The Luas arguably is free - a legal argument
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07-07-2024 1:40pm#1
This is not legal advice - I am not advertising legal services. Provided you accept that principal, read on:
Last Sunday during the Taylor Swift concerts I took four journeys on the Luas across the city. For the first time in my life, I encountered a revenue protection officer on each trip (I assume to shake down tourists who have no idea how to use the leap card machines). On journey #3, having reached my originally intended destination I had to do a quick double take as I had left my jacket behind in a city centre restaurant. I tried to tag back on the Luas, and was not able to do so despite multiple attempts. This is a well-known problem with their Leap card validation system that has been plaguing Boards.ie users since 2016 (if not prior to that):
The Luas arrives and I get on. Surprise, surprise, I get quickly get kicked off by extra-vigilant revenue protection officers and issued with a fine. Now, they can clearly see that I have taken multiple trips already that day. In fact, had I not tagged off I would have had an active 90 minute fare and there would have been zero loss of revenue to Luas. I try making this argument and am told that "the system says you're not tagged on, so I have to issue you with a fine. You can appeal it if you want". This is very annoying - I was just trying to go about my lawful business and these jackasses are trying to take a
Now I am not going to take a €45 fine lying down, so as soon as I get back home (found my jacket btw so not an entirely a wasted experience) I submit the statement of explanation. On Tuesday, I receive a letter (dated Monday) rejecting the appeal and demanding payment of the fine and threatening me with criminal prosecution if I don't pay it. Now I work in a regulated profession, so if I am convicted of a crime I can basically kiss my career goodbye. However, that profession means that I know a thing or two about the law and have access to some interesting knowledge resources. Would you be surprised to learn that Luas has zero legal basis for issuing SFNs? No, this isn't some freeman of the land rubbish - it's plain vanilla administrative law that highlights pure laziness on the part of the government/Railway Procurement Agency/Luas.
If you are ever trying to dispute an allegation, the first port of call is to find out what rule they are alleging you broke. Helpfully the letter I received from Luas claims that I committed a breach of the Light Railway (Regulation of Travel and Use) Bye-laws 2015 (S.I. No. 322/2015) on the grounds that I allegedly “did not have a valid ticket and did not have a adequate reason for travelling on the Luas system on Sunday 30 June 2024 at 16:41”.
The word ‘ticket’ is defined in the bye-laws as “any ticket or document or electronic method of storing travel value issued by or on behalf of an operator for the conveyance of any person on a light rail vehicle and includes any season ticket, commuter ticket, free pass, privilege ticket, or any warrant, identity card, voucher or other similar authority in exchange for or on production of which any ticket for the conveyance of any person may be issued”. ‘Valid ticket’ is defined as “a ticket for which the correct fare has been paid for the journey being undertaken and which is in force when the journey is being undertaken”.
Now, I happen to know that is a long established principal of Irish law that where a statutory provision gives rise to a penal or taxation liability, it must be interpreted strictly. The dictum of Henchy J. in Inspector of Taxes v. Kiernan (and endorsed by O’Donnnel J. in Bookfinders v. Revenue) refers:
“Secondly, if a word or expression is used in the statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language”.
The bye-laws are clearly a “penal” provision, in that they impose a penalty where a passenger on the Luas is found to have travelled on the Luas without a “valid ticket”. In addition to the SFN payable under the bye-laws, Section 66 (8) of the Transport (Railway Infrastructure Act) 2001 (as amended by Section 134 of Railway Safety Act 2005) provides that “a person who contravenes or fails to comply with a bye-law under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.” Therefore, the bye laws should be interpreted “strictly so as to prevent a fresh imposition of liability”, in line with Irish Supreme Court precedent.
Why is this relevant? Well I would argue that by any reasonable standard, the definition of both “ticket” and “valid ticket” are loose and ambiguous. In particular, I would note that the definitions of “ticket” and “valid ticket” make no reference to Leap cards, tagging on, or tagging off. The definition of “ticket” is particularly broad, and would encompass a Leap card (which is clearly an “electronic method of storing value issued by or on behalf of an operator for the conveyance of any person on a light rail vehicle”). With regard to the definition of “valid ticket”, the bye laws do not offer any guidance as to how to determine whether a ticket is “in force”.
In my humble opinion, by imposing the requirement that a Leap card holder tag on and tag off after each journey to hold a valid ticket, then putting a barrier in place to prevent them from tagging on within a short timeframe after tagging off, Luas has imposed its own an arbitrary definition of the term a “valid ticket” which is much more narrow than the definition set out in the bye-laws. In this regard, Luas has decided to make new bye-laws rather than applying the bye-laws that are legally in force. However, Section 66 (8) of the Transport (Railway Infrastructure Act) 2001 (as amended) imposes a number of conditions on the making of bye laws, including as follows:
(6) Bye-laws under this section shall not be made without the consent of the Minister.
(7) Every bye-law made under this section, after the passing of the Railway Safety Act 2005, shall be laid, where they are made by the Agency, by the Agency and where they are made by a railway undertaking, by the railway undertaking, before each House of the Oireachtas, as soon as may be after it is made and, if a resolution annulling the bye-law is passed by either such House within the next 21 days on which that House has sat after the bye-law is laid before it, the bye-law shall be annulled accordingly, but without prejudice to anything previously done under it.
Therefore, as the definition of 'valid ticket' applied by Luas was made without Ministerial consent, and was not scrutinised by the Oireachtas, it is arguably invalid as a matter of law. Why? That would involve getting into a body of Irish case law (e.g. Dunnes Stores v. the Revenue Commissioners) about what agencies can and cannot do. But to summarise, while agencies (like the RPA and Luas) can apply the law, they cannot make new law. In some cases, the line between interpretation and application is a bit fuzzy. However, where the law imposes a penalty, it must be interpreted strictly. This is one of those cases. By imposing their idea of what the law should be over what it is, Luas is ultra vires.
Well naturally I tried to make this argument, got laughed at and paid the fine. Why? Ummm… I have a nice job in a regulated profession that just so happens to blacklist anyone who has a criminal conviction. Besides, judicial review costs a lot of money in this country and while I could theoretically try and represent myself, you really do want a fresh pair of eyes. It is annoying, but it also is only €45.
So if you one day get shaken down by a Luas revenue protection officer and you are rich enough, angry enough and crazy enough to go to court over it, I would be interested in hearing what your barrister has to say about this. Again, this isn't legal advice - and I am not offering or advertising you any legal services here. But for what it's worth, there is a legal argument to support the meme that the Luas is free.
Happy Sunday.
Post edited by LIGHTNING on1
Comments
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Interesting. But will it change anything? The travelling public should not be at the mercy of a quirky tag-on/off system.
Happy Sunday.
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Sadly nothing will change unless someone is rich enough, angry enough, insane enough, or some combination of the above, to take Luas to court. Also they would need excellent legal representation. This is one of several examples of Government agencies/departments exceeding their authority (see Regina Doherty and "mandatory but not compulsory" PSCs). Most of the time it is harmless and not worth challenging in court. Other times it is annoying but not harmful enough to be worth the time and expense of challenging.
Ireland really should introduce class action lawsuits for this exact reason.
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This reminds me of the typical laziness of the Irish legal and legislative system.
Did you know the PSC is not a valid form of ID? That's right! Follow this logic…the national ID card (which is not, we are assured, a national id card…) …which is issued by the state, which you need to get money off the state…is not a valid form of ID when communicating with….the state.
I was extremely sick (life threatening sick) on Disability Allowance years ago and I needed a PSC card, I was told I had to get a passport to get a PSC…why can't I use the same materials I'd use to get a passport to get a PSC I asked…shrug…you just can't. So the state will allow me to use xyz to get an international travel document but not a card to get money and travel on public transport…er…ok then. But the thing is a passport costs around €100 and I'm on disability so I can't afford the damn thing. Well you gotta do it or your social welfare will be terminated. Ok..so I applied for the funds from the welfare officer, and my application was not even rejected, it just vanished into the system never to be heard from again. I eventually had to borrow the money to get a passport to get a PSC in order to access my money….
Why all this lunacy? It turned out the reason is the PSC is not on a statutory footing, there are no actual laws, just ministerial orders…but don't ministerial orders have to at least be BASED on the promotion or enforcement of some legislation? Wasn't there a supreme court ruling about that? As a political anorak and behind the scenes guy I know there was…so why not just…pass legislation in case someone disputes it in the courts and causes a lt of questioning of it's legitimacy? Oh that wont' happen. So yeah that's happening now, people are questioning if it's legit.
A few years ago I was looking at the issue of surveillance for a TD, I was making damn sure Ireland does not do any kind of mass surveillance (it's ok we don't..though the NSA and GCHQ do suck up all our interest data and I mean ALL OF IT so don't use google to communicate with your mistress or 16 year old boyfriend stashed in Belfast :P ). But I saw something and thought hmmmm warrants issued by …Garda superintendents…. er..shouldn't a judge be the only one issuing warrants??? I exclaimed, outraged and worried as both a citizen AND a political anorak…nah nah we been doing it that way for ages sure it will never come up….along comes a little psyco called Graham Dwyer whos appealing a sentence based on the survalaince data…OOPS!
We not only have an incompetent political class (the bar is so low it's not even funny) but a lazy one. I used to wonder what Ministers did all day then I saw…they take meetings where they don't understand what's going on and have no desire to find out so just roll with whatever they are told to roll with, and they go to photo ops and pull the curtains back on plaques…actual executive work? Nahhhh
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Join Date:Posts: 609
right…. I think I will be locking this.
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