(Cavan): Are we on the section or on the amendments?
Road Traffic Bill, 1966: Committee Stage (Resumed).
SECTION 28.
Debate resumed on the following motion:
"That section 28 stand part of the Bill."
We have dealt with the amendments.
(Cavan): It is perhaps fitting that we should recap here since we last discussed this matter as far back as 24th May, 1967. We are now dealing with section 28 of the Road Traffic Bill, 1966. The object of this section is to rid the roads of drivers whose judgement and capacity to drive are impaired due to the consumption of intoxicating liquor or the taking of a drug. It is not the Minister's object, I take it, to ensure that none other than total abstainers drive cars. I should like, therefore, before we pass from this section to the next section, to ask myself and the House what exactly we are doing in this section, and what exactly is the position at present.
Under section 49 of the Road Traffic Act, 1961, it is laid down in subsection (1) that a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control over the vehicle. Needless to say, with that subsection and the sentiment expressed in it I am in complete and absolute agreement, and so, I think, is every responsible member of the House. Apparently some years ago the Government and the Minister considered that that section was not strong enough to achieve what it set out to achieve, that is, that no one who became incapable of having proper control over a vehicle, due to the consumption of intoxicating liquor or a drug should drive a car.
The Government thought that they should strengthen the hands of the courts and the Garda and with that end in view, on 14th September, 1961, they set up the Commission on Driving While Under the Influence of Drink or a Drug. The Commission was set up by the then Minister for Local Government, Deputy N. T. Blaney. It consisted of the following distinguished persons, and I should like to put their names on record before we pass from this section: Mr. Justice Cahir Davitt, then President of the High Court; Professor Maurice Hickey, State Pathologist and Professor of Forensic Medicine at University College, Dublin; Very Reverend D. P. Kennedy, S. J., President of the Safety First Association of Ireland; Dr. Sean McCann, Terenure, Dublin, a general practitioner; Superintendent P. McGonagle, Traffic Section, Garda Síochána; Dr. Desmond McGrath, Psychiatrist, St. John of God Hospital, Stillorgan, and St. Laurence's Hospital, Dublin; Mr. Dermot O'Clery, MA, BAI, MICEI, AMI, Mech. E., representing the Royal Irish Automobile Club; Mr. R. O'Donohue, Area Secretary, Automobile Association; Mr. D. O'Donovan, Chief State Solicitor; District Justice A. A. Rochford; Mr. E. T. Sheehy, Principal Officer, Department of Local Government; Mr. R. Toal, Assistant Principal Officer, Department of Justice. The Minister appointed the Hon. Mr. Justice Cahir Davitt as chairman of the Commission.
That Commission was set up on 14th September, 1961, and it reported to the Minister on 15th September, 1963, nearly two years later. The cost of preparing the report was estimated at £2,439 approximately, exclusive of the cost of printing and publication. Amongst other things, that Commission dealt with the offence of driving while under the influence of drink or a drug. It considered very carefully the advisability of introducing the blood test. It made a number of recommendations. At paragraph 50, page 43, the Commission commented as follows:
If any legislative changes are to be really successful and effective they must, in our view, have the support of the bulk of public opinion. In countries where a certain blood-alcohol level has been prescribed as conclusive evidence of critical impairment, public opinion has, we believe, been conditioned, perhaps gradually, to accept the position. Here the whole procedure of taking and analysing blood samples and giving evidence of blood-alcohol levels in prosecutions would constitute an innovation in criminal procedure with which everyone concerned might take some considerable time to become familiar, as well as an interference with personal rights which public opinion might be still slower to accept as necessary or desirable. It may be that, as a result of experience, public opinion would in the course of time be conditioned to accept and approve of a prescribed level which would be conclusive evidence of impairment. We doubt very much if the education of opinion on the matter has yet reached that stage. We take the view that, initially at any rate, a blood-alcohol level should be prescribed which would be prima facie and not conclusive evidence of critical impairment.
In its formal conclusions and recommendations on major issues to the Minister at page 52, subparagraph (3) there is the following:
Proof that an accused person's blood alcohol level exceeded 125 mg. at the material time or within three hours thereafter (see subparagraph (8)) should be accepted as prima facie evidence that he was unfit to drive. The prosecution should be free to adduce evidence that the accused was unfit to drive even though his blood-alcohol level did not exceed this figure; and an accused person should be free to adduce evidence that he was not unfit even though his blood-alcohol level did exceed this figure. The law should make provision accordingly.
Those are the recommendations of this Commission, composed of the distinguished and experienced persons whose names I read out. They sat for three years.
14th September, 1961, to 15th May, 1963, is less than two years.
(Cavan): I accept the Minister's correction. The Commission sat on a great number of occasions; they travelled abroad to the Continent and to England. They made these recommendations. The Minister has not seen fit to accept them. Instead of accepting the recommendations, the Minister introduced section 28 of the Bill which reads as follows:
Section 49 of the Principal Act is hereby amended by the insertion after "the vehicle" in subsection (1) of "or while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood".
That section is directly opposed to the recommendations of the Commission. I tabled an amendment which, if accepted, would constitute the concentration of alcohol set out in the Bill as prima facie evidence that the person's judgment was impaired and would shift the onus of proof on to the accused person to establish that, not-withstanding the fact that he had this concentration of alcohol in his blood, he was quite capable of driving a car. That might, indeed, be a heavy onus but it would, at any rate ensure that a person whose judgement had not been impaired and who was perfectly capable of driving a car, would not be convicted and would not expose himself to heavy fines and imprisonment and would not suffer the automatic suspension of his driving licence.
Not only did the Minister reject the recommendation of the Commission but he wants to have it both ways. He accepted portion of the recommendation which suited him and he rejected that portion of the recommendation with which he did not agree. In subparagraph (3) on page 52, it is recommended that the prosecution would be free to adduce evidence that the accused was unfit to drive even though his blood-alcohol level did not exceed the stipulated figure. Let us stop there. That will still be the position if this section becomes law. The person who is brought in and has a blood test taken and the concentration turns out to be only 100, 90 or 115 milligrammes of alcohol to 100 millilitres of blood will still be exposed and still not be cleared of the charge because it will be open to the Attorney General to call evidence to the effect that not-withstanding this concentration, the person was drunk.
The report goes on:
An accused person should be free to adduce evidence that he was not unfit even though his blood alcohol level did exceed this figure.
The Minister accepted the first recommendation but he rejected the second recommendation. That is not fair because it is accepting as much of this report as the Minister favours and rejecting the rest. It creates a situation in which an accused person is to have cat-and-mouse played with him.
We have had a lengthy discussion on this section. The Minister concedes rather reluctantly that a person with the concentration of alcohol in his blood specified in this section could still be perfectly able to drive a car. The Minister will say that this is unlikely, but will not go so far as to say that such a case could not occur. The Minister will admit that where you have a position in which a person who consumes four small whiskies, who believes he is able to drive a car and is in fact able to drive a car and whose judgement is not in any way impaired, has no way of knowing or checking whether he has the offending concentration of alcohol in his blood, unless he goes through the extraordinary procedure of having a blood test carried out in the public house, in the hotel or the private house before he leaves; and still that person, not a danger on the road, who does not know he is committing an offence and who cannot ascertain whether he is committing one, is to be convicted of this new offence which carries with it substantial monetary penalties, imprisonment and disqualification from driving a car. That is not reasonable.
Lest it might be said that I am standing up here in defence of the drunken driver or advocating that it is not a serious offence to drive while drunk, I wish to say I am doing no such thing. I wish to point out that I offered to the Minister in this House on this section an amendment which would, in my opinion, strengthen the Minister's hands, strengthen the Attorney General's hands and the hands of the Garda to such an extent that it would be virtually impossible for a person who had a concentration of 125 milligrammes of alcohol to 100 millilitres of blood, and who was impaired as a result, to get off without being convicted, while at the same time ensuring that a person who had that concentration of alcohol and who, as the Minister admits, could safely drive a car, would not be convicted wrongly and would not suffer unjustly the penalties I have mentioned which are prescribed in this section.
The Minister is going much too far in this section and he should give my alternative the fair trial recommended by the report. I have said that in my considerable experience of district courts and of charges under the Road Traffic Acts, I am satisfied that if a man who has taken too much drink and who is charged with drunken driving does not get off on a direction and is forced into the witness box, having had the onus of proof shifted to him, he does not get off. I am prepared here to shift the onus of proof of the concentration of alcohol mentioned in this section and that will ensure that only a person who is genuinely capable of driving a car and who is not in any way impaired by the consumption of alcoholic liquor will be acquitted.
Under the law as it stands, under the Act of 1961, we are told that 62 per cent of those prosecuted were convicted. I do not know how that percentage compares with convictions in respect of other types of crime—I intend putting down a question to find out—but I can assure the Minister that if he accepts my amendment, that 62 per cent conviction rate will be increased substantially and he will then be convicting the type of person who should be convicted, that is, the type of person whose judgement is impaired, and he will be providing a safeguard for the lawful citizen who has taken a moderate amount of drink and whose judgment is not impaired.
We have stated time and again during this debate, and it is not necessary to repeat it, that it is doubtful whether sections 28 and 29 are constitutional, but the Minister is taking a chance with them and he will deal with that situation, I suppose, when it arises. Certainly it has been held always that a person should not be deemed to be guilty until he is proved to be guilty—he should be innocent until his guilt is proved. The Minister will probably say that the difference between me and him is that he is creating a new offence, the offence of driving with this specified concentration of alcohol in the bloodstream, and that whether a person's judgement is impaired or not has nothing to do with the offence. I appreciate that is what the Minister is doing but my objection to it is that it is not reasonable. What we are after here is to make the roads safer by clearing off them the people whose judgement is impaired as a result of the consumption of alcohol or the taking of drugs.
However, I say that we did not set out here to create a society of total abstainers even in the motoring community and for those reasons and for the reasons which have already been put forward throughout the debate, I am strongly against this section as it stands. I think it is grossly unfair; it is unjust; it is unwarranted; and I think section 49 of the Road Traffic Act, 1961, with the amendment, suggested by the Commission on Driving while under the Influence of Drink or a Drug would meet the case, and meet it adequately, until such time as it had been proved that it was not sufficient. I am convinced that section 49 of the 1961 Act as recommended by this Commission would meet indefinitely the case of excessive drinking while driving.
I should like to ask the Minister to reconsider this section and the following section, because if section 28 remained alone, it would not create any great problem.
The question of section 29 has to be looked at as we consider section 28 because punishment for violation under section 28 is carried through in section 29. I should like at first to explain that I am not here as a representative of any organisation of the licensed trade or any other group. I have not been approached personally by any organisation to vote either for or against this Bill. I want to emphasise that I am not here to put the case of any organisation or group. I am here simply to represent, and to interpret as well as I can, the views of the majority of my constituents. In discussing it, I have found amongst most of the motoring public, and indeed among people travelling in general, a great distaste for this legislation. It is felt that it is a panic measure, because of an unusual number of events in unusual circumstances either here or in Great Britain. We are copying the British or Northern Ireland——
We had introduced it before the British.
How is it that it is passed in Great Britain before us? Did you wait to see the effect?
We could not get it into the House since last May.
I accept your following Great Britain if it is a good thing to do. I believe that Deputy Fitzpatrick has put forward a good deal of commonsense. He has suggested that under the previous Bill, with certain amendments, people could be brought to the courts and punished because of an excess amount of liquor having been taken and if there had been visible proof of their inability to drive; and the courts could act in those circumstances and the Garda had power to take people into the barracks if in their opinion, their ability to drive was defective and a scientific examination could be carried out.
But we do not apparently accept that one man with three drinks can be an absolute danger and still come under the regulations laid down in sections 28 and 29, whereas another man who might violate the section can be judged more capable and much safer on the road. If this is an effort to keep death off the roads, as evidently it is intended to be, I believe that 75 per cent of our deaths on the road are caused by excessive speed. We have made an effort in this case to introduce a regulation for cars so that they cannot go beyond a certain speed. That would be a practical and sensible suggestion but of course it might interfere with certain people.
I do not know whether anyone who drives a car would disagree with me that the most dangerous thing you meet is a car driven at excessive speed, that is, out of control, whether driven by a sober man or a drunken man. This section, to my mind, is a violation of the right of the individual—perhaps not section 28, but certainly section 29, as a follow-up, as guards can find guilty and force people to take certain tests, without any evidence of dangerous driving under penalty of imprisonment, fine and suspension for refusal. That is a violation of the rights of the individual that I would want opposed on behalf of my constituents.
I believe, as Deputy Fitzpatrick has put in a better way than I could put it because of his knowledge of legal proceedings, that there are ample powers vested in the present Act and that this new Bill is not required. Certainly if some small amendments as he had proposed, and which were rejected, had been accepted, many of us who are now about to oppose this Bill because of sections 28 and 29, would probably be in favour of it.
The breathaliser test is an indignity and I consider section 29 to be an indignity also. I am not at all happy with the statistics that have been produced by the newspapers on the number of deaths in Great Britain in the past 12 months for the period of operation around Christmas. I think it was the licensed vintners who asked the question: how did they compare with the year before? The year before showed that there were fewer deaths when there was no breathaliser test as compared with last year. In Ireland you cannot take one year with another and say this is caused because of that.
I believe that when the previous Minister for Local Government was bringing in the last Road Transport Act certain regulations were introduced such as rear lights for bicycles. It is a requirement of law at the present day. Anyone who travels the roads driving a car realises that these are an exception rather than a rule. Are they really clear that there is a breach of the regulations? We hear of having to keep on your side lights during parking in towns and villages and even in culs-desac. The regulations which were brought in are not enforced.
I suggest that in Great Britain and Ireland if this Bill is passed, after a period the regulations will die the very same death as most of our road traffic regulations. Deaths on the road are going to increase and in direct proportion, I suggest, to the number of motor vehicles registered each year over and above the previous year. I think it is mathematically certain that the more cars you have on the road the more deaths there will be. During that period in Britain, during the survey, I suggest the main reason for the drop in road accidents and deaths was that people were afraid to take out their cars. The Minister could have achieved the same result by issuing an order that motorists with an odd number as the last digit of their registrations would not be permitted to drive during that period. In time, as people become accustomed to the new regulations, you will find again the very same people driving. The drunkard or the alcoholic will be caught under the present law. This is directed—I agree that it is an effort to keep death off the roads—at the social drinker, the man who is quite capable of going about his business and of driving his family safely. Nobody values his life as much as the driver of a car who is in his normal senses.
I do not believe I would be interrupting the views of the majority of my constituents if I did not oppose this section and section 29. This is a personal view. It does not tie my Party in any way. They have given permission for a free vote on this section, believing, as they do, that it is a matter on which each Deputy must make up his mind solely in the light of the reasons put forward here and the views and decisions he gets from his constituents and in particular, in the light of his own personal experience.
These sections — as Deputy Kyne says sections 28 and 29 must be read together—are designed jointly effectively to reduce deaths on the road. I would be prepared to go a very long way with the Minister in such measures as he deems it expedient to take to achieve this objective, but, as Deputy Kyne says, it is extremely odd to have before us for consideration the advanced proposals in sections 28 and 29 at a time when we have not taken the elementary precaution of providing a general speed limit on all the roads of the country. Although we have imposed speed limits on the dual carriageway, you may travel at 90 miles an hour down a narrow country road. We have not taken effective measures to control what demonstrably has cost many human lives in motoring.
We have not taken steps to prevent people parking gargantuan cattle lorries on the roads without any illumination. I know from my own personal experience, and I doubt if there is a Deputy who has not had similar experience, of injury and death occurring as a result of collisions with such vehicles. We are told that the reason steps have not been taken to prevent these articulated pantechnicons which are sometimes 30 feet long, from swinging along the roads at night, constituting a frightful hazard, is that it would not be practicable. We have not yet, by propaganda or publicity induced people wearing dark clothes to put scotch tape either around their collars or around their arms at night in order to make them manifest to drivers who are approaching them at the same time as they are approaching the headlights of an oncoming car. All these things, I think, should be done if we are to increase safety for pedestrians and drivers on the roads.
As this debate proceeds through the Second Stage and the Committee Stage in relation to these sections, there is great danger of the House allowing itself to be manoeuvred into the position of assuming that the driver of a car who kills a person on the road is quite content if he can avoid the legal sanctions attendant on dangerous driving, but the plain fact is that a man who kills somebody on the road in his car will carry that scar on his conscience all his life, even though a criminal court acquits him of criminal responsibility. I suppose there is no more horrible experience a human creature can have than inadvertently to kill a fellow man. I do not believe there is anyone in the country who wants to facilitate the operation of the drunken driver.
I heard Deputy Fitzpatrick put most emphatically and with great force the case which he has made and which I think could be summarised by saying that he believes that drunkenness is drunkenness and that it is of questionable propriety to create a statutory offence of a certain alcohol level in the blood without any regard to the consequences of that alcohol level. I see the force of the case the Deputy makes. I would be prepared to go so far with the Minister in view of the gravity of the problem he is tackling, that I would be prepared to accept the proposition that you must take an arbitrary level of alcohol in the blood and say that it is a statutory offence to drive a car with more alcohol in your blood than that statutory level.
We know that there are a great many men and some women who may have a higher alcohol content in their blood and still be capable of driving a car, but in order to cover the majority of drivers we have arbitrarily chosen this level and propose to enforce it. If you accept that principle, as I am prepared to do in consideration of the very grave problem of death on the roads, the question of effectively enforcing it then arises. I implore the House to recollect that people, if they live in civilised society, have certain fundamental rights and one of those rights is the integrity of the person.
I do not want to interrupt the Deputy but section 28, which is the section under discussion, deals with the concentration of alcohol in the blood. Section 29 deals with the method of determination and tests and these may be discussed when section 29 is before the House. If we discuss them now, there will be duplication.
I see that, but to discuss the alcohol content of the blood without considering how that is to be determined is to be wholly unrealistic.
I suggest that when section 29 comes to be dealt with, such a discussion would be appropriate to that section but not at the moment on section 28.
There is no use in talking about the alcohol content of the blood unless you know how you are going to arrive at what the alcohol content is.
Section 29 deals with that.
I suggest that our procedure becomes farcical if we are to discuss the creation of a statutory offence without knowing the means of ascertaining what the statutory offence is. This would bring the rules of order to the point of making our debates utterly ineffectual. If this section sets a statutory limit to the alcohol content of the blood, I am prepared to accept it, provided certain other things do not flow therefrom; but if the Minister says: "You cannot approve of this section if you do not approve certain consequential things," then I do not accept it.
Surely I must be allowed to argue that I am accepting the proposition in regard to the blood level, and in that I appear to differ from Deputy Fitzpatrick, who speaks on behalf of my Party, and from Deputy Kyne. I have a slant of my own. Deputy Fitzpatrick, speaking on behalf of our Party, says he thinks we ought not fix an arbitrary limit and say that somebody was unfit to drive by reason of having consumed an excessive amount of alcohol. I am prepared to say in regard to section 28 that I would accept the statutory definition of excessive consumption of alcohol, provided it does not lead me on to procedures for determining that level which I regard to be unconstitutional and inconsistent with fundamental human rights. I think I am entitled to say that I would be prepared to accept the maximum alcohol content of the blood with great reluctance if it were to be tested by the breathaliser but if I accept the principle of this section, and if I am to be told immediately thereafter that having accepted that principle, I must go on to accept the principle that any citizen of the State can be apprehended by a member of the Garda Síochána, brought to a police station and there required to give a sample of his blood or urine, my answer is "never." I hope and pray that if you put that section in this Bill, you will render the whole Bill unconstitutional and it will be struck down as it ought to be struck down.
If I am told the price of accepting section 28 is the acceptance of section 29, then I reject section 28. However, I cannot explain my attitude to section 28 unless I am allowed to express to the House the reason why I object to section 28 in its present content. If section 28 is sustained for purposes of proof by nothing in excess of a breathaliser test, I would accept that with profound reluctance, but I would accept it. If the Minister says: "There is no use virtuously getting up and saying you are prepared to travel the road with me up to the end of section 28 and then say ‘no' to section 29; you will not give the Minister for Local Government the power to enforce section 28 because unless I get the right to enforce breathaliser and urine tests, section 28 is in fact nullified," my answer is: "If the price of section 28 is to give full consent to section 29, then I reject section 28 and I say we should fall back on the traditional methods of establishing sobriety or insobriety at present available to the law. If I must accept section 28, I am prepared to travel that far, if the Minister is prepared to say, when we come to section 29: "I am going to ask the House to leave the breathaliser test as an obligation on a driver, whom the Garda suspect to have an excess of alcohol in his blood." I am prepared to go even further to help the Minister in his problem. If the Minister went on to say: "I must ask this of the House, when a suspected person is brought to a police station, suspected of having committed the statutory offence of driving with a higher alcohol content in his blood, he must be asked by the Garda does he wish to submit to a urine or blood test and if he declines the Garda should be free to communicate that fact to the court."
I do not like to interrupt the Deputy again but the position is that many of these things are related to the section but what is not in order is to open up a debate on a matter more relevant to the following section.
Of course, Sir, I bow to your ruling, but it seems fantastic to say that I am obliged now to say that I am for or against section 28 without being allowed to say why. My whole attitude to section 28 is conditioned by the question of how the facts which section 28 declare to be a statutory offence are to be established. If certain machinery is indefensible to establish it, then I am against it. I do not believe any country could justify such a means. I do not want to cause you any embarrassment, Sir, but if this is your view let that view prevail. All I can say to Members of the House is go back and read what I said on Second Reading of this Bill. Any attempt to make it a statutory offence to refuse to submit to a breathaliser or urine test in any Garda barracks is an outrage on our people, is unconstitutional, wholly unnecessary and is calculated to raise issues in connection with this section 28 which ought not be raised at all. We can do all that is necessary to help in bringing under control a difficult situation without recourse to such measures. We are unnecessarily complicating what ought to be a rational situation by this extremity into which we are allowing ourselves to be pushed, not, in my opinion, by cold reason but by something closely approximating to panic.
May I again say that we are creating a statutory offence of having an excessive alcohol content in the blood level? Do not let us forget that if we pass this section, it will be quite open to the Garda Síochána to bring a drunken driver into a Garda barracks and without recourse to the provisions of this section, or any test envisaged in later sections, proceed to prosecute him under existing law. Is that not so? If a drunken driver——
Yes.
They may simply say: "We are not going to go into the question of a blood test or a urine test. The fellow was blind drunk. We asked him to walk a line and to recite ‘British Constitution" and he could not do so and could not walk the straight line. He started singing ‘Rule Britannia' and alternated it with verses of the ‘Soldier's Song'."
There is only one snag, that is, if you provide the breathaliser test and the urine test, it presents excuses for avoiding all the other evidence.
For rebutting the other evidence?
It will give the defence plenty of excuses to put up against the other side. If a garda goes into court and makes the case which you are making, the defence can say that these tests were available but they did not make them.
That is what is happening today, and there is no dissatisfaction.
These tests are not provided for today.
I am going further. I am saying that if these tests are carried out there is an even better defence.
This is section 29.
All I want to say to the Minister is this—and I beg him to bear this is mind—it is a great rule of good theology that there are enough sins without creating new ones, but in a changing world, as we are conscious at the present time, the moral law has, on occasion, to be restated in the light of new knowledge but this is something that even the highest authorities in the world would recoil from doing without the most mature reflection. We are creating a completely new offence in section 28. If we want to do that, surely we ought to try to do it with the maximum degree of unanimity that can be procured in the whole Legislature? I suggest to the Minister that if he sticks rigidly to the position which he has set out in the Bill, he will not get that. He may get the law passed but it will not carry with it the moral sanction of the virtual unanimity in this Legislature and that is something that I think would be of incalculable value if the enforcement of this new statutory offence is to be made effective.
In the last analysis, the Garda Síochána are unlike many other agencies of government. The Revenue Commissioners can enforce the letter of the law. The Department of Social Services falls back on the letter of the law and you will frequently find a Minister for Finance or a Minister for Social Welfare making manifest to this House during Question Time that he wishes he had the power to relax the statutory provisions of the Act under which he is working because he thinks there is merit in the case being made but he is bound by the letter of the law and has not got the power to do it. It is an entirely different situation with regard to the Guards. The Guards, in enforcing the criminal law, require the sustenance of the virtual unanimity and approbation of the society in whose name they act, and if we pass laws in this House creating new offences without a degree of unanimity far greater than that ordinarily indicated by a Party decision taken here, we make the tasks of the Guards immeasurably more difficult because we will create a degree of misunderstanding and resentment that affects the Garda Síochána not only in the administration of the provisions of this Act but over the whole sphere of their relationship with society.
I want to draw a parallel. I remember when debating another Road Traffic Act, pressing on the Minister for Justice very strenuously that parking offences should be removed from the jurisdiction of the Garda and should be handed over to a specially constituted body of private wardens, because, I said: "If you do not do that, you will create so much ill-will between the motoring public and the Garda Síochána that in your efforts to expedite the transit of traffic through the city, you will create a degree of antagonism between the Garda Síochána and an ordinarily law-abiding section of the community which will be out of all proportion to the advantage you have derived." Now I want to suggest that if this kind of section is forced through this House against moderate and reasonable representation, against the strenuous advice of responsible Deputies who express themselves as anxious to help the Minister in abating the evil of which we are all conscious, you are going to create exactly the same situation in which the Garda, instead of coming to be regarded as the friends and protectors of the community, will come to be regarded by a very large section of the most law-abiding elements in the community as being public enemies. I want to avoid that, and what you are doing here now is the very thing I seek to avoid and there is no need to do it.
If the restrained approach to this problem in practice proved inadequate, the Minister could always come back and say: "Well, I have tried to enforce the provisions of section 28 and I cannot do it. I want further powers to make it effective", then we can consider that situation in the light of the experience he will have to relate to the House. However, suppose the situation arises where he is obliged to come back to us and say: "The enforcement of section 28 has become such a public scandal that I can no longer stand over it", we will have a very different situation because incalculable damage will have been done and of a character that we are not in a position to remedy, and if we seek to remedy it, we will simply exacerbate it because the plea will be made in this House that because of the powers we have conferred on the Garda the Garda have been converted from friends and protectors of the public into public enemies and we must circumscribe them again, and that carries the implication that we in Dáil Éireann are convinced that given wide discretionary powers, the Garda are likely to go berserk. I do not believe that, but I do not want to create that impression and, remember, if we legislate requiring the Garda to do such things, we have no reason afterwards to blame the Garda if they do.
Again, Sir, my mind works by analogies. I am weary in this House of hearing people coming in making passionate remonstrances against the activities of the Revenue Commissioners and describing some awful outrage of which they complain. When you come to the source and the reason for the outrage, it is pointed out to you that the Revenue Commissioners had no option, that they were enforcing the law we made, and if the truth were told, if you canvassed the individual Revenue Commissioner, he would say: "I think that was a bad thing to do, but once Oireachtas Éireann did it, it was our duty to enforce it, whether we thought well or ill of it." If we force on the Garda an obligation here, it is their duty to enforce it, but it is on them and on their precious relationship with the public that the censure will fall and we, knowing the true root of that censure, by implication join in that course of censure that has unjustly fallen on the Garda whom we forced into a position which I do not believe they want to occupy.
I suggest to the Minister that he should give this matter due weight and even at this late stage say: "Very well, then; if a good many of you feel that way, I am prepared to make two bites of the cherry. I warn you that in my judgment I will have to come back to you for larger powers but, ad interim, I will take the halfway method and give it a trial. If it does not work, I am coming back for more stringent powers.” Then it will be considered on its merits. Ad interim, I urge on the Minister most strenuously to reconsider this whole question in the light of what Deputy Fitzpatrick and I have said.
And no consideration of the lives involved. That is the whole attitude. They do not matter.
That kind of intervention is absolutely vicious and irresponsible.
My objection to this section and to the whole of this provision, quite apart from some point made on Second Reading, is that I am afraid we are going to add to a type of windowdressing legislation that, perhaps, we have had a little too much of. That may seem a very strange thing to say but we have had legislation in the line of traffic alone, dealing with parking. We had regulations about parking lights.
That is not a matter for my Department.
All right.
Another Department deals with the enforcement of these matters.
I quite agree with the Minister that he does not deal with it.
Is it relevant to section 28?
Of course, it is.
I submit that it is relevant because we have a number of provisions that we are not enforcing already.
The Department of Local Government is not charged with the responsibility of enforcing them.
All right. We have speed limits. The Department is not responsible for enforcing speed limits.
That is right.
But the Department legislates for them.
It is not relevant to section 28.
Of course, it is.
I do not want to be in an argument with the Minister.
What has it to do with section 28?
I do realise that this Minister did not sponsor this Bill in the early stages.
I did.
But I do want to say that I am wondering whether it is proper to introduce legislation of this nature unless we are perfectly satisfied that it can be enforced. As I say, I have very grave doubts. For instance, the Minister has said that he is not responsible for enforcing regulations made under the Minister's Department in regard to speeding. How much real enforcement is there? How far is the law in regard to speed limits observed? I will deal with that on section 58 where it is relevant and I do not want to deal with it in detail now. I want to stay within the rules of order. But, if we have already a regular litany of offences and have a situation in which as far as the public are concerned there is a chronic habit of breaking the law, in regard to speed limits, parking, parking lights, we have already far too much chronic sin, if I may follow an analogy of Deputy Dillon's, amongst the public and it is very bad for public morale that that should be so. We cannot even maintain traffic lights. I know of a traffic light at the moment that has been out of order for a number of weeks and nobody has done anything about it.
I do not want to interrupt but I would ask the Deputy to be relevant to the section before the House.
I agree. I completely bow to the point you are making. The point I want to emphasise is, are we going to make another sin?
Hear, hear.
Are we going to create another offence and find in the last analysis the very unsatisfactory position that offences are being committed all over the place with impunity and that occasionally there will be a raid and some unfortunate person who will be greatly depending on statistical luck, will be caught in a speed trap?
I want again to say that it will be very difficult to have a uniform level of discipline. Unfortunately, we have not got the resources. Again, this would be more relevant to section 29 and I do not want to go into details, but perhaps I may be permitted to say that, in my opinion, we have not got the resources to make reality out of legislation of this nature and, although I do agree with the Minister 100 per cent that it would be ideal to clean up this drunkenness question in connection with offences, it is fair enough to say that if a person has had that much alcohol, he should not be driving. I have no question to raise on that matter, although the methods of enforcement are, as I say, another matter.
I am raising the question as forcefully as possible as to whether it is wise at this moment to legislate in this way, whether there is not something of greater priority in regard to the roads. The Minister has mentioned the saving of lives. By all means, let us save lives, but Deputy Kyne was very near the mark when he said that unfortunately there are certain mechanical factors and there are certain statistical environmental factors in it. If there is going to be a correlation between the number of vehicles on the road and the density of traffic, and so forth, and as to whether this will be the major matter, I too, am sceptical. I wait for the answer. It is premature to shout one way or the other. We should coolly and calmly wait for the right answer as far as the British experience is concerned. It is costly, and although its supporters have been enthusiastic and have been shouting about the success of the scheme, there are other people on the other side equally interested who have been very busy comparing contrary figures and statistics. To my mind, enough time has not elapsed, nor is there sufficient information available, to make a sure opinion. The wiser approach of this House would be to wait and see and form an opinion then.
Apart from its justification—and of course it can be justified from a certain point of view and the answers simply cannot be gainsaid—my dislike of this section stems from the fact that from the practical point of view as to whether it will achieve the results one wants to achieve, I have very grave doubts unless a number of other matters are provided for, and in the light of what I have said, I feel that we are not yet in a position to do that.
As the Minister rightly said, I would be prepared to back that argument with a great deal of detail on the question of enforcement but if I get the answer: "That is not my Department", I say that is fair enough but that any Department bringing in legislation or proposals has a responsibility to ask the question: "Can this be made practical and effective?" I think I am within my rights in asking that question.
With regard to the present law and Deputy Dillon's point—again, this arises really under section 29—I think that if this legislation is enacted, it has an immediate practical effect on how any case can be conducted, no matter on what basis the case is made to stand. This would be better under section 29 and I will reserve the development of that point until we reach the section.
There is another question on section 29 but perhaps you would allow me to make the connecting link here without going into the details. One would find it very hard not to believe if the Minister says, as he does say, that a person who has 125 milligrammes of alcohol to 100 millimetres of blood is just not fit to drive a car. If the Minister told us that that man should not drive a car, I would find it very hard to contradict that statement. I find it very hard to say in the abstract that that should not be a crime but as I say, the question is when you make a crime or when you have legislation of this nature, can you enforce it? What are to be the penalties for enforcing it? Why depart from the failure of the aim? If you fail to enforce it, you fail in your primary aim too. Quite apart from the failure of the primary objective, there is the demoralising effect of the damage that can be done to the public morale and the prejudicing of the whole administration of the law by having that kind of legislation. Now we are dealing with the question of drink and very cognate to that was the question of our old licensing laws. They had degenerated into a positive abuse. They were a temptation both to the administrator of the law and the seller of drink.
Our present ones are becoming the same.
I am talking about when they were severe. There was a lot of opposition. The fact is that those laws, because they could not be enforced, had not the real support of the public. Remember that is one of the important things behind any law, especially in a democratic State, the spontaneous support of the people behind it. Those laws were definitely damaging to the morale of the public and were conductive to crimes of another sort. I will not go so far as to say that this could be conducive to crime as those were. Frankly, I think that would be going too far, but if one cannot enforce it reasonably and uniformly enough with the support of the public, you bring about a situation which is very undersirable indeed. Once you reach that situation, you inevitably fail in your primary purpose. Taking all those many things into account with regard to this section and whether, if the Minister wishes to have it, it should be there, if he says he does not want to have two bites at the cherry, he should have a provision for the postponement of the enforcement of the section until such time as the points I made are met.
Let me make a last comment on this section. We have dealt with this with regard to our own environment without thinking of other places but one must realise that there are some broader things. Vehicles and drivers of vehicles may be going abroad and there may be special considerations which should be taken into account. The Minister can rest assured that we will all be very willing to consider those and all other reasonable points. I ask the Minister, when we argue this, not to take it that there is any intention to cast aspersions. There is not but on the other hand, it is only right that we should draw attention to certain very relevant facts when legislating like this.
You are quite out of date. That is not the modern theme at all. You have a clear majority now and it is high treason to question the boys.
It is an awful pity that Deputy Dillon, who can sometimes make a reasonable and useful case objectively, and has done so on this section and on this Bill as a whole, and I was very glad to agree with him, can bring us all down to the level of an academic debating society.
The Minister will be spitting in your eye.
That has nothing to do with the case.
It has.
How has it?
You have a clear majority and you will not listen to reason.
That is not the case. It is the Deputy who is trying to make it appear like that.
Could we get back to section 28?
I hope the Minister has heard all the objections both to the right and to the left of him, from the front and from the rear, to this section. It is a section which is very controversial, a section on which the Minister should take the Whip off and give us a free vote of the House. There are people, on both sides of the House, genuinely in favour of the section, I presume, but there are many more opposed to it. The Minister should take off the Whip and give us a free vote of the House.
I am very worried about the section not from the drunken driver's point of view but from the sober driver's point of view. He may be a businessman in the city of Dublin, a civil servant, a Deputy if you wish, any businessman, who after a very hard day's work motors home, without a drink, to the suburbs of this city. When he gets home, he has what, in my opinion, he is entitled to, a ball or two of malt, or he takes, for instance, two glasses of whiskey. He is entitled to have them because his day's work is over.
He has driven his car home. Possibly he may have his dinner and another ball of malt after, and possibly after, say, two and a half hours at home, there is a knock on the door and a civic guard arrives who says: "Did you drive that car home because if you did, you drove it in a careless manner." The man says: "I drove it home two hours ago." The guard then says that he considers the man had consumed excessive alcoholic liquor and then says: "I want you to come to the station and have a blood test." The man has no option but to go to the station.
He goes to the station and a blood test is taken after his balls of malt, which he has taken before his dinner and after his dinner. It is found that there is more than 125 milligrammes of alcohol in 100 millilitres of blood. He says to the guard: "Look, guard; I know I took three or four glasses of whiskey but I had them after I drove my car home." The guard then says: "That may be all right but you can tell that to the district justice. I am not concerned with it. Tell it to the district justice." That unfortunate, innocent man is summoned or possibly arrested and released on bail until he is taken before the district justice and charged with driving or attempting to drive under the influence of alcohol.
It may be said that that is impossible, but let me prove to you how it is possible. First of all, the guard may be on point duty. He sees this car passing, takes the number and comes to the conclusion that it is being driven in a careless manner. He rings up the county council office and finds out the owner of the vehicle. He then gets into his patrol car or on his motor cycle and comes to where the owner resides and says: "Under section 107 of the 1961 Act, I have come to the conclusion that you have committed an offence under that Act by driving in a manner dangerous to the public. I now want you to tell me who was driving the car on that occasion." Once the garda says he has reason to believe an offence was committed, the owner is bound to tell him that he was the driver. The garda says: "I have reason to think you have consumed more alcohol than you are entitled to consume under section 28 of the Road Traffic Act"—as it will then be—"of 1966 and you must come to the station and have a blood test. You have no option." That is the situation in view of the wording of section 28.
If the owner of the car says: "I drank that after I came home", we must turn to section 34 of the Bill which provides that it shall not be necessary for the garda to prove that it was consumed afterwards. The onus is on the defendant to prove that the drink was consumed by him after he arrived home—and it can be proved only in the District Court, if he is able to satisfy the district justice. His wife, members of his family and possibly the servant girl, if he has one, will have to attend in order to help to prove that he came into the house and had ceased driving before he drank three, four or five glasses of whiskey. How ever, he is dragged through the court. Though the justice—they are generally reasonable men—may dismiss his case, for the rest of his life, the finger is pointed at him that he is the person who was charged with drunken driving, even though he got off.
Why should a man who consumes liquor in his own home, when he has done his day's work and put his car away, be brought into court and prosecuted? Why should he be dragged into court to prove that he consumed the liquor after he had arrived home, as he is entitled to do? That is one of the most objectionable sections in this Bill.
Like everybody else, I have no excuse for the drunken driver but I am very worried as to who will say that a driver is drunk. Why should we lay down that he must prove himself innocent instead of the State's proving him guilty? It is not for me, at this stage, to go into constitutional law but we have this problem of its being necessary for a man to prove himself innocent instead of the State's proving him guilty. Section 34 of the new Bill provides that it shall not be necessary to show that the defendant had not consumed intoxicating liquor after the time when the offence is alleged to have been committed. In other words, the onus of proving that he consumed it after driving is on the defendant and not on the prosecution. That is my great objection to this section.
I can see numerous cases where a garda, out of pique or otherwise, may call at a house to make an inquiry about some minor offence such as no tail-light, no head-lamp, and so on and, on seeing the car, may ask the owner: "Did you drive that car home within the past three hours?" If the answer is in the affirmative, the garda can then say: "I think you have consumed more liquor than you were entitled to consume under section 28. You must come to the station and have blood test." If the man protests that he did not consume the liquor until after he had arrived home, the garda can say to him: "Tell that to the people on the Bench. There is no point in telling it to me."
I am possibly the only Member of this House who has had the breathaliser test. On another occasion, I shall tell the House of my experience as a guinea pig in this respect.
I am wholly in favour of the introduction of the breathaliser test. Before Christmas, I was very much in favour of the Bill. We have seen the results in Britain, particularly over the Christmas period, as a result of the introduction of the new system. Nevertheless, I feel that this section 28 is worded in such a way that it can cause hardship and can cause something that is not intended or that would not be intended by this House.
It is all right to say that, if a garda sees somebody driving a car and is under the impression that he is drunk, he is entitled to follow him to his home, or wherever he is going, to give him a test, wherever he finds him, so as to prove, by that test, that he was, in fact, over the alcohol limit. The wording of section 34, in particular, is such that, if there is any doubt that, before he consumed all the extra liquor to which Deputy O'Donnell referred, he was in fact a little over the top, then the fact that he has consumed a lot of liquor afterwards, after coming home, is to be disregarded in the court. As it is at present worded, I think it is a dangerous section.
As so often happens now, if he is a particularly influential person, there may be difficulty in finding a doctor. Perhaps a proviso could be inserted here that he cannot drag out the time before he is examined. I do not know that the Garda are entitled—and it is not specified for what reason—to take him into custody in order to have him tested so as to know whether in fact he has committed an offence. Section 29 covers portion of it. Yet it remains that if somebody goes to his home and consumes liquor after going in he can be prosecuted.
It may be argued that if this is not put in, there is a danger that people who might be stopped and charged would drive off and attempt to get away—indeed, it is done as it stands at present—and by getting to their own homes would be outside the law. I would suggest that the Minister have another look at this section because as it is written, even with the strong views I and most of my Party have in favour of the introduction of this test, I feel this section is one which should not be allowed in the Bill as passed by the House.
The Minister for Local Government and Deputy N. Lemass rose.
Deputy Lemass. Deputy Lemass has risen twice. I will let the Minister in later.
I want to clear up a point for Deputy Tully.
Deputy Lemass has risen twice. I will let the Minister in later.
You will let me in after Private Members' Business. I think I should be allowed in, particularly when we are having an endless repetition of what we had on two days last May. I thought Deputy Tully might want to have the point he raised cleared up.
I would like to.
But the Leas-Cheann Comhairle will not let it be done.
I hate to hear a charge against the Chair.
The Leas-Cheann Comhairle will not let the Minister intervene. I think I was entitled to intervene at that particular stage. I have listened to a lot.
I have no objection to the Minister intervening.
If Deputy Lemass will give way to the Minister, Deputy Lemass will be called later. Will Deputy Lemass allow the Minister to clear up this point?
Very good. I would like to make it quite clear that I have no intention of repeating what I said last May. I have now got a bit more information the Minister might like to hear.
The Minister.
As far as I am concerned, Deputy Lemass is in order.
When I read in January that special research was being carried out at 770 police stations to try to get the statistical information regarding the cause of accidents, which during the Second Stage I said was necessary, I was very encouraged. I felt, when I read this, that the Minister would not pursue this Bill until this information was available. I believe part of this Bill was constructed more with a view to gaining political advantage than being a properly considered piece of legislation. I believe the Government are now in a political position where they can amend it only in a very minor way and that it would be politically inexpedient to make any serious amendment.
In all the countries of Europe in the ten years from 1954, the only country with the same number of vehicles pro rata on the road to show a decrease in casualties was Ireland. As I read from the Council of Europe reports on the Second Stage, where there is growing tension in society, you will find road accidents tend to increase. That is why you hear the advice given that you should kiss your wife before going to work because if you have a row with her, you are potentially dangerous. As Deputy Dillon was pointing out, if radar traps and so on are set up under this legislation, I believe they will increase tension on the roads and might have the reverse effect to what is intended.
There is another point. I tabled a question to get some information to see if we could distinguish between the carbonic content of the blood and alcohol. The question was refused by the Chair as not being in order. This is information we cannot get. I understand also that if you are in a traffic jam and you have a heater in your car which draws the air from outside, the car in front of you could kill you with carbon poisoning and give the same reaction in the blood and urine tests as if you were drinking alcohol, although you might have been a TT all your life.
We are creating a new offence. Nobody can tell you how much you can drink. Nobody can tell you when you are actually guilty of this offence until you have gone through the tests. Despite this, if I commit this offence and am caught, it means for me that my livelihood outside as a commercial traveller is gone. It might not affect people who use their cars only for jaunts at the weekend, but a person like myself, a lorry driver or a bus driver, who does not believe he is committing an offence—and nobody can tell him how to avoid committing an offence—will be in the position of losing his livelihood.
If a man goes to a party to-night and drinks a lot of spirits, as opposed to beer and stout, he can get up tomorrow morning after a reasonable night's sleep, have his breakfast and lunch and go out after lunch without having any more drink and yet still have a content of 125 to 100 millilitres of blood. That is a medical fact. All these things should have been examined. We should wait until we get more information about what happens in England and until we get the result of our own investigation for presentation to this House in support of this legislation.
The mandatory penalties written into the Bill are a vote of no confidence by this House in the judiciary. Before any mandatory suspension of licence came in England, statistics show that 60,000 licences were suspended there. The judiciary can be relied on to give a fair judgment because there is bound to be discussion of the extent to which a person is guilty of the offence. It is all right for Deputy Tully to talk about the great results in England. It is on record that in 1965, when there was no breathaliser, the number of deaths in England was 76 and in 1967 it was 98.
What was it in 1966?
The year 1966 was an exceptionally high year. Therefore, like a good politician, Deputy Tully is using the best base year for comparison.
Do not spoil your good argument by using statistics which are wrong.
Deputy Lemass should get his facts right. I assume he means the Christmas weekend?
Yes.
There were fewer cars in that period.
I believe more research is required before we adopt this section. The Minister would be well advised to hasten slowly in respect of all the provisions in this Part of the Bill.
At the moment we have a very stiff driving test, in which 50 per cent of the candidates for licences are failed. When these new drivers come on the road, I think we will continue to show the progress we have shown in the past where, per vehicle on the road, we have had a reduction in the number of accidents.
There is also the question, if this section is adopted as it stands, as to whether it should apply also to pedestrians. In a very large percentage of cases where there have been accidents in which drink was involved, it was not the driver but the pedestrain who was found to be drunk.
Progress reported; Committee to sit again.