Wednesday, 23 November 2005
Railway Safety Bill 2001: Report and Final Stages.
I move amendment No. 3:
In page 26, between lines 14 and 15, to insert the following:
"(3) 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.".
I am disappointed the Minister of State has not agreed to this amendment. It would make the new commission accountable to Members of the Oireachtas, unlike the existing situation in respect of the Health Service Executive and the National Roads Authority, whereby a Minister can pass the day-to-day operations over to them. Members have seen how Deputies cannot get replies to their Dáil questions and how Senators cannot raise an Adjournment matter in this House, in which their queries are answered by the relevant Minister. Matters are instead passed over to the National Roads Authority or Health Service Executive.
The Minister of State should accept this amendment so that Members of both Houses would have accountability, whether it be through a question tabled in the Dáil or through an Adjournment matter in this House, so that their questions would be answered on the floors of the Houses. This should be done as all Members of both Houses agree that the existing situation in respect of the Health Service Executive and the National Roads Authority is unsatisfactory.
I second the amendment. To a large extent, I remind the Minister of State that the work which is carried out by both Houses of the Oireachtas is not always recognised outside. Senator Paddy Burke has referred to the National Roads Authority and other cases. One of our objectives is to ensure that the work of the Oireachtas is recognised. This amendment would not establish a precedent. I support it and believe it would be useful. The Minister of State should reconsider his decision not to accept it.
I thank Senator Paddy Burke for raising this issue. I responded to it when he raised it on Committee Stage. I also thank Senator Quinn for endorsing Senator Burke's comments in this regard. While I agree with the sentiments expressed, the issue goes beyond this Bill. If one considers the workings of the Houses to which Senator Quinn has alluded, one should acknowledge the developments of recent years, whereby autonomous authorities have been established. I presume that if Members agree that this is the correct way to proceed, we do not wish to hamstring them. We do not wish to pull them back by stating that while providing such bodies with their own autonomous authority is the correct course of action, we also want to be in a position to question their day to day activities through the relevant Minister.
On Committee Stage, I explained there is a system in place with regard to the functions and day to day responsibilities remaining with the chief executive of whatever the authority may be. In this instance, I do not wish to continue to refer to the commission. The relevant Oireachtas joint committee is responsible and has the opportunity to challenge the chief executive. While all Members are probably still becoming familiar with those procedures, they are in place.
I agree that a genuine issue exists and that Members are still learning how to deal with the new systems, including the Oireachtas joint committees. However, if Members are dissatisfied with the ways in which they operate, it is probably incorrect to challenge them in this Bill. When this matter was raised on Committee Stage, I suggested to Senator Paddy Burke that it be raised with the Committee on Procedure and Privileges. If this was solely an issue in respect of the operation of the commission, I would take it on board.
However, as Senator Quinn noted, the issue arises periodically in respect of the work of the Houses of the Oireachtas. If that is the case, this is a wider issue concerning previous precedents. As the Bill will establish another commission, should we separate the Houses from its day to day operations? If that is the Members' point, I believe this is a matter for the Committee on Procedure and Privileges. It is the best forum in which to respond adequately to Members' genuine concerns.
This Bill simply proceeds with what is considered to be established practice. I acknowledge the Senators' concerns and that clarity may be required regarding the actual responsibility of the Minister of the day to come before the House, given that his or her sole area of responsibility would be in respect of policy. I hope my officials will correct me if I am mistaken. The functions and day to day operations of an authority — in this instance we refer to the commission — would be a matter for its chief executive. At present, the Oireachtas joint committees, which consist of Members of both Houses, have responsibility in this regard. They are established on that basis so that all Members may inquire of, assist and question the chief executive.
I hope this is helpful. I could tell the Senators that I would accept this amendment, that it would resolve all the known issues and would change everything, thereby setting a precedent. However, that is not the proper way to go about our business. I say this in order to be helpful to the Senators, whose intentions are genuine. Therefore, I suggest to them that they should consider withdrawing the amendment to pursue the issue through the Committee on Procedure and Privileges. I would be happy to take up the matter with the Chief Whip.
This resembles a legal battle whereby one can have one group of lawyers saying one thing while another group says the opposite. Time after time however, as far as the Health Service Executive and the National Roads Authority are concerned, we have seen how Members of either House table questions or move Adjournment matter, only to have their questions or motions ruled out of order on the grounds of Ministers' lack of responsibility in the area. We could set a precedent with this Bill by accepting my proposed amendment. Consequently, there would be accountability and questions could not be ruled out on the grounds of lack of responsibility.
While I take the Minister of State's point in respect of the Committee on Procedure and Privileges, it is unable to change the operation of any Act that has been passed pertaining to, for example, the Health Service Executive or the National Roads Authority. However, Members can do something about this Bill by accepting this amendment, which would provide accountability to Members of both Houses. While it may never be used in this case, at least it would be provided for. I urge the Minister of State to reconsider this matter and to take it on board, because it is a reasonable amendment which would provide accountability to both Houses of the Oireachtas.
Senator Burke has hammered home a point pertaining to an issue that I acknowledge and recognise. Senator Quinn has seconded the amendment. I admire Senator Quinn, who has a similar working style to mine. I like to have, and understand, structures and to keep them working in the manner in which they were established. Through the political system new structures and authorities, such as the Health Service Executive mentioned by Senator Burke, have been established to deal with a specific function. The Senator also mentioned the National Roads Authority, which was established to deal with a single task to delivering a road programme for Ireland. With these authorities in place does one retain the Minister with a view to his or her responding to issues in the House? While we have established the HSE, do we expect the Minister to second guess and alter the executive's strategies?
It took a long time to establish structures and achieve agreement between the political groupings on the need to establish the HSE and other authorities. Some of these authorities have proven themselves; they are not hamstrung by procedures but are able to go forward and deliver the results for which they were established. However, they are duty bound to respond to issues via the joint Oireachtas committees. That is the system we have established.
If I agree to this amendment, does Senator Burke honestly believe it will deal with the issues he has raised regarding the HSE and the NRA? It will not. If we are genuine about wanting to make a change I can ask my officials what we can do to note this rather than withdraw it. I do not know how that will impact on Report Stage.
I am anxious to respond as positively as I can in a helpful way to resolve the issue. This is not the appropriate format; the appropriate format is the CPP. I hope that is helpful. If this issue is pushed to a vote, it is clear what the result would be, and I am not sure what that would do for the objective behind the amendment. If we are genuine about that objective I would like to assist. I would be happy to talk to the Government Whip. Rather than withdraw the amendment or vote on it with an unwanted result I am open to accommodating whatever we need to accommodate to record the issues discussed here.
I thank Senator Burke for withdrawing the amendment. I will ask my Department officials to record what I have said in this House, communicate it to the CPP and ask for an appropriate response. I hope that will help.
I move amendment No. 5:
In page 44, between lines 46 and 47, 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.".
This is a small but significant amendment ensuring that a whistleblower on rail safety will not become an outcast at work. It is a safeguard to protect potential whistleblowers.
I thank Senator Burke for his amendment and I support the thinking behind it. Section 54 of the Bill gives an undertaking on the reporting of risks by railway staff and contractors. I draw the Senator's attention to sections 54(1)(a) and (b), and sections 54(2) and (3). If there is anything not covered by those sections I ask Senator Burke to bring it to my attention and I will be happy to amend any aspect of it. These sections cover what Senator Burke's amendment is trying to achieve so it is not necessary to proceed with it.
I move amendment No. 6:
In page 55, between lines 38 and 39, to insert the following:
"(b) requirements for the maintenance and inspection of railway infrastructure, rail track, permanent way and rolling stock,
(c) the maximum carrying capacity for both passenger and freight trains,
(d) the maximum hours of work and the minimum hours of rest for safety critical staff,".
This amendment deals with the carrying capacity of trains, the maximum and minimum number of hours worked and maintenance of the rail track. We spoke in detail on this on Committee Stage and I raised it on Second Stage. I would like to hear the Minister of State's views.
I thank Senator Burke. We had a similar amendment on Committee Stage. I am happy to clarify the record again in relation to paragraph (b). To tell railway undertakings how often they should inspect and maintain their infrastructure and trains would be a prescriptive approach. I asked whether we should ensure the relevant professionals, who have the duty of responsibility, make those decisions rather than telling them when to perform inspections.
The Bill adopts the prescriptive approach only in the most extreme circumstances. The Bill places the primary duty of care on the railway undertakings, where it belongs. In a safety case, a railway undertaking is required to demonstrate to the commission that its inspection and maintenance regimes are appropriate to the condition of its infrastructure and trains.
On paragraph (c) of this amendment, section 69(c) of the Bill empowers the commission to make regulations restricting the number of standing passengers allowed to travel on a train. The seating capacity is clear. I referred to this on Committee Stage. The capacity of freight trains is a factor of the rolling stock in question. Under section 43, new rolling stock must be approved by the commission and the fitness for purpose of all rolling stock used by a railway undertaking must be demonstrated to the commission as part of the safety case process. Capacity of freight trains will be considered in that context
Regarding paragraph (d) of the amendment, I would expect a railway undertaking to be able to demonstrate in a safety case that the working patterns of its safety-critical staff did not contribute to an increase in risk on the railway. That is an important point, and I thank the Senator. I ask him to examine the section dealing with it. Senators will also be aware that the Minister for Enterprise, Trade and Employment, Deputy Martin, last year made SI 817 of 2004, which extended the maximum 48-hour working week to transport workers in line with the amended EU working time directive.
Senator Paddy Burke asked me to repeat some of what I said on Committee Stage, but I hope that those clarifications adequately respond to paragraphs (b), (c) and (d) in amendment No. 6.
I move amendment No. 7:
In page 56, between lines 12 and 13, to insert the following:
"(h) requirements to avoid accidental obstruction of railway infrastructure by road vehicles by establishing—
(i) criteria for the apportionment of responsibility and cost of improvements to be made at locations where roads meet, cross or run close to railways,
(ii) guidelines on enhanced risk assessments and physical measures to reduce risk of vehicles accidentally leaving the road and obstructing railway infrastructure,
(iii) reporting mechanisms to identify relevant information on incidents involving vehicles, which obstruct railway infrastructure,".
On Committee Stage the Minister of State said he would reconsider this amendment. Has he done so?
I have examined the amendment. Section 23 of the Transport Act 1971 makes provision regarding the apportionment of costs of upgrading works at a level crossing between the railway undertaking and the local authority, and section 113 of this Bill makes provision regarding the responsibility of any person carrying out works on a public road near a railway. That covers subparagraph (i) of the amendment.
Regarding subparagraph (ii), section 113(4) provides the commission with powers to prepare and publish guidelines on works on public roads that may affect the safety of railway infrastructure. Consultants are currently preparing those guidelines to be ready for adoption by the commission on its establishment. I regret that they are not available today, but I will ask departmental officials to forward them to Senator Paddy Burke when they have been sent to the commission and adopted by it. While they will be guidelines, they will address risk imported onto railways from a third party, and I seek the Senator's comments on that.
Regarding subparagraph (iii), section 69(g) provides the commission with power to make regulations in respect of the reporting of different classes of railway incidents. That would include incidents of vehicles causing a hazard by obstructing railway infrastructure. Section 18 makes it an offence to do so in any form or fashion, whether with a vehicle or otherwise. My Committee Stage amendment No. 36, inserted a new section into the Bill relating to the reporting of such accidental hazards blocking railway infrastructure. In the light of such clarifications, I would welcome the Senator's comments on the need for his amendment.
I move amendment No. 8:
In page 63, between lines 28 and 29, to insert the following:
"(7) A railway undertaking shall not use commercial considerations as a cause for not complying with section 36.".
The Minister of State should take this amendment on board, particularly in light of the fact that the entire infrastructure of the railway could be opened up for commercial purposes. We have seen that Iarnród Éireann does not want any responsibility, good, bad or indifferent, regarding commercial freight. The Minister of State should accept the amendment, since many people in the country would like to see lorries taken off the roads so that we can return to commercial freight. That would be a step forward.
In view of the fact that there are several companies, particularly from Europe, which would tender for rail freight, the Minister of State should consider this area. When some of those companies approach the Department of Transport, they are told to go to Iarnród Éireann, which has no interest in rail freight. If Iarnród Éireann is not interested, the Department should make a decision itself. The Minister should take this amendment on board.
I second the amendment. I fully support it, having worked with a company that could rely on trains coming into Waterford from Dublin, Cork, Limerick and Belfast as part of freight run by Iarnród Éireann. Now practically all that freight goes on the roads, an appalling state of affairs. Iarnród Éireann should be prepared to market rail freight aggressively. It is disgraceful to see so many trucks on the roads when so much could be carried more safely on the railways. I fully support the amendment.
I draw the House's attention to two amendments on Dáil Report Stage, in response to concerns raised on Committee Stage, to address the issue of balance between commercial and safety considerations. Those amendments led to the present text of sections 77(5) and 78(6), which require that a court take account of the duty of care placed on a railway undertaking under section 36.
We should acknowledge that we have quite a good safety record. Railways and other industries have developed well-established techniques for assessing what is a tolerable level of risk in accordance with societal expectations. The balance struck is that the risk must be maintained at as low a level as reasonably practicable, the internationally accepted norm.
Perhaps I might respond to Senator Paddy Burke regarding the points raised. Section 36 places a duty on the railway undertaking to ensure the safety of persons in the operation of its railway as far as is reasonably practicable. Ultimately, it will be a matter for a judge or jury to decide what it is reasonable to expect a railway undertaking to do in a practical circumstance to ensure safety.
Unfortunately, no one can give an absolute guarantee of safety in anything that we do. As a society, we daily decide what constitutes a reasonable risk. We accept that some risk is inevitable in life, and there tends to be wide consciousness of what level is intolerable. A judge and jury are the ultimate arbiters of what we as a society consider an acceptable risk. One could say that section 36 requires a railway undertaking to manage risk in accordance with societal expectations. We must try to ensure that we are satisfied. It is a matter for this House to decide whether the Bill strikes the right balance in what is deemed to be the most reasonable approach to the issue. I hope the points I raised in respect of sections 6, 36, 77 and 78, and section 5 in particular, are somewhat helpful to the House.
Amendments Nos. 13 and 14 involve drafting changes. Amendment No. 13 proposes to simplify the text of the new section I introduced in amendment No. 48 on Committee Stage by removing the distinction between road and rail bridges. This issue was discussed in the House. The offence and reporting requirements regarding bridge strikes by heavy goods vehicles are the same whether the bridge is a road bridge or rail bridge.
Amendment No. 14 is a drafting amendment adding two new subsections. The new subsection (6) revokes Article 34 of the 1997 regulations, which makes it an offence for a driver to pass a regulatory height restriction sign if his or her vehicle exceeds the specified height. I am advised it is not appropriate in law to have two offences with different penalties relating to the same issue and therefore the revocation of Article 34 in this Bill will avoid the need to amend the regulations. The new subsection (7) is consequent on the revocation of Article 34.
I thank the Minister of State for introducing those amendments, particularly amendment No. 13. We discussed the new subsection that was introduced to the legislation on Committee Stage. Over the years, much buck passing took place between local authorities and Iarnród Éireann and there were areas of responsibility regarding which nobody would make up his or her mind. If a local authority wanted to get something done, it was deemed to be the responsibility of Iarnród Éireann, and vice versa. We saw much toing and froing and I am therefore glad the Minister of State has clarified the matter. I welcome amendment No. 13.
I thank the Cathaoirleach, his support staff and the Members of the House who have contributed to this debate, which has assisted in making the Railway Safety Bill 2001 even better. In particular, I thank Senators Quinn, Cummins and Paddy Burke, and my colleagues Senators Wilson and Dooley, for their contributions on the various Stages of the Bill.
The House will acknowledge that the legislation is substantial, technical, complex and very necessary. It updates the law on railway safety, which is Victorian and no longer appropriate to the railway safety systems of today. Although I have already outlined the history of this legislation on the public record, I will do so again. The Leader of this House, Senator O'Rourke, published and introduced it in 2001. Its two principal features are the creation of the independent railway safety regulator, the railway safety commission, and the appointment of an independent railway accident investigator.
Senators will be aware of the ongoing debate on random breath testing for drink driving. However, this Bill is innovative in that it provides for random testing of safety-critical workers for intoxicants and makes it a criminal offence to be intoxicated while working on the railway. The intoxicants provisions of the Bill were carefully drafted and the Office of the Attorney General has confirmed the constitutionality of the provisions. This is important in light of the particular issues being raised in the debate regarding the proposals for the introduction of random testing under the road traffic legislation.
I have already advised the House of the significant investment programme the Government has undertaken to ensure all risk to staff and customers across the railway network is maintained as low as is reasonably practical. This issue was raised by both Senators Paddy Burke and Cummins.
Before I came to this House this morning, I met representatives of Iarnród Éireann regarding another issue. They were quite surprised when I mentioned that our investment in railway safety, beginning in 1999, will have exceeded €1.4 billion by 2013. This is a substantial sum and is not always invested where its effects are visible. In this regard, most Members want to ensure the public is aware of our work and level of investment in safety. The investment in safety is not visible but Members will fully appreciate that it is vital to ensure our railway infrastructure is as safe as we desire.
I acknowledge that the Leader of this House, who was Minister for Public Enterprise in 1999, was responsible for securing what was in 1999 a substantial initial sum, to be invested in railway safety. It might have been much easier for her to invest the money in more visible developments in our railway system but she made the correct choice because our infrastructure is now such that it can benefit from our investment in our systems, including the €34.4 billion under the Transport 21 package. We would not be able to do this unless we were satisfied that the first step, that is, ensuring safety, was taken adequately.
I pay tribute to and congratulate the Leader of the House, Senator O'Rourke, on the correct procedures she initiated in 1999 and on which she followed through until 2001, when the Bill was published. Many of the provisions of this Bill implement the requirements of the EU railway safety directive adopted in April 2004. This ensures that we meet our EU obligations in that the directive will be transposed within the required timeframe. Other more technical requirements of the directive will be transposed through regulations to be made under this Bill.
I emphasise again that the new regulatory framework outlined in this Bill, together with the major investment the Government continues to make in our railways, will provide assurance to the travelling public that safety is and will continue to be of paramount importance to the Government. I thank Senators, particularly my colleagues Senators Dooley and Wilson, for teasing out many aspects of this Bill with me prior to my introducing it in the House. I also thank Senators Quinn, Cummins and Paddy Burke for their constructive contributions and the relevant chastisement they gave me, quite correctly, on some issues.
It is important that I refer to an issue raised by Senator Burke and Senator Quinn with regard to the reporting structure of the commission and what is currently in place. I have given the Senators an undertaking in that regard. If they are not satisfied with the feedback they receive from the Department through my office and through the Committee on Procedure and Privileges, I invite them to table an appropriate amendment to the Bill to ensure progress in satisfying the needs of our representatives on the CPP. If that must be done with one Bill to set the precedent to ensure it applies to the other areas, so be it.
However, I was a little reluctant to accept it in respect of this Bill because we went on to discuss other issues. I had some experience with the changes that occurred in the health services when the eastern region was changed from a health board to a regional authority with area boards and the relevant reporting structures. It was difficult to get a grip on what was happening with regard to who dealt with policy, who dealt with service, who reported what structure to where and how the reporting structures operated. It took time to become familiar with it.
If there is continuing concern that we are losing a role with regard to accountability to this House when we establish a commission, as in this instance, or a services executive or a road authority and if there is dissatisfaction with the existing Oireachtas committee system in that regard, I will be favourably disposed to establishing a precedent that would require the necessary changes in other legislation to accommodate those concerns. However, it should be done through the Committee on Procedure and Privileges because that structure already exists. I take it that Members are satisfied with the CPP structure.
I will ask my departmental officials to prepare the required report for the CPP and if there is no appropriate progress, it might be a matter for the Oireachtas committee to make the required changes. However, let us tease this out and see what we can do. If the precedent must be established with the railway commission, I will take a positive approach to making the required change.
The Bill dates from 2001 but this is 2005 so I hope there will be quicker progress with it. The Bill will ensure continued safety on the railway network for passengers and staff. I wish to record my appreciation of my departmental staff, who are with me today. They are Mairead Broderick, Damien Clark, Priscilla Robinson and Maurice Treacy.
On Second Stage I omitted to compliment the Leader of the House on the work she did on this Bill and on rail safety. She said on Second Stage that this is her Bill so I compliment Senator O'Rourke on her input into it and on bringing rail safety to its current standard.
I thank the Minister of State and his officials and Members of the House for a good debate on rail safety. I wish the Minister of State well with the Bill. I accept his comments regarding the Committee on Procedure and Privileges and the suggestion that we table amendments if we are unhappy with the situation.
I thank the Minister of State for his comments. I was in Prague last weekend with members of the Oireachtas Joint Committee on Transport and it is clear that we have a long way to go in spending on public transport. Prague has an unbelievable system that fully integrates railway, metro, trams and buses. Even if €34 billion were spent here in the next two or three years, there would still be a long way to go to catch up with that city, which has a similar population to Dublin. It clearly shows that we are very backward with regard to public transport.
I congratulate the Minister and his officials on this legislation. I appreciate the Minister's responsive attitude to the comments and suggestions that were made and his grasp of the detail of this Bill.
A friend of mine was killed over 20 years ago in the Buttevant train crash. He travelled by rail to Cork because he thought he would be safer on the train than on the road. It is when one has such a personal contact with the issue that one is reminded of the responsibility we have in this matter. I congratulate the Minister.
I welcome the passage of the Bill and compliment the Minister of State and his officials for the constructive way they worked with us in discussing it. The Leader of the House is to be complimented on the work she did on the Bill. After the tremendous amount of work that went into the development of the infrastructure and the establishment of the safety commission, we are now on the verge of seeing great developments in the railway sector in Ireland. We have seen the introduction of the Luas and now there are the proposals in Transport 21, which encompass some existing proposals in terms of new rolling stock, the inter-city lines and more commuter services in and around Dublin. That plan, together with the re-opening of the western rail corridor, is excellent news. This generation will see a reinvigorated and well developed rail network which will benefit this and future generations. I compliment everybody involved.