Sean Barrett (Independent)

I welcome the Minister, Deputy Varadkar. I always enjoy my discussions with him. I am pleased there is to be a further Bill next year. That is essential. We must stop having stop-gap measures. The previous Bill was exactly two years ago when the then Minister, Mr. Noel Dempsey, announced with public relations and accompanying documentation that he was revolutionising the regulation of the bus business. He did nothing of the sort. He maintained the monopoly of CIE and gave it every penny of subsidy without competitive tendering, and he gave it automatic access to huge investment grants. In saying he was opening up the bus business in a consumer-oriented way, he was doing the exact opposite.

That seems to be the precedent the Department of Transport has set. The Minister also brought in an earlier signature motion and had to chase after President McAleese to sign the Bill earlier. Now we are asked to do the same with the new President. The Department of Transport needs to pull its socks up on some of these matters such as meeting EU deadlines.

This is not a good Bill. The red herring of safety has been raised yet again. The Department always does that. In the screening impact analysis for the previous Bill it said the people it does not like are always unsafe compared with the people it does like. That is the Department that presided over the Kentstown crash for which CIE was fined €2.5 million, the Wellington Quay crash, for which there has been no account, and the Malahide railway viaduct collapse. Will the pot please stop calling the kettle black? This is the last refuge argument the Department uses against people it does not like, that they are unsafe and must be registered.

I wish to put the case for the sector that has been portrayed as needing this criminal legislation, which includes fines of €500,000 and three years in jail. When the then Minister, Mr. Peter Barry, opened up the freight sector in 1986 over a two-year period, it had approximately 1,000 vehicles and approximately 9% of the market. It currently has 72% of the market, 27% for own account transport, as Senator O'Sullivan mentioned, and only 1% left on the railways. One could ask how it got there. The sector knocked on the doors of Irish industry and said it could do the job better than the in-house fleet or the railways. It won that argument. The sector went from 1,000 vehicles when the then Minister, Mr. Peter Barry, deregulated the industry to 25,000. That is normally called entrepreneurship and success. That should be recognised.

The Department's track record against these people began in 1933 when the then Minister, Mr. Seán Lemass, said he hoped it would be possible for the Great Southern Railway and the other railway companies to establish what he described as a monopoly position. Fine Gael was of the same view at the time. In the previous year when the then Minister, Mr. McGilligan, was getting rid of more than 1,000 independent bus companies, he said he looked forward to seeing them disappear by degrees. They have not. They own 79% of the bus vehicles. The Department has spent 79 years trying to put people out of business, yet they have 79% of the vehicles. It is a remarkable tribute to the inefficiency of the Department of Transport. The private sector has 4,890 vehicles, Dublin Bus has 1,200 while Bus Éireann has 700.

On the implications of criminality that underlie the Bill, butchers, bakers and candlestick makers, if they commit crimes, should face the same sanctions as people in transport. The people in transport have a proven record of surviving. They have approximately 44% of the receipts in the bus sector and 79% of business in the haulage sector. They are of professional competence, of good repute and of sound financial standing. If one is looking for people who infringe those criteria I could nominate accountants, bankers, the Department of Finance, builders who have built houses that fall down, and maths teachers who have no qualifications in mathematics, but to pick on this sector as not showing professional competence, good repute or sound financial standing, given its success against strong Government opposition over the past 70 years, is bizarre.

In the Non-Fatal Offences against the Person Act the fines are €1,500 and 12 months imprisonment. If the person operates a transport business the fines are increased to €500,000 and three years imprisonment. If we have problems with crime I would support increasing the first penalties but assuming that the transport sector, particularly the independent sector, requires special treatment because it is especially prone to criminality requires evidence.

Mr. Jimmy Farrelly carried out a report for the previous Minister, dated 12 June 2009, on a disputed licence in County Louth. He noted the apparent non-existence of any history of cases which were refused or revoked on the good repute consideration. He said that officials were also mindful of the need to band the constitutional right of an individual to earn a livelihood against the nature of any offence committed. A view has been taken during the years that the courts, in general, would not support the refusal of licences. There was a belief the refusal of licences would be overturned by the High Court. It appears it is not acceptable to commit an offence and then go on to become a road haulier or bus driver, but it does not matter if one becomes a banker, a builder, a butcher, a baker or a candlestick maker.

Mr. Farrely recommended that a clerical officer deal with issues to do with good repute, that a higher executive officer deal with minor offences and that major offences be referred to headquarters from Loughrea to be dealt with by a principal officer or an assistant secretary. In his view, very few cases would arise in this category. He recommended that the Garda look at 10% of new applications and check 5% of licences after five years. If we have formed the view that road transport in the independent sector is riddled with criminals, evidence of this must be available, but that view is not supported by Mr. Farrely's report. I see this as a long standing prejudice on the part of the Department of Transport against anybody other than its own transport companies being allowed to operate.

If we are to impose new duties on persons who operate transport companies, we must also place a new duty on the Minister to reply to their applications. I know he has done much to correct the situation. Mr. Justice McMahon, in the Swords Express case in 2010, said the applicant, Swords Express, had been doubly disadvantaged by the way the Department had held on to his application and then leaked it to CIE in order that it could get in on the route. If there has to be a reply within 21 days, the Minister should have to reply to licence applications within three months. That is where there was impropriety in the Swords Express case and Mr. Justice McMahon was extremely critical of the conduct of the Department in dealing with the company in that regard. Many of the faults in this area lie with the Department, not the operators.

The section of EU law we are transposing into Irish law on the requirement that the Minister respond within three months should be included in this Bill. There is also a section of EU law that exempts slow moving traffic travelling under 40 km/h. If we are transposing EU law, let us transpose the bits that would benefit the consumer rather than those that impose yet more restrictions. There is much that is wrong with the Bill and I will be tabling amendments on Committee Stage.

I return to one of the judgments that was crucial in the taxi deregulation case. Mr. Justice Roderick Murphy said people had the right to enter a sector for which they had the skills and training and that the public had the right to avail of the services of such persons. In the case before us, the State had its own ideas on transport. It wanted monopolies and to assist the railways. However, the independent hauliers, despite all the obstacles put in their way, dominate 79% of the fleet and 72% of the freight business by being of good repute, having good financial standing and professional competence. For the Department even to hint, at this late stage, that the industry does not have these three characteristics reflects badly on it. That it is, yet again, asking the Oireachtas to meet December deadlines, as it did in the case of buses two years ago, is wrong. There needs to be a full evaluation. That is why I welcome what the Minister said. Evaluation is long overdue, but this is not it. If we can have entrepreneurship in this vital sector of the economy and do not criminalise it, we will be doing very well.