Amendments Nos. 21 and 22 are being taken together.
Resolution No. 6—Customs and Excise. - Road Traffic Bill, 1960—Committee Stage (Resumed).
I rise to ask for an explanation from the Minister as to what this amendment is supposed to do. There is a distinction mentioned in regard to subsection (4). There is some attempt to distinguish between a regulation which affects a vehicle and a regulation which affects anything else in subsection (2) or in subsection (1). I have read through the paragraph here in subsection (2) and it is difficult to see which of them is not covered by subsection (4) when you add to them the general provision in the beginning of subsection (2), that these paragraphs do not affect the generality of subsection (1). The door seems to be open very wide and I cannot see any safeguard for the owner who was not in fact driving a vehicle which gets into difficulties under the Section. Quite a number of cases can easily be mentioned where it would be grossly unfair that the owner, who perhaps did not even give permission for the vehicle to be used, should be liable to presecution. I take it the Minister's intention in substituting amendment 21 for the existing sub-section (5) is that he does not wish to impose any undue hardship upon owners who are not directly involved. I cannot see in the wording of the amendment any safeguard at all.
Yesterday, when the Minister introduced this amendment, he presented it to the House on the basis that it was a modification of the section as it stood. I am quite sure the Minister presented it in that way in a perfectly bona fide manner. I, when I was speaking, with rather too hasty a consideration of the Minister's amendment, did agree it was a modification of the existing section as drafted; but on considering the position further, I am not at all sure it is. I think it worsens the position and may worsen it very considerably from the point of view of the owner.
I think what Deputy Sheldon has said in relation to this amendment is quite true. In fact, so far as I can see, subsection (5) of Section 11 can apply to every regulation made under Section 11. Subsection (4) says that "a person shall not use in a public place a vehicle which does not comply with a regulation under this section applying in relation to the vehicles." Subsection (5) and the proposed amended sub-section (5) then goes on to refer to persons who contravene subsection (4) of the section. Among the regulations to which subsection (4) applies are regulations dealing with the use and mis-use of vehicles and vehicle equipment.
As the section originally stood, the position was that the Minister was asking the House to legislate in such a way that, in the case of a breach of these regulations, the owner would be equally guilty with the user of the vehicle unless the owner could show that the use of the vehicle on the occasion was unauthorised. It was specifically provided in paragraph (b) of subsection (5) that it would be a good defence if the owner satisfied the court that the use of the vehicle on the occasion in question was unauthorised. I felt that did not go far enough. It appeared to me you could have a situation arising where the use of the vehicle was authorised, where I might give a loan of my car to someone else. In that situation the user of the car was the authorised user, but someone else might subsequently, while he has my car on loan, commit a breach of these regulations. Even under the wording of the subsection as it stood, I would be equally liable with him, because I could not make the defence that the user of the car was unauthorised.
For that reason, I put down amendment No. 22, which was to add to sub-paragraph (b) the words "or that the breach of the regulation was committed without the knowledge or consent of the owner." I think that would have dealt with the position fully, because then the owner was in a position of having a defence in court if he could show either that the use of the vehicle was unauthorised or that, if a breach of the regulations was committed, that it was done without his knowledge or consent.
Clearly, the Minister or his advisers felt there was something in that argument. The Minister, in order to meet the situation, has brought in his amendment No. 31. I am afraid the effect of that amendment is going to worsen the position rather than improve it. What the Minister is doing now is this. He is cutting out paragraphs (a) and (b) of subsection (5). In particular he is cutting out paragraph (b) which gives the owner in the position I have described at least one solid defence. Instead of that, the Minister is asking us to approve of his amendment which says now in effect—I am summarising it—that in certain cases, which are to be prescribed by regulations, the owner and the user of the vehicle will each be regarded as guilty if a breach of the regulations occurs.
There is no saving provision now for the owner, even if he is in a position to show that the use of the vehicle on the occasion in question was unauthorised. That safeguard, poor and all as it was, is being swept away by the Minister's amendment. We now have a position where the Minister is asking us to adopt an amendment which enables him to make regulations under which an owner, who may be completely innocent of any offence or of any guilty intent, so to speak, is going to have no defence whatever. The offence is going to be created by the Ministerial regulation and there is going to be no defence open to that whatever. For that reason, I feel that the amendment, contrary to what the Minister clearly intended and expected to achieve, is going to worsen the position and leave the situation where the owner will be quite defenceless if an offence is committed in respect of a prescribed regulation.
I might bring it home to the Minister if I put it this way. The Minister did indicate that what he had in mind was the type of case where a person was the owner of a dangerously defective vehicle and where he gave that vehicle on loan to another person. The Minister said—I think quite reasonably—that many people would regard the owner of the vehicle as the more culpable of the two, as between the owner and the user, if to the knowledge of the owner the vehicle was dangerously defective and he gave it to another person on loan. The Minister intimated that was the kind of case he intended to capture under the regulations he would make—that that was the type of case he would prescribe under the regulations.
As far as I can see, if that situation did arise, if a person was the owner of a dangerously defective vehicle and if it was a prescribed case, the owner and the user would be equally regarded as guilty in the case of a dangerously defective vehicle. The Minister is now saying that if the vehicle is dangerously defective, even if it is taken without the authority of the owner, the owner may very well be regarded as guilty because he is not going to have in future, if the Minister's amendment is accepted, the defence open to him that the user was unauthorised.
I would press very strongly that the Minister should reconsider this matter and should not deal with it as he is suggesting in his amendment. The position is that we are discussing both amendment 21 and amendment 22 together. The Minister has not yet— perhaps he has not had the opportunity—given us his views with regard to amendment 22. I suggest that if amendment 22 is accepted to the Bill in its original form, all the fears I foresee will be eliminated and that the position will be covered.
I would support amendment No. 21 because it does set out the whole position very clearly. There is a certain amount of confusion. Amendment No. 21 states that a person who contravenes subsection (4) or a regulation under this section shall be guilty of an offence. Subsection (4) relates solely to the condition of the vehicle itself but a regulation under the section refers to any regulation under Section 11 so that a person who contravenes either of those two shall be guilty of an offence. I do not think there is any dispute so far.
The Deputy's subsection (4) must be different from mine. Mine is in relation to the vehicle.
Surely the use of loudspeakers could be held in relation to the vehicle?
In relation to a vehicle which does not comply with a regulation under this section. To my mind the regulation would apply more to the loudspeaker than to the vehicle. Unless I am misreading the subsection the reference is exclusively to the condition of the vehicle itself.
It does not say anything about the condition.
It refers to the regulation.
It refers to conditions in relation to the vehicle.
"A person shall not use in a public place a vehicle which does not comply with a regulation..." The vehicle would comply with the regulation but the loudspeaker might contravene another regulation. The second part of the amendment states that where the contravention is of the said subsection (4) and such person is not the owner of the vehicle—that seems to me to bear out what the Minister said when introducing the amendment. I see the Minister's point. I also see the point raised by Deputy O'Higgins and Deputy Ryan but I think they are opening the door far too wide because they would leave it open to an owner to say that his car had been taken without his knowledge or consent.
It is not a question of saying it. It is a question of proving it.
The previous one said that it shall be a good defence to show.
To show, not to say.
The only way you can show is to say it.
Is to prove it.
You cannot prove by documentary evidence that you have not given permission. All you can do is say you have not given permission. If a breach of the regulation is committed the door would be wide open and it would be almost impossible to catch the owner who had failed to immobilise a vehicle which did not comply with the regulations. We are not unduly penalising the owner. If he knows, and he should know, that his vehicle does not comply with the regulations he should immobilise it.
Suppose he does not know.
Ignorance of the law—
It is not a question of ignorance of the law. It is a question of ignorance of fact. Anyone reading the Bill when it becomes law will be as ignorant at the end as he was at the beginning. I am talking about a question of fact.
I am sure people will be able to get very good legal advice. It is up to the owner to know whether or not he complies with the regulations. Most cars are owned by the head of the family. He thinks he owns the car but in most cases the car is used more frequently by other members of the family without the knowledge of the owner and without formal permission. If the owner of the car knows that the car does not comply with the regulations the only way he can protect himself is by immobilising it. First of all, he must collect all the keys. If members of the family have spare keys he must immobilise it in some other way. Unless we accept the Minister's amendment we will be leaving the door wide open to a defence which it will be very hard to meet even though the facts clearly show that a breach of the law has been committed.
I am prepared to accept the amendment if subsection (4) is clarified in the way in which Deputy Booth reads it. Of course, Deputy Booth would not be deciding cases.
I certainly do not anticipate that.
Whether the judge would read the subsection as I read it or as Deputy Booth reads it is something for which a lot of people might have to pay a good deal of money in order to find out. We must make sure that it does in fact mean what the Minister intends it to mean, if Deputy Booth is reading the Minister's mind correctly. If subsection (4) referred to a regulation under this section applying to the condition of the vehicle I would be quite happy. This phrase "applying in relation to the vehicle" can be read in a much wider way. That is my difficulty.
I still hold that the section as it stands is more drastic than the amendment. Where a driver is guilty of breaking the regulations and committing an offence no liability will attach to the owner. If, however, the vehicle breaks the regulation by being defective in some way, then the owner would clearly be liable even though he was not the driver at the time the offence was committed. Whether he knew of the defect is immaterial. The fact that it is another driver who is driving does not alter the fact that the car is defective. It would be just as defective if the owner drove it. On the other hand, if the use of the defective car is unauthorised the owner will not be liable. It was intended that the prescribed regulations would include something comparable to what is contained in (b) of sub-section (5) in relation to its being a good defence to show that the use of the vehicle was unauthorised. I suggest we retain (b) of subsection (5) in addition to the amendment. That should meet the various objections raised and would, in a statutory way, state what we in fact intended would be included by way of regulation. I do not know if we can do that now.
I think the Minister is going some way to meet us. I certainly would prefer that than to leave the position as it is but I suggest that the Minister would be improving the Bill if, in addition to adding paragraph (b), he added the words which have been suggested in amendment No. 22. The danger I see is that you may have an authorised use of the vehicle, but, subsequent to the authorised use of the vehicle, you may have a breach of regulations committed, possibly deliberately, by the person to whom the vehicle was loaned for which the owner is in no way culpable.
There may be a question of interpretation. I agree with Deputy Sheldon; I think that this sub-section can apply in cases such as the attachment of loud speakers. It may be that a regulation will be made prohibiting the use of loud speakers from cars and someone gets a loan of my car and without my consent attaches a loud speaker to it. Now, I cannot say that the use of the car is not authorised; all I can say is that the use of the loud speaker is unauthorised. I appreciate the difficulties to which Deputy Booth referred but I think that that can be got over by following the precedent established in Section 56 of the existing Road Traffic Act. It relates generally to the question of insurance and sub-section 5 of that section provides—
"Where a person charged with an offence under this section is the owner of the mechanically propelled vehicle in respect of which such offence is alleged to have been committed, it shall be a good defence to such charge for such person to prove that on the occasion on which such offence is alleged to have been committed such vehicle was being driven without his consent and either that he had taken all reasonable precautions to prevent such vehicle being driven on such occasion or that the person driving such vehicle on such occasion was his servant and in so driving such vehicle was acting in contravention of his orders."
What was worrying Deputy Booth was the case of a defective vehicle where the owner knew or should be presumed to know that it was defective. Deputy Booth said in such circumstances the duty of the owner would be to render the vehicle undrivable. A phrase such as is used in the 1933 Act would cover that if, in addition to what I am suggesting, you add the words "and that the owner had taken all reasonable precautions to prevent such vehicle being driven." However, if the Minister will not go further than he has indicated, I think I would be glad to accept the distance he has come but I would urge him to consider the addition of amendment 22.
I should like to mention the question of unauthorised use. Deputy O'Higgins has mentioned the purpose for which a vehicle will be used. Possibly Deputy O'Higgins has in mind the case of a person who might obtain the loan of a car to go to a funeral or a wedding and, when he has got the car, he then proceeds to use it in connection with his business as a commercial traveller or for the purpose of carrying goods or making sales. In other words the car would be used for a purpose which was not authorised. I think that is where a question of unauthorised use would arise.
In regard to that, I should say that Deputy Rooney has answered the question himself because, having mentioned the circumstances that could arise, he mentioned the fact that it would not be "authorised" and I think the whole case rests on that word. If the authority given did not imply or include its use for some of these purposes which ultimately prove to be in contravention of the regulations, then surely it was unauthorised use. But I should say in relation to the various arguments, apart from that, that it is only when these regulations are drafted that they can clearly pinpoint the type of case which will come within it or which will not come within it. When I say that I can see Deputy Sheldon smiling.
In regard to the type of thing Deputy O'Higgins raised—a car used for the purpose of a loud speaker in such a manner as to contravene a regulation— again we can and will be considering in the draft regulations all these types of matters, as to whether they will be included or excluded. I would say, as I said in reply to Deputy Rooney's argument, that if it can be demonstrated that the authority to use the vehicle did not include affixing to it of a loud speaker, then it would be unauthorised use. If it were given for the purpose of using a loud speaker, I should imagine again that that would be by the action of the operator and it would not be within the control of the actual owner.
As I have said it is being left to regulation so that matters such as those can be dealt with in a flexible manner because of the difficulties that can arise if you try to spell out each and every detail in the sections themselves. It is for that reason we have to deal with it in this way so that it will embrace the matters it should embrace and at the same time not embrace matters which would be to the detriment of the public in general. The matters Deputy O'Higgins has intimated his agreement to accept will cover the situation and will give a safeguard to the owners in all cases. I think they are entitled to that coverage.
The Minister sees the difficulty we are in. I accept that it is the intention of the Minister, and those concerned with the drafting of the regulations, to do it in the manner the Minister has suggested and to be careful about it but our position is that as Deputies we are being asked to legislate in blinkers. We do not know in fact what the regulations are going to comprise or how comprehensive they are going to be, and it seems to me that by a simple device we can protect an innocent owner, no matter what the regulations are. I am not concerned in any way from the point of view of a defence lawyer or anything like that. I want to see the road traffic code tightened up in such a way that it will be an effective safety measure for all users of the road, whether they be drivers, pedestrians or cyclists and I am not concerned as a lawyer. I think we can give equal justice to the owner of the car and it seems to me that in refusing to acknowledge that an owner whose car is used for the commission of an offence without his knowledge or his consent cannot be held liable, we are doing him less than justice.
I cannot see that the addition of those words to paragraph (b) of sub-section (5) would in any way weaken the Minister's powers to make regulations. I do not see how it is going to weaken the powers of the prosecution or of the Gardaí going into it. I think it is simple justice. In framing paragraph (b) as it is, we are departing quite a distance from the ordinary practice where the defendant is proved innocent until found guilty. We are saying that the defendant is guilty unless he can show the Court that the use of the vehicle was authorised and I think we should go further and give him the advantage of saying that it was without his knowledge or consent.
I would be satisfied if the Minister would say that he would look again at subsection (4) and make sure that it does without doubt carry only the one possible meaning. On the machinery of what we are proposing to do I take it that the Minister has agreed that he will leave Section 5 as it is with the insertion at the end of paragraph (a) of the words "in such cases as may be prescribed." May I suggest that if it is possible for the Minister he should move that amendment in place of amendment No. 21. That would be the right way to deal with it, to withdraw amendment No. 21 and insert the words "in such cases as may be prescribed."
You suggest that he should delete (a) and substitute for it the words in amendment No. 21?
That would be one way of doing it. The only difference between amendment No. 21 and the present paragraph (a) is the insertion of the words "in such cases as may be prescribed." I do not know whether that can be done by leave of the House.
I am prepared to accept an amendment to the amendment if the House is agreeable but I must be clear what it is.
If the House is agreeable I am agreeable. We have the form of the words as we intend to put them in in the amendment and we will refrain from deleting subsection (b) of Section 5. That is really the difference. In amendment No. 21 we say delete paragraph (a) of subsection (5) and substitute the words which are, in effect, the actual words of the proposed amendment No. 21.
Will the Minister take another look at the wording of sub-section (4) and make sure that in fact it says what the Minister says it means?
I will have very many looks at it.
Amendment amended, by leave, to read as follows:
To delete paragraph (a) of sub-section (5) and substitute the following:
"(a) A person who contravenes subsection (4) of this section or a regulation under this section shall be guilty of an offence and, where the contravention is of the said subsection (4) and such person is not the owner of the vehicle, such owner shall also, in such cases as may be prescribed, be guilty of an offence."
There is one matter to which I would like to draw the Minister's attention and that is the question of regulations as to vehicle equipment set out in subsection (2), paragraph (b). I hope the Minister will make very strict regulations in the matters of mirrors viewing to the rere. The use of mirrors is essential for the driving of any vehicle and in many cases it is at least as important to see what is coming behind as what is in front as far as the avoidance of accidents is concerned. Private cars are usually equipped with mirrors, but some commercial vehicles are not so equipped because the vehicles are so big that the mirrors would stick out to an undesirable distance at one side and so might be damaged.
The Minister has power at the moment to insist on all vehicles being fitted with mirrors, but I do not know if the regulations are sufficiently explicit about the maintenance of the mirrors in proper condition. If a mirror is not properly adjusted it is no use. I hope the regulations will specify that it shall be an offence to drive a vehicle with the mirror not adjusted so as to give the driver a clear view of the road behind.
I would like the Minister to explain subsection (2). Sub-section (1) says that the Minister may make regulations. Subsection (2) says that regulations under the section may be made without prejudice to the generality of subsection (1) and then it goes on to deal with a number of points on which regulations may be made, setting out a list from (a) to (h). The Minister need not make regulations under any of these particular heads or he may make regulations under heads which are not in the Bill at all. The same thing applies to a number of other sections. It seems to me that the House is discussing in a theoretical manner regulations which the Minister may make under this section, but he might not make regulations under this head or any of the headings contained in the subsection at all.
The discussion so far has been about these subheads which have no strict bearing on the legislation now being enacted. You could carry my argument further and say that he can make regulations about anything concerning local government, but that is a different matter. In this particular connection it seems to me that the Bill has been cluttered up to a large extent by listing these particular headings. I do not speak on any particular one of the items because we know that the Minister may decide to make regulations under none of these heads, although I take it as an indication of his point of view that he has mentioned these particular items. I have seen this happen in legislation over the years and I would like if someone would explain why it is done in this particular way. It seems to me to be largely a waste of time of the House.
In regard to the question the Deputy has asked, it is true that subsection (1) of Section 11 deals with the general application and sub-section (2) deals with all the various things that one might think up. On the question as to why subsection (2) might then be necessary, one of the main points is something to which the Deputy himself has objected. It is to give the Dáil and Seanad an opportunity of discussing in detail the likely matters that will be included and seem obviously suitable for inclusion at this juncture. In addition to that it will list in subsection (2) some matters on which there might be a doubt as to whether or not they came under the subsection, like the use of loudspeakers on vehicles. There could be a doubt as to whether the powers included in subsection (1) includes (g) of sub-section (2). By and large, those are the two main reasons why we seem to have a section that might appear by its enumeration of these various items as being over-elaborate but not necessarily so and I think it is no harm it should be there.
I should like to ask the Minister, on the Section, if he is prepared to express his views on a matter to which he referred on the Second Reading—the question of introducing or encouraging the introduction of number plates made of reflectorised material. I do not know whether the Minister has had an opportunity of considering the matter in the meantime, but the position is that there is nowadays on sale a material which is suitable for making number plates for cars. It is very much the same type as is used on roadside signs —Automobile Association signs— throughout the country which can be picked up for a considerable distance away because they have the property of attracting or gathering up any light cast on them.
It seems to me that as part of a policy of road safety, the Government should, under Section 11, certainly consider encouraging, if not making obligatory, some sort of reflectorised material for number plates. I think I am correct in saying that as the law stands it is necessary to have number plates made of a material which permits the use of a dark background with white lettering. If the type of material I have referred to is used it might mean an alteration of the present law but it would be of considerable help, it seems to me, in the promotion of road safety.
I noticed in the Budget to-day that the Minister for Finance has examined the question of the use of safety belts in cars and I would seriously urge the Minister for Local Government to make regulations as to what type of safety belt is, in the Government's opinion, a satisfactory type. I understand that in Britain some enterprising people put safety belts on the market which were of no practical use at all. They pulled the seats away from the car. I would urge the Minister, under subsection (2), to make regulations in connection with safety belts because I believe the introduction of compulsory safety belts in motor cars will contribute more than anything else to a reduction in the number of fatal accidents on our roads.
I wish to refer to one small point of which Deputy M.J. O'Higgins reminded me. It is a question concerning the type of number plate. I do not know what powers the Minister has to deal with the matter, but I would draw his attention to a highly polished type of number plate. Recently I noticed it when following a car and the writing on it was quite illegible because of its overpolished condition. All I could make out was a bright blur. That type of number plate is every bit as objectionable as the dirty one. I hope that the Minister will deal with that by regulation. I agree that the question of the introduction of a reflectorised number plate is also worthy of examination because the only way an approaching motorist, with the glare of an oncoming car in his eyes, can read the number of that car is by having some kind of reflectorised material in the number plate.
I rise on one small point in connection with paragraph (f) of subsection (2). The Minister is empowered to make regulations with regard to the equipment of drivers and I trust the Minister has in mind the tool kit. Recently I came across an unfortunate lorry driver who had been driving for many hours. He got a puncture and discovered he had not the equipment necessary to change a wheel. I would urge upon the Minister to make a regulation compelling the owner of a lorry to have the proper equipment in the vehicle to enable the driver to carry out ordinary running repairs. The driver to whom I refer would have been stranded all night had I not come across him in the early hours of the morning.
I think the remarks of Deputy N. Lemass, if they are to be entertained seriously, are very dangerous in that they really negative democracy. I admit that in the wealth of detailed discussion provided in the House, the amount of wisdom which may come forth may be very small, but it is only by discussing these things in detail and by Deputies giving their views and reflecting the views of the people they represent that the law which is going to control the movement of thousands of our people may turn out to be a rational, sensible code. It has been said that experts are sometimes the worst people to whom to entrust the making of regulations.
Let us face what we know to be facts. Whatever the administration may think about the wisdom or otherwise of suggestions of Deputies during debates which take place in this House, they are read by the Departments concerned and they must make some impression upon the minds of the administration and have some influence on the advice given to Ministers. The mere fact that we have eight subsections in this section dealing with particular aspects of the matter is a virtue and not a vice. I think that out of the discussion which took place last night in this House, some very useful suggestions came to light. Because some of these suggestions reflected the views of the community, we heard here last night the official and the expert point of view and this tends to keep a sense of balance in the debate.
Coming down to the question of equipment which the Minister may require drivers of vehicles to carry, I think that in relation to larger vehicles we must consider the equipment not only attached to the vehicles but also the equipment to be used in case of emergency such as red lamps and danger signs which would be placed on the roadways some distance away from parked vehicles. For instance, it is sometimes put up that the electrical equipment in a lorry was faulty or that a lorry was parked during the day time because of mechanical failure, that it was not expected that the vehicle would be on the road during lighting up time. In such case if we made a regulation that an oil or battery operated lamp must be placed on the roadway some distance from a parked lorry, fatal accidents which have become all too frequent in recent years might be prevented.
I understand that on the Continent there is a system in some countries of placing triangular warnings on the roadway some distance from parked lorries at night time. These are essential equipment if our roadways are not to continue to be danger traps, which unquestionably they are so long as there are until lorries on the road or lorries which may be lit but which by reason of their bulk and size ought to have advance warning notices as an indication of a serious obstruction. Some of the trucks on the road today are a greater obstruction than a brick wall would be. A lorry may be eight feet wide and there may be two to three tons weight on it. That is one of the reasons why there are so many fatal accidents on the road.
I would hope that in framing regulations the trouble which we know can develop on the road will be anticipated by ensuring that heavier vehicles parked on the roadway at night, in addition to have red parking lights attached to them, would also have advance warning lights placed some distance from them.
The only other matter to which I wish to refer is one which I referred to last night, that is, the nuisance of loud speakers. In relation to this and other sections of the Bill rural and city areas must be considered in completely different lights. The cities of Dublin, Cork and perhaps Limerick have problems completely different from those affecting rural Ireland. I do not like quoting British legislation as though it is an example that we must necessarily follow, but it is interesting to note that there is a special traffic regulation for the city of London alone because of the peculiar problems that exist in London by reason of its size. Dublin is to Ireland what London is to England and special regulations will have to be made for the static matters mentioned by the Minister for an area in which there is great density of population and traffic.
Whatever regulations may be made, they are of no use if we continue the rather haphazard system of enforcement which we have become attuned to over recent years. It may be that the Government in relation to this Bill, as in the case of the Intoxicating Liquor Bill, may intend to enforce the Bill when passed, but certainly this Bill and any regulations made under it must be rigorously, vigorously and impartially enforced. I understand that at the moment all number plates are supposed to be in black and the lettering on them in white. Yet one notices going through the city and country several buses which have quite the reverse. It may be that designers wish to depart from the law as many of us would wish to depart from many laws, but these regulations must be rigorously enforced even at the risk of upsetting the aesthetic beauty of a vehicle. They must be enforced in relation to lighting, number plates, equipment and every other item. Even though foreign designers may continue to design vehicles which are not in accordance with this Bill or regulations made under it, our own motor assemblers and users will have to comply with the law. I hope there will be no relaxation whatever or any indifference about whether the law is enforced or not.
It is far better to change a regulation than not to enforce an existing regulation. The only virtue I see in making regulations is that it allows for regulations being changed from time to time. I hope that that is what will happen rather than non-enforcement of regulations already made.
On the section generally, it struck me when Deputy Ryan was speaking about emergency equipment, and when Deputy Corish was talking about repair kits, that it might be useful if the Minister were to make a regulation that a first aid kit would be carried in each car. There are regulations requiring the provision of first aid kits in factories. Every car is a potential death trap and accidents may take place at a great distance from a place where there is medical aid of any description to be obtained. Lives might be saved and certainly disfigurement of the human body could often be avoided if first aid equipment were available and used almost immediately. I am not one to advocate the multiplication of regulations but a very useful regulation along these lines might be produced and I make the suggestion to the Minister.
In regard to the various suggestions which have come from Deputies, I can assure them that all of them will be considered in the approach to the making of regulations. I might add that sufficient power exists to cover any and all of the various matters which have been raised. In regard to the question of number plates, for instance, that would come under the Roads Act, 1920. It has been pointed out that it is quite obvious that at the moment the regulations which do exist are being contravened. In regard to the colour and description of number plates as set out in the present regulations, that is true. It is quite clear to anybody who looks around that this regulation is being contravened. On the other hand, the advent of this Bill has brought about a situation that many of these things which undoubtedly will be covered adequately in future by regulation are possibly being let be for the moment— a situation similar to that which developed before the advent of the Intoxicating Liquor Bill.
I have no doubt that the Gardaí and the Commissioner will ensure and insist that the law will be carried out. In fact, as I pointed out to the House, they have already given me the assurance through the Minister for Justice that the law as enacted here under this Bill will get their wholehearted support and co-operation. I am quite happy to accept that assurance and I have no doubt whatever that rules and laws finally determined here will be applied fairly and without quibble. I am satisfied on that.
I can assure the Deputies that the matters they have raised in regard to safety belts, number plates, repair kits, first aid kits, advance mobile danger signs and so on will get our fullest consideration. Indeed, many of these matters have been getting consideration in various ways and are currently being considered by the officers of my Department and Deputies will find that we will meet many if not all of the matters raised here.
I move amendment No. 23:
In subsection (1), page 16, line 3, to insert "or the weight transmitted to the ground by any part of the vehicle or combination" before "is."
This is a drafting amendment. A second look at the opening phrase of subsection (1) of Section 16 showed that its intention was not as clear as it might be. This addition is made in order to ensure that there will be no ambiguity about the intentions of subsection (1).
I move amendment No. 24:
To add the following paragraph to subsection (2):
"(d) in any such proceedings the amount for which judgment may be given shall be the amount of the expenses shown to the satisfaction of the court to have been or to be likely to be incurred by the road authority by reason of the damage from the extraordinary traffic."
The purpose of this amendment is to ensure that the Court can adjudicate on the actual amount of expenses recoverable by the road authority for damage to roads by extraordinary traffic. Under the section as it stands without the amendment, the road authority specifies what expenses it has incurred or will incur and it becomes a duty of the operator to pay. The amendment deals with the points raised by Deputy Barrett and Deputy Sweetman on the Second Reading.
Our opposition to the section is withdrawn in view of the Minister's amendment which seems to meet the points we made on the Second Stage. However, the whole section seems to presuppose that compensation of some amount shall be given to the road authority. Somebody might suggest, even with the Minister's amendment, that if the court should find that the amount of damage caused was nil, nil is not an amount. I would suggest that as an added precaution the words "if any" should be inserted after the words "in any such proceedings the amount" in the first line of the Minister's amendment.
Under subsection (1) the local authority must prove to the court that damage has been sustained.
That would meet it.
Only then would the court come to calculate what this damage might be.
I move amendment No. 25:
In subsection (8), page 18, line 53, to delete "accompanied by the prescribed fee" and substitute "and the prescribed fee is paid."
Amendments Nos. 49 and 51 are cognate and may be taken with No. 25.
These amendments really deal with drafting points to a large degree and are designed to enable consideration to be given to a system of payment of fees through say, post offices for applications for test certificates, certificates of competence and certificates of fitness.
I move amendment No. 26:
In subsection (8), page 19, lines 6, 7 and 8, to delete "Minister and the Minister may refuse the appeal, direct the issue of a test certificate" and substitute "Justice of the District Court having jurisdiction in the place where the vehicle is ordinarily kept and the Justice may either refuse the appeal,"
This amendment proposes that appeals shall lie in the district court instead of to the Minister in the case of the refusal of a test certificate for a vehicle. It transfers consideration of such appeals from the jurisdiction of the Minister to the district court.
I move amendment No. 27:
In subsection (10), to add to the subsection the following paragraph:
"(o) the delegation by issuing authorities to specified persons of the functions of such authorities under paragraphs (b) and (c) of subsection (8) of this section."
Amendments No. 27 and 57 are cognate and may be taken together.
This amendment provides that under the system of vehicle-testing the person carrying out the test will be enabled to come to his decision on the spot. This would be a time and expense-saving arrangement in many cases and is, therefore, a desirable amendment.
I am not entirely sure that this procedure is one which will improve the operation of the Bill. A number of people object to the tests which are going to be imposed under Section 18. If the tests are to be worth while, the greater and more solemn, if you like, official sanction they get the better. The more you delegate functions, as is being suggested in the Minister's amendment, the more these tests are likely to come under suspicion in the minds of a number of people whose vehicles are going to be tested. It might be wise for the Minister to consider that aspect of it. People are going to have their suspicions aroused, anyhow, and that being so, the more official and formal the testing and the issuing of certificates the better.
The arrangements as proposed in the Bill, without the suggested amendment, would create quite a volume of correspondence and paper work. Elsewhere and in the nearest available place where such tests are carried out, which is in the Six-Counties, they operate in the manner which this amendment would now propose. From our information as to the experience that has been gained in the Six-Counties in relation to the handling of these tests, what is proposed in the amendment has been found to be a better proposition than what was first proposed in the Bill.
That is the experience they have.
That is our information from them up there, that experience would show that this amendment would be more advantageous to the working of the system than the original proposal in the Bill.
As I mentioned when I was referring to the Minister's amendment, there is a certain amount of opposition to this section and there is some information the Minister might give the House which possibly would remove some of the opposition. Is the Minister in a position to tell the House, in respect of any period that might be convenient to him, what proportion of accidents have been found to be due to unsound vehicles?
Secondly—it is purely a point of information—in subsection (12) of this section it is stated that "a person who contravenes a regulation under this section which is stated to be a penal regulation shall be guilty of an offence." I should like the Minister to tell the House where regulations are defined as penal regulations in the section; or is that going to be left to the actual making of the regulations? If it is, I feel we are going even a step further than when we started this process of legislation by regulation in this Bill. We are now going to legislate so that the Minister may not only make regulations under this section, but may decide whether those regulations are to be what are described as penal regulations or not.
It is worthwhile also to point out in relation to this section that in subsection (2) we are taking what is, and I think should be regarded as, a very unusual step in putting onus for particular offences under this section on the defendant of showing he is innocent rather than the normal procedure where the onus is on the prosecution to show that the defendant is guilty.
The reason I am drawing attention to that is because I think the House should regard it as a most unusual state of affairs and because I think this section should not be allowed pass without that comment being made.
It is worthwhile pointing out to the Minister also that in subsection (4) of the section the type of provision I sought to have included in Section 11 is in fact included here in Section 18.
The Deputy has asked for some statistics concerning accidents for any date we have. We have the latest available figures issued by the Central Statistics Office and the Garda Síochána for 1959. They indicate that in that year a total of 96 accidents— 13 fatal and 83 non-fatal—were attributable to the use of defective mechanically propelled vehicles. The defects include steering, brakes, tyres, lighting, towing systems, gears and so on.
In so far as the Deputy's question regarding the onus of proof is concerned, it would appear to be a change from the existing pattern. The problem is this. In all these cases not only will it be extremely difficult to prove an offence, but it will be extremely costly and troublesome, even in regard to what might be described as minor offences. If we are to make any significant impact on this type of offence, we must have more adequate control in law than we have had in the past. It is on that basis we have had to approach the matter. To a large extent, that is the reason why we would appear to change the onus of proof.
Would the Minister say anything about the question of penal regulations?
The Minister will appreciate that once you introduce "penal", whether the offence be by section or regulation, we are running into difficulties. There is a broad principle of law in all penal offences that one is entitled to trial by judge and jury. If we could have some definition of what a penal regulation is, it might help us.
The reason some of these regulations only will be penal regulations is that some of them will throw duties in the issue on authority, such as the keeping of records. That will be enforced by administrative measures, not by a penalty. This would involve local authorities, where the obvious method of correction would be through managerial action or executive action through local authorities rather than some penalty being applied to the defaulter or offender.
The Minister could not give any broad idea of what would be administrative and what would be penal?
Again, it comes back to what I have already said. Any regulation throwing duties in the issue on authority will not be penal regulations.
I move amendment No. 28:
In subsection (1) to add to the end of paragraph (a):—
"or unless the defendant produces in Court the certificate signed and stamped by a member of the Garda Síochána at the Garda Síochána Station so named by the defendant stating the date and place at which such certificate was produced to such member of the Garda Síochána and such certificate so signed by a member of the Garda Síochána shall be prima facie evidence of the facts stated thereon without proof of the signature of the Garda Síochána or that person purporting to be a member of the Garda Síochána is in fact a member of the Garda Síochána.”
As amendment No. 29 appears to be related, perhaps both amendments could be taken together and separate decisions could be given?
I would be in agreement with that, since both amendments turn on the same principle. This is really a matter of what steps ought to be taken to make proof available to a defendant that he has, in fact, produced a certificate at a Garda station. As I understand the position at present, a person may not be in a position to produce some documents to a Garda —documents such as the tax-book, his insurance and driving licence. He may be required to produce those documents at a Garda station within a number of days. When such a person produces them at a Garda station, the sole record made of that is for some member of the station staff to record in the day-book or some record book that Mr. X on such-and-such a date produced his driving licence, insurance or other document and that is noted in the book.
If some member of the Garda fails to carry out his duty the defendant may well be imperilled. Having done what he was required to do, he may not attend court believing that the summons will be struck out. Even if he does attend court in order to inform the justice that he has produced the licence and insurance certificates he cannot prove that he has done so unless he produces in court the Garda to whom he produced the certificate. In some cases he may be unable to find the Garda to whom he produced the certificate and licence and he must then go through the laborious procedure of having a witness summons served on the Garda in question.
It may be held that the situation I have outlined is unlikely to arise. Cases have occurred in the past. They may well occur in the future. A commercial traveller who lives in Donegal may be called upon to produce it within ten days at a Garda He may be unable to produce it there and then but he undertakes to produce it within ten days at a Garda Station in Donegal. Because of the failure of the Garda in Donegal to make the necessary record, because of a clerical error, because of failure to notify the appropriate Garda station in Cork, the unfortunate man may find himself imperilled. He may find himself prosecuted in Cork. It may be too costly for him to go to Cork and the only way he can prove to the court that he produced the certificate in Donegal is by having a witness summons issued and having the Garda from Donegal transported to Cork.
The section provides:
In a prosecution for an offence under this subsection, it shall be presumed, until the contrary is shown by the defendant, that he did not, within ten days after the day on which the production was demanded produce the certificate in person to a member of the Garda Síochána at a Garda Síochána station named by the defendant at the time at which the production was demanded.
It may be that the Minister will direct better proofs than occur to my mind at the moment, but it seems to me the only way in which a person can prove this is by producing the Garda. That might be very inconvenient. It could certainly be a very costly procedure. The purpose of my amendment is to ensure that the person concerned will have a fair chance of proving the matter. It is provided in amendment No. 29:
In subsection (1), before paragraph (b), to insert a new paragraph as follows:—
"(b) When a person produces a certificate to a member of the Garda Síochána under the next preceding paragraph of this subsection such member of the Garda Síochána shall endorse on that certificate a note saying that such certificate has been produced to him and the date and place where it was produced."
In amendment No. 28 it is provided:
In subsection (1) to add to the end of paragraph (a):—
"or unless the defendant produces in Court the certificate signed and stamped by a member of the Garda Síochána at the Garda Síochána Station so named by the defendant stating the date and place at which such certificate was produced to such member of the Garda Síochána and such certificate so signed by a member of the Garda Síochána shall be prima facie evidence of the facts stated thereon without proof of the signature of the Garda Síochána or that the person purporting to be a member of the Garda Síochána is in fact a member of the Garda Síochána.
If my amendment is entertained, it may be necessary to go even further and redraft other sections of the Bill. We are here to legislate. If the Minister thinks my worries are unjustified I am prepared to consider his views. I think the amendment is a reasonable one giving the defendant a reasonable chance at much less cost than if the section is passed as it stands. If the amendment is accepted it will be desirable to have an endorsement on certificates informing holders that they are entitled to and should demand to have the certificate endorsed, stamped, or signed by the Garda to whom it is produced. It is a very simple solution to a difficulty and one worthy of consideration if we are sincere in our intention to respect the rights of innocent people.
Amendments Nos. 28 and 29 are complementary. They relate to enforcement of vehicle testing. Under Section 18 test certificates may be required for certain types of vehicle. Under Section 19 these certificates must be produced in the same way as insurance certificates at the moment. To my knowledge and to the knowledge of my Department, no difficulty has arisen in the past on the lines suggested by the Deputy. I cannot see where difficulty will arise in the future. I can see difficulties arising if these amendments are accepted. Checks may be carried out in areas remote from barracks. It would be asking too much of the Garda to carry all the paraphernalia necessary around with them to enable them to examine vehicle test certificates, endorse them and certify that they had examined them on such and such a date.
I think the Minister mistakes the Deputy's amendment. It relates to the station at which the examination is carried out.
I am dealing with the difficulties that will be created. Is this supposed to relate only in the case of production at a named station?
It is then this question of endorsement would arise?
How then can we accept the production of the document to a Guard by night or by day, on the spot when he pulls the particular vehicle owner? What is the difference between the acceptance by the vehicle owner of merely showing it to the Guard in such circumstances? Why should he seek for an endorsement on it when he goes to the station and presents it to another Guard?
To prevent the necessity of bringing a Guard from his station to a court where he is prosecuted.
Let us say he is prosecuted——
Take a man requested to produce a certificate in Cork—he is pulled in Cork. Now, his certificate is in Donegal. He goes back to Donegal and he produces the certificate to the Gardaí or to a Garda barracks; through an oversight the Gardaí in Donegal neglect to notify the Gardaí in Cork that the certificate was produced there and eventually the defendant is prosecuted in Cork. To prove his defence he would require to bring the Donegal Guard down to Cork. But if he produced the certificate to the Donegal Guard, the Donegal Guard endorsed on the certificate something to the effect that it had been produced then. If there was an oversight, when the prosecution would come up in Cork it would be a good defence to hand in an endorsed certificate. It is merely to facilitate evidence. Evidence can only be given viva voce in such a case but if we have the certificate, if the Minister would make this certificate evidence by accepting the amendment, it would save considerable expense.
Surely Deputy O'Donnell—possibly he may be able to correct me on this—is aware that under the existing method of dealing with the matter the practice of handing in insurance certificates has been established for many years and I am not aware that it has given rise to any confusion.
In the exceptional cases.
Assuming there is an exceptional case and the defendant in court swears that he produced it and in fact in court he presents a certificate which was in existence on the date on which he was pulled, I cannot see any court convicting him for not presenting it. Even if he did not present it, the fact that he had it would be taken by the court——
I am in full agreement with the Minister. I should be.
Are we going to legislate for these exceptional cases?
It is to prevent the exceptional cases arising.
We have had years of a system which is similar in its operation to that which is now proposed and these exceptional cases have not been thrown up. Can we expect them to be thrown up in future? If a defendant in court swears he presented it at a barracks on such a date and he can show in evidence that he did have such a certificate on such a date I think such would be evidence.
I have a lot of sympathy with the Minister's point of view but supposing that defendant had that certificate, if he sent it down to the superintendent in Cork, showing he had it, it would avoid the expense of going to Cork and the superintendent would withdraw the summons.
I am just wondering whether or not when someone is called on to specify a Garda barracks at which within ten days, or five days as I think it is at the moment, to present the certificate, and having presented it there, he merely goes in and shows it to the Guard—whoever happens to be there—and the Guard looks at it and does not do any more about it, beyond committing it to memory and there is no record in that barracks that such a man on such an errand appeared in that barrack on such a day——
He must enter it in the day book.
Again, the day book record will be there in the barracks in question which will be the specified barracks and that entry, if that were not overlooked as well, will be in existence; the certificate will be in existence and the man on his oath, if necessary will prove its existence. I do not think there is a court in the world that would stop him on that. I think the fear that these exceptions will arise at all is without foundation.
I appreciate the weight of the Minister's remarks but the Minister has not said what his objection is to accepting the amendment. Why should not a member of the public produce a certificate of any kind to the Garda Síochána and have an endorsement on it to the effect that "this certificate was produced to me this blank day of 1961"? As things stand at the moment the only way it can be proved is by bringing the Guard to court. That might be an easy thing in a station that is manned by a sergeant and two Guards but it might be a difficult thing in regard to a station in Dublin.
What about the record —the day book?
But you have to produce that in court.
Putting it in the day book is not a legal requirement; it is only an internal staff regulation; there is no legal obligation on the Gardaí to do that. Possibly where the number of certificates is going to increase as it is now—we are going to have certificates of fitness and one thing and another— I believe it is a reasonable thing to ask that each station would be given a stamp so that all the man needed would be to have a stamp to say that the certificate was produced and the signature of the Guard. The Minister has said that in most cases the district justice would accept the sworn evidence. Let us take the case of the man prosecuted in Cork. He lives in Donegal. If he happens to be in Galway, or Dublin or Donegal on the day the court case comes up, it is unreasonable to expect him to travel all the way to Cork to give that testimony, and in many cases members of the public do not attend. Sometimes they send letters of apology and sometimes they presume the case will be struck out.
Suppose he does attend to give evidence, the justice will adjourn it to a later date to check up if the prosecuting Guard is not satisfied and the defendant has again to go to the inconvenience of travelling to Cork and subpoena a member of the Garda Síochána to whom the certificate was produced. I appreciate that there have been few cases in which a conviction was made because of the failure of the Gardai to pass the information but I think it has happened. I would not expect the Minister's Department to be aware of a thing like this but I would say the Department of Justice would have a record of it in the petitions section. I am informed, I cannot put it any stronger than that, that there is a case on record of a person who did produce an insurance certificate being prosecuted for failing to do so and being prosecuted as having no insurance. He was convicted on both counts and his driving licence was suspended for three months in respect of not having his insurance. Subsequently he produced the insurance certificate.
The Minister may well say that the onus is on the motorist to produce the certificate. That is so but we here should not be trying to argue over these legal niceties. We should make it as simple as possible for the person who is in the right to prove his case in all cases. He should not have to go to court unnecessarily. It should be open to him to prove his case simply by the production of the insurance certificate or the driver's licence with a stamp on it saying that it had been produced at such and such a barracks. If a dishonest person gets hold of such a stamp and misuses it it would be open to the Guard to prove that that had happened. That kind of case would be far more rare than the case the Minister has in mind. It is a simple matter and I would ask the Minister to consider it between now and the next stage.
Major de Valera
There is one thing in Deputy Ryan's approach to this matter which makes it seem to me that he is missing the essential point of the whole business. The question which he raises can only come up if there has been, in the first place, a failure to produce a certificate. An insurance certificate should be ready for immediate production. It is in case of the person who has committed that failure to produce a certificate that he is allowed to produce it at a Garda barracks within 10 days. That fault, trivial as it may be, is nevertheless a fault in law and I do not think it is too much to ask that person to take his own precautions about it. I do not think it is too much to ask that person, when he has been given the facility of producing it at any Garda station, whether it be in Donegal or in Cork, to protect himself the rest of the way and to take the necessary steps, in case there may be any danger that the Garda to whom he produced it did not transmit the information, to inform the Garda in the first place.
It would be possible to go too far along the line suggested by Deputy Ryan. He suggests that it should be sufficient to have the documents stamped to the effect that is was produced at a barracks at such-and-such a date. There is always the possibility of forgery and the complication of having a number of stamps on a document which would probably entail a lot of administrative work. The more practical approach is that which the Minister has indicated. There has been no great evidence that would make it necessary to fall in with what is suggested by Deputy Ryan.
Deputy de Valera presumes that there is an onus on the motorist to carry his insurance certificate with him. There is no such onus at all.
Major de Valera
It is the driver's licence I was thinking of.
That is a different thing. You may have an omnibus certificate which covers several cars. If I own a car my insurance will cover certain people driving it, but it will also cover me driving another car. Both cars may be in use at the same time and, ipso facto, both cannot have the certificate.
Major de Valera
There is an insurance certificate that must be carried in the pocket of the car.
No, there is not. There is an onus to produce it within 10 days if I do not produce it at the time I am asked for it. There is no onus on a motorist, in this section, to carry a certificate of fitness in a car. The section says that he may produce it within 10 days. We have no objection to that procedure, but it has been known to happen that when you do produce it at a barracks, whether through an oversight or not, the Garda to whom you do produce it fails to notify the prosecuting Garda and you are then summoned.
Suppose the Garda to whom you do produce it is stationed in Donegal where you live and you are prosecuted in Cork. It is necessary for you to transport that Garda from Donegal to Cork to prove your defence. The amendment suggests that when you produce the certificate in Donegal, the Garda there sticks a date stamp on the back of it and that is prima facie evidence that it was produced within the 10 days. It is not the Minister's Department who would know of these matters. It is the Department of Justice.
I have a petition at the moment before the Minister for Justice in a case where a defendant was prosecuted for having no insurance. He produced it within 10 days at a Garda station but the station was closed and he produced it to a Garda outside the station. This happened in my own constituency and in what will be the Minister's constituency in the near future. The evidence of the production of the certificate was not sent on and the summons was served on his mother. He was away at the time and he was fined £15 for failing to produce it.
What happened the Deputy?
If I were defending him he would not be fined. There was no one defending him. He was away in Scotland at the time and the summons was served on his mother. The position now is that the Gardaí have a warrant for the collection of £15 or 3 months in jail. He cannot appeal as the time has expired. All he can do is to petition the Minister, which I have done. In the meantime, if the Gardaí want to, they can execute the warrant and land him in Mountjoy prison. That is what we are trying to prevent happening by this amendment of Deputy Ryan's.
There is a little weakness in the Deputy's case. He says he presented it at a barracks which was closed. Then who was going to endorse it?
If you produce it to a Garda at a barracks there would be an onus on that Garda to go into the barracks and put a stamp on it. He would have to do that.
The Garda did look at it in the case you mentioned.
And he did not give evidence that it was produced.
He was not called on to do it. The man was away and the summons was served on his mother.
If the Minister needs an elaboration of that, I can give him a better case. A Garda prosecuted a motorist for parking where he should not be parked. He was prosecuted and convicted. Subsequently, the same Garda issued a prosecution in respect of the same man, in respect of the same car, found in the same street at the same time on the same day and the man, presuming he could not be convicted twice for the same offence, did not do anything about it. He was convicted again and later a Garda came with a warrant to put him in Mountjoy because he had done nothing about the conviction.
If that can happen where you have one Garda concerned, what can happen where you have two Gardaí stationed far apart dealing with the matter? The problem can be simply remedied by imposing the obligation proposed in this amendment and by making available a very simple form of proof which is not open to abuse, because I think it is extremely difficult to steal equipment from a Garda station though that may be possible in regard to a Garda's house. I would ask the Minister to have the matter carefully examined. It provides a simple remedy to prevent what might be a very serious situation.
Major de Valera
The amendment would not mend either of the two cases. A man in Scotland would not produce a certificate anyhow. As regards the man who was convicted without knowing it, again any evidence in his possession would not help him. The amendment would not help either of those cases.
The last suggestion made by Deputy Ryan is one about which I had made up my mind. I had decided to go into this matter in a very through way and to check with the Department of Justice as to the manner in which they deal with this and as to whether or not we needed any proposals to close any gaps. Full consideration will be given to this problem.
On the section in general, there are one or two things that worry me and they come into subsections (1) and (4). It seems to me that we have gone back to the old days in the drafting of subsection (1) (c) of this section. The subsection says:
(c) It shall be a good defence in a prosecution for an offence under this subsection if the defendant shows that on the occasion in question—
(i) he did not use the vehicle, or
(ii) he was the servant of the owner of the vehicle and was using the vehicle in obedience to the express orders of the owner.
I should like to see some definition of "servant" or an amendment saying "servant or agent". I should be obliged if the Minister would look into that.
It is not very long ago since Deputy Ryan wanted something quite the opposite put into Section 11.
All I want is to have two words added—"or agent". One can imagine a member of one's own family who is driving his parent's car. It is difficult to argue that he is the servant but it would be quite simple to call him the agent of the owner. What I want is to have the word "servant" defined in the definition section or the words "or agent" put into this section.
The Deputy knows much more about this problem than I do but is there not a definition of "servant" in the context of the law?
That is where there is a contract of service but I want to go beyond that a bit here.
The question here is not so much a definition of "servant". I shall look into the matter.
I move amendment No. 30:
In subsection (1) to delete all words after "combination" in line 24 down to the end of the subsection.
This is the section which gives a Garda an opportunity, where he suspects a vehicle is defective, to hold it up. The amendment affects subsection (1) which states:
Where a member of the Garda Síochána observes a mechanically propelled vehicle or combination of vehicles in a public place and he suspects that there is a defect affecting the vehicle or combination which is such that it is, when in use, a danger to the public or, in the case of a public service vehicle, there is a defect affecting it which is such that either it is a danger to the public or it is rendered unfit for the carriage of passengers, he may inspect and examine the vehicle or combination and, for the purpose of carrying out the inspection and examination, may do all such things and make all such requirements in relation to it as are reasonably necessary.
The reason I put down this amendment is that omnibus phrases of that nature are dangerous to insert in a section of a Bill of this type. They give too much power to a member of the Garda Síochána. It gives him power in this sub-section to "do all such things and make all such requirements in relation to it as are reasonably necessary". It is quite true that the Garda Síochána are a highly trained and a highly disciplined force, but at the same time it is, in my opinion, wrong to give them such powers because it is hard to know when a member of the Garda will be reasonable.
We all know that in certain parishes a Garda may take a dislike to a certain farmer or a certain publican and his criterion of what is reasonable varies with whom he is dealing. It is particularly objectionable when you have regard to subsection (2) which sets out specifically the things a Garda may do and if the Minister, as a result of his experience of the operation of the Act, thinks later that extra powers are necessary for the Garda, he has the never-failing solution of introducing a regulation to deal with that matter. I would earnestly appeal to the Minister to delete the words as suggested in the amendment. I would suggest to the Minister that it would make the section a better one.
If you do not put in this subsection the Garda might do what was unreasonable.
He can do that at any time.
My copy of the Bill does not say "he" will be the person responsible.
Major de Valera
There is one point which is relevant to the amendment which I would mention to the Minister. It is the danger of abuse. I think that is what the Deputy has in mind in wishing to strike out the words after "combination", but I think that is a bit too drastic because you do want to provide for some testing.
That is provided in the next subsection.
Major de Valera
I know, but the next subsection is just as objectionable, if I may say so with respect, because in the next subsection there is a provision which if it is left in takes all the point out of the deletion in the first sub-section, the question being simply this, that if you do not give certain powers to the Guards under this Bill then a Guard will not be in a position to nail a defective vehicle or a vehicle which he suspects is defective on the spot. On the other hand, of course, there is the possibility of abuse. I had a case of a complaint where a Guard attempted to commandeer a vehicle just for his convenience, to get a lift, and when the driver said he would not agree, the Guard attempted, not successfully, to use his powers as a Guard where, in the first instance, he had held the person up on the question of merely asking for a lift.
There are dangers of that nature in this section. For instance, the greatest danger I see in it—and it is a question whether it is a serious enough danger to affect the passage of this section, because it must be an exceptional case —is as to whether a Guard would abuse the powers of this section, say, for getting a lift or something like that. If you consider the risk of that so small as to be negligible then I am afraid you will have to leave the Guard power to do what is in some way or another reasonable in order to carry out these tests. Otherwise, a Guard will be unable to nail the vehicle at the time and the subsequent state of the vehicle, if he traces it afterwards, may not be quite the same as on the day he questioned it.
Could he not use the power to be vindictive?
Indeed he could.
Subsection (1) gives the general power to the Gardaí to carry out these examinations and inspections and also to make all reasonable requirements that would seem necessary. If those requirements as requested by the Gardaí in any particular case are not carried out by the owner or driver of the vehicle for the time being, it will be for the court subsequently to decide whether or not the requirement which he refused to carry out was reasonable or unreasonable. If the court holds that such requirement requested by the Guard was unreasonable, then obviously no offence under this item will have been committed. On the other hand, if it is held that the requirement which the defendant had refused to carry out was a reasonable requirement—which, again, would be decided by the court— he would suffer accordingly.
What I fear and what in essence is at issue here is that if we agree to the deletion of the words as proposed by Deputy Barrett in this amendment we will leave the Guard relying very much on the two words "inspect" and "examine" and that that in itself will not be sufficient for the carrying out of these inspections where he suspects that there is something amiss in a particular instance. To relate it to subsection (2) is not quite an answer because the matters enumerated in subsection (2) are to a large degree examples of what is intended in sub-section (1). If we decapitate subsection (1) the examples quoted in subsection (2) are not at all as reliable as they would be if we left subsection (1) as it is and did not weaken it to such a degree that it may not be effective at all and certainly will be ineffective in a great number of cases.
I should like to support the general principle of the amendment and to ask the Minister if he thinks he is wise in giving this power to every single member of the Garda Síochána. This, in fact, will mean that every single member of the Force is entitled to stop any vehicle, to get into it and to carry out a test as to road worthiness or efficiency. It is ridiculous. The Gardaí have not any special training in motor engineering. I suppose the majority of them do not even know how to drive a car. They are going to stop an experienced driver, a lorry driver for example, and say: "Drive five miles until I see what condition the lights, the brakes, the carburettor and other parts of the car are in".
In the ordinary course of events, when the roadworthiness of a vehicle is to be tested I presume there will be a member of the Garda Síochána appointed by the local authority to carry out the tests. There are members of the Garda Síochána carrying out such tests for the purpose of issuing hackney licences. These are experienced people. They know when a brake or steering or wiring is defective. As a Deputy has remarked, some vindictive person may use these powers, perhaps not in the city but around the country. You can have vindictive people on the two sides and I visualise that where a Guard wants to take it out on somebody he may get him to stop a car and say that he is going to test the car.
Major de Valera
Even if he wants a lift.
If a Guard wants to go a distance of five miles, he is O.K. as long as he meets a lorry or a car. The Minister should have another look at it to see whether or not he is wise in giving this power to every member of the Garda Síochána. If he confined it to people deemed to be qualified in motor engineering, or who had some experience of driving, it might not be too bad but if any Guard who has just come out of the Depot is entitled to do this, lorry drivers will resent it and there may be a little more trouble than the actual testing of the motor car. Some experienced drivers who have driven the same lorry for many miles will certainly resent an ordinary member of the Garda Síochána who is not designated for any particular job in regard to motor cars getting him to stop the lorry, sitting in alongside him and carrying out tests.
If we are to have driving tests and when we have tests for roadworthiness, I do not think anybody will object because drivers will know that the person who is testing them for driving and for roadworthiness has some qualifications but people certainly will resent every and any of the thousands who are now in the Garda Síochána stopping them at any time on the alleged suspicion that there was something wrong with the vehicle, and getting into the car and saying he wants to test the car.
I would like to support this amendment. I do not want to be repetitious but it does seem to me that the words which we suggest should be deleted from sub-section (1) go much too far in relation to the powers and authority which a member of the Garda Síochána should have. Sub-section (1) of Section 20 enables the Garda to do various things if he suspects there is a defect in the vehicle. I think that the phrase in the section "if a Garda suspects" should be altered to "if the Garda has reasonable grounds for suspicion".
As I said on an earlier amendment, I would like the Minister to accept the assurance that in putting down these amendments and expressing these points of view on the Bill we have no intention of weakening the code which the Minister wants to set up. However, we must have regard to the fact that the owners of cars and users of the roads also have certain rights which we should not lightly take away from them. While it is certainly to be recommended, and it would have our approval, that there should be a tightening up on the road traffic code, we want to avoid creating what may be a police state of affairs in relation to road traffic and to the management of vehicles. We do not want a kind of Garda dictatorship to grow up where the individual driver or road user has no rights at all and where we in this House would deliberately deprive them of those rights. It is in that spirit we move this amendment and some subsequent amendments to this section.
I also support the amendment. In regard to the point raised by Deputy Corish on sub-section (1), it would be worse in the city than in the rural areas. On the north side the city does not extend much beyond 5 miles and that provision would make it possible for the Guards to travel free back and forward by stopping any car, bus, lorry or other private vehicle and saying: "I suspect your vehicle is not fit to travel on the road."
Did the Deputy ever hear of anybody in the country refusing a Guard a lift if he put up his hand and the driver had room for him?
It is one thing for the Guard to put up his hand and ask a motorist or lorry driver to give him a lift. The person concerned is entitled to say: "I am sorry. I do not want to give you a lift." That is an end to it and it is purely a matter for himself. However, this section will make it possible for the Guard to say: "I suspect your car is not in order and will you drive it 5 miles the way you were going?"
There is a second point which has been mentioned by Deputy Corish, namely, the qualifications of a Guard to inspect and examine a vehicle and to determine to some extent whether a car is roadworthy or not. All of us in this House are with the Minister in his attempt to ensure that vehicles will not be on the road in an unfit condition. If a case arises where it is obvious to the average onlooker or to the average Guard that a vehicle is in a dangerous condition, surely it would be better for the Guard to require the driver to have the car inspected by some garage designated for that purpose? At least it would be possible to ensure in that way that it was properly inspected. I do not know what percentage of motorists, even those driving cars for many years, would be competent to get in beside the driver of a car, have him drive it up and down the road and be able to say that the car was unfit in certain respects or that it was fit. This section presupposes that every member of the Garda Síochána will have a knowledge and a competence to do something that many thousands of expert motorists could not do and that is to determine whether the car is fit or not at a particular time.
Deputy Larkin seems to be missing the point there. As I see it, what the Minister is trying to do is to give a Guard authority, if he sees a car behaving in an odd fashion, to take immediate action. Supposing he sees a car or a lorry, which should be slowing up, swerving madly this way and that way across the road and eventually coming to a halt, it is right that the Guard should immediately intervene to try to establish to his own satisfaction whether the car or lorry has brakes or not. It is not a very technical thing to establish whether the brakes or steering are working.
All that is required is that the Guard should, taking his life in his hands possibly, sit beside the driver, ask him to start the vehicle and then put the brakes on and see what happens. If the brake pedal goes right down to the floor and the vehicle goes careering on, it does not need much technical knowledge to decide that the brakes are not working, in which case that car or lorry should be put off the road at once. If the Guard had to say to the driver: "I believe your brakes are not working; in fact, I know they are not working; will you now proceed 15 miles to the nearest checking point and ask them to confirm it?" that vehicle could cause any number of fatalities on the road with the defective brakes. Power must be given to the Guard to take immediate action.
There is nothing technical in finding out (a) will the car stop when the brakes are applied; (b) will it turn to the left or right when the steering wheel is turned left or right? That is all that is required. There is no need for a complete check of the suspension, transmission, the engine, or anything else. All that is required is to ensure that the vehicle is reasonably safe, and the two things that affect its safety are the steering and the brakes and nothing else. If the car will not accelerate sufficiently that will not make it dangerous, but if it will not brake satisfactorily, it is a menace to other road users. Unless this sub-section is there in full the Guard would be precluded from doing anything else apart from looking at the vehicle.
Sub-section (2) gives all these powers. What we are objecting to is the omnibus power that is given to the Guard in subsection (1).
There is no amendment to subsection (2).
It is on the section generally.
I cannot see why you are objecting to the latter part.
The section generally.
There is an amendment by the Minister on sub-section (2).
Unless you have sub-section (1) as it stands, you could leave the Guard in the position of having more than a reasonable suspicion that the brakes or the steering were inadequate and in a dangerous condition and of being unable to do anything apart from inspecting it.
Why? Can he not then proceed to exercise his powers under subsection (2)?
Is that not all that is necessary?
What is the objection to him, before exercising those powers, doing whatever is necessary to carry out a full inspection or examination?
Principally because we do not know what that entails.
Major de Valera
Could he make the driver get out and ask him to get under the car to see if there is mud on the brake blocks?
You have go to assume a Garda is going to be reasonable.
That is what we are afraid of.
I do not think you should have any reason to feel the Garda will be unreasonable. All he is trying to see is if the vehicle is reasonably safe. Whether there is mud on the brake blocks does not effect that. The only thing to do is to see if the brakes and steering are working.
The House might fall into the danger of assuming that the Guards are reasonable. We should assume no such thing. It is our duty to circumscribe the duties of the Guards. It would be a dangerous thing to assume all Guards would be reasonable men and act as reasonable men. As a principle, we should object to the insertion of a phrase like this in any section. Deputy Booth knows as well as I do that if you find something like this slipping into a section of a Bill like this, later on it might slip into another Bill and the answer will be given to you that it was put into the Road Traffic Bill in the Dáil in 1961. It could slip into much more objectionable Bills and could be used in much more objectionable ways than this. As a principle, we should avoid the insertion of a phrase like this.
If a Garda is not reasonable, you can always hit back and report him. Any member of the public can report Garda No. so-and-so and say: "This Garda said my car was unsafe and, consequently, asked me to roll round on the road underneath it."
I share a certain amount of the fears of the proposers of the amendment, but I am not terribly satisfied that a good way to bring this about is to take out the word "reasonably" in subsection (1). I agree with what Deputy Barrett has said. In relation to this type of thing, it is important that we here should delimit exactly what type of examination a Garda, who may not be a qualified person, may carry out, I do not like the wideness of the implications, not only of subsection (1) but of the part of subsection (2) which says "without prejudice to the generality of the powers conferred" in subsection (1). I would rather see that cut out and the powers of the Garda limited to what is in subsection (2). Deputy Booth is prepared to agree that those powers are the type of powers that would reasonably be necessary. I think some people have slightly misread what a Garda can do. As I read it, a Garda cannot stop a car and go five miles.
Major de Valera
What is to stop him?
The five miles is in relation to paragraph (a) of subsection (2). He has to go to a suitable place where the inspection can be carried out, but he cannot go any place he likes.
Major de Valera
It might be very near where the Garda wants to go.
The suggestion has been made that the Garda might want a lift. If he wants a lift, he can get it anyway. He does not have to use the powers of the Road Traffic Act. It is overstating the case and rather spoiling what I thought was a reasonably good case by going to these extreme lengths. The distance a Garda can request a driver to take a vehicle for the purpose of testing it is not stated at all, but it would have to be a reasonable distance. I do not believe a court would ever accept that a reasonable distance would be anything like five miles.
The Deputy has never had experience of some of our district justices.
I have not the Deputy's specialised knowledge of that. I have not any knowledge of district justices, and I hope it will be a long time before I find out about them. I think the section is drafted a bit widely, considering the type of powers being given to people, a great many of whom are certainly not qualified to do more than test the brakes, steering and lighting.
It is quite reasonable that a Garda should get in and tell you that your headlights are not working and discover that the bulb is defective. That type of more or less casual inspection, not involving specialised knowledge, is fair enough; but we should be careful to see that the section gives no more than that power and not leave it as wide as to allow any Garda to purport to be an expert on a mechanically propelled vehicle.
The point I want to make might preferably be raised on the consideration of the section, but it might help the Minister to consider whether a way out of this might not be to provide in the section itself that the person in charge of the vehicle, or the owner, should have the right, if the Guard requires this inspection, to have somebody representing him there, whether it be an expert mechanic or other person, so as to avoid controversy and danger. That would be a sound requirement in the section itself.
I also think that, even as the section stands, there is a danger from the point of view of the Guards themselves, because what the section requires is that they should do anything they think is reasonably necessary—not what they think, but anything that is reasonably necessary. If some unreasonable requirement is made by the Guards and damage ensues as a result of it, that Guard is liable to civil action at the hands of the persons involved. I think the section is ill-thought out. If the Minister looks at it, he will see that the first subsection provides that the powers vested in the Guards to examine the vehicle are based on the assertion or belief that the vehicle is a danger to the public. But one of the powers the Guards have in this section is to make the man drive five miles in a vehicle dangerous to the public.
Major de Valera
It would be interesting to know how new this particular provision is. I think it is not completely new. Deputy Costello's point is a good one but in relation to subsection (2) rather than the amendment before us. This section, as a whole, contemplates two things. In subsection (2) (a) it contemplates the Guard suspecting a vehicle and bringing it somewhere for testing. That is clearly a different type of thing to a spot check on the road, such as Deputy Booth had in mind, which seems to be provided for in paragraphs (b) and (c) and, to some extent, in paragraph (d) of the same subsection.
In regard to the first, I think it would be a reasonable requirement to say that if the Guard says he suspects this vehicle, then under paragraph (a) you must bring it to such-and-such a place for a test. Then I think the two requirements should be met, namely, that the test should be carried out by somebody who, on the face of it, is competent to carry it out—and that certainly will not be any Guard. It may be a Guard who is specially trained for it; it may be a Guard in a squad car or any official person properly trained for it. That is a reasonable requirement. I would go so far with Deputy Costello as to say that the driver in that case should have the opportunity of having his own expert.
I am basing my remarks on the view that what subsection (2) (a) visualises is the bringing of the vehicle to a particular point where tests can be carried out. That would be in keeping with other somewhat similar situations. If a man is suspected of being drunk in charge of a car a doctor must be called in. The defendant is entitled, as far as I remember, to avail of the services of his own medical adviser. That seems to be reasonable.
So far as this question of bringing a vehicle to a test point is concerned, the matter should at least be taken out of the hands of the Garda who queries in the first instance. Take the case of a drunken driver. If a Garda suspects a driver is drunk, except in a very clear emergency case, he does not rely on his own evidence. The driver is brought to a police station and there examined. As Deputy J. A. Costello pointed out, one has to consider the protection of the Garda too. Now, in the case of the drunken driver, the Garda has the advantage of having a fellow-Garda to support him. There is corroboration. There is the condition of the accused when the Garda doctor is called in. That is quite simple.
So far as this subsection is concerned, I would strongly advocate a similar approach. Difficulty arises, however, on the second leg of the sub-section where the question of spot checking on the road arises. Deputy Booth has given an example. Supposing there is a car which seems to be obviously mechanically defective and the Garda wishes to find out positively what its condition is with a view to deciding whether he will hold up the vehicle or proceed against the driver. Supposing a Garda suspects something like that in connection with a car in the middle of Grafton Street. He cannot carry out even the simplest check there. The car would have to be removed a little distance at least. At first glance it seems reasonable that the Garda should have the power to bring the driver that distance. But suppose the car is really defective and suppose the brakes are in such condition as to make its removal to a testing place objectionable because of the danger involved; in such a case the simplest and best thing to do would be to restrict the matter to the first case where the vehicle can be brought to a specific test point—a Garda station or a Garda squad car where another member of the Garda Síochána will come into the picture—and the matter could be dealt with on that basis. I do not think that the individual Garda will gain very much by testing a vehicle himself. I do not think it is fair to the Garda to leave the onus on him.
Another speaker this evening referred to the very heavy onus cast on the individual Garda. Supposing there is a Garda on a fast stretch of a not too frequented main road. Suppose he sees a vehicle and challenges it. Under the powers conferred in later paragraphs of this subsection he may get the driver to drive the car. The Garda may decide that he has known better brakes, but the brakes do not seem to be bad enough to warrant his holding up the driver. He thinks the brakes are all right. He might like them to be better and he may say to the driver: "You might get those brakes tightened up" and feel that he has done his duty. Later on an accident may happen, irrespective of the condition of the brakes. The driver may run broadside on into a vehicle coming out wrongly on to the main road. Those of us who have experience of the courts know that the subsequent action will hinge mainly on whether the man who hit the other broadside on could have pulled up in time. You have the unfortunate Garda in the position that he queried the car and let it go.
He was satisfied and therefore he would be a good witness for one side or the other.
Major de Valera
He would. But consider his position from the point of view of the onus cast upon him. He may be a good witness for one side or the other, but the entire onus is cast upon him. Would it not be better to leave the general phrase about reasonableness? It is much less dangerous than some of the specific powers given later. Would it not be better to confine the specific powers to those cases where the Garda can immobilise the vehicle there and then? He must have that power because, if the car is really dangerous, the most important thing will be to immobilise it. He must have power either to immobilise it or bring it to a recognised point—a Garda station, for instance—where another Garda or technical expert can corroborate. In that way the point made quite correctly by Deputy Costello could be met.
Is the Minister not going to consider these matters?
Deputy Costello would seem to be arguing against the case made by Deputy Barrett.
To a certain extent, yes.
Possibly he has put forward in my absence some of the arguments I may have against the case made by Deputy Barrett. The section derives from the Emergency Powers Order of 1945.
I hope that is not taken as a general recommendation.
No, but there is this to be said in its favour; the Emergency Powers Order was in existence for some time and there was some experience gained during its operation. That should remove some of the doubts that have been expressed both in regard to the section and the amendment. I listened to part of what Deputy Corish said at any rate, and I am not quite sure whether he wanted the section at all either as it is or amended. It seemed to me from what he said that he really did not want the section, or conveyed as I understood him at any rate, that the section was not really necessary.
One point is that the courts would look undoubtedly at the things specified in subsection (2) and regard them as tests by which to judge the reasonableness or otherwise under subsection (1). I think it is only right that in a matter such as this, it is the courts that should adjudge whether or not the matter is dealt with reasonably or unreasonably. I think that the section as it stands leaves this decision rightly to the courts and that it is better to leave it that way than to remove it from the realm of the courts or, on the other hand, that being in the realm of the courts' judgment, we should all feel quite safe that in its interpretation in the courts that it will be interpreted in a fair and just way.
I am sorry the Minister was not here when I made the points I made because I think that Deputy de Valera agrees with me to a substantial extent. To some extent it disagreed with the point of view put forward by Deputy Barrett but the reason we are here is to find what is best from the public's point of view. The section gives very wide powers to the Guards. I said on the Second Reading of the Bill that the one thing we must safeguard is that we will secure the general acceptance of these laws by the motoring public and the public in general. If you have a series of powers given to the Guards that gets, to use the popular expression, the backs up of motorists and people in general these provisions will become liable to disrespect in the eyes of the public.
In the section as it stands at the moment, the Guard is entitled, or would be entitled if it became law, to require the motorist or whoever is in charge of the car to do all such things and make all such requirements in relation to it as are reasonably necessary. I prefer that phrase as it stands to any other phrase. At least there is a possibility of checking a Guard and testing what he has done. If the section provided that he was entitled to do anything that he considers reasonably necessary, I would put every single bit of power and influence I have against giving any such power to a Guard. The Minister said the court would probably look at the specific powers rather than the wide powers that are actually there but at the same time when you look at the powers as a whole and consider what a Guard can do, they are very wide powers.
What is the defence to that? What does the section allow the motorist to say in his defence? Can he say: "This was not necessary; there is nothing wrong with the brakes"? It will be a question of whose word will be accepted in court. We all know that the general tendency of district justices is to accept the word of the Guards. There is no use in going beyond that. Very creditable people have been turned down in court because a decision in their favour would involve some sort of aspersion on the word of a Guard and the district justice will not do that. We have to face that situation and it is a matter that should be taken into account in all this legislation.
I told the story on Second Reading of a friend of mine who did not think he was breaking the law and the Guard told him that if he gave any more "guff" he would take him down to the station. That happened to a very law-abiding citizen who thought he was doing the proper thing. Guards are very human and, being human, they get impatient. They meet all sorts of people who have queer notions of their rights and they go up and say: "What are you doing?" They may put their foot on the running board of the car and start to give a lecture and one word leads to another and suddenly the Guard says: "Let us have a look at your brakes" when at first he had no intention of looking at the brakes. One thing leads to another and the Guard exercises the power given under the section. That should not be necessary.
I am not at all impressed by the Minister's suggestion that because this section is taken from an Emergency Powers Order of 1945 it is a good precedent. In 1945 cars were only coming back on the roads. They had been laid up during the war. It was reasonable to suspect that all sorts of derelict motor vehicles would suddenly emerge on the roads and cause danger. People were disposed to give wide powers at that time when the war was just over and things were not satisfactory from the point of view of the mechanical repair of the car or even getting proper mechanical service in a garage. People were disposed to put up with regulations of this kind and I am sure the Guards never bothered their heads much about taking advantage of this regulation. As long as people thought they were liable to be stopped, it was sufficient.
I do not think we should be asked in this House in normal circumstances to follow as a precedent something that was accepted in an emergency condition which does not exist today. I think Deputy de Valera agrees with me that the motorist ought to have an opportunity of checking a Guard. The Guard will bona fide say: “The brakes were bad.” That is a matter of opinion but it is a matter for expert opinion and the ordinary Guard, who would have this power to do this, cannot have knowledge of that if he is not a public service vehicle inspector or if he has not training as a mechanic. There ought to be some power in this section to enable a man if he is challenged to say: “Very well; I will leave the car there and get a mechanic to look after my interests.” As Deputy de Valera said, when a man is charged with being drunk in charge of a car, he has the right to have his own doctor so that the case will not be presented in court by a police surgeon without anyone to contradict him.
I think the Minister ought to reconsider the whole of this section and examine it carefully to see if powers of this kind are required. At least they should not be as drastic as they are here. It is of the utmost importance that there should be respect for the law in connection particularly with motor traffic. You must get the support and co-operation of all sections of the community; otherwise you may throw your hat at the criminal offences that are being created in this Bill.
Major de Valera
I should like to support what Deputy Costello said. In scaling it down, this amendment is probably somewhat misconceived because the first subsection as it stands, as Deputy Costello has pointed out, is the least objectionable part of the section.
I think what Deputy Costello said was that he preferred those words.
Major de Valera
I do not want to mis-paraphrase him but I am concerned about the later end of the section. What Deputy Costello said about the code being acceptable as a whole is very important. His statement in regard to the courts and the attitude of the district justices I think requires a little amplification in this section.
There is a tendency to say that a district justice or a judge will take the part of the Guard against anybody else. That tendency implies that there is some form of tyranny. We are not being fair to the public if we give that impression. The problem which is posed for a district justice or a judge and also for the Garda Commissioner and the higher officers of the force is that the necessary support must be given to the officers of the law, to the ordinary Guards and their sergeants, in the carrying out of their duty. Unless the Guards and their sergeants are supported by the courts in the carrying out of their duties there will very quickly come a time when it will be impossible for the Guards to administer the law properly.
We have all had complaints from time to time that sufficient penalties have not been imposed and the Guards have, on occasion, been perilously near to the point of asking what was the use of prosecuting a fellow if he was to get only a nominal sentence. We must take that point of public policy into account here. The courts and the higher police authorities and the State must stand up for and support their loyal servants in the carrying out of their duties. That is an important public principle. There is another one which both Deputy Costello and I would argue strongly in favour of and that is for the rights and protection of the individual and the ordinary citizen. That is an equal or paramount principle but whether they are equal or paramount is beside the point.
Our problem in this House is to reconcile these two conflicting principles. I see very little wrong with the wording of the first sub-section. I would take the same objection as Deputy Costello has taken if it was the opinion of the court that mattered. To my mind the difficulty lies in the other section and I still see myself coming back to the principle that the car should be taken to a particular point for testing and that there should be corroboration. Both in the interests of the Guards themselves and in the interests of the citizens it is desirable wherever possible to take such specific powers out of the hands of one Guard without corroboration or support.
By way of further explanation of the intentions of the people who put down this amendment I would refer the Minister to amendment No. 37 in which it is provided in relation to the testing of a pedal cycle that it should be a good defence to show that no defect existed and that the request of the Guards was not reasonable. The effect of this amendment is to ensure that no person would be convicted where the requirements of a member of the Gardaí are unreasonable. It is on that account that it is so necessary to introduce, either by way of deletion or the introduction of a new section, some simple definition. The members of this House cannot be the final judges as to what is reasonable or unreasonable but it could be a most unreasonable request to require a person to drive a car to a point five miles away.
It would be most unreasonable in Dublin where people are tied to a restricted time schedule, where people have appointments from one end of the day to the other, where they have to clock in and out of work and where they are limited to an hour and a half for lunchtime. It would be most unreasonable for them to have a demand made on them to go to a Garda station, even if it were only a mile or two away, to have the car inspected. All these things are of paramount importance when you come to determine them but as things stand at the moment sub-section (2) rather limits what the Guards would consider to be reasonably necessary. It almost suggests that anything that is in subsection (2) is, ipso facto, reasonable. It goes on to say that a Guard may request a person to drive a car to a point not more than five miles distant for testing. It seems to me that that is curtailing what might be regarded as reasonable. It seems to me that it is something which ensures that even though a person might be required to drive a car to a certain place he is prevented from putting up the defence that he was asked to do something that was unreasonable.
If the Minister is prepared to accept the spirit of amendment No. 37, is prepared to accept that as the intention of the movers of amendment No. 30 and is prepared to introduce a new subsection to that effect the objections which we have would be removed. As it stands at the moment rather unfair demands could be made and are certain to be made, human beings being what they are. There is hardly a day when one word does not borrow another as between decent members of the Guards and decent members of the public. You are bound to have cases of Guards just showing how tough they can be and how right they can be. It is dangerous to overload the limbs of the law with wider powers. It is better to err on the side of the individual so long as you ensure that guilty people do not avoid their responsibilities.
It may be said that if you allowed a passage of time between the actual request for the testing of a car and the test itself that the person concerned could have the vehicle rectified in the meantime. That might not be a very bad thing. All we are seeking to do is to make sure that vehicles are safe and that they are not a danger to the public. Whether a person does it to ensure that he will not fail a test or to avoid a prosecution or a conviction does not matter as long as he has done it. I would ask the Minister to accept the amendment in the spirit in which it has been moved.
I am in sympathy with what the movers of the amendment are trying to do, to protect individuals. Deputy Ryan has just mentioned this passage of time within which the driver might get the car fixed. I would be terrified that he would use that passage of time to do nothing to the car but to have an accident in the middle of the period. We have got to be careful that the rights of individuals are not unduly trampled upon but who are the individuals in this case? Are they the owners or drivers or the individuals they may injure?
It is not just as if they were driving in a vacuum when they are sitting behind the wheel of a car and that they were the only individuals to be considered. Possible victims of their driving must be borne in mind too. For those reasons I should like to see this Bill as strong as possible. If a person starts to drive what is a dangerous projectile—and that can apply even when the car is a good one —he must be given a sense of being somewhat cramped as to what he may do.
In relation to what a Garda may do in this case, that should be clearly set out in whatever Act is passed by this House. For that reason, I again suggest that the right way to secure this is to see that in subsection (2) there is given a list of the things a Garda may do and there should be no question of its being left to the generalities of subsection (1). Sub-section (2) at the moment does no more than give power to do the things that are in subsection (1). I would agree with Deputy Ryan that the Minister might consider the inclusion of a similar subsection or paragraph as is proposed in the amendment to subsection (8). Inevitably, in legislation which is dealing with the use of mechanically propelled vehicles, we are faced with the dilemma of ensuring that the user of a vehicle is not being too harshly treated while at the same time resolving we do not lean too far in that direction and tend to create situations where other members of the public may become injured.
It appears to me that this section is no more than a substitute for the suggestion to include in the Bill a proper arrangement for the regular testing of motor vehicles. Sub-section (1) deals with the situation where a Gárda sees a vehicle in which he suspects there is a defect on a road. It gives him power to do certain things, but in subsection (3) he is supposed to do only what an ordinary garage tester does—drive around in the car for a certain distance.
Reference was made during the debate to defective steering and defective brakes and I should like to point out here how difficult it is for a person sitting beside a driver to diagnose a defect in the braking system. In the modern hydraulic brake system, a good driver can get along in a car with very bad brakes by the system of quickly pumping the brake pedal, whereas an inexpert driver would put his foot on the pedal to discover that the pedal was flat on the floor. That is quite a common feature in modern cars.
A good driver may make the car appear to have good brakes whereas they may be very bad indeed. Paragraph (d) of the subsection empowers the Garda to cause to be carried out such tests as he considers reasonable. I think everyone in this House is particularly anxious to see that the public are protected against the use of defective vehicles on the roads and I would agree entirely with Deputy de Valera when he suggested that a Garda should be authorised, if he sees there is a reasonable cause to do so, one or two things—immobilise the car or direct the person responsible for it to take the car and have it properly tested.
The danger about this section is that every Garda in the country, whether he has any competence or not, can be used as a half qualified tester of motor vehicles. It is desirable to see that vehicles are safe, that they are not in a dangerous condition, but I would submit this is not the way it can be properly achieved. Certainly it is giving to the Gardaí a great deal of responsibility. As a layman I would say that the fact that it appeared in the Emergency Powers Act of 1945, brought in to deal with a situation where cars had been put up on bricks or stored in garages for years, is the best argument for a re-examination of this section.
And the Deputy should not forget that in 1945 spare parts could not be had.
And at that time brake rods and other accessories of that kind had deteriorated because of the interval in which the cars had been laid up. In this case the same justification does not appear to be there although we all subscribe to the view that every effort should be made to ensure that dangerous cars are not permitted on our roads. This section will not provide that but it will prove a happy hunting ground for over-zealous Gardaí. We all know that there are a number of over-zealous Gardaí and it is only with a view to the greater protection of the public that I suggest Gardaí should know what their duties are. These are very wide powers indeed and I suggest that the Minister might consider knocking out the section.
I want to make a small point. For this section to be effective it must be assumed that every Guard is competent to decide whether a vehicle is fit for use or not. If a Guard is not so competent he still has the right to decide whether or not a vehicle should be driven to a place not more than five miles distant for testing. That places a very serious responsibility on the Guard and it is not any exaggeration to visualise a case where a Guard might decide that a vehicle was not safe from the point of view of the public and instruct the driver to take that car to a garage or some other suitable place notwithstanding the fact that the car might not be in fit condition to be driven. In such a case, where would the responsibility rest if an accident or any other misadventure happened between the place where the car was originally stopped by the Guard and the testing place?
It is a difficult section to draft to cover all eventualities but I think the Minister would be well advised to take cognisance of the observations made on the section. It places an unfair responsibility on the members of the Garda Síochána and I certainly would like to see some amendments made to the section to ensure that, if a motorist is asked to take a vehicle five miles, the vehicle, first of all, can be driven five miles and, secondly, that if a test is to be carried out, the test must not be reasonable according to the Guard's point of view but must be reasonable according to the motorist.
There is one other class of motorist who may suffer very much under this section. There are certain motorists who take pride in retaining old models of cars. Not so very long ago a Deputy had an old model.
Major de Valera
In England they had to stop it.
Every time he appeared a Guard might reasonably suspect that the vehicle suffered from some defect.
Major de Valera
Would the Guard be right?
Possibly, but some of these people take such pride in their old vehicles that they insist on keeping them in a very good state of repair.
It might obviate the necessity for all this discussion if it were a defence that after inspection by the Guard the defendant or owner of the car produced a certificate of fitness issued not more than, say, three weeks prior to the date of inspection. I know quite good cars the bodywork of which looks dilapidated but mechanically they are sound. One can visualise such a car arriving in a village or town and every time a Guard sees it he suspects there is something wrong.
Major de Valera
Maybe rightly. In that case a door could fly open.
I do not mean the bodywork being dilapidated in that sense. I am referring to the paint work. Sometimes cars that are used on country roads look more dilapidated than they are. A burst silencer or a broken exhaust increases the appearance of dilapidation. A Guard might reasonably suspect that there was something wrong with such a vehicle and one can imagine several of these inspections being carried out in the one day. If a certificate of fitness of recent date was produced to a Guard it might obviate the necessity for this continuous examination.
When a Guard suspects that there is something wrong with a car, it is as a result of observation. While a car may look bad, it may be mechanically sound but the appearance of dilapidation will continue. I know gentlemen farmers who use the back of their vehicles for the transportation of calves.
Major de Valera
It is quite a common thing.
It is quite a common thing. I can imagine a city Guard having a look into the back of a car of which the seat has been removed and being met with the grunt of a pig.
Not in the car itself; in the trailer.
I have seen calves in the back of a car. There is no doubt that animals have been seen in the backs of cars. One can imagine a Guard seeing this for the first time immediately thinking that the car is a broken-down "jalopy." That vehicle could be examined several times by different Gardaí on a fair day or market day. The vehicle may be quite sound. Its appearance might lead a Guard to suspect that there is something wrong. If there was a certificate of fitness for the vehicle of recent issue it might obviate all that difficulty.
It seems to me that there is general belief in the minds of many Deputies here that the Guards, who number 6,000—there are about 250,000 vehicles—with all the other duties they have to perform, in respect of matters in which there might be said to be some discretion as to whether or not they should busy themselves, will be rushing around to see where they could find a vehicle which they will test without regard to the overall statement in the law that they really must suspect that it has a dangerous defect. In the first instance, it is intended that any member of the Force will be expected to have regard to the fact that it is where he suspects that there is a dangerous defect and, possibly flowing from that, that that dangerous defect if allowed to go without correction would constitute a danger to the public, a danger to the owner or to people in the vehicle or other road users.
This on-the-spot check is not really the testing of vehicles as envisaged in this Bill for the first time. It is merely a supplement to what will become a regular check at stated intervals in regard to some vehicles at the start and possibly all vehicles ultimately. It is only to supplement that general overall testing of vehicles at stated intervals which will eventually come and that this part of the Bill is directed towards. There are 6,000 Guards at the most. There are 250,000 vehicles and the number is still rising and will continue to rise for quite a long time unless something unforeseen takes place.
Before we go into the details of the rights and wrongs of all the powers that it is alleged the Guards are to be given under these sections, let us consider the relationship between the number of Guards and the number of vehicles on the roads. Consider also the overall duties of Guards, the onerous duties in all sorts of matters which they must carry out, and I think it will be seen that the fears which have been expressed here are groundless. While there may be grounds for fear in isolated cases there is no ground for the fear that there would be a general check up by Guards in all sorts of places in respect of all sorts of vehicles.
Let us look at it from the other point of view. Supposing a Guard is aware that a vehicle in his locality has no brakes whatsoever and is still being used, is it right that the Guard should allow this car to continue to be a danger to the public? Is it not reasonable that the Guard, with the knowledge that that car has a serious defect, should be able to pull up that machine? He does not require any real mechanical knowledge to ascertain that a mechanically propelled vehicle has no brakes. Surely that is not unreasonable and is something which the safety of the public demands?
In regard to the objection to a Guard making requirements in relation to a vehicle as are reasonably necessary, that phraseology has, I think, been accepted for what I believe it to be. It will be for the courts to decide what is unreasonable and that question of what is reasonable and what is unreasonable applies to all these various matters coming under this section. In addition to that, although I do not want to discuss it at the moment, may I say that there is an official amendment, No. 38, which further helps to relieve those who take objection to the powers enumerated in the Bill? There is provision that where it is found that no defect exists this will be a good defence in so far as the defendant is concerned in relation to this section of the Bill. Regard must be had to the fact that the court will decide as to what is reasonable or otherwise.
The Guards are not going to go runing around seeking out whom they may victimise, as seems to be suggested here. Bringing it down to individual cases, let us suppose that some Guard or another is unreasonable. It is true that being human, certain of them may victimise people but there is no doubt that they are the exception rather than the rule. Everybody also knows that where this type of Guard emerges, if he does not soon get himself out of the Force he will certainly find himself out of whatever station he is attached to. Guards will not take cases to Court and have them thrown back in their teeth because there is no reason why those cases should have been taken to court. No Guard who has any sense or "savvy"—and most of them have quite a lot of both—will bring to court a succession of cases that are going to be thrown out and ridiculed because they were groundless and should never have been brought.
In addition to that, and to what I may have said in regard to the Emergency Powers Act of 1955, in regard to spot inspections, under the 1933 Act, in respect of public service vehicles, in all the years since then there has been in existence a law or regulation which is tantamount to what we are passing in regard to all vehicles in this Bill. If there is a fault to be found in regard to that provision it is that the Guards have not operated it often enough or sufficiently rather than that they have overdone the job. If they have not done it fully in regard to a small percentage of vehicles, surely that is some evidence that it is unlikely they will do it when they get the power in respect of all vehicles and that they will run wild and start checking all of them without any reason whatsover.
This spot check is something which I regard as a necessary complement to the overall determination in this Bill that there should be vehicle testing as such, that that vehicle testing will become a feature of our everyday motoring life and that ultimately all vehicles will be tested at stated periods and given a certificate if passed. However, the fact that any vehicle has a test certificate alive, as it were, after a lapse of some months, even a year, it does not follow that dangerous defects may not in the meantime have developed. If such a dangerous defect is evident even to the bystander, it is only reasonable that, as is provided in the Bill, the Guards should have power to check that vehicle in the interest of public safety. The reduction of that power by means of the amendment proposed by Deputies on the Opposition benches would defeat the whole intention and would be tantamount to the wiping out of the provision for the retention of which even those who are for the amendment are agreed there are fairly good grounds. If we pass this amendment, we might as well wipe out the section altogether and the whole intention of it. There is little further I can add on the matter.
I do not want to let it pass that we agreed to what the Minister said in reference to the interpretation of subsection (2), having regard to the final words of subsection (1). The Minister has suggested that the words at the end of subsection (1) —"and make all such requirements in relation to it as are reasonably necessary"—govern the following sub-section. They do not. There can be no question as to whether the provisions of subsection (1) and the following subsections are or are not reasonable. Because they are specified, they are deemed to be reasonable. I think if he will allow me say so, the Minister is quite incorrect in putting that forward as an argument in favour of the section.
The Minister for most of his speech was pushing an open door. He was arguing against something not being put forward. It is agreed on all sides that some power for what he calls spot checks is necessary. I do not think that the provisions in this section can really be described as a spot check. It is a very elaborate check. But, leaving that aside for the moment, the real question is this. There is a necessity for some power to check to see that vehicles on the road are not unroadworthy. Are the powers in this section too wide, or in some respects do they fall short of requirements in the interests of the public as well as the interests of the motorists?
The Minister did not deal with the matter put forward by Deputy de Valera and myself that there ought to be some authority in this section to enable the person suspected by the Guards to have his own mechanic present during the examination of the vehicle by the Guard so that he would then be in a position to check the evidence or check the findings and give evidence in court subsequently.