The Attorney General, Paul Gallagher, has advised that the Health and Safety Authority (HSA) is overstepping its remit in attempting to enforce standards at local authority-controlled roadworks.
Documentation seen by The Irish Times under the Freedom of Information Act says that the AG has told the Department of Transport that the HSA is acting ultra vires (beyond its powers).
The HSA has instructed a number of local authorities to conform with safety requirements at roadwork sites and followed this up with enforcement notices to a group of approximately eight, which it deemed had not complied.
One of these councils, Cork County Council, has challenged the right of the HSA to take this action and this case will be heard in the High Court on November 20th. Mr Gallagher says, in his advice, that he expects the HSA to lose this case because it is "ultra vires in these matters".
A dispute over safety at local authority roadwork sites arose after the death of Aisling Gallagher (22) whose car apparently skidded on a temporary road surface in Mulranny, Co Mayo, in December 2004.
A Department of Transport briefing note for the Minister and seen by The Irish Times says "roadworks were under way when the accident took place and it has been contended that the accident was caused or contributed to by the road surface during the works".
A second fatal crash on a temporary road surface in 2005 - in which five schoolgirls died in a school bus - raised further questions about temporary surfaces.
As a result, the HSA carried out an audit of local authority roadwork sites and identified a number of problems, including inadequate road safety plans and inappropriate management of speed limits near the site.
To rectify the problems it took action to force 29 councils to make specific changes. However, about a third of the councils resisted the move and took the HSA to court. Many of these cases are now stalled, pending the outcome of the case involving Cork County Council.
The Ministerial briefing note says the HSA's pursuit of legal action against the councils goes "significantly beyond the acknowledged HSA-related worksite arrangements. These HSA processes can lead to fines of up to €3 million and imprisonment for six months of local authority officials".
It also goes on to note that the intervention of the HSA "in invoking its statutory processes, is actually holding back the local authorities' roadworks programme, thereby adversely affecting road safety itself".
A spokesman for the HSA said it was confident it was acting within its remit in investigating roadwork sites.
A spokeswoman for the Department of Transport said yesterday that the guidelines for roadworks were being updated by a committee involving the HSA, local councils, the National Roads Authority and the Departments of Transport and Environment.
However, she said the updated guidelines would not be published until after the High Court case was concluded.