Railway Safety Act 2005

In short

This law, the Railway Safety Act 2005, establishes a framework for railway safety, including the creation of a Railway Safety Commission and rules for railway operations, incident investigations, and the conduct of individuals on railways.

What it regulates

The establishment and functions of the Railway Safety Commission.
General duties of railway undertakings and individuals regarding safety.
Safety management systems, safety cases, and safety assessments for new works and rolling stock.
Reporting and investigation of railway incidents.
Regulations concerning intoxicants and conduct for persons working on railway infrastructure.

Who it concerns

Railway undertakings.
Persons working on railways, including safety-critical workers.
The Railway Safety Commission and its staff.
Members of the public using or interacting with railways.

Key points

Establishes the Railway Safety Commission to oversee railway safety.
Requires railway undertakings to have safety management systems and safety cases.
Mandates the reporting and investigation of railway incidents by a Railway Incident Investigation Unit.
Prohibits persons working on railway infrastructure from being under the influence of intoxicants.
Outlines offences related to unlawful use, damage, or dangerous conduct on railways, with associated penalties.

Legal text

Railway Safety Act 2005 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.

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s)or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2005 Railway Safety Act 2005 Railway Safety Act 2005 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 31 of 2005 RAILWAY SAFETY ACT 2005 ARRANGEMENT OF SECTIONS PART 1 Preliminary Section 1. Short title. 2. Interpretation. 3. Laying of orders and regulations. 4. Application. 5. Repeals. 6. Expenses. PART 2 Railway Safety Commission 7. Establishment day. 8. Establishment of Railway Safety Commission. 9. Independence of Commission. 10. Functions of Commission. 11. Conferral of additional functions. 12. Transfer of functions. 13. Policy directions by Minister to Commission. 14. Members of Commission. 15. Staff of Commission. 16. Transfer of staff from Minister to Commission. 17. Deputy member of Commission. 18. Consultants and advisers. 19. Membership of House of Oireachtas, European Parliament and local authorities. 20. Disclosure of Interests. 21. Disclosure of confidential information. 22. Superannuation for members of Commission. 23. Superannuation for staff of Commission. 24. Resources made available by Minister. 25. Grants to Commission. 26. Levy. 27. Borrowings. 28. Accounts and annual report of Commission. 29. Statement of strategy. 30. Publication of reports of Commission. 31. Accountability of Commission to Committees of Oireachtas. 32. Premises of Commission. 33. Seal of Commission. 34. Commission to keep itself informed on certain matters. 35. Provision of services. PART 3 General Duties of Railway Undertakings, Persons Working on Railways and Other Persons 36. General duties of railway undertakings. 37. General duties of persons working on railways and other persons. PART 4 Safety Management Systems and Safety Case 38. Commencement (Part 4). 39. Safety management systems and safety case. 40. Co-operation between railway undertakings. 41. International Services. 42. Safety assessment of new works. 43. Safety assessment of new rolling stock. 44. Transfer of ownership. 45. Submission and assessment of safety case. 46. Acceptance of safety case by Commission. 47. Compliance with safety case. 48. Revision of safety case. 49. Appointment of independent persons for assessments and audits. 50. Safety audits. PART 5 Reporting and Investigation of Railway Incidents 51. “railway incident”. 52. Reportable railway incidents. 53. Investigations by railway undertakings. 54. Reporting of risks, etc. by staff of railway undertakings and contractors. 55. Railway Incident Investigation Unit. 56. Chief Investigator and staff of the Investigation Unit. 57. Independence of Investigation Unit. 58. Investigations by Investigation Unit. 59. Re-opening of investigation by Investigation Unit. 60. Publication of report of investigations. 61. Contents of report. 62. Preparation of draft report and observations of affected persons. 63. Recommendations of Investigation Unit. 64. Tribunal of inquiry. 65. Suspension of investigation by Investigation Unit where inquiry directed. 66. Re-opening of inquiry. 67. Inquest in case of railway incident. 68. Transitional provision (opening of railways). PART 6 Regulations and Review of Legislation 69. Regulations. 70. Regulations for protection of railway incident sites. 71. Offence. 72. Review of legislation by Commission. PART 7 Enforcement 73. Inspectors. 74. Provision of records and other information. 75. Requirement to give name and address, obstruction, arrest, offence. 76. Improvement plan. 77. Improvement notice. 78. Prohibition notice. 79. Application to High Court by Commission. 80. Indemnification for actions in good faith. PART 8 Railway Safety Advisory Council 81. Appointed day. 82. Railway Safety Advisory Council. 83. Functions of Council. PART 9 Intoxicants and Persons Working on Railway Infrastructure 84. Commencement (Part 9). 85. Interpretation (Part 9). 86. Application (Part 9). 87. Duties of safety critical workers and railway undertakings. 88. Codes of conduct, etc., in relation to intoxicants. 89. Sampling for drugs. 90. Disciplinary measures. 91. Proof of certificate of analysis. PART 10 Offences by Persons Working on Railway Infrastructure Chapter 1 Preliminary 92. Commencement, (Part 10). 93. Definitions, (Part 10). 94. Power of Garda Síochána to enter railway property and to stop train. 95. Application and authorised persons. Chapter 2 Intoxicants 96. Functions of the Bureau in relation to analysis under Chapter. 97. Offences involving intoxicants by persons working on railway property. 98. Obligation to provide specimen of breath. 99. Arrest without warrant. 100. Obligation to provide specimen following arrest. 101. Obligation to provide blood or urine specimen while in hospital. 102. Detention of intoxicated persons where a danger to themselves or others. 103. Procedure following provision of breath specimen under section 100. 104. Procedure to be followed relating to specimens taken or provided. 105. Procedure at Bureau regarding specimens. 106. Frustrating prosecution. 107. Evidence in proceedings under this Chapter. 108. Defences. 109. Penalties. Chapter 3 Carelessly or dangerously working or working while unfit, on railway 110. Careless working on railway. 111. Dangerous working on railway. 112. Medical fitness for duty. PART 11 Works by Road Authorities, etc. 113. Works on public roads in the vicinity of railway infrastructure. PART 12 General Enforcement and Offence Provisions relating to Railway Safety and Conduct of Persons on Railways 114. Unlawful use of railway. 115. Deliberate or wanton damage to railway. 116. Obligation to notify danger caused to railway. 117. Obligation not to expose person to danger on railway. 118. Unlawful use of system of communication between passengers and train drivers. 119. Attempting to obstruct, damage or derail a train, etc. 120. Penalty. 121. Power to arrest by member of Garda Síochána. PART 13 Procedural 122. Prosecution of summary offences. 123. Offences by bodies corporate. 124. Cost of prosecutions. 125. Service of notices, etc. 126. Disclosure of records. PART 14 Provisions Relating to Córas Iompair Eireann 127. Compulsory acquisition of land. 128. Matters relating to bye-laws, etc. 129. Powers of authorised officers. 130. Borrowing by CIE for capital purposes. 131. Failure to shut and fasten gates of level crossing or passage. PART 15 Fare Evasion and Fixed Payment Notices 132. Penalty for avoiding payment of fare. 133. Fixed payment notice. PART 16 Light Railway and Metro 134. Amendment of Transport (Railway Infrastructure) Act 2001. 135. Increase of fines. 136. Amendment of timeframe for submissions on railway order. PART 17 Road Traffic — Bridge Strikes 137. Collective citation and construction (Part 17). 138. Bridge strikes. SCHEDULE 1 Enactments Repealed SCHEDULE 2 Functions Transferred from Minister to Commission Acts Referred to Acquisition of Land (Assessment of Compensation) Act 1919 9 & 10 Geo. 5, c. 57 Companies Acts 1963 to 2005 Comptroller and Auditor General (Amendment) Act 1993 1993, No. 8 Coroners Act 1962 1962, No. 9 Data Protection Act 1988 1988, No. 25 European Parliament Elections Act 1997 1997, No. 2 Fire Services Act 1981 1981, No. 30 Freedom of Information Act 1997 1997, No. 13 Land Clauses Acts Local Government Act 1946 1946, No. 24 Local Government Act 2001 2001, No. 37 Malicious Damage Act 1861 24 & 25 Vic., c. 97 Minimum Notice and Terms of Employment Acts 1973 to 2001 Misuse of Drugs Act 1977 1977, No. 12 Organisation of Working Time Act 1997 1997, No. 20 Petty Sessions (Ireland) Act 1851 14 & 15 Vic., c. 93 Planning and Development Act 2000 2000, No. 30 Railway Act 1924 1924, No. 29 Railway Clauses Act 1863 26 & 27 Vic., c. 92 Railway Clauses Consolidation Act 1845 8 Vic., c. 20 Railway Employment (Prevention of Accidents) Act 1900 63 & 64 Vic., c. 27 Railway Regulation Act 1842 5 & 6 Vic., c. 55 Railway Returns (Continuous Brakes) Act 1878 41 Vic., c. 20 Redundancy Payments Acts 1967 to 2003 Regulation of Railways Act 1868 31 & 32 Vic., c. 119 Regulation of Railways Act 1871 34 & 35 Vic., c. 78 Regulation of Railways Act 1889 52 & 53 Vic., c. 57 Regulation of Railways Acts 1840 to 1893 Road Act 1993 1993, No. 14 Road Traffic Act 1961 1961, No. 24 Road Traffic Act 1994 1994, No. 7 Road Traffic Act 2002 2002, No. 12 Road Traffic Acts 1961 to 2004 State Guarantees (Transport) Act 1962 1962, No. 25 Terms of Employment (Information) Act 1994 1994, No. 5 Transport Act 1950 1950, No. 12 Transport Act 1958 1958, No. 19 Transport Act 1964 1964, No. 30 Transport Act 1974 1974, No. 1 Transport Act 1985 1985, No. 15 Transport Act 1987 1987, No. 27 Transport (Miscellaneous Provisions) Act 1971 1971, No. 14 Transport (Railway Infrastructure) Act 2001 2001, No. 55 Unfair Dismissals Acts 1977 to 2001 Worker Protection (Regular Part-Time Employees) Act 1991 1991, No. 5 Number 31 of 2005 RAILWAY SAFETY ACT 2005 AN ACT TO MAKE PROVISION FOR THE ESTABLISHMENT OF A BODY TO BE KNOWN AS, IN THE IRISH LANGUAGE, AN COIMISIÚN SÁBHÁILTEACHTA IARNRÓID, OR IN THE ENGLISH LANGUAGE, THE RAILWAY SAFETY COMMISSION, TO DEFINE ITS FUNCTIONS, TO PROVIDE FOR THE ESTABLISHMENT OF A BODY TO BE KNOWN AS, IN THE IRISH LANGUAGE, AN CHOMHAIRLE SÁBHÁILTEACHTA IARNRÓID, OR IN THE ENGLISH LANGUAGE, THE RAILWAY SAFETY ADVISORY COUNCIL, TO DEFINE ITS FUNCTIONS, TO PROVIDE FOR THE GENERAL DUTIES OF RAILWAY UNDERTAKINGS AND PERSONS WORKING ON RAILWAYS AND OTHER PERSONS, TO PROVIDE FOR MEASURES TO PREVENT PERSONS FROM WORKING ON RAILWAYS WHO ARE UNFIT TO CARRY OUT THAT WORK THROUGH ALCOHOL OR DRUGS, TO PROVIDE FOR OFFENCES BY PERSONS WORKING ON RAILWAYS, TO PROVIDE FOR MATTERS RELATING TO CARRYING OUT WORKS ON PUBLIC ROADS IN THE VICINITY OF RAILWAYS, TO PROVIDE FOR OFFENCES AND OTHER MATTERS RELATING TO THE CONDUCT OF PERSONS ON RAILWAYS, TO PROVIDE FOR MATTERS RELATING TO CÓRAS IOMPAIR ÉIREANN, AND FOR THAT PURPOSE TO AMEND THE TRANSPORT ACT 1950 AND OTHER ENACTMENTS RELATING TO CÓRAS IOMPAIR ÉIREANN, TO PROVIDE FOR MATTERS RELATING TO LIGHT RAILWAYS AND METRO, AND FOR THAT PURPOSE TO AMEND THE TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001, TO REPEAL CERTAIN PROVISIONS OF THE REGULATION OF RAILWAYS ACTS 1840 TO 1893 AND OTHER ENACTMENTS RELATING TO RAILWAYS, TO AMEND THE ROAD TRAFFIC ACTS 1961 TO 2004, AND TO PROVIDE FOR RELATED MATTERS. [18th December, 2005] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary Short title. 1.—This Act may be cited as the Railway Safety Act 2005. Interpretation. 2.—

(1)In this Act, except where the context otherwise requires— “Commission” means the Railway Safety Commission established under section 8 ; “Council” means the Railway Safety Advisory Council established under section 82 ; “establishment day” means the day appointed by the Minister under section 7 to be the establishment day for the purposes of Part 2; “functions” includes powers and duties and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the carrying out of the duties; “heritage railway” means a person who only operates train services or railway infrastructure of historical or touristic interest or such other person whom the Commission has by regulations under section 4

(6)specified to be a heritage railway; “inspector” means a person appointed under section 73 to be an inspector; “international service” means the operation of a railway service between the State and another state; “intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol; “investigation report” means a report published by the Investigation Unit of an investigation undertaken by it; “local authority” has the meaning assigned to it by the Local Government Act 2001 ; “medical practitioner” means a person registered in the General Register of Medical Practitioners; “Minister” means Minister for Transport; “operation” in relation to a railway undertaking, includes the operation of railway services or the operation of railway infrastructure, or both, and any other ancillary activities; “public road” means a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority; “qualified person” and “suitably qualified person” shall be construed in accordance with section 49

(18); “railway” means— (

a)a railway which has a gauge of not less than 350 mm and which is used for the carrying of fare-paying passengers, or fee-paying members, or the conveyance of merchandise, (
b)any part of such other railway that has a physical interface with a railway mentioned in paragraph (a), or a physical interface with a public road, or (
c)any other infrastructure that may be specified by the Commission under section 4 ; “railway incident” has the meaning assigned to it by section 51 ; “railway infrastructure” means the fixed assets used for the operation of a railway including, but not limited to, rail track, railway stations, permanent way and plant used for signalling or exclusively for supplying electricity for operational purposes to the railway; “railway property” has the meaning assigned to it by section 73

(15); “railway undertaking” means— (

a)Iarnród Éireann—Irish Rail, (
b)a heritage railway, or (
c)any other person who operates a railway; “record” means any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Act 1988 ) are held, any other form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and any thing that is a part or a copy, in any form, of any of the foregoing or is a combination of two or more of the foregoing; “reportable railway incident” means a railway incident that is required to be reported by a railway undertaking in accordance with section 52 ; “road authority” means— (
a)in the case of a national road, the National Roads Authority, and (
b)in the case of a regional or local road, the city, county, borough or town council, in whose administrative area the road is located; “rolling stock”, in relation to a railway, means any train or any other vehicle with flanged wheels which is designed to operate on a railway; “safety case” shall be construed in accordance with section 39 ; “train” means a vehicle with flanged wheels designed to operate on a railway for whatever purpose, and includes carriages and rolling stock.

(2)In this Act— (

a)a reference to a section, Part or Schedule is a reference to a section or Part of or Schedule to this Act unless it is indicated that a reference to some other enactment is intended, (
b)a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended, and (
c)a reference to an enactment shall be construed as a reference to that enactment as amended, adapted or extended by any subsequent enactment including this Act. Laying of orders and regulations. 3.—Every order other than an order under section 5 , 7 , 38 , 81 , 84 or 92 or regulation (other than a regulation under section 97

(3)) made by the Minister or Commission under this Act shall, as soon as may be after it is made, be laid before each of the Houses of the Oireachtas and if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. Application. 4.—

(1)This Act applies to all railway undertakings.

(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.

(3)This Act does not apply to the operation of railway infrastructure solely for industrial use, except insofar as it has an interface with a public road or with a railway undertaking.

(4)This Act does not apply to fairground equipment which has been granted a valid certificate of safety in accordance with section 239 of the Planning and Development Act 2000 , unless, in the opinion of the Commission, it is appropriate to apply it in the interest of the safety of persons.

(5)The Commission may by regulations specify any other infrastructure to be a railway for the purposes of this Act where, in the opinion of the Commission, it is appropriate to do so in the interest of the safety of persons.

(6)The Commission may by regulations specify any person to be a heritage railway for the purposes of this Act where, in the opinion of the Commission, it is appropriate to do so in the interest of the safety of persons. Repeals. 5.—

(1)The enactments specified in column

(2)of Schedule 1 are repealed to the extent specified in column

(3)thereof.

(2)This section comes into operation on such day or days as the Minister may by order or orders appoint and different days may be so appointed for the application of this section to different enactments specified in Schedule 1 and to different provisions specified in that Schedule of those enactments. Expenses. 6.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. PART 2 Railway Safety Commission Establishment day. 7.—The Minister may by order appoint a day to be the establishment day for the purposes of this Part. Establishment of Railway Safety Commission. 8.—

(1)There shall stand established, on the establishment day, a body to be known as, in the Irish language, An Coimisiún Sábháilteachta Iarnróid, or in the English language, the Railway Safety Commission, in this Act referred to as the “Commission”, to perform the functions assigned to it under this Act.

(2)The Commission shall be a body corporate with perpetual succession and shall have a seal and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(3)The Commission shall have all such powers as are necessary for or incidental to the performance of its functions under this Act. Independence of Commission. 9.—Subject to this Act, the Commission shall be independent in the exercise of its functions. Functions of Commission. 10.—

(1)The principal functions of the Commission shall be— (

a)to foster and encourage railway safety, (
b)to enforce this Act and any other legislation relating to railway safety, and (
c)to investigate and report on railway incidents.

(2)The Commission shall, in carrying out its functions, have regard to any matters arising from the operation of railways which may affect the safety of persons.

(3)The Commission, subject to the approval of the Minister given with the consent of the Minister for Finance, may— (

a)enter into agreements or make arrangements with any Minister of the Government, or any other person for that Minister or person to perform on behalf of the Commission (with or without payment) any of its functions; and (
b)enter into agreements or make arrangements with any Minister of the Government or the Health and Safety Authority for the Commission to perform on behalf of that Minister or that Authority (with or without payment) such functions as may appropriately be performed by it in connection with its functions under this Act.

(4)The Commission shall have all such powers as are necessary or expedient for the performance of its functions under subsection

(3)(b).

(5)The Commission shall provide advice to the Minister as may be requested by the Minister from time to time in relation to railway safety.

(6)For the purposes of its functions, the Commission shall encourage and foster activities and measures which are directed towards the promotion of railway safety, including such arrangements as it considers appropriate to undertake, to promote, to sponsor, to evaluate and to publish the results of research, surveys and studies relating to railway safety. Conferral of additional functions. 11.—

(1)The Minister may, by order, made with the consent of the Minister for Finance, confer on the Commission such additional functions in relation to railway safety as, from time to time, he or she considers appropriate.

(2)The Minister or any other Minister of the Government with the consent of the Minister may, with the consent of the Minister for Finance, by order provide that any function relating to railway safety conferred on him or her under any enactment (including this Act), shall, where the relevant Minister is satisfied that the function could be more conveniently performed by the Commission, in lieu of being performed by him or her, be performed by the Commission with effect from a date specified in the order.

(3)Whenever an order under subsection

(2)is in force in relation to a particular function, a reference in any enactment concerned to the Minister or the Minister of the Government concerned, as the case may be, shall be construed as including a reference to the Commission and the function to which the order relates shall be the function of the Commission.

(4)An order under subsection

(1)or

(2)may contain such incidental, supplementary, consequential and transitional provisions as appear to the Minister or the relevant Minister of the Government, as the case may be, to be necessary for the purpose or in consequence of, or to give full effect to, the order.

(5)The Minister or another Minister of the Government who has made an order under subsection

(2)may— (

a)where the order is made by the Minister, with the consent of the Minister for Finance, or (
b)where the order is made by another Minister of the Government, with the consent of the Minister and the Minister for Finance, amend or revoke the order that he or she has made. Transfer of functions. 12.—

(1)The administration and business in connection with the exercise, performance or execution of any of the functions transferred by subsection

(2)are transferred, on the establishment day, to the Commission.

(2)The functions vested in the Minister by or under— (

a)the provisions of the enactments mentioned in Part 1 of Schedule 2 , and (
b)the regulations mentioned in Part 2 of Schedule 2 , are, on the establishment day, transferred to the Commission.

(3)References to the Minister contained in any Act or instrument relating to any functions transferred by subsection

(2)shall, on the establishment day, be construed as references to the Commission.

(4)Anything commenced before the establishment day by or under the authority of the Minister may, in so far as it relates to functions transferred by this section, be carried on or completed on or after such day by the Commission.

(5)Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is the plaintiff or the prosecutor and the proceedings have reference to functions transferred by this section to the Commission, the name of the Commission shall, in so far as the proceedings relate to any functions transferred by this section, be substituted in those proceedings for that of the Minister or added in those proceedings as may be appropriate and those proceedings shall not abate by reason of such substitution.

(6)Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is a defendant and the proceedings have reference to any functions transferred to the Commission by this section, the Commission shall not be substituted for the Minister in those proceedings notwithstanding the transfer of functions under this Act.

(7)Every document (including any certificate or licence) granted or made in the exercise of a function transferred by this section shall, if and in so far as it was operative immediately before the establishment day, have effect on and after that day as if it had been granted or made by the Commission. Policy directions by Minister to Commission. 13.—

(1)Subject to subsection

(3), the Minister may, after consultation with the Minister for Finance, give such general policy directions in writing to the Commission in relation to its functions as he or she considers appropriate.

(2)The Commission shall comply with any direction given under subsection

(1).

(3)The Minister shall not give directions under subsection

(1)in relation to any particular case with which the Commission is or may be concerned.

(4)The Minister shall lay a copy of any direction given by him or her under subsection

(1)before each House of the Oireachtas.

(5)The Minister may give policy or other guidelines to the Commission in relation to its functions as he or she considers appropriate and the Commission shall have regard to the guidelines when performing such functions.

(6)The Minister shall lay a copy of any guidelines given by him or her under subsection

(5)before each House of the Oireachtas. Members of Commission. 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.

(6)Where there is more than one commissioner, the Minister shall appoint one of them to be chairperson of the Commission on such terms and conditions, including remuneration, as the Minister may fix, with the consent of the Minister for Finance, to hold office in a full-time capacity for a period of not less than 3 and not more than 7 years.

(7)The chairperson shall have a casting vote in the case of decisions to be taken by the Commission in the event of a tied vote.

(8)Where the chairperson is unavailable to perform his or her duties, he or she, or if he or she is unable to do so, the Minister, shall appoint a commissioner to be an acting chairperson to assume the duties of the chairperson for a defined period not exceeding 12 months.

(9)With the exception of the person appointed under subsection

(3), a person shall not be appointed as a commissioner unless the Public Appointments Service, after holding a competition on behalf of the Commission, have selected him or her for appointment as a commissioner.

(10)A commissioner, including the chairperson, whose term of office expires by effluxion of time shall be eligible for re-appointment to serve a second term, subject to a limit of serving no more than 12 years on the Commission.

(11)A commissioner shall not be entitled to serve more than 2 terms of office.

(12)A commissioner may— (

a)at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon the date of receipt of the letter, whichever is the later, and (
b)be removed from office by the Minister if, in his or her opinion, the member has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour and the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for such removal.

(13)The Commission may act notwithstanding a vacancy in its membership.

(14)A commissioner shall not hold any other office or employment in respect of which emoluments are payable.

(15)A commissioner shall not, for a period of 12 months following his or her resignation, removal or retirement from the office of commissioner, accept any office, consultancy or employment, where he or she could or might use or disclose information of a confidential or commercially sensitive nature acquired by him or her in the exercise of the functions of the Commission.

(16)Notwithstanding subsection

(15), a person who was a commissioner shall not be precluded from holding office or engagement in any employment in the Civil Service or any statutory regulatory body or from acting as a consultant to the Commission, the Minister or any other Minister of the Government on the basis that the period referred to in that subsection has not expired.

(17)No action or other proceedings shall lie or be maintainable (except in the case of wilful neglect or default) against any commissioner arising from a failure to perform or to comply with any of the functions conferred on the Commission by this Act. Staff of Commission. 15.—

(1)The Commission may, subject to the consent of the Minister and the Minister for Finance, appoint such and so many persons to be members of its staff as it considers necessary to assist it in the performance of its functions.

(2)The terms and conditions, including terms and conditions as to remuneration and grading, of persons appointed under subsection

(1)shall be determined by the Minister with the consent of the Minister for Finance.

(3)The Commission may perform such of its functions as it may deem proper through or by any member of its staff. Transfer of staff from Minister to Commission. 16.—

(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, to be transferred to the Commission.

(2)An officer of the Minister designated under subsection

(1)shall be transferred to and become a member of the staff of the Commission on the establishment day.

(3)Save in accordance with a collective agreement negotiated with any recognised trade unions and staff associations concerned, an officer of the Minister transferred to the staff of the Commission under subsection

(2)shall not, while he or she is in the service of the Commission, receive a lesser scale of pay or be made subject to less beneficial terms and conditions of service (including those relating to tenure of office) than the scale of pay to which he or she was entitled or the terms and conditions of service (including those relating to tenure of office) to which he or she was subject immediately before his or her transfer.

(4)In relation to persons transferred in accordance with subsection

(2)to the staff of the Commission, previous service in the Civil Service shall be reckonable for the purposes of, but subject to any exceptions or exclusions in— (

a)the Redundancy Payments Acts 1967 to 2003, (
b)the Minimum Notice and Terms of Employment Acts 1973 to 2001, (
c)the Unfair Dismissals Acts 1977 to 2001, (
d)the Terms of Employment (Information) Act 1994 , (
e)the Organisation of Working Time Act 1997 , and (
f)the Worker Protection (Regular Part-Time Employees) Act 1991 . Deputy member of Commission. 17.—

(1)The Commission shall designate a member of its staff as a deputy member of the Commission (“deputy commissioner”) who shall assume and carry out all of the functions of the Commission in the absence of all members of the Commission or when the membership of the Commission is vacant.

(2)Subject to subsection

(3), a designation under subsection

(1)shall be for a period not exceeding 12 months and on the expiry of the period the Commission shall— (

a)renew the designation of the member of staff concerned, or (
b)designate another member of staff to be the deputy commissioner.

(3)A designation under this section may be revoked at any time by the Commission. Consultants and advisers. 18.—The Commission may, from time to time, engage such consultants or advisers as it may consider necessary to assist it in the discharge of its functions and any fees due to a consultant or adviser engaged under this section shall form part of the expenses of the Commission. Membership of House of Oireachtas, European Parliament and local authorities. 19.—

(1)Where a commissioner— (

a)accepts nomination as a member of Seanad Éireann, (
b)is elected as a member of either House of the Oireachtas or as a representative in the European Parliament, (
c)is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 , as having been elected to the European Parliament to fill a vacancy, or (
d)becomes a member of a local authority, he or she shall thereupon cease to be a commissioner.

(2)Where a member of the staff of the Commission— (

a)accepts nomination as a member of Seanad Éireann, (
b)is elected as a member of either House of the Oireachtas or as a representative in the European Parliament, or (
c)is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to the European Parliament to fill a vacancy, he or she shall thereupon stand seconded from his or her employment by the Commission and shall not be paid by, or be entitled to receive from, the Commission remuneration or allowances in respect of the period commencing on such nomination or election or when he or she is so regarded as having been elected, as the case may be, and ending when he or she ceases to be a member of either such House or such Parliament.

(3)A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a commissioner or a member of the staff of the Commission.

(4)A person who is a member of a local authority shall be disqualified from becoming a commissioner while he or she is a member of such local authority.

(5)The Commission shall not employ or otherwise retain in any capacity a person who would otherwise be disqualified under this section from becoming a commissioner while that person would be so disqualified.

(6)Without prejudice to the generality of subsection

(2), that subsection shall be construed as prohibiting, among other things, the reckoning of a period mentioned in that subsection as service with the Commission for the purposes of any superannuation benefits. Disclosure of Interests. 20.—

(1)Where a commissioner, a member of the staff of the Commission, or a consultant, adviser or other person engaged by the Commission, has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Commission, he or she shall— (

a)disclose to the Commission and in the case of disclosure by a commissioner where there is only one commissioner, that commissioner shall disclose to the Minister, the nature of his or her interest in advance of any consideration of the matter, (
b)neither influence nor seek to influence a decision in relation to the matter, (
c)take no part in any consideration of the matter, unless there are compelling reasons requiring him or her to do so, (
d)if he or she is a commissioner, withdraw from a meeting of the Commission for so long as the matter is being discussed or considered by the Commission, and unless there are compelling reasons requiring him or her to do so, shall not vote or otherwise act in relation to the matter, and (
e)prepare and furnish in advance to the Commission or Minister, as appropriate, a statement in writing of the compelling reasons aforesaid.

(2)For the purposes of this section, but without prejudice to the generality of subsection

(1), a person shall be regarded as having a beneficial interest if— (

a)he or she or any connected relative, or any nominee of his or her or any connected relative, is a member of an undertaking or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection, (
b)he or she or any connected relative is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter, (
c)he or she or any connected relative is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates, or (
d)any connected relative has a beneficial interest in, or material to, such a matter.

(3)In subsection

(2), “connected relative” means, in relation to a person to whom that subsection applies, the person's spouse or partner, parent, brother, sister, child or a child of a spouse or partner.

(4)For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter, by reason only of an interest of his or her or of any undertaking or of any other body or person mentioned in subsection

(2)which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering, discussing or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.

(5)Where a question arises as to whether or not a course of conduct, if pursued by a person, would be a failure by him or her to comply with the requirements of subsection

(1), the question shall be determined by the Commission or, where there is only one commissioner, in the case of that commissioner, by the Minister.

(6)Particulars of the determination under subsection

(5)shall be recorded by the Commission in the minutes of the meeting concerned or by the Minister by letter addressed to the Commission.

(7)Where a disclosure is made to the Commission or the Minister pursuant to subsection

(1), particulars of the disclosure shall be recorded in the minutes of any meeting concerned or by the Minister by letter addressed to the Commission.

(8)Where a person referred to in this section, other than a commissioner, fails to make a disclosure in accordance with this section, the Commission shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(9)Where a commissioner fails to make a disclosure in accordance with this section, the Minister shall decide the appropriate action (including removal from office) to be taken. Disclosure of confidential information. 21.—

(1)Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a commissioner, member of staff or an adviser or consultant to the Commission, unless he or she is duly authorised by the Commission to do so.

(2)In this section, “duly authorised” means authorised by the Commission or by some person authorised in that behalf by the Commission for the purposes of this section.

(3)A person who contravenes subsection

(1)is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months, or to both.

(4)(

a)In this section, “confidential information” means that which is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description. (
b)In expressing information to be confidential, the Commission shall have regard to the requirement to protect information of a confidential commercial nature.

(5)Nothing in subsection

(1)shall prevent the disclosure of information in a report made by or on behalf of the Commission to the Minister.

(6)The Third Schedule to the Freedom of Information Act 1997 is amended by the insertion in Part I at the end thereof: (a) in column

(2)of “Railway Safety Act 2005”, and (b) in column

(3)of “ Section 21

(1)”. Superannuation for members of Commission. 22.—

(1)The Minister shall, with the consent of the Minister for Finance, make a scheme or schemes for the granting of superannuation benefits to or in respect of a commissioner ceasing to hold office.

(2)Every scheme made under this section shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme and different times and conditions may be fixed in respect of different classes of persons.

(3)The Minister may, with the consent of the Minister for Finance, make a scheme amending or revoking a scheme under this section, including a scheme under this subsection.

(4)If any dispute arises as to the claim of a commissioner to, or the amount of, any pension, gratuity or other allowance payable in pursuance of a scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance for determination by him or her.

(5)A scheme under this section shall be carried out by the Minister in accordance with its terms.

(6)No pension, gratuity or other allowance shall be granted by the Minister to or in respect of any commissioner ceasing to hold office otherwise than in accordance with a scheme under this section or as otherwise may be approved of by the Minister with the consent of the Minister for Finance.

(7)A scheme under this section shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. Superannuation for staff of Commission. 23.—

(1)The Commission shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such members of the staff of the Commission, including the deputy commissioner, as it may think fit.

(3)Every scheme made under subsection

(1)may, with the consent of the Minister for Finance, be amended or revoked by a subsequent scheme prepared, submitted and approved under subsection

(1).

(4)A scheme made under subsection

(1)submitted by the Commission to the Minister shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Commission in accordance with its terms.

(5)No superannuation benefits shall be granted by the Commission nor shall any other arrangements be entered into by the Commission for the provision of such a benefit to or in respect of a member of the staff of the Commission otherwise than in accordance with a scheme under subsection

(1)or otherwise as may be approved of by the Minister with the consent of the Minister for Finance.

(6)If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance for determination by him or her.

(7)A scheme under this section shall be laid before each House of the Oireachtas by the Commission as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(8)Superannuation benefits granted under schemes under this section to persons who, immediately before the establishment day, were officers of the Minister and the terms and conditions relating to those benefits shall not be less favourable to those persons than those to which they were entitled immediately before that day.

(9)Where, in the period beginning on the establishment day and ending immediately before the commencement of a scheme under this section, a superannuation benefit falls due for payment to or in respect of a person who was transferred to the staff of the Commission under section 16 , the benefit shall be calculated by the Commission in accordance with such scheme, or such enactments in relation to superannuation, as applied to the person immediately before the establishment day and, for that purpose, his or her pensionable service with the Commission shall be aggregated with his or her previous pensionable service and shall be paid by the Commission. Resources made available by Minister. 24.—

(1)The Minister may make available to the Commission, on a request being made by the Commission, such staff, premises, equipment, services and other resources as the Minister may determine from time to time in consultation with the Minister for Finance.

(2)The Commission shall, on request from the Minister, pay to the Minister such sum or sums as the Minister may specify to be the expenses incurred by the Minister in making available to the Commission such staff, premises, equipment, services and other resources under subsection

(1).

(3)Where the Minister makes available to the Commission under subsection

(1)any officer of the Minister, other than an officer referred to in section 14

(3)or section 16

(1), that officer shall remain an officer of the Minister and shall not be considered to be a member of the staff of the Commission save for the purpose of obligations under sections 20 and 21 .

(4)An officer of the Minister, other than an officer referred to in section 14

(3)or section 16

(1), shall not be made available to the Commission under subsection

(1)for any period exceeding 2 years. Grants to Commission. 25.—In each financial year there may be paid to the Commission out of moneys provided by the Oireachtas a grant of such amount as the Minister, with the consent of the Minister for Finance and after consultation with the Commission in relation to its likely work programme and expenditure for a financial year, may sanction towards the expenses of the Commission in the performance of its functions. Levy. 26.—

(1)Subject to subsection

(2), for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions under this Act, the Commission, with the consent of the Minister and the Minister for Finance, may make regulations imposing a levy (“levy”) to be paid each year by such classes of railway undertakings as may be specified by the Commission in the regulations.

(2)The Commission shall not impose levy before 31 December 2007.

(3)Regulations made under subsection

(1)may provide for the following— (

a)rates of levy payable, (
b)the keeping of records and the making of returns by persons liable to pay levy, (
c)the collection and recovery of levy, (
d)exemption from levy, and (
e)such other matters as are necessary or incidental to the procurement of the payment of levy.

(4)Levy shall be payable to the Commission at such time and at such rates as may be prescribed in regulations made by the Commission under subsection

(1)and different rates may be prescribed in respect of different classes of railway undertakings liable to pay levy, and such regulations may provide for an exemption from payment of levy for railway undertakings whose operating revenue is below a threshold prescribed in the regulations.

(5)Any increase in levy may only take effect in the year after the year in which the increase is made in regulations.

(6)The Minister may, with the consent of the Minister for Finance, direct the Commission to pay into the Central Fund or the growing produce thereof, such sum as he or she may specify, being a sum that represents the amount by which the gross income received by the Commission in each financial year exceeds the gross expenditure incurred in the administration of its office in that year.

(7)The Commission may recover, as a simple contract debt in any court of competent jurisdiction, from any person by whom it is payable any amount due and owing to it under this section. Borrowings. 27.—The Commission may, for the purpose of the performance of its functions, borrow money (whether on the security of its assets or otherwise), including money in a currency other than the currency of the State, but shall not do so without the consent of the Minister and the Minister for Finance. Accounts and annual report of Commission. 28.—

(1)The Commission shall keep in such form and in respect of such accounting periods as may be approved of by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of moneys received or expended by it, including an income and expenditure account and a balance sheet.

(2)Accounts kept in pursuance of this section shall be submitted, not later than three months after the end of the financial year to which they relate, by the Commission to the Comptroller and Auditor General for audit and, immediately after the receipt of the Comptroller and Auditor General's report on the accounts, a copy of the income and expenditure account, the balance sheet and of such other (if any) accounts kept pursuant to this section as the Minister, after consultation with the Minister for Finance, may direct and a copy of the Comptroller and Auditor General's report on the accounts shall be presented to the Minister who shall cause copies thereof to be laid before each House of the Oireachtas.

(3)As soon as practicable, but not later than 3 months after the end of each financial year, the Commission shall, in writing, report to the Minister in relation to the performance of its functions in that year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas within 3 months of its receipt by him or her.

(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.

(5)The Commission shall give to the Minister such information relating to the performance of its functions as the Minister may request provided that such information would not, in the opinion of the Commission, be prejudicial to the performance of its functions.

(6)The financial year of the Commission shall be the period of 12 months ending on 31 December in any year and, for the purposes of this section and section 25 , the period commencing on the establishment day and ending on the following 31 December shall be deemed to be a financial year. Statement of strategy. 29.—

(1)The Commission shall adopt and submit to the Minister a statement of strategy within 6 months of the establishment day and at least every 3 years from the submission date of the first statement.

(2)The statement of strategy shall— (

a)comprise the key objectives, outputs and related strategies, including use of resources, of the Commission, (
b)be prepared in a form and manner in accordance with any directions issued from time to time by the Minister, and (
c)have regard to the need to ensure the most beneficial, effective and efficient use of the resources of the Commission.

(3)The Commission shall publish a statement of strategy adopted by it and shall lay a copy before each House of the Oireachtas. Publication of reports of Commission. 30.—Subject to sections 28 and 60 , the Commission may publish any reports on matters related to its functions. Accountability of Commission to Committees of Oireachtas. 31.—

(1)The commissioner, or where there is more than one commissioner, the chairperson of the Commission shall, whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, attend before and give evidence to that Committee on— (

a)the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Commission is required by or under statute to prepare, (
b)the economy and efficiency of the Commission in the use of its resources, (
c)the systems, procedures and practices employed by the Commission for the purpose of evaluating the effectiveness of its operations, and (
d)any matter affecting the Commission referred to in a special report of the Comptroller and Auditor General under section 11

(2)of the Comptroller and Auditor General (Amendment) Act 1993 , or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2)From time to time, and whenever so requested, the Commission shall account for the performance of its functions to a Committee of one or both Houses of the Oireachtas and shall have regard to any recommendations of such Committee relevant to its functions. Premises of Commission. 32.—The Commission may, for the purposes of providing premises necessary for the performance of its functions, purchase, lease, equip and maintain offices and premises with the consent of the Minister and the Minister for Finance. Seal of Commission. 33.—

(1)The Commission shall, as soon as may be after its establishment, provide itself with a seal.

(2)The seal shall be authenticated by the signature of— (

a)a commissioner, or (
b)a member of the staff of the Commission, authorised by the Commission to act in that behalf.

(3)Judicial notice shall be taken of the seal of the Commission and every document purporting to be an instrument made by and to be sealed with the seal of the Commission (purporting to be authenticated in accordance with this section) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown. Commission to keep itself informed on certain matters. 34.—

(1)The Commission shall keep itself informed of the policies, objectives, resolutions and guidelines of any public authority the functions of which have, or may have, a bearing on the matters with which the Commission is concerned.

(2)In this section, “public authority” means the Minister, the Commission of the European Communities and any other public authority inside or outside the State which, in the opinion of the Commission, has functions that have, or may have, a bearing on matters with which the Commission is concerned. Provision of services. 35.—The Commission may provide services (including services of staff) to the Minister on such terms and conditions (including payment for such services) as may be agreed and the Minister may avail of such services. PART 3 General Duties of Railway Undertakings, Persons Working on Railways and Other Persons General duties of railway undertakings. 36.—It shall be the general duty of a railway undertaking to ensure, in so far as is reasonably practicable, the safety of persons in the operation of its railway. General duties of persons working on railways and other persons. 37.—

(1)It shall be the general duty of a person working in the course of the operation of a railway undertaking, and of any person being on a railway or railway premises or railway land or on a train, to conduct himself or herself in such a way as to ensure in so far as is reasonably practicable that no person (including himself or herself) is exposed to danger as a consequence of any act or omission of his or hers.

(2)It shall be the general duty of a person working in the course of the operation of a railway undertaking, while on duty, not to be under the influence of an intoxicant to such an extent as to expose a person (including himself or herself) to danger or risk of danger as a consequence of being under such influence.

(3)It shall be the general duty of every person, in carrying out any activity on or near a railway or railway premises or railway land, to ensure in so far as is reasonably practicable that no person who is involved in the operation of a railway or who is being carried on a railway is exposed to danger as a consequence of any act or omission on the part of such person. PART 4 Safety Management Systems and Safety Case Commencement (Part 4). 38.—This Part shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions. Safety management systems and safety case. 39.—

(1)For the purpose of complying with its duty under section 36 , a railway undertaking shall implement a safety management system and shall prepare a document (“safety case”) describing the components of such safety management system.

(2)A safety case shall achieve the following two objectives— (

a)it shall demonstrate that the railway undertaking has the ability to properly assess and effectively control risks to the safety of persons, in compliance with its general duty under section 36 , and (
b)it shall provide a working document by which the railway undertaking and the Commission can ensure that the safety systems described in the safety case are being properly implemented and continue to be maintained.

(3)To achieve the objectives referred to in subsection

(2), a safety case shall contain at least the following components— (

a)a general description of the operations, or proposed operations, of the railway undertaking, (
b)a statement of the safety objectives and safety policy of the railway undertaking, (
c)an identification of the hazards arising from the operations of the railway undertaking, an assessment of the risks and details of the measures in place or proposed to mitigate such risks, (
d)the management and organisational arrangements necessary for the implementation and management of railway safety, and (
e)arrangements for monitoring, audit, and consequent review and revision of the safety case.

(4)The Commission may prepare and, after consultation with the Council, railway undertakings and such other persons as in the opinion of the Commission may be relevant, publish guidelines, from time to time, on the appropriate contents of a safety case and on appropriate technical principles and specifications, and a railway undertaking shall, for the purposes of complying with its duty under section 36 , in preparing a safety case or a revision to a safety case, and for the purposes of complying with sections 42 and 43 , have regard to such guidelines.

(5)A safety case shall be submitted to the Commission in accordance with section 45 for acceptance by the Commission in accordance with section 46 .

(6)A railway undertaking shall consult with its staff and staff representatives in the preparation of a safety case.

(7)A safety case shall contain the title and office address of one person in a senior management position within the railway undertaking who is responsible for ensuring, and has sufficient authority to ensure, that the undertaking implements the provisions of its safety case. Co-operation between railway undertakings. 40.—

(1)Where the railway infrastructure of a railway undertaking is used by another railway undertaking to operate trains or where the activities of one railway undertaking may affect the safe operation of another railway undertaking, the railway undertakings concerned shall agree systems and procedures to ensure compliance with the duty imposed on each of them by section 36 .

(2)Railway undertakings shall co-operate with each other and provide to each other, without undue delay, all information reasonably required by the other party to enable the agreement in subsection

(1)to be made.

(3)The Commission may give a direction to a railway undertaking requiring it to make an agreement under subsection

(1)or to co-operate with another railway undertaking under subsection

(2)and the railway undertaking shall comply with such direction.

(4)A railway undertaking may only refuse to give its agreement under subsection

(1)where to give such agreement, in its reasonable opinion, would be failing in its duty under section 36 .

(5)An agreement under subsection

(1)shall form a separate part of the safety case of each relevant railway undertaking.

(6)An agreement under this section shall include provisions for— (

a)monitoring, reviewing and updating of the agreement, and (
b)procedures for dealing with alleged non-compliance by any of the parties involved in the agreement.

(7)A railway undertaking shall not operate trains on the railway infrastructure of another railway undertaking, and an operator of railway infrastructure shall not give permission for such trains to operate, unless all parties have an agreement in accordance with subsection

(1)and the safety case of each relevant railway undertaking has been accepted by the Commission in accordance with section 46 .

(8)Subsection

(7)does not apply to a railway undertaking which operates a railway service immediately before the commencement of this section in respect of the period specified in sections 45

(1)and 46

(8).

(9)Where a railway undertaking is contravening subsection

(7), the Commission may give a direction to it to cease operating its trains on the railway infrastructure of the other railway undertaking.

(10)A railway undertaking shall comply with a direction of the Commission given to it under this section.

(11)Where the Commission proposes to give a direction under this section, it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(12)Where the Commission decides to give a direction under this section, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the direction shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(13)On hearing an appeal under subsection

(12), the Court may either confirm or vary the decision of the Commission or allow the appeal.

(14)A decision of the High Court on an appeal under subsection

(12)shall be final, save that, by leave of the Court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(15)A railway undertaking which, without reasonable excuse, fails to comply with a direction of the Commission under this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000. International Services. 41.—

(1)A railway undertaking first established in another Member State (“foreign railway”) which operates or proposes to operate an international service using only the infrastructure of another railway undertaking first established in the State, is deemed to have met the requirements of section 39 where— (

a)it has implemented a safety management system in compliance with the national requirements of the other Member State, (
b)it holds a valid safety certificate issued by the relevant competent authority in that other Member State, where it is required by that other Member State to do so, and (
c)it has an agreement under section 40

(1)with the railway undertaking first established in the State.

(2)A copy of a safety certificate or other evidence of compliance, as the case may be, issued or given to a foreign railway by the relevant competent authority of another Member State and a copy of any agreement under section 40

(1)between the foreign railway and a railway established in the State, together with any such other information as may be required by the Commission for the purposes of section 46

(2), is deemed to be a safety case for the purposes of this Part.

(3)A safety certificate issued to a foreign railway shall specify that the safety certificate is in respect of that element of the international service within the State only.

(4)A reference to an amendment to, a revision of, audit of, or compliance with a safety case in this Act shall, in respect of a foreign railway, be construed as an amendment to, revision of, audit of, or compliance with the agreement under section 40

(1)and of such other information provided by the railway undertaking under subsection

(2).

(5)A foreign railway which is applying for a safety certificate in respect of that element of an international service within the State, shall provide to the Commission a copy of the safety case accepted by the competent authority of the other Member State or where no safety case was or is required by the other Member State, such documentary evidence of its safety management system as the Commission may direct.

(6)In this section “Member State” means a Member State of the European Communities. Safety assessment of new works. 42.—

(1)A railway undertaking shall not commence construction, installation or assembly of new works unless— (

a)it has submitted a safety assessment (referred to in this section as a “new works assessment”) to the Commission in such form and containing such information— (
i)as it considers appropriate to show to the satisfaction of the Commission the safety of the new works, or (
ii)as the Commission may set out in guidelines published in accordance with section 39

(4), and (b) the Commission has issued a communication under subsection

(4).

(2)Where the Commission considers that the information provided in 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, the Commission shall serve a written notice to that effect on the railway undertaking and that notice shall set out the reasons for the Commission's decision to serve the notice.

(3)A railway undertaking in receipt of a notice under subsection

(2)may submit a revised new works assessment which addresses the matters raised in such notice.

(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.

(6)A railway undertaking shall, within 21 days of receipt of a communication under subsection

(4), amend its safety case to reflect the implications of the new works assessment.

(7)The Commission may at its discretion give a general or specific exemption from the requirements of this section where, in the opinion of the Commission, the new works are similar to works of a railway undertaking which are already in operation and where the safety case of the railway undertaking would not require revision when the new works are being brought into operation.

(8)A railway undertaking shall not commence commissioning of a new railway line or an addition to an existing railway line until— (

a)it has provided such information to the Commission, as may be specified by the Commission in any individual case, that, for the purposes of commissioning, demonstrates to the satisfaction of the Commission— (
i)the safety and suitability of the railway line, and (
ii)the adequacy of the systems and procedures to ensure safety of persons, (
b)the Commission has given its consent to such commissioning.

(9)The Commission may, where it considers it appropriate to do so, direct a railway undertaking to engage a suitably qualified person to independently assess a new works assessment or a revised new works assessment and the report of such person shall be submitted to the Commission at the same time as the submission under subsection

(1)or subsection

(3).

(10)Where a railway undertaking has altered its new works assessment on the basis of the report of a person engaged in accordance with subsection

(9), a statement of the actions taken by the railway undertaking in response to the report, together with the report of the person and the new works assessment as amended, shall be submitted to the Commission.

(11)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.

(12)Without prejudice to the generality of subsection

(11), and subject to subsection

(9), 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

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

(13)The Commission may, for the purpose of carrying out its functions under this section, request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(14)A railway undertaking which does not comply with this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000.

(15)In this section, “new works” means new or material changes to railway infrastructure of operational significance, including, for the avoidance of doubt, railway lines or additions to existing railway lines, bridges and structures, stations or other buildings required to operate or maintain railways, level crossings and signalling systems or such other works as may, by order, be specified by the Minister, after consultation with the Commission and railway undertakings.

(16)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

(7)in respect of such works, any obligations to make or maintain gates at that crossing do not apply.

(17)Subject to subsection

(18), section 23 of the Transport (Miscellaneous Provisions) Act 1971 applies to works under subsection

(16)as if those works had been required by an order under section 22 of that Act.

(18)Subsection

(17)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. Safety assessment of new rolling stock. 43.—

(1)A railway undertaking shall not bring into operation new rolling stock unless— (

a)it has submitted a safety assessment (referred to in this section as a “new rolling stock assessment”) to the Commission containing such information— (
i)as it considers appropriate to demonstrate to the satisfaction of the Commission the safety of the new rolling stock, or (
ii)as the Commission may set out in guidelines published in accordance with section 39

(4), and (b) the Commission has issued a communication under subsection

(4).

(2)Where the Commission considers that the information provided in the new rolling stock assessment is not adequate or that the bringing into operation of the new rolling stock does not provide reasonable assurance of safety, the Commission shall serve a written notice to that effect on the railway undertaking and that notice shall set out the reasons for the Commission's decision to serve the notice.

(3)A railway undertaking in receipt of a notice under subsection

(2)may submit a revised new rolling stock assessment which addresses the matters raised in such notice.

(4)Where the Commission is satisfied as to the safety of the new rolling stock on the basis of the information contained in a new rolling stock assessment or a revised new rolling stock assessment under subsection

(3), the Commission shall communicate in writing its acceptance of the new rolling stock assessment to the railway undertaking.

(5)A railway undertaking shall, within 21 days of receipt of a communication under subsection

(4), amend the safety case to reflect the implications of the new rolling stock assessment.

(6)The Commission may at its discretion give a general or specific exemption from the requirements of this section where, in the opinion of the Commission, the new rolling stock is similar in nature to rolling stock of the railway undertaking which is already in operation and where the safety case of the railway undertaking would not require revision when the new rolling stock is being brought into operation.

(7)A railway undertaking shall not commence commissioning of new rolling stock until— (

a)it has provided such information to the Commission, as may be specified by the Commission in any individual case, that, for the purposes of commissioning, demonstrates to the satisfaction of the Commission— (
i)the safety and suitability for purpose of the rolling stock, and (
ii)the adequacy of the systems and procedures to ensure safety of persons, and (
b)the Commission has given its consent to such commissioning.

(8)The Commission may, where it considers it appropriate to do so, direct a railway undertaking to engage a suitably qualified person to independently assess a new rolling stock assessment or a revised rolling stock assessment and the report of such person shall be submitted to the Commission at the same time as the submission under subsection

(1)or subsection

(3).

(9)Where a railway undertaking has altered its new rolling stock assessment on the basis of the report of a person engaged in accordance with subsection

(8), a statement of the actions taken by the railway undertaking in response to the report, together with the report of the person and the new rolling stock assessment as amended, shall be submitted to the Commission.

(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.

(12)The Commission may, for the purpose of carrying out its functions under this section, request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(13)A railway undertaking which does not comply with this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000.

(14)In this section, “new rolling stock” includes material alterations to existing rolling stock of a railway undertaking and rolling stock which may have been in prior use but was not previously operated on the railway infrastructure of the relevant railway undertaking. Transfer of ownership. 44.—

(1)Where ownership of a railway undertaking or a right to operate a railway is proposed to be transferred from one railway undertaking to another railway undertaking, the latter undertaking shall immediately notify the Commission in writing of the proposed transfer and provide details of the proposed ownership and organisational structure to the Commission together with a statement specifying the principal changes which it intends to make to the safety case of the first-mentioned undertaking.

(2)A railway undertaking to which ownership of another railway undertaking or rights to operate a railway has transferred shall, within a period of 3 months of such transfer or such other period exceeding 3 months as may be specified by the Commission in any particular case, submit a new safety case in accordance with section 39 .

(3)In the period between the date of such transfer referred to in subsection

(2)and the acceptance of the new safety case by the Commission, the railway undertaking to which ownership or rights has transferred shall, in respect of the assets or rights transferred and where it continues to operate the railway services or infrastructure transferred, ensure compliance with the statement under subsection

(1)and with the safety case of the first-mentioned railway undertaking in so far as it has not been changed: Provided that— (

a)the railway undertaking to which the ownership or rights has transferred complies with its general duty under section 36 , (
b)the Commission has in the circumstances given its approval to the continued operation of the railway services or infrastructure, and (
c)the railway undertaking complies with any directions given in writing by the Commission.

(4)A railway undertaking from which ownership or rights are transferring shall provide its safety case and all other relevant information to the new railway undertaking to enable the new railway undertaking to comply with this section.

(5)Where a railway undertaking fails to comply with this section, the Commission may give a direction to it to comply with this section.

(6)Where the Commission proposes to give a direction under this section, it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(7)Where the Commission decides to give a direction under this section, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the direction shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(8)On hearing an appeal under subsection

(7), the court may either confirm or vary the decision of the Commission or allow the appeal.

(9)A decision of the High Court on an appeal under subsection

(7)shall be final, save that, by leave of the court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(10)A railway undertaking which fails to comply with a direction under subsection

(5)is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000. Submission and assessment of safety case. 45.—

(1)A safety case prepared by a railway undertaking which operates a railway immediately before the commencement of this section shall be submitted to the Commission by the railway undertaking not later than 6 months after the commencement of this section.

(2)A railway undertaking shall, before it submits a safety case to the Commission, engage a suitably qualified person to independently assess the safety management system described in such safety case and the report of such person shall be submitted to the Commission at the same time as the safety case.

(3)Where a railway undertaking has altered its safety management system on the basis of the report of a person engaged in accordance with subsection

(2), the safety case shall be amended as appropriate and a statement of the actions taken by the railway undertaking in response to the report, together with the report of the assessment and the safety case as amended, shall be submitted to the Commission.

(4)A railway undertaking shall not operate railway infrastructure or railway services unless it has received notification from the Commission of its acceptance of the relevant safety case.

(5)Subsection

(4)does not apply in respect of the periods specified in subsection

(1), section 44

(2)and section 46

(8).

(6)A railway undertaking which does not comply with this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000. Acceptance of safety case by Commission. 46.—

(1)(

a)The Commission shall notify a railway undertaking of its acceptance of a safety case by issuing a certificate (“safety certificate”) to that undertaking. (
b)A safety certificate may contain such conditions as may be deemed appropriate by the Commission, including conditions restricting or prohibiting the operation of specified parts of the infrastructure or individual rolling stock or classes of rolling stock or restricting or prohibiting the provision of a specified railway service or services where, in the opinion of the Commission, not to do so would be in breach of the duty of the Commission under subsection

(2). (c) The form of safety certificates shall be decided by the Commission.

(2)The Commission shall only accept a safety case, or a revised safety case under section 48 , and issue a safety certificate under subsection

(1)where the information contained in the safety case or the revised safety case is sufficient to satisfy the Commission that the undertaking is capable, subject to any conditions contained in the safety certificate, of carrying out its operations in compliance with the duty imposed on it under section 36 .

(3)Where the Commission is not satisfied in accordance with subsection

(2)with a safety case or a revised safety case, the Commission shall, by notice in writing, require the railway undertaking concerned to— (

a)reconsider the information contained in the safety case or revised safety case and, if appropriate, re-examine and amend the safety management system described therein, and (
b)have any changes made by it to the safety case or revised safety case examined by a person engaged in accordance with section 45

(2)and to have a report of the examination prepared by such person.

(4)A railway undertaking in receipt of a notice under subsection

(3)or in receipt of a safety certificate containing conditions in accordance with subsection

(1)(

b)may re-submit the safety case or revised safety case where, in the opinion of the railway undertaking— (
a)in the case of the notice, the issues raised by the Commission in the notice have been addressed, or (
b)in the case of a safety certificate containing conditions, the safety case or revised safety case has been amended to the extent that the conditions are no longer warranted.

(5)The Commission, in deciding whether or not to issue a safety certificate, for the purpose of satisfying itself under subsection

(2), may request any additional information or clarifications from a railway undertaking and the undertaking shall comply with such a request.

(6)The re-submission of a safety case in accordance with subsection

(4)shall be accompanied by a report prepared under subsection

(3)(b).

(7)In considering a safety case or a revised safety case submitted by a railway undertaking, the Commission shall, in relation to the adequacy of the safety management system documented therein, have regard to the size and nature of the railway undertaking and, in particular— (

a)the nature, extent and complexity of its railway infrastructure and operations, (
b)its interaction, if any, with railway infrastructure or trains of other railway undertakings or with public roads, and (
c)the likely consequences for persons of any incident on its railway.

(8)The Commission shall issue a certificate under subsection

(1)or a notice under subsection

(3)as soon as practicable after it has completed its assessment but no later than 3 months after the date of receipt of the safety case or revised safety case or receipt of all information or clarifications requested under subsection

(5).

(9)The acceptance of a safety case or a revised safety case by the Commission and the issuing of a safety certificate shall not be interpreted as relieving a railway undertaking of its duty under section 36 .

(10)The Commission may— (a) refuse to issue a safety certificate where the Commission is not satisfied in accordance with subsection

(2), or (b) revoke a safety certificate issued under subsection

(1)if the railway undertaking which is the holder of the certificate fails to comply with its safety case and the Commission considers that the railway undertaking cannot comply with its duty under section 36 .

(11)Where the Commission proposes to refuse or revoke a safety certificate in accordance with subsection

(10), it shall notify the railway undertaking concerned of the proposal and the railway undertaking may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(12)Where the Commission decides to refuse a safety certificate, or revoke the safety certificate issued by it, the railway undertaking concerned may, within 21 days of notification of the decision, appeal to the High Court and the refusal or revocation shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined or withdrawn.

(13)On hearing an appeal under subsection

(12), the court may either confirm or vary the decision of the Commission or allow the appeal.

(14)A decision of the High Court on an appeal under subsection

(12)shall be final, save that, by leave of the court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(15)A safety certificate shall remain in force until it is revoked by the Commission under subsection

(10)or replaced by a new certificate. Compliance with safety case. 47.—

(1)A railway undertaking shall implement the safety management system described in its safety case as accepted by the Commission under section 46 .

(2)A railway undertaking which does not comply with this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000. Revision of safety case. 48.—

(1)A railway undertaking shall revise its safety case (“revised safety case”) in circumstances where— (

a)the railway undertaking considers it appropriate to do so, (
b)new works or new rolling stock are accepted by the Commission in accordance with section 42

(6)or 43

(5), or (c) the Commission issues a notice in writing to the railway undertaking requiring it to do so.

(2)Where a revised safety case is proposed under paragraph (a) or (c) of subsection

(1)and where the revision will materially alter the safety case previously accepted by the Commission, the relevant railway undertaking shall submit the proposed revision to the Commission, together with a report prepared by a person engaged in accordance with section 45

(2)and the revision shall not be made unless it has been accepted by the Commission in accordance with section 46 .

(3)Notwithstanding subsection

(2), a railway undertaking may revise its safety case without the prior acceptance of the Commission in circumstances where not to do so may result in the railway undertaking being in contravention of its duty under section 36 .

(4)Where a railway undertaking revises its safety case in accordance with subsection

(3), it shall immediately notify the Commission of such revision, stating the circumstances that give rise to the revision and the reasons why prior submission to the Commission could not be made and, as soon as practicable thereafter, submit the revised safety case to the Commission, together with a report prepared by a person engaged in accordance with section 45

(2).

(5)A railway undertaking which does not comply with a requirement of this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €500,000. Appointment of independent persons for assessments and audits. 49.—

(1)The Commission shall, as soon as practicable after the establishment day, prepare and publish guidelines on the nature of the independence deemed appropriate by the Commission for the purposes of this section and shall on request, in so far as is reasonably practicable, provide guidance in individual cases to persons in relation to the appropriateness of their expertise and independence.

(2)The Commission shall establish and maintain a register (in this section referred to as a “register”) of persons who in the opinion of the Commission are qualified persons and the Commission shall make the register available to all railway undertakings.

(3)A person who is of the opinion that he or she is a qualified person for the purpose of subsection

(2)may apply to the Commission to be placed on the register and an application under this section shall contain such information as may be specified by the Commission from time to time.

(4)The Commission shall review the register from time to time to confirm if the persons named therein remain qualified persons for the purposes of this section and such persons shall provide, on request from the Commission in writing, all relevant information required by the Commission for the purposes of the review.

(5)Where the Commission is of the reasonable opinion that a person who has made an application under subsection

(3)or who has provided information under subsection

(4)is not, on the basis of such application or information, a qualified person for the purposes of this section, the Commission shall notify the person in writing of its opinion and the reasons for such opinion.

(6)A person who fails to provide information on receipt of a request from the Commission under subsection

(4)may be removed by the Commission from the register and, where the Commission proposes to do so, it shall issue a notification under subsection

(5).

(7)A person who receives a notification under subsection

(5)may, within a period of 21 days from the date of the notification, make representations to the Commission on the notification.

(8)Where representations are submitted to the Commission in accordance with subsection

(7), the Commission shall consider the representations and— (

a)if it is satisfied that the person is a qualified person, shall include or, as the case may be, retain the name of the person on the register, or (
b)if it is not satisfied that the person is a qualified person, shall refuse to include or, as the case may be, refuse to retain the name of the person on the register, and the person shall be notified in writing of the decision of the Commission within 14 days of the receipt of the submission.

(9)Where a railway undertaking proposes to appoint a suitably qualified person for the purposes of section 42

(9), 43

(8), 45

(2), 46

(3)(b), 50

(1)or 50

(6), the railway undertaking shall notify the Commission in writing of the proposal at least 21 days in advance of the proposed appointment date.

(10)A notification under subsection

(9)shall include— (

a)the name of the person proposed for conducting the assessment or audit, and details of his or her employer, (
b)where a person is not listed in the register, details of the expertise of the person concerned, (
c)any current or previous relationships between the railway undertaking and the said person, or between the railway undertaking and the employers of such person, and (
d)a statement from the railway undertaking that, in the opinion of the railway undertaking, the person— (
i)is independent of the railway undertaking having regard to the guidelines published by the Commission under subsection

(1), and (ii) has appropriate expertise for the purposes of carrying out an appropriate assessment or audit.

(11)Where, on receipt of a notification under subsection

(9), the Commission is not satisfied as to the expertise or independence of the proposed person, the Commission shall communicate this, and the grounds for same, in writing to the railway undertaking within 14 days of receipt of the said notification.

(12)On receipt of a communication under subsection

(11), a railway undertaking may, within a period of 21 days from the date of the communication, submit observations to the Commission on the communication.

(13)Where observations are submitted to the Commission in accordance with subsection

(12), the Commission shall consider the submission and, having regard to the observations contained therein, shall within 14 days of the receipt of the submission communicate in writing to the railway undertaking that— (

a)it is satisfied as to the expertise and independence of the person or persons being proposed by the railway undertaking, or (
b)it is not satisfied as to the expertise and independence of the person or persons being proposed by the railway undertaking.

(14)A person in respect of whom a communication is issued by the Commission under subsection

(13)(b) shall not be considered to be a suitably qualified person for the purposes of this Act.

(15)A railway undertaking which appoints a suitably qualified person under this section shall bear responsibility in all aspects for the appointment and the remuneration of such a person.

(16)Notwithstanding subsection

(15)insofar as it relates to remuneration, in the case of a heritage railway the Commission may, with the consent of the Minister and the Minister for Finance and if it deems it appropriate to do so, agree to be responsible for the remuneration of the suitably qualified person and, where it gives its agreement to do so, may charge a fee to the heritage railway to offset in part the level of such remuneration and the level of the fee shall be decided by the Commission.

(17)Where the Commission proposes to be responsible for the remuneration of the suitably qualified person, it shall, before giving its final agreement to do so, be of the opinion that the scale of the remuneration required is appropriate and a heritage railway shall provide all necessary information to the Commission to enable it to reach an opinion.

(18)In this section— “qualified person” means an individual who, in the opinion of the Commission, has appropriate expertise of railway operations or of a particular class or aspect of railway operations or other expertise relevant to safety management systems or aspects thereof; and “suitably qualified person” means a qualified person who, having regard to guidelines published by the Commission, is sufficiently independent of railway undertakings or of a particular class of railway undertaking or of a particular railway undertaking. Safety audits. 50.—

(1)A railway undertaking shall ensure that its safety management system, as described in its safety case, is independently audited by a suitably qualified person not later than the fourth anniversary of its acceptance by the Commission and not later than each subsequent period of 4 years thereafter or such other lesser period as may be specified from time to time by the Commission, having regard in particular to railway undertakings who are parties to an agreement under section 40 .

(2)The objectives of an audit under subsection

(1)shall, at minimum, be— (

a)to confirm the adequacy and scope of the safety management system, (
b)to confirm that the safety case accurately reflects the safety management system, (
c)to confirm compliance by a railway undertaking with its safety case, and (
d)to make recommendations, if any, for such improvements to the safety management system as the suitably qualified person deems appropriate in light of national or international experience and technological development.

(3)The report of a suitably qualified person appointed under subsection

(1)shall be submitted by the railway undertaking to the Commission within such period as may be specified by the Commission.

(4)The Commission may, where it considers it appropriate to do so upon application by a railway undertaking, being— (

a)a heritage railway, or (
b)a railway undertaking, other than a railway undertaking used for the purposes of fare-paying passengers or for fee-paying members or the conveyance of merchandise for monetary gain, grant an exemption or derogation from the requirements of subsection

(1)to such railway undertaking on such terms and conditions as it deems appropriate.

(5)In considering an application made by a railway undertaking under subsection

(4), the Commission shall have regard to— (

a)the nature, extent and complexity of its railway infrastructure and operations, (
b)its interaction, if any, with railway infrastructure or trains of other railway undertakings or with public roads, (
c)the likely consequences for persons of any incident on its railway, and (
d)the time elapsed since any previous safety audit was undertaken and the findings of such audit.

(6)Where the Commission considers that a potential danger may exist in any particular situation, it may undertake, or direct by notice in writing the relevant railway undertaking to engage a suitably qualified person to undertake, an independent safety audit of the particular matter that gives rise to potential danger.

(7)The Commission may at any time undertake, or appoint a suitably qualified person to undertake on its behalf, an audit of all or any part of the safety management system and safety case of a railway undertaking.

(8)A person appointed by the Commission under subsection

(7)shall, for the duration for which he or she stands engaged, have the same powers as an inspector in respect of the railway undertaking concerned.

(9)A railway undertaking shall maintain sufficient records relating to all aspects of its safety management system for the purposes of demonstrating that it is conducting its activities in compliance with its safety management system.

(10)The Commission may make regulations specifying the minimum requirements for the auditing of safety cases and a suitably qualified person referred to in section 49 shall comply with such regulations.

(11)A railway undertaking which fails to comply with this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €60,000. PART 5 Reporting and Investigation of Railway Incidents “railway incident”. 51.—In this Act, “railway incident” means an occurrence which has taken place in the course of the operation of a railway which causes or results in— (
a)loss of life or personal injury to a person, (
b)a collision between trains or between a train and some other vehicle or object, (
c)a train or any part of a train accidentally leaving the rails, or (
d)an occurrence of a kind not mentioned above but which is of such a kind as to have caused or as to be likely to cause loss of life or personal injury or extensive damage to railway infrastructure or rolling stock or the environment, and which is specified in regulations made by the Minister, where such occurrence occurred in or about any railway infrastructure or train. Reportable railway incidents. 52.—

(1)In the event of a railway incident, the railway undertaking concerned or, if the incident involved more than one railway undertaking, the railway undertakings concerned, shall— (

a)in the case of loss of life or injury to a person or in other cases as may be specified from time to time by the Investigation Unit, send to the Investigation Unit by the quickest practicable means (or within such timeframe as may be specified by the Investigation Unit) notice of the incident, including brief particulars and details of the location of the incident and of any loss of life or personal injury, and (
b)as soon as practicable send a written report to the Investigation Unit, in such form and containing such particulars as may be specified from time to time by the Investigation Unit, of the loss of life, injury, condition or incident.

(2)Where as a result of an incident at work, a member of staff of, or other person engaged by, a railway undertaking sustains an injury or suffers a condition which is required to be reported by this section to the Investigation Unit and as a result of that incident the member of staff or other person dies within 30 days of the incident, the railway undertaking shall, as soon as possible after the death comes to its knowledge, inform the Investigation Unit in writing of the death, whether or not the incident had been reported under subsection

(1).

(3)A railway undertaking which does not comply with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000. Investigations by railway undertakings. 53.—

(1)It shall be a duty of a railway undertaking to carry out an investigation into a reportable railway incident in order to establish the cause of such incident and to assess what, if any, action can be taken by the railway undertaking to avoid railway incidents in the future or otherwise for the improvement of railway safety.

(2)For the purposes of carrying out an investigation under subsection

(1), a railway undertaking may interview any member of its staff or any other person engaged by it who, in the reasonable view of the undertaking, may be able to assist the undertaking in its investigations.

(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.

(4)A member of staff of a railway undertaking or any other person engaged by a railway undertaking shall, where requested by the railway undertaking to do so, provide all reasonable assistance and in particular any relevant information that may be known to him or her, to enable the railway undertaking to establish the cause or causes of the railway incident.

(5)If a member of staff of, or other person engaged by, a railway undertaking objects to a question asked of him or her in accordance with subsection

(4)on the grounds that the answer might tend to incriminate the person or make the person liable to a penalty and the person is informed of his or her obligation to answer the question, the person shall not refuse to answer the question but the answer given on that occasion shall not be admissible as evidence in criminal or other proceedings against the person other than proceedings against him or her in respect of the falsity of the answer or the failure to answer the question.

(6)A railway undertaking shall in an expeditious manner carry out an investigation under subsection

(1)and shall, as soon as practicable but in any event not later than 6 months after the date of the incident, prepare a report on its findings.

(7)Where the railway undertaking is of the opinion that the report cannot be completed within the period specified in subsection

(6), the railway undertaking shall notify the Commission together with its reasons for reaching such opinion and shall provide an indication of the revised period for the completion of the report.

(8)The Commission may, where it deems it appropriate to do so, by notice in writing to a railway undertaking, request an interim report on an investigation under subsection

(1)and a railway undertaking shall provide such interim report within such period as may be specified in the notice.

(9)A report prepared under this section shall be in such form and contain such particulars as may, from time to time, be specified by the Commission but shall, in the case of a report under subsection

(6), at minimum include full particulars of the incident, the cause or causes of same in so far as can be established and, where appropriate, recommendations to be adopted by the railway undertaking to prevent the occurrence of incidents or otherwise for the improvement of railway safety.

(10)A report prepared under subsection

(6), together with any relevant records gathered in the course of the investigation, shall be retained by a railway undertaking for a period of at least 5 years from the date of completion of the report and the report shall, unless otherwise notified in writing by the Commission in any particular case or any particular types of investigations, be provided to the Commission within 14 days of its completion.

(11)Where a railway incident is investigated under this section and the incident involves more than one railway undertaking, each relevant undertaking shall co-operate in the provision of information and in the conduct of the respective investigations.

(12)Where, during the course of an investigation under this section or after the completion of such investigation, the railway undertaking responsible for the investigation considers that the cause or likely cause of the incident may have— (

a)implications for railway safety in general, or (
b)in a particular case may have implications for the safe operation of another railway undertaking, the railway undertaking shall, at the earliest possible time, notify the Commission and, where appropriate, such other relevant railway undertaking of such cause or likely cause of the incident and any recommendations which may be adopted arising from the investigation.

(13)Where the Commission receives a notification under subsection

(12), it may take such action in relation to the dissemination of the information contained in the notification as it considers appropriate in the interests of railway safety.

(14)Where the Commission considers it appropriate to do so, it may designate an inspector or other suitably qualified person to observe the carrying out of an investigation under this section and the railway undertaking shall facilitate such observation.

(15)The function of an inspector or other person designated under subsection

(14)shall be to assess the adequacy of the investigation and to ensure that the procedures adopted are in compliance with the safety case of the railway undertaking.

(16)Where an inspector or other person designated under subsection

(14)considers an investigation under this section not to be adequate, or not to be in compliance with the procedures adopted in the safety case of a railway undertaking, he or she shall, either during the investigation or after the completion of the investigation, notify the railway undertaking in writing of his or her considerations and the railway undertaking shall take all necessary actions to address the considerations.

(17)A railway undertaking which fails to comply with a requirement of this section is guilty of an offence and is liable— (

a)on summary conviction, to a fine not exceeding €3,000, or (
b)on conviction on indictment, to a fine not exceeding €60,000.

(18)A member of staff of, or other person engaged by, a railway undertaking who fails to comply with a requirement of subsection

(4)or

(5)is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000. Reporting of risks, etc. by staff of railway undertakings and contractors. 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. Railway Incident Investigation Unit. 55.—

(1)There shall be established a unit within the Commission which shall form part of the Commission and which, subject to section 57 , shall carry out its functions independent from the other functions of the Commission, to be known as the Railway Incident Investigation Unit and in this Act referred to as the “Investigation Unit”.

(2)The function of the Investigation Unit shall be the investigation in accordance with this Part of all classes of railway incidents specified by the Minister.

(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.

(5)The Investigation Unit may for the purposes of undertaking an investigation engage a person in accordance with section 18 who in the opinion of the Investigation Unit is suitably qualified to undertake an investigation.

(6)The Commission shall ensure that within the resources made available to it for the performance of its functions, an appropriate and proportionate level of resources is made available to the Investigation Unit to enable it to discharge its functions under this Part.

(7)The level of resources made available to the Investigation Unit shall be subject to the prior consent of the Minister. Chief Investigator and staff of the Investigation Unit. 56.—

(1)The Investigation Unit shall have a full-time chief investigator who shall be known and referred to in this Part as the “Chief Investigator” and who will be responsible for directing the work of the Investigation Unit in accordance with this Part.

(2)The Chief Investigator shall be appointed by the Minister following a competition by the Public Appointments Service who have selected him or her for appointment as the Chief Investigator.

(3)The Chief Investigator may be removed from office by the Minister if, in his or her opinion, the Chief Investigator has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour and the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for such removal.

(4)The Chief Investigator may, subject to the consent of the Minister and the Minister for Finance, appoint such and so many persons to be staff of the Investigation Unit as he or she considers necessary to assist him or her in the carrying out of the functions of the Investigation Unit under this Part.

(5)The terms and conditions, including terms and conditions as to remuneration and grading, of persons appointed under subsections

(2)and

(4)shall be determined by the Minister with the consent of the Minister for Finance.

(6)The Chief Investigator, and at the request of the Chief Investigator other staff if any of the Investigation Unit, shall be appointed by the Commission as an inspector under section 73 for the purposes of carrying out his or her functions.

(7)Notwithstanding subsection

(2), where the Chief Investigator is unavailable or unable to perform his or her functions, or where the position of Chief Investigator is vacant, the Minister may engage a person (“temporary chief investigator”) who, in his or her opinion, is suitably qualified to perform the functions of Chief Investigator to perform those functions during such unavailability, inability or vacancy.

(8)A temporary chief investigator shall be appointed as an inspector by the Commission and shall have all the powers of Chief Investigator under this Part.

(9)The cost of engaging a temporary chief investigator shall form part of the expenses of the Commission. Independence of Investigation Unit. 57.—

(1)The Commission shall not influence or seek to influence an investigation by the Investigation Unit of a railway incident or the contents of a report prepared by the Investigation Unit in accordance with sections 60 or 61.

(2)For the purposes of the exercise of its functions under this Part, the Investigation Unit may, where it deems it appropriate to do so as part of an investigation into a railway incident, investigate any decision, action or omission of the Commission which the Investigation Unit considers may be relevant to its investigation and the Commission shall co-operate with the Investigation Unit.

(3)The Chief Investigator and other staff of the Investigation Unit shall not be involved in carrying out any other functions of the Commission where such involvement could reasonably be expected to lead to an actual or potential conflict of interest in the carrying out of an investigation into the cause or causes of a railway incident.

(4)Subsection

(3)does not prevent the Chief Investigator and other staff of the Investigation Unit from carrying out other functions of the Commission where such functions are required for the proper administration of the Commission or where they could not reasonably be expected to lead to an actual or potential conflict of interest.

(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. Investigations by Investigation Unit. 58.—

(1)The purpose of an investigation by the Investigation Unit under this section shall be to improve railway safety by establishing, in so far as possible, the cause or causes of an incident with a view to making recommendations for the avoidance of incidents in the future, or otherwise for the improvement of railway safety.

(2)It shall not be the purpose of an investigation to attribute blame or liability.

(3)Notwithstanding subsection

(2), the Commission may take enforcement action under Part 7 against a railway undertaking where an investigation by the Investigation Unit finds that the railway undertaking did not carry out its duties in compliance with this Act.

(4)An investigation under this section shall be undertaken by a person appointed by the Investigation Unit who is an inspector or a person engaged in accordance with section 18 who, in the opinion of the Investigation Unit, is suitably qualified to undertake an investigation.

(5)Where a person other than an inspector is appointed under subsection

(4)or

(8), the Commission shall issue to such person a warrant of his or her appointment and the person shall, if requested by any person affected by the investigation, show the warrant to the person.

(6)Where an investigation under this section relates to an international service, the Investigation Unit shall notify the relevant competent authority in the other state and shall invite that competent authority to nominate a person to participate in the investigation and share the results.

(7)Where an investigation under this section relates to an international service and the railway incident concerned took place on or close to the border with another state, the Investigation Unit shall agree with the competent authority in the other state for either it or the other competent authority to investigate the incident, or to carry out a joint investigation.

(8)Where a person is nominated in accordance with subsection

(6), the Commission may, for the sole purpose and duration of the investigation, appoint the person nominated to be an inspector.

(9)The Investigation Unit may pay any reasonable e

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