concerned about its late publication. The Bill is being presented to give effect to EU regulations adopted more than two years ago. While provision was previously made for the regulations by way of statutory instrument, I find it hard to understand why the Oireachtas is expected to pass this primary legislation on the nod because the deadline is 4 December. It really is no way to do business. Rushed legislation, as the Minister is well aware, is never good legislation. There are times when it is necessary but this is not such a time. There was adequate time to prepare this legislation considering that it is more than two years since it became known that the regulations would ultimately require primary legislation. That said, Fianna Fáil will certainly facilitate the smooth passage of the Bill but I caution the Minister that Fianna Fáil is not to be taken for granted in this regard.
I look forward to the more comprehensive legislation the Minister has promised. Some of the points raised in my contribution will clearly show the necessity for that legislation to be introduced as a matter of urgency. It will ensure that there is a fair and competitive environment for all transport operators across the European Union who wish to operate in this jurisdiction.
The transport industry, as the Minister is well aware, is a vital component of our domestic economy. The licensed haulage sector comprises in excess of 18,000 vehicles, providing approximately €1 billion to the State over the course of a year, taking into account duty, road tax and various other taxes raised through the people who work in the sector, including those who pay PAYE tax and PRSI. There are approximately 50,000 people employed in the sector, including drivers, mechanics, warehouse staff and administrative staff. There are approximately 4,000 operators in the licensed haulage sector. This is just a fraction of the overall number in the transport sector. Obviously, own-account operators are in a different category and, to a large extent, they operate in an unlicensed environment.
The licensed haulage sector represents a substantial sector of our country. It is important that it be regulated appropriately and that standards be maintained to the highest level. Unscrupulous operators should be dealt with appropriately to the benefit of those who operate in a licensed environment and customers and suppliers generally within the sector. Customers need to be assured of the bona fides of operators. Those hauliers who wish to comply and operate reputably ought to be given the protection of the State to ensure there is not an anti-competitive environment.
The provisions the Minister announced that amend existing provisions on the good repute of applicants for licences are welcome. They set the appropriate standard for the applicants and existing licence holders. Access over the Internet to the national register of licensed operators is useful in that it protects customers and licensed operators. Increased penalties for unlicensed operators should act as a serious deterrent. A fine of €500,000 is appropriate. The old story applies; we often set targets and find that the Judiciary brings its own views to bear on them. It is obviously a matter for them but I hope that, where somebody has been operating in an unlicensed environment and seeks to breach the provisions and legislation, he will be dealt with appropriately. I hope the fines imposed by the courts will act as a deterrent. This would be exceptionally helpful.
As the Minister knows, the Bill is to give effect to three EU regulations, Nos. 1,071, 1,072 and 1,073 of 2009. Regulation No. 1,072 relates to the rules of access for the international road haulage market. It is becoming more clear to me that there are no provisions in this Bill relating to market access issues in general. Perhaps the Minister will address this in the legislation he proposes to bring forward next year. If so, I look forward to his views on it.
There is no provision in the Bill to regulate the procedure of cabotage. Perhaps there is some manner in which the Minister proposes to deal with it. I understand a very serious issue arises owing to a distortion of fair trade guidelines in so far as they bear on Irish road hauliers. This is because of the interpretation by the UK Government of Regulation No. 1,072 to the extent that it relates to roll-on, roll-off, or ro-ro, traffic. What efforts has the Minister made to address this problem? Has he negotiated a bilateral agreement with the United Kingdom in light of our island status and the importance of ro-ro traffic to our export sector? Has he sought any derogation for Irish hauliers from the Commission in regard to the application of the regulation in so far as it relates to the definition of the first movement allowable under the cabotage clause? In other words, has he sought to exclude the port of entry as the point of first movement under cabotage rules for ro-ro traffic, thereby treating ro-ro traffic in the same manner as accompanied traffic?
While this matter is technical and while it has taken me some time to get my head around the concept of point of first movement, I recognise the competitive disadvantage affecting Irish road hauliers who seek to develop a ro-ro business providing a cheaper offering to our exporters with a view to ensuring that our exporters remain more competitive in this difficult environment. Therefore, there is a very strong business case for finding a solution.
There are no provisions in the Bill to implement the cabotage provisions of Regulation No. 1,072. I understand that, by not doing so, we are allowing inequitable circumstances to continue to obtain for Irish road hauliers. UK hauliers, including those from Northern Ireland, who offer their services here are seen to have a free-for-all. As far as I am aware, there is no capacity for us to enforce the three-movement rule as set out in the cabotage clause in Regulation No. 1,072 in terms of external road hauliers in a way that would ensure a free and equitable competitive environment for all. We must not allow this to continue. If cabotage is a concept that the Minister intends to deal with in legislation next year, I urge him to bring it forward as quickly as possible.
I understand from talking to various actors within the industry that the problem is having an impact on their capacity to compete. It has been suggested to me that, for Irish road hauliers to level the playing pitch, they will have to register trucks in the United Kingdom. Obviously, this would result in considerable losses to the Irish State. The idea behind the cabotage rules was to negate this requirement. We need to move on this, bearing in mind that Irish road hauliers are subject to very stringent rules in the United Kingdom because of the UK interpretation. Much of this relates to the ro-ro aspect. The difficulty is that hauliers from Northern Ireland in particular seem to have unhindered access to the market on this side of the Border, yet they are treated as domestic hauliers on the other side of the Irish Sea. We are in a unique position because of the land and sea borders. Our exportation of goods in such large volumes to the United Kingdom puts our hauliers at a disadvantage. I would like the Minister to comment on this.
Owing to the Minister's role in tourism and transport, he is well aware that Ireland, as an island nation, is a major exporter. Exportation is really the only positive aspect of our economic activity in the current climate. Our export sector depends primarily on the road haulage sector to access the EU markets. It is vital, therefore, that we create a competitive environment for our road hauliers and give them the appropriate protection that other jurisdictions seem to provide for theirs. It is necessary not only because we need reduced rates to ensure we can get our product to market as cheaply as possible and compete with other primary producers on the Continent but because it will allow our indigenous transport sector to grow. As I pointed out, this sector is a significant component of our economy. If the cabotage issue is not dealt with, it will make it easier for foreign hauliers, particularly those from Britain and Northern Ireland, to compete more aggressively in Ireland, to the detriment of our haulage sector.
The Minister is aware of the price elasticity hazard that exists and which will, in terms of the transport of our goods, have a very negative impact on exports and, consequently, our economic output. We must not allow any practice that undermines our economic output at this time.