Dáil Éireann debate -
Thursday, 4 May 1961

Vol. 188 No. 12

Road Traffic Bill, 1960—Committee Stage (Resumed).

SECTION 20

Mr. M.J. O'Higgins

I move amendment No. 30a:

To delete subsection (2).

On the last occasion on which this Bill was being discussed, the Minister may remember there was an amendment moved designed to delete roughly the last sentence of subsection (1) of Section 20 and the case was made that it was undesirable, in giving the Gardaí these powers of inspection of vehicles, to include an omnibus power of that description. The discussion on that amendment was contributed to by a number of Deputies and took up quite a time. The case was made, however, that from one point of view it was possibly better, if an omnibus power of that description were to be given, that the words used at the end of subsection (1) should remain because they at least impose on the Gardaí the onus of establishing that the action which they take in a particular case is reasonable. The argument developed from that. Subsection (2) sets out that "for the purposes of subsection (1) of this section and without prejudice to the generality of the powers conferred thereby, a member of the Garda Síochána may" do a number of specific things.

It seemed on consideration of the two subsections together that the Minister was importing into subsection (2) a presupposition of reasonableness on the part of the Gardaí if they took any of those four specific actions which they are authorised to take under sub-section (2) It would be better, from the point of view of the general public and from the point of view of the relations between the authorities enforcing this Act and the motorists who are affected by it, if the onus was fairly and squarely placed on the Garda in relation to these tests to take only actions which are reasonable. Accordingly, we would prefer to let sub-section (1) remain unaltered as the Minister desires if the Minister in his turn is prepared to delete subsection (2) with the implication it carries, that is, the implication that a Garda who acts under the powers in subsection (2) will ipso facto be regarded as acting reasonably.

A number of Deputies, principally Deputy J.A. Costello, pointed out in relation to the discussion on these amendments and again on the Second Reading of the Bill that we cannot legislate in such a way as completely to avoid road accidents or what I might describe as road offences and misdemeanours, that we must try in this legislation to bring about a state of affairs where the relations between the Gardaí or other enforcing authority, on the one hand, and the motorist or the general public, on the other hand, will inspire such confidence and trust that there will develop a sense of individual responsibility among motorists and road users. It is only by framing legislation in such a way that it will not appear dictatorial or take away completely the rights of road users that that kind of confidence and sense of both individual and collective responsibility on the part of road users will be maintained.

For those reasons we now suggest to the Minister that if he wants to retain subsection (1) of Section 20 in its present form, he should agree to delete subsection (2).

Mr. Blaney

I gather from the Deputy that he wishes that the powers should be restricted in some degree. That appears to be the purpose of the amendment: to reduce in some degree the powers contained in this section. In fact, the deletion of subsection (2), which the Deputy suggests, could have the opposite effect. Subsection (2) gives examples of the circumstances as now foreseen that would be regarded as unreasonable. The saving clause is, "without prejudice to the generality of powers conferred thereby..." That is intended to cover the reasonable circumstances which are not foreseeable or foreseen. I do not think the deletion suggested in the amendment would be a good thing, nor do I believe that the wiping out of these examples, which, in fact, is what they are, would benefit the public in the direction the Deputy suggests. I do not feel it would be wise in these circumstances to accept, or to recommend the acceptance of, the amendment.

Mr. M.J. O'Higgins

I wonder would the Minister give his views on the opinion I expressed that having regard to the way in which these two subsections of Section 20 are framed, it is intended to import into subsection (2) that if a Garda acts in accordance with paragraphs (a), (b), (c) or (d) of subsection (2), he is ipso facto regarded as acting reasonably. Is the Minister prepared to give the assurance that, whatever the interpretation of the Bill in the courts, that is not the intention of the Government or the Legislature?

Mr. Blaney

No; in fact, far from it. The words "reasonably necessary" are used in subsection (1). The question of reasonableness is still a matter that will be determined by the courts with regard to the examples given in subsection (2). The giving of these examples does not relieve the authorities or the prosecutor from still having to undergo tests as to whether or not what was done was, in fact, reasonable.

Mr. M.J. O'Higgins

I wonder is the Minister confident of that? Sub-section (1) finishes up with the words:

...and, for the purpose of carrying out the inspection and examination, may...

That is, the Garda may—

...do all such things and make all such requirements in relation to it as are reasonably necessary.

It is quite clear that the Garda can do only what is reasonably necessary, and it is equally clear, to my mind, in relation to any act which a Garda does, that the onus is on the Garda to show that what he did was reasonably necessary, that is, so far as subsection (1) goes.

Subsection (2) says:

For the purposes of subsection (1) of this section and without prejudice to the generality of the powers conferred thereby, a member of the Garda Síochána may—

It then sets out four specific things a member of the Garda Síochána may do. It seems to me that if a Garda acts in relation to any of those items dealt with in paragraphs (a) to (d) of sub-section (2), he is relieved from the onus imposed on him by subsection (1) of showing that what he did or decided to do was reasonable. I appreciate that the Minister takes the view that the fears I am expressing are groundless, but I should like to be sure that that point has been examined, and that if it has not been examined with the Minister devoting his mind to that specific point, it will be so examined.

Mr. Blaney

We have consulted our legal advisers with regard to this matter and the advice we have been given is the view I have expressed to the House just now. I am satisfied from that advice that it is, in fact, better to leave it as it is, and that the fears expressed by the Deputy are without any real foundation.

Mr. M.J. O'Higgins

Paragraph (b) of subsection (2) provides that a member of the Garda Síochána may, "drive a mechanically propelled vehicle or combination of vehicles for a reasonable time and distance." I agree that the position there is that the Garda, in exercise of his powers under subsection (2) (b), may drive a vehicle only for a reasonable time and distance. The point I want to make, if I may give a specific example, is that, in fact, it may not be reasonable for the Garda to drive it at all. If we leave this unaltered, it seems to me that he may drive, whether or not it is reasonable for him to drive. If he decides to drive, he can drive only for a reasonable time and distance, but it may not be reasonable for him to drive at all.

Mr. Blaney

That is the whole point. He can drive for a reasonable time and distance only in circumstances where it is reasonably necessary to do so.

Mr. M.J. O'Higgins

If the Minister is satisfied, I shall not argue, but it does not seem to me to be clear.

Mr. Blaney

I am advised that there is no real basis for the fears expressed by the Deputy on this matter.

Mr. M.J. O'Higgins

I hope that if the matter goes to the courts, they will uphold the Minister's point of view.

Amendment, by leave, withdrawn.

Mr. Blaney

I move amendment No. 31:

In subsection (2), page 21, line 47, to delete "he" and substitute "the member".

As can be seen from the wording of the amendment, it is purely a drafting amendment, nothing more and nothing less. It alters nothing in any way, but it clarifies the situation.

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 32, 34, 35 and 36 might be taken together.

Mr. Blaney

I move amendment No. 32:

In subsection (3), page 21, lines 49 to 51, to delete "inspects and examines under this section a mechanically propelled vehicle and finds" and substitute "is, consequent upon having inspected and examined under this section a mechanically propelled vehicle, of opinion".

The reason underlying the proposed change from the word "finds" to the words "is of opinion" is to remove the suggestion, or the reading that might be taken from that word in the Bill, that the Garda would be regarded as acting in a judicial capacity, in that he "finds" something to be the case. We are substituting the words "is of opinion". It is in order to allay any fears that the word "find", as in the Bill, might suggest the Garda is acting in a judicial capacity that we propose to use instead the words "is of opinion".

Mr. M.J. O'Higgins

While I am, naturally, glad to see the Minister is paying close attention to the provisions of the Constitution in relation to this matter and ensuring that justice will be administered in the courts by judges duly appointed, it is rather odd that a doubtful provision will have to be examined later—doubtful from the point of view of the Constitution— that is, the fines-on-the-spot provision.

I appreciate the reasons the Minister has given for making this change. I have no reason for doubting that the reasons he has given are the reasons which motivated the change in wording, but I think the Minister should possibly think a little more about it. The subsection as it was drafted—and it is reflected in some later amendments also—had the effect, from the motorist's point of view, that before the Garda could exercise the powers set out in subsection (3), it was necessary that he should find there was something wrong with the vehicle. While the Minister may be complying with the constitutional defects he sees in making this amendment, he is also, perhaps only incidentally, arriving at the situation where he is putting the road user at very great disadvantage, vis-à-vis the member of the Garda Síochána. Whereas under the Bill as introduced by the Minister, the Garda had to find some defect in the car before he could exercise these powers, now he has merely to express an opinion that there is something wrong with it. On forming that opinion, he is now to be entitled to exercise the powers set out in subsection (3).

I suggest to the Minister that he might further alter his amendment and, instead of saying it is sufficient for the Garda to be "of opinion," he should use some such phrase as "has reasonable grounds for believing," which, I think, would not weaken what the Minister wants to achieve by his amendment, but, at the same time, would not, so to speak, load the dice completely in favour of the Garda as against the road user.

Mr. Blaney

Unlike the Deputy, I cannot see the subtleties of these legal phrases. It seems to me that if a Garda finds something to be the case, he must have been of opinion it was the case. If I happened to be the victim in such circumstances, it would be six of one and half a dozen of another, as far as the words used were concerned.

Mr. M.J. O'Higgins

If that is so, surely it was not necessary to introduce the amendment at all?

Mr. Blaney

That is only my opinion. I am being guided by those who are educated in the subtleties of legal phraseology and I am leaning over to meet their views. I think the ordinary layman would regard both phrases as being much the same. However, I must come down on the side of the legal advice I have had and propose the use of the words, "is of opinion" instead of "finds."

Mr. M.J. O'Higgins

I take it the Minister will agree with me that, from the point of view of the motorist, there is a clear distinction? In the one case, the Garda must positively find there is a defect before he can exercise these powers. Under the Minister's amendment, it is not necessary for him to find positively that there is a defect. It is only necessary for him to form the opinion that there is a defect. He may form that opinion quite unreasonably and there may, in fact, be no defect. Notwithstanding that, under the amendment the Minister now proposes, the Garda may go on and exercise the powers in subsection (3).

I am suggesting a mid-way course to the Minister—that he should further amend his amendment by using, instead of the words "is of opinion," some such phrase as "has reasonable grounds for believing." That would at least achieve the situation where, from the motorist's point of view, the Garda cannot act unreasonably. From the Garda's point of view, it achieves the position that if he acts reasonably in forming his opinion, he can still exercise the powers the Minister is giving him under subsection (3). I do not think it weakens the Minister's position at all.

Mr. Blaney

How the Garda came to form his opinion is not really the matter at issue, but, in forming his opinion, he just did not think of some defect out of the blue and say: "now I am of opinion this defect is there." He must have had some cause for reaching that opinion; he cannot have reached it without some reason. If he has come to that opinion in an unreasonable way and the courts find there is no dangerous defect, the motorist cannot be convicted. If it is an opinion based on unreasonable grounds, the Garda's case must fall to the ground.

Mr. M.J. O'Higgins

I see the Minister's point of view, but there are a whole lot of implications to which the Minister is not adverting. The question of a prosecution of the motorist by the Garda may possibly be the least important in a number of ways. Under this subsection, we are giving power to the Garda in cases where, on the Minister's amendment, he merely forms an opinion, to instruct a person in charge of a vehicle that it is not to be driven in a public place, until the defect has been remedied. That is just one example. The vehicle may be the sole means of livelihood of, for example, a commercial traveller, a lorry driver or some such person.

Under the powers we are giving to the Garda in the section, a Garda may put that person off the road simply by giving an instruction under sub-section (3). That will be a hardship from the point of view of the owner and user of the vehicle. It is no satisfaction at all to him for the Minister or myself or anyone else to tell him: "If the Garda issues a summons against you, he will not be able to make his case because he formed his opinion in an unreasonable way." This man may be off the road for up to six months.

I think the Minister, if he looks into this, will agree with me—I think I am right in any event—that there is no obligation on the Garda to issue a summons within six months. I think six months is the time limit. A Garda who suspects or forms an opinion that a vehicle is defective may instruct the owner or the user of that vehicle that it is not to be used on the public road. He may then delay and not issue a summons for three, four, five or six months. In the meanwhile, that person, who may be a commercial traveller or a haulier, is put off the road simply by the decision or opinion of the Garda that a defect exists. It is no satisfaction to that motorist to go into court at the end of six months and to satisfy the court that the Garda was all wrong and that no defect exists.

The Minister talks about the Garda having to form his opinion because of the circumstances which will exist, something he sees or something he hears, that he must have some reasonable grounds before he forms his opinion and that if he has not, he will be shot down when he goes into court. That does not really help the position at all, nor in fact do I believe the Minister is correct in that line of argument.

If the Minister's amendment is accepted, I do not think anyone, the district justice or anyone else, will be entitled to ask the Garda how he formed his opinion. All the Garda is required to do is to justify himself and that is to say: "I did form that opinion." It does not matter whether the Garda is right or wrong, reasonable or unreasonable, under the terms of the Minister's amendment, in forming that opinion.

The Minister is afraid that the Bill as drafted and introduced might in-fringe the Constitution. I realise his arguments there and his reasons for wanting to get away from the use of car fines, but it is going far too far in the opposite direction simply to allow the Garda to exercise these very drastic powers. Let there be no mistake about it. They can be very drastic powers. They can be powers which would mean the difference between livelihood and no livelihood for some motorists.

To allow a Garda to exercise those very drastic powers simply on the formation of an opinion which may be quite unreasonable is what is in question here. I think it is going too far. For that reason, I again ask the Minister to have another look at his amendment and instead simply of the bald use of the expression "is of opinion", that he should alter it to "has reasonable grounds for believing" or some similar phrase.

I should like to refer at this stage to amendment No. 33. I think possibly the Minister and I might agree. Amendment No. 33 has not yet been moved but it is designed to insert in sub-section (3) before paragraphs (a) and (b) the words "if appropriate". I think then that, even with the Minister's amendment being accepted, there would be some measure of protection for a motorist against a Garda who acts unreasonably. A Garda might then be put in the position of having to satisfy the court that in forming his opinion, he had taken various circumstances into account and that it was reasonable for him to form that opinion.

If in other words, the subsection were to read:

"Where a member of the Garda Siochána inspects and examines under this section a mechanically propelled vehicle and is, consequent upon having inspected and examined under this section a mechanically propelled vehicle, of opinion that it is, when in use, a danger to the public he may, if appropriate"

give these directions set out in paragraphs (a) and (b) of subsection (3), then I think the dangers I see in the full acceptance of the Minister's amendment would at least be minimised, because the Garda would have to show it was appropriate for him, in the circumstances which existed, to give these directions.

I do not want to be misunderstood on this. By and large, I have, certainly, and I think most Deputies have very great admiration for the manner in which the Garda carry out their duties, and very difficult duties they frequently are, in relation to the road traffic code. However, Gardaí are human, the same as anyone else. A Garda may lose his temper as quickly as anyone else. It is possible to visualise a situation where, if these powers are given and a Garda challenges a motorist who possibly might be a bit overbearing or condescending to the Garda, he may get a short answer from a Garda who is a bit short-tempered. The Garda may decide he will impose the instructions he is entitled to give under paragraph (a) of subsection (3) and simply say to the motorist: “If that is the way you talk to me, you will not drive this car again until you do (a), (b), (c) and (d) to it. A Garda may act in that way. I am not saying the general run of Gardaí or any large percentage of Gardaí will act like that, but if you have one Garda who acts like that, then it is dangerous to give unrestricted power of this sort.

Mr. Blaney

This question, as the Deputy has said, comes down to a point where a commercial traveller could unreasonably be instructed not to drive his car and the only course open to him would be to await the outcome of a court decision which might not be until six months later. It is argued that he might thereby lose his livelihood until the six months had elapsed, even though he was ultimately proved to be correct and not in error in any way. It was argued that this could be a matter of livelihood or no livelihood. It could also be said that if we did not have some such power and a defect existed which might not otherwise be remedied it could be a matter of life or death. That is what we are directing our attention towards in all the regulations and powers we are making and taking here. In regard to the instructions under sub-section (3) of Section 20 that the Garda may give to a motorist he may only give these instructions where he is satisfied or is of opinion that a dangerous defect exists.

Mr. M.J. O'Higgins

Where he is of opinion.

Mr. Blaney

Very good, where he is of opinion or whatever the Deputy was suggesting.

Mr. M.J. O'Higgins

Has reasonable grounds for believing. If there is no difference would the Minister not accept that?

Mr. Blaney

If there is no difference there is no reason why I should accept it. What I want to point out is that it would appear as if the Deputy is envisaging a situation where there will be widespread application of this law and where we will have Gardaí running around unreasonably holding people up, inspecting their cars, giving them instructions, making them drive here and there and do this and do that and not do the other thing. If there is any fear in my mind, it is that these extra duties, which are being imposed on the Gardaí added to their already onerous and widespread duties, may not be undertaken sufficiently often. Anybody who realises the varied matters that the Gardaí must deal with, knowing some Gardaí personally as we all do, could reasonably accept what I suggest, that the danger is that there will not be enough of this type of operation rather than too much of it, when the Bill becomes law.

Let us take the commercial traveller or any other person depending for a living on running a car. Say that car is stopped and the Garda says he is of opinion that a dangerous defect exists. The driver is absolutely of the opinion that no such defect exists. The Garda instructs him that, as a result of the Garda's opinion, the vehicle is not to be driven in a public place until the defect is remedied. The first thing a normal, sensible person would do would be to go to the local garage or the nearest——

Mr. M.J. O'Higgins

On the instruction from the Garda he cannot even drive it to the nearest garage— is that not so?

Mr. Blaney

He can drive it whereever he likes regardless of the Garda's instruction, if he does not agree with the Garda. Even though he may have reason to agree with the Garda he is still not obliged to do as the Garda tells him and it is only the court that will ultimately determine whether he was right or wrong in doing what the Garda instructed. If the Garda was unreasonable in finding a serious deface where none existed, and as a result of that unreasonable opinion he instructed that the vehicle be not moved from where it is until the defect is remedied, it would be a very timid owner or driver who would not at least insist on taking the car to where it could be examined to bolster up his own belief that there was nothing wrong —either to the nearest garage or to have it examined by a qualified mechanic he himself consults. If no defect is in fact found, that owner would be a timid person if he did not personally drive the car and ignore the warning on which he was originally pulled up. Furthermore, under an amendment which will be discussed later, the court will ultimately decide the case and if it is found that no defect, in fact, existed, when the Garda alleged there was such a defect, then there has been no crime as there has been no defect, and there can be no sentence and, in the interval, the driver will not be at a loss of livelihood through not being able to drive the car. He will have driven the car during those intervening weeks or months. For that reason, I put it to the Deputy that the fear he expresses of a widespread and unreasonable application of this provision in the Bill will not have the effects he mentioned. In fact, his fears are completely groundless and need not worry him or anybody else.

On the amendment put down by the Deputy and other Deputies adding the words "if appropriate" after "may" in line 52 of subsection (3) of Section 20, the fact is that the words "if appropriate" do not add anything to the sense of what is already there. Where the Garda, having inspected and examined a mechanically propelled vehicle, is of opinion that a defect exists he "may" instruct. Why say "he may if appropriate instruct?" Adding the words "if appropriate," to my mind does not make any sense nor add anything to the sense of the subsection. Whatever it might do to confuse the issue, it does nothing to clarify it. The words there at present are, I think, quite clear. They direct what the Garda may do under given circumstances and to say he may do it "if appropriate" does not add anything and certainly does not seem necessary.

Mr. M.J. O'Higgins

When dealing with the Minister I am in the difficulty that he brings in an amendment and says that, as far as he is personally concerned, he does not think there is any difference between his Bill as drafted and the amendment he is moving. When I do see a distinction I point it out to the Minister and suggest an alternative and then the Minister beats me when he says: "I do not see any difference between this phrasing and the alternative you are giving me, but in any event I am not going to accept anything you will give because I do not think there is any difference." Then I point out that he might safeguard the point of view of the motorist by accepting amendment No. 33 which would provide that only in appropriate cases may the Gardaí carry out these powers and the Minister again says: "What does that mean? I do not see any difference between the section with `if appropriate' in it and the section without those words."

Mr. Blaney

Will the Deputy explain what the difference is?

Mr. M.J. O'Higgins

I shall. I have explained it already and I shall do it again. Let us take this bit by bit. The Minister, in the Bill he introduced, had a provision that if a Garda examining a vehicle found a defect in it he was then entitled under subsection (3) paragraphs (a) and (b) to give certain instructions including the instruction to the owner or user that he was not to drive it any more until the defect was remedied. That was the simple situation. The Garda was required positively to find a defect in the vehicle before he could give that instruction. The Minister wants to change that and the reason he gives— and I accept it as quite bona fide; I am not challenging it in any way—is that he is faced with the possibility that if he leaves the word “finds” in the section, it might be unconstitutional because it might amount to the Garda exercising a judicial function.

He asks the House, therefore, to accept the amendment and instead of the word "finds" the words "is of opinion" will go into the Bill. I pointed out to the Minister—I believe it is so—that there is a very substantial difference between the two, though the Minister thinks there is none. In the one case, the Garda was required positively to find a defect and the onus of showing that such defect existed was on the Garda. He had to find the defect before he could give these directions. Now he has only to be of opinion that there is a defect and, if he is of opinion, he can give the directions, including the direction that the vehicle is not to be driven any further. I have suggested that that is not reasonable because the Garda is not even required to show in court that he acted reasonably in forming that opinion and it is sufficient for the court, on the Minister's amendment, for the Garda to say he did come to that opinion, and it does not matter a hang how he came to it.

I believe if, instead of using the words "is of opinion", the Minister altered that and required the Garda to have reasonable grounds for believing a defect existed, the situation would be brought into being in which what the Minister wants to achieve is in no way weakened, provided that the Garda is in a position to show that he had reasonable grounds for believing there was a defect. It does not matter whether or not there is a defect. If the Garda has reasonable grounds for believing, he is entitled to exercise the powers given to him under the section.

The Minister does not want to accept that. Why, I do not now. He admits himself that he does not think there is any great difference. I believe there is. I suggested then that if he would add to subsection (3) before paragraphs (a) and (b) the words "if appropriate", that might meet the situation I envisaged. The Minister asks what difference would the words "if appropriate" make. I think they make this difference. If the words "if appropriate" are inserted, the onus is placed on the Garda of showing that the case was one in which it was appropriate for him to give a direction, maybe even a drastic direction, that the car was not to be driven any further. The onus is on the Garda to show that, in the circumstances, it was appropriate to give that direction. That is the difference it would make if these words were inserted.

I hope the Minister will reconsider this matter. I think he is going altogether too far in trying to amend what is already a very drastic section to make it even more drastic still. The Minister is quite right when he says that the danger may be that these powers will not be used often enough.

I quite agree with him. I think it would be a pity if they were used infrequently from the point of view of road safety and trying to further the cause of road safety. It would be a pity if, when these powers are given to the Garda, they do not use them and use them fairly frequently. I do not want to see that happening. I do not want to see the Minister and the Dáil going to the trouble of enacting this legislation, giving the Garda these powers, and having them shelved. That is not desirable at all.

As I pointed out, one has to look at this from both points of view. It is necessary for us to legislate, and legislate as best we can, in the interests of road safety. It is also necessary for us to determine that there must be some measure of justice for all users of the road, be they motorists, pedestrians or cyclists. We cannot have a situation coming into being where the dice is loaded all the time against the person charged with any road traffic offence. What I am trying to do is to achieve a situation in which there will be justice done from both points of view, from the point of view of the Garda authorities, on the one hand, and the person charged with a traffic offence on the other.

The Minister argues that, if a Garda imposes unreasonably the requirement that a vehicle is not to be driven further until a defect is remedied, the motorist may in effect completely ignore that and say to the Garda: "I will meet you in court and we will argue it out there." If the motorist is proved right in court, that is an end of it. I suppose that is correct. It is not everyone, however, who likes to go into court. Most people would prefer to keep out of court, if they can. I am willing to wager that if this power was used 100 times, you would get only one out of 100 motorists who would defy the Garda and decide to test the matter out in court.

Under another amendment which the Minister is introducing and to which he referred himself, if the motorist takes a chance on it, believing that he is right and the Garda is wrong, and goes into court, then if the court finds he is wrong, he is faced with a possible sentence of imprisonment for a period of three months and a fine of £50. It is not every motorist who will risk that, even though he believes he is right. In saying that a motorist may ignore the request of the Garda and continue driving the car, I do not think the Minister is correct in maintaining that is an answer to the problem. He may do it at his own peril. A number of things may go wrong when he goes into court. He may be an extremely bad witness. He may be disbelieved.

Mr. Blaney

He may have a bad solicitor, possibly.

Mr. M.J. O'Higgins

He may have a bad solicitor. A number of things may happen. I think very few will take the risk, even though they may be 100 per cent. right.

Mr. Blaney

The alternative the Deputy proposes is of such a nature that I am fully prepared, if the House accepts the official amendment, to give full consideration to what is now suggested between now and Report Stage, and then to report back to the House.

Mr. M.J. O'Higgins

That is fair enough.

Mr. Blaney

The insertion of these three words at the end of Section 3 will not in any way relieve the motorist of any of the consequences of his being stopped by a Garda in the particular circumstances. The words are superfluous and therefore unnecessary. It says that the Garda may do these things and may give these directions subject to what has gone before, and what has gone before is that he has to inspect and examine and be then of opinion that a defect exists. If it is appropriate that he should give an instruction, then obviously he must give that instruction.

Mr. M.J. O'Higgins

On the Minister's agreement to reconsider the matter, I will not press my amendment.

Amendment agreed to.

Amendment No. 33 not moved.

Mr. Blaney

I move Amendment No. 34:

In subsection (4), page 21, lines 58 and 59, to delete "inspects and examines a public service vehicle and finds" and substitute "is, consequent upon having inspected and examined under this section a public service vehicle, of opinion".

Amendment agreed to.

Mr. O'Donnell

I move amendment No. 34a:

Before subsection (5) to insert a new subsection as follows:—

"(5) Where a member of the Garda Síochána proposes to exercise any of the powers contained in any of the foregoing subsections the person in charge of the vehicle or the owner may require that any inspections, tests, or examinations shall be carried out by a member of the Garda Síochána who is a public service vehicle inspector and in the presence of a mechanic, engineer or other qualified persons nominated by such person or owner who shall be afforded an opportunity of observing such inspection, tests and examinations."

I move this amendment on behalf of Deputy J. A. Costello. I would ask the Minister to study the amendment carefully. The Minister will note that the word "may" is used—"the owner may require." It is but right that only a qualified person, such as an inspector of public service vehicles, or otherwise, should carry out this test and at the carrying out of this test, it is but right that an independent expert should be present, such as a mechanic or some other person nominated by the owner of the vehicle.

If I may digress for a minute, in an ordinary running down action, if a person is injured and the third party wishes to have him medically examined, he will get permission to do that only in the presence of an expert nominated by the injured party. There is a very good reason for it. A certain aspect of his illness might be overlooked. In this case a certain aspect of the mechanical breakdown may be overlooked or certain mechanical aspects of the vehicle may be overlooked. Therefore, it is reasonable to ask that if the Garda insist on an inspection, that inspection should be carried out by an expert in the presence of an expert, the selected nominee of the owner or driver of the vehicle. I am sure that, on reading the amendment, the Minister will agree with me it is a reasonable one and I ask him to accept it.

Mr. Blaney

In the first instance, I shall say that I understand there are in the country twenty-nine public service vehicle inspectors. Six of them are in Dublin and three are in Cork. The application of this amendment, if it became law, would undoubtedly bring about a situation wherein the whole section we are discussing would become entirely unworkable for the Garda. Secondly, there is no guarantee that public service vehicle inspectors as such will remain and that they will be there for all time as we now know them. First, we may not have them in the future and, secondly, in view of the way the numbers are dispersed, the position would become known to all and sundry who were "pulled" by the Garda and the further they were from a chance of being examined by a public service vehicle inspector in regard to likely defects the more quickly they would opt for and ask for such an examination, which in fact it would not be practicable to give. For those reasons, I am inclined to say to the House that the amendment should not be accepted.

Mr. Corish

I should like to support the amendment. One can understand the practical difficulties the Minister has mentioned, the fact that there are only twenty-nine public service vehicle inspectors in the country, six of whom are located in Dublin, three in Cork and the other twenty distributed throughout the country. I have not got a copy of the amendment before me and I do not know whether it specifies these particular officers the Minister has mentioned, but there should be some such safeguard. As it it, the section gives power to any member of the Garda to hold up any sort of a vehicle, or indeed a pedal cyclist, to insist on an inspection and then to direct, if he thinks fit, that a certain line of action be taken by the driver of the vehicle.

I should like to ask the Minister are the ordinary members of the Garda competent or equipped to carry out any sort of inspection of a motor car, lorry or even a pedal cycle? As far as I know, no such training is given to them during their training period in the Depot. Therefore, if it is not these public service vehicle inspectors, it should be some special branch of the Garda, some members specially equipped, who will be given these powers and who will be the only members with such powers.

The safeguards the Minister mentioned in this big section are not quite enough. It is all very fine for the Minister to say: "Right! If a member of the Garda tells him that the steering is defective, or the brakes are defective, he can go to a garage and get the garage man to adjudicate. If the garage man tells him the steering or the brakes are all right, he can ignore the Guard." That is little consolation to the motorist. What does the Guard do after that? Does the Guard have to be satisfied that the defect was corrected or take the word of a competent mechanic that in fact there was no defect in the brakes or steering?

The Guards are equipped to do a particular job, equipped to be able to determine whether or not the law is being broken, the specified law, the law that is given in detail, the law which in most cases they have learned in some detail. What do they know about the mechanical end of a car? How many members of the Garda are entitled to tell a driver of 20, 25 or 30 years driving experience whether or not his steering is right? What constitutes a major defect? I do not know whether the Minister believes that that power should be given to every member of the Garda. If there was a scheme to train, say, every second or third man in the Garda, that would be all right.

As I said on the last occasion we discussed this Bill, I can well appreciate the sort of reception some members of the Garda would get from experienced drivers. You are only going to provoke trouble if you permit a situation in which any member of the Garda can challenge a driver of 20, 25 or 30 years experience and tell him he must go to the nearest garage. If the Minister does not accept this amendment, he should undertake between now and Report Stage to introduce an amendment which will give power to certain members of the Garda to carry out certain inspections on motor cars, lorries and pedal cycles. He should not give it to every member because every one of them, to say the least of it, is certainly not equipped to carry out an inspection of a motor car or lorry and certainly is not in a position to determine, as against the experience of an experienced mechanic or driver, whether a car is roadworthy.

Mr. O'Donnell

I also appreciate the Minister's difficulty in the matter in view of the fact that he has such a limited number of small public service vehicle inspectors at his disposal. I can see his difficulty in giving this amendment the thought and merit which are its due in view of his handicap. I understand that, at the moment, the great majority of the Gardaí passing through the Depot have some experience and are taught some of the skills necessary for the care and maintenance of motor cars. It should be possible that, at least in every district, there would be a member of the Garda who would have a certificate from his superior officer that he was a skilled person to examine a vehicle in these circumstances.

One of the difficulties with regard to older Gardaí is that when they were in the Depot motor cars were not as common as they are now. In fact, some of the older men find it difficult to operate the ordinary push bicycle. Things have changed from that state of affairs. I am informed that in the next four or five years every member of the original force will have disappeared and that we shall have a complete new set of Gardaí. Even the Minister for Justice has now given instructions that no Garda over the age of 45 years will be employed to drive a State car. It is presumed that all new Gardaí will have some experience of motors.

Mr. Blaney

That is a new one on me.

Mr. O'Donnell

I have been informed of it.

An Leas-Cheann Comhairle

It scarcely arises on the amendment.

Mr. O'Donnell

Indeed it does, Sir.

Mr. Blaney

There must be some leak somewhere.

Mr. O'Donnell

It is surprising where the leaks occur and they can become most embarrassing. The Minister knows all about it.

Mr. Blaney

The Minister does not. I should like to hear more about it.

Mr. O'Donnell

These new recruits are now receiving some instruction on car maintenance and in the manipulation of motor cars. While some of them may not be as apt as others, surely those who show efficiency could be issued with a certificate and at least one expert could be allocated to each Garda sub-district. If there was a dispute with the owner or driver of a vehicle, that particular individual could be called in to inspect and examine the vehicle and the owner would have the right to nominate a mechanic or motor expert to be present at that examination. Later on, in the event of a court prosecution, the manner in which such an examination was carried out could be a matter for cross-examination and the defending lawyer would only know about that if an expert was present when the examination was taking place.

If the Minister would undertake to substitute a Garda expert for the P.S.V. inspector it would meet the amendment. In fact, he may decide to abolish the P.S.V. inspectors altogether. If the Minister would substitute a Garda skilled in the mechanics of motoring for the inspector and, at the same time, put in a clause to enable the driver or owner of the vehicle to have present at the examination his own mechanic or expert it would meet the case.

Mr. Booth

I should like to say that I am not very much impressed with the first part of the amendment but I am with the second part. As I understand the position, the Garda concerned would only have to identify a major defect in a vehicle. I agree with Deputy O'Donnell that the inspection of a vehicle by any member of the Garda who is not qualified might lead to trouble. It might lead to a vehicle being put off the road unjustly or it might lead to a prosecution which was not justified. I wonder could we split the amendment or withdraw it and try again on Report Stage to cover the second part which provides for an examination by a qualified person nominated by the owner or driver? Otherwise a private individual could be unfairly prejudiced. If the second part of the amendment could be covered I do not think there is any great need for the first part. I do not know whether the Minister would be prepared to comment on that matter or whether Deputy O'Higgins would be prepared to comment on it. If we could make sure that the examination was carried out in the presence of a qualified person it would be a great protection against unjust or irresponsible reports by Gardaí.

I can see the Minister's difficulty in providing fully qualified inspectors but that would only be necessary if full certificates of road-worthiness were going to be given. If it is a question of a major defect, a Garda should be able to stop a vehicle and have it directed to a place where it would be checked. I do not feel that the Garda on his own should have the right to put a vehicle off the road or initiate a prosecution unless he is more qualified than the ordinary Garda can possibly be.

Mr. M.J. O'Higgins

I appreciate also the Minister's difficulty in trying to implement the full proposals in Deputy Costello's amendment. I think it is a fair answer to make that he has not got the men capable of doing this job but, as Deputy Booth points out, the amendment is, in effect, in two parts. It is designed, first, to have a properly qualified person on behalf of the Garda to examine the vehicle and, secondly, to ensure from the point of view of the owner or driver that he will be represented by some qualified person at the examination. This amendment would be of particular importance in relation to paragraph (b) of subsection (3) of this section, that is, in relation to the authority which a Garda has under that subsection to require a car or vehicle to be brought for subsequent examination, apart from the spot check done on the road.

Under the Bill as it stands at the moment it is simply stated bluntly in the subsection that a Garda may give that order. There is nothing to protect the rights or interests of the owner or user of the car. There is no provision which says that he is even entitled to be present at the examination no matter by whom it is conducted. It does seem to me that it is of very considerable importance from the point of view of ordinary justice, if there is going to be a prosecution following such an examination, that the person being prosecuted should have had the opportunity of being present, if he wants to be present and, secondly, of having some properly qualified person present to see the examination on his behalf.

While I think the amendment as drafted would be the ideal provision to make with regard to these powers which are being given, if the Minister says to the Dáil that it is impossible to implement it because there are not sufficient qualified people to do it, I would be prepared to accept that but it applies only to portion of the amendment. I would urge on the Minister that he should insert provisions in the Bill which will cover the second part of the amendment, that is, the aspects of the amendment about which Deputy Booth spoke. If the Minister does that, he will be meeting the situation reasonably and will be bridging what seems to me to be a definite defect in the Bill as it stands.

Mr. Ryan

This amendment in the name of Deputy Costello is moved in the belief that a little learning is a dangerous thing and in the conviction that the less knowledge a man has the more intolerant he becomes of critics. If the Garda force is so understaffed with mechanical experts it is all the more reason why the amendment should be accepted. A member of the Garda Síochána who spends a year in the Depot learning the multitudionous duties of a Garda may have some portion of that time allotted for a certain amount of instruction in mechanically propelled vehicles but that little knowledge may make him the greatest tyrant imaginable. It is on that account that we on this side of the House felt that the motorist ought to be protected.

There are in the State at the moment well over 250,000 mechanically propelled vehicles. That being so, it is about time that the State took very definite action to increase the number of Gardaí who would be in a position to test mechanically propelled vehicles and to give expert opinions as to their condition. We will have to increase the number of men who know more about mechanically propelled vehicles than is learnt during a couple of hours' training in the Depot. Many members of the Garda have got little or no training in mechanically propelled vehicles. On that account, while acceptance of the amendment may impose a considerable burden on the Garda and on the State in general, we believe that where there are over 250,000 mechanically propelled vehicles in the country and when it is likely that before an amending Bill can be passed the number will be 500,000, there should be far more members of the Garda in a position to test mechanically propelled vehicles.

That is why I think what Deputy O'Donnell has said merits serious consideration, that even though we are not going to have any more inspectors, at least we should have in each sub-district some man who could test mechanically propelled vehicles with more competence than the ordinary member of the Garda on the beat has.

With regard to the second part of the amendment, which seeks to confer on a motorist the right to have his own mechanic present at an examination, apart from the reasons already offered, there is another very important reason. In the course of a detailed inspection of a mechanically propelled vehicle which may entail some stripping down it is quite possible that even with the best of goodwill some damage may be caused to the vehicle. It is only if a member of the public has his own engineer or mechanic present that he will be made aware that some of the damage, at least, was caused in the course of the inspection.

It is an amendment which deserves serious consideration. It should not be dismissed out of hand because of the burden it will impose on the State. Under the Bill, I believe quite rightly, a serious burden will be imposed on all motorists and owners of mechanically propelled vehicles. That being so, the State ought to shoulder the burden of having more competent vehicle inspectors in each sub-district. The State should also allow the motorist to have his own mechanic or engineer present at an examination, if he wants to.

Mr. Blaney

I think I have been somewhat misunderstood. While I used the two very obvious arguments of the small number of P.S.V. inspectors throughout the country and the manner of their dispersal throughout the country—six in Dublin, three in Cork and the rest scattered throughout the land—I am sorry if the House took that to be the only argument that could be thought of against this amendment. I gave these as the obvious ones, at the outset. I indicated that by writing into this Bill mention of P.S.V. inspectors, we would, in fact, be tying ourselves to something which is not static and need not necessarily remain. In other words, there may not be P.S.V. inspectors as such in future. To regard them as being in existence for all time or for the next 25 or 30 years would be rather straining the situation.

Over and above that, let us consider the situation for a moment. If, for instance, a Garda, no matter how unqualified from a mechanical point of view, observes a mechanically propelled vehicle—a car, truck, motorcycle or what you will—careering madly through any town, street or village, wobbling about, perhaps almost knocking down somebody, apparently incapable of being pulled up, surely it would be unreasonable at that stage to say that only a person who was qualified mechanically——

Mr. M.J. O'Higgins

It is a qualified medical man you would want in those circumstances.

Mr. Blaney

That is a very interesting point. The Garda then pulls up the driver. He is not medically qualified, as one might expect he would be required to be if this line of argument were used, to determine on the spot and, if necessary, arrest the driver in the belief that he was under the influence of drink or drugs. Apparently, objection is taken to his asking the driver to let him have a look over the machine, to find out by depressing the brake pedal and by twisting the steering wheel, whether or not it has any defect. At that stage, even though it was in the middle of the night, on a country road, miles away from mechanics, garages or P.S.V. inspector centres, what would be the position if this amendment were carried?

Would the Garda be expected to stand by the machine until the following morning until somebody came along to find where he was lost? Would it be expected that he should hare off through the country, leaving the motorist on the side of the road, expecting him to be there when he returned having rooted out of bed a qualified mechanic and a P.S.V. inspector from some place miles away, and all that in order to allow the defendant—as he would later turn out to be—an opportunity, as the Deputies have put it to the House of getting fair treatment and justice? Is that to be the position, despite the fact that by depressing the brake pedal it would be quite obvious there was not a screed of brake on the machine and, by twisting the steering wheel, that it did not work until you had turned it twice around and that then it began to take up? There is no Garda on the beat today who is so lacking in knowledge and intelligence that he would not know at that stage, in relation to those two points, that the machine should not be further used in the interest of public safety.

Progress reported; Committee to sit again.

The Dáil adjourned at 5 p.m. until 3 p.m. on Tuesday, 9th May, 1961.