Dáil Éireann debate -
Wednesday, 14 Feb 1968

Vol. 232 No. 7

Private Members' Business. - Road Traffic Bill, 1966: Committee Stage (Resumed).

Debate resumed on the following motion:

That section 28 stand part of the Bill.

Minister for Local Government (Mr. Boland)

I do not intend to reply at any length to what was said here today. Obviously we could go on and on repeating what was said on two different days last May and what was said here again today. The only reason I got up is that Deputy Tully expressed some doubts about this section today and also on another occasion and that is the only point I should like to clear up. Deputy Tully expressed this doubt before and I drew his attention to what the position was but he may not have been in the House at the time.

I should like to point out to him that there is no question whatever of a garda going to a person's house sometime after he has arrived home after driving. The point to remember is that this is an amendment of section 49 of the 1961 Road Traffic Act and it can only be read in conjunction with that section. Section 49, subsection (1) of the Road Traffic Act, 1961 provides:

A person shall not drive or attempt to drive a mechanically-propelled vehicle in a public place.

This is an amendment of that. The prior requirement of being in a public place is relevant so that a garda cannot require the person to take the preliminary breathaliser test unless he comes across him driving or attempting to drive a mechanically-propelled vehicle in a public place. There is no question whatever of his going afterwards to the person's house. In fact, he would have no authority whatever to do that. I pointed that out in volume 227, No. 6, of the Official Report, column 1029. That is the only point I want to clear up. A garda would not, in fact, have authority to do what Deputy Tully thinks this might make possible. There is no question whatever of that.

With regard to everything else that was raised, I think there was nothing new and I would only be wasting the time of the House going over them again. The fact is that this is a simple matter at issue. The fundamental thing in the Bill is whether we are to create this new offence or not. I am asking the House to make it an offence in future for the person who drives or attempts to drive a mechanically-propelled vehicle when an alcohol content of 125 milligrammes per 100 millilitres of blood has been reached.

I said before that it is scientifically established that virtually everybody would have his driving efficiency seriously impaired at such a blood-alcohol level. It is as near certain as possible that everybody would have, and when Deputy Fitzpatrick said I would admit that a man when he shows this particular blood-alcohol content was incapable of driving, I said no such thing. It is not possible to prove that every single member of the human race would be affected by the test. There is no reason to believe that anybody would not be seriously affected at this blood-alcohol level. I personally believe that everybody, no matter how experienced and how accomplished a driver, would have his driving impaired at this level. That cannot be scientifically established but it is scientifically established that practically everybody would be so affected. The public are entitled to have this protection and my belief is that the public as a whole demand this protection.

It is all right for Deputies to refer to what the Commission says, as Deputy Fitzpatrick pointed out, in May, 1963. I quote from page 43 of their report:

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.

They went on to say:

We doubt very much if the education of opinion on the matter has yet reached that stage.

That is almost five years ago, in 1963, and I do not know how many deaths and maimings ago it was but I certainly know that in the last calendar year, the number of deaths on our roads was 415 and the number injured was 5,693, so that the total in the 12 months of 1967 between deaths and maimings was 6,108. The public have had five more years of that and it is my opinion that the public demand this protection, that they demand that the State do everything possible to ensure that people who run this terrible risk of impairing their driving efficiency when they are in control of a deadly weapon, should not be allowed to drive. They demand that the State should do everything possible to ensure that such people should not go on the road endangering their own lives, the lives of their passengers and the lives of innocent people.

I completely reject the suggestion made by my own colleague that because we cannot ensure 100 per cent enforcement of the law, we should do nothing about it. We cannot ensure that every law passed will be 100 per cent observed and enforced. We have to hope for some element of co-operation by the public. We have to depend on whatever system of enforcement we have available to us. Although we know it will not be 100 per cent effective we are called upon to safeguard the public from this kind of thing.

As I said, this is a fundamental issue, whether we establish this new offence or whether we do not. Deputy Dillon says that he will go part of the road but there is no part of the road. You either make it an offence to raise the blood-alcohol to this level or you do not. If you make it an offence, you must have some system for establishing it. As far as I can understand Deputy Dillon, he says he is prepared to make it an offence but he is not prepared to give us any method of establishing it. A breathaliser test does not establish it. Deputy Dillon suggested that we establish it by that means. That is not a reliable test.

Mr. T.J. Fitzpatrick

(Cavan): It is accepted in some countries.

Mr. Boland

It would be unjust to convict anybody on anything we cannot stand over. It would be unjust to convict anybody on the basis of a breathaliser test but the other tests are reliable. I think that in the interests of public safety we are fully entitled to insist that anybody who wants to take on this terrible responsibility of driving a motor vehicle on the roads should undertake to submit himself to this test, if he is required to do so, and anybody who is not prepared to accept that condition in the interests of public safety should not be allowed to drive a mechanically-propelled vehicle on the road. There is no inherent right in anybody to drive a car on the public road, any more than there is an inherent right in anybody to be in the possession of firearms or some other offensive weapon such as was mentioned during Question Time today. I think the three days debate we had on this section now has made it quite clear that there is a fundamental difference between the proposal I am making and the proposal from the Fine Gael Party and from the Labour Party, though not all.

Mr. T.J. Fitzpatrick

(Cavan): And from some of the Fianna Fáil Party.

Mr. Boland

Maybe some of the Fianna Fáil Party. There is a fundamental difference. What I am proposing is that it be made an offence to raise the blood-alcohol content to this dangerous level. It is quite justifiable to make this a criminal level when driving a car. Public safety demands it. The results of a similar provision elsewhere strengthen my case. It is obvious that such an improvement can be expected here also. I want to contradict what was said here, namely that the decrease in deaths, in injuries and in total accidents in Britain resulted because there was a smaller amount of traffic on the roads, because people gave up driving altogether. That is not a fact. These reductions took place in circumstances of an increase in the amount of traffic.

Mr. Kyne

Who took the census of traffic?

Mr. Boland

I did not.

Mr. Kyne

How does the Minister know, then, that what he is saying is correct?

Mr. Boland

I know from the figures.

Mr. Kyne

For goodness sake, that is the greatest nonsense.

Mr. Boland

We have to rely on official information. I do not have to stand over the accuracy of figures the authorities in another country produce. It is usual to accept the figures they give. However, I am not basing my case on that. I am basing it on the fact that drunken driving is one factor that contributes to accidents. Nobody can reasonably deny that. I am not suggesting that it is the only factor. I am not unmindful of the parking of lorries or even the existence of large lorries and trailers, tiredness, and all of the other factors which were mentioned. We must tackle all of them, too. However, this is the one that it is reasonable to require every person who drives a car to avoid. If he is not able to avoid it, then it is reasonable to require him not to drive his car. I do not think it is any argument in favour of not doing this to say that people need their cars in order to earn their livelihood. If they need their cars in order to earn their livelihood, and they are not able to resist raising their blood-alcohol content to this level, they should get some other means of earning their livelihood where they will not be dependent on having a licence to take out a motor vehicle on the public roads to the danger of other people.

Mr. James Tully

I want to point out that I am almost 100 per cent in support of the Bill. The only thing I have doubts about—unfortunately, the Minister has not removed those doubts —is this question of the Garda being able to test somebody three hours afterwards. The Minister says that because it refers to a previous Act, they must be caught using a motor vehicle or they cannot be charged. I do not know if the Minister has considered this. I deliberately raised it again today because, on the last occasion, last year, when this was mentioned, and when I did make this point, the Minister gave me a reply. Now, having had an opportunity of looking at it, I feel the Minister might decide to give a better reply than the one he then gave. Would the Minister care to tell us here tonight how somebody who is driving and who is arrested, while behind the wheel of his car, would be able to take a drink subsequently while in the custody of the Garda?

Mr. Boland

He could take a Baby Power.

Mr. James Tully

Is it reasonable that somebody who may be charged with drunken driving, and knows it, will take out a Baby Power and drink it? That weakens the Minister's case.

I am all in favour of the Bill. I agree with what the Minister has just said about the necessity to use it and about the good effects that will result when it is passed—and I could give even better evidence than the Minister has given. This is the one weak point. This section is a danger. It still gives the right to gardaí to go after somebody. They may say they suspect a person of drunken driving who got away from them. They may go to his house and arrest him, though he may not have been the person at all. A case of this kind is on record. Before the Bill becomes law, the Minister must copperfasten this point so that there will be no danger in this respect.

I speak as a Pioneer. I believe that if somebody wants a drink when he goes home after his day's work, he is entitled to take it. I do not think it should be open to the police to go into that man's house on suspicion, or whatever you like, and charge him afterwards, within three hours. The Minister must find a better reason than the one he has given.

Mr. Boland

We are dealing with section 34. The garda has not the right to go into a person's house. This is necessary for the reason that, before a person is required to give the evidence with regard to his blood-alcohol content, he must, first of all, be required to submit to the breathaliser test. Surely Deputy Tully can appreciate that, in the circumstances in which this might happen, it might be some time before the blood or urine tests can actually be taken? That is why it is necessary to have the three-hour provision in the Bill. There can be no question whatever of a garda going to a man's house and producing a breathaliser and requiring him to breathe into it and then requiring him to submit to a blood test.

Mr. James Tully

If only that were written into the Bill, it would be grand.

Mr. Boland

It does not have to be written into it. It is fundamental that a garda has not the authority to go into a man's house to do this. There is no need to put that into this Bill at all because it is there already.

Mr. T.J. Fitzpatrick

(Cavan): I should like to take up the point made by Deputy O'Donnell and Deputy Tully. I hope to convince the Minister that he is not correct. It has been complained here by Deputy O'Donnell and Deputy Tully that, under the section as it is proposed to be enacted, a man who drives home perfectly sober, without having had any drink at all, and puts his car in his garage and then goes into his house and has a glass or two glasses of whiskey—I shall not go any farther than that—may be visited by a member of the Garda Síochána later on and, under this section, may be charged and may be brought to the Garda station and may be compelled——

Mr. Booth

Under what section may he be visited by a Garda at his house?

Mr. T.J. Fitzpatrick

(Cavan): Would Deputy Booth please keep quiet until I make my case? Section 49 of the 1961 Act.

Mr. Booth

That gives the right to the garda?

Mr. T.J. Fitzpatrick

(Cavan): Sometimes it is irritating, when one is trying to develop a point or to make an argument, to be interrupted.

Mr. Corry

Hear, hear.

Mr. T.J. Fitzpatrick

(Cavan): Through the Chair, I pray of Deputy Booth to be patient for a moment or two. It has been complained that, in such circumstances, a garda may go to a person's house, allege that he has committed an offence and bring the owner of the car to the barracks to have his blood tested, establish that his concentration of alcohol is more than 125 to 100, serve a summons on him, bring him to court and put him into the witness box to establish that he consumed drink after he put his car in his garage. I say that by virtue of sections 49 and 107 of the Act of 1961, the guard has just that right. Section 49 (1) of the Act of 1961 sets out:

A person shall not drive or attempt to drive a mechanically-propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

Section 107 (4) of the same Act sets out, amongst other things:

Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically-propelled vehicle—

(a) the owner of the vehicle shall, if required by the member state whether he was or was not actually using the vehicle at the material time and, if he fails to do so, shall be guilty of an offence....

Therefore, if a guard sees a car being driven in a public place, he is entitled to call to the house of the owner of that car an hour afterwards and ask him if he was driving it on the occasion and the owner must tell the guard whether he was or was not.

Again, subsection (4) of section 49 of the Act of 1961:

Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

I put it to the Minister, to Deputy Booth and to the House that the cumulative effect of sections 49 and 107 of the 1961 Act, coupled with the section we are now attempting to pass, is to give this power to a member of the Garda Síochána: if for some reason a car is involved in an accident or is being driven in some peculiar way and the owner goes home, parks it in the garage, has the two glasses of whiskey I talked about, the guard is entitled to come along, bring him to the station, put him through these tests, bring him to court and put the onus on him of proving that he consumed drink afterwards.

This House is a deliberative assembly. It is our duty to scrutinise and criticise legislation going through it. I put it strongly to the Minister that the complaints made by Deputy O'Donnell and Deputy Tully are well founded and that the Minister in his effort to explain them is not correct. We are all human. I would say that the Minister just is not correct when he gives as his explanation that the offence must be committed in a public place. Of course it must be committed in a public place, but that does not mean that the guard concerned must there and then at the public place detect the offence and arrest the person. If he sees what he thinks to be an offence committed in a public place, subsection (4) of section 49 of the 1961 Act gives him power to arrest the person without warrant and section 28 of this Bill, which amends section 49 of the 1961 Act, enables him to do the things Deputy O'Donnell and Deputy Tully complain about. I defy contradiction on that. There is no violent or acrimonious difference between the Minister and myself as to what the Minister has set out to do in this Bill: to rid the roads of the inebriated driver, the person who has consumed alcohol to such an extent that he is no longer capable of exercising effective and efficient control over a car. We are ad idem there.

Mr. Boland

We are not.

Mr. T.J. Fitzpatrick

(Cavan): We are. I believe that should be done. The Minister believes it should be done.

Mr. Boland

You are making it impossible. You are proposing it will not be done.

Mr. T.J. Fitzpatrick

(Cavan): The Minister suggests one method of doing that. I suggest that the Minister's method is going too far and in support of my arguments I have quoted the report of the Commission set up by the Minister to advise him on that. I have repeated that the Minister is going in direct conflict with the recommendations of that Commission. I defy contradiction on that.

I do not want to say or do anything here that might tend now or in the years to come to muzzle any Member of the House in seriously expressing his view on legislation as it is going through the House. It is a healthy sign and something to be encouraged. However, I wish to draw attention to the fact that it is not alone members of the Fine Gael Party and some members of the Labour Party who are critical of this section. I hope the effect will not be to bring down the big stick in the Fianna Fáil Party rooms to ensure that this will not happen in the future. I have taken note of the number of Fianna Fáil Deputies who spoke on this section both last May and today. Deputy Briscoe who spoke after me last May, broadly speaking agreed with my sentiments and was not comfortable about the section. If the Minister wants to disagree with me, he can read Deputy Briscoe line for line. I am only paraphrasing him. After him came a professional member of the Fianna Fáil Party, Deputy Dr. Gibbons. Certainly, Deputy Dr. Gibbons was not comfortable about the section. As a doctor, he has given evidence in these cases, and he thought that depriving a man of his livelihood on the evidence provided by the section was going too far. The next speaker who spoke last May on behalf of Fianna Fáil was Deputy Andrews. I do not want to be unfair to Deputy Andrews. The Minister can read his speech. I think it is fair to summarise him by saying that he thought enough research had not been made to date to justify the introduction of the section, and I think it is fair to say he was not comfortable about it.

Today we had Deputy de Valera. I do not have to tell Deputies who were present here when he spoke that he was not comfortable about it and thought it should not be passed. Deputy Lemass, who is here present, has taken a firm stand on this all along. Since he said it, I should not be ashamed or afraid to say it also. He said that he felt the Bill in general and this particular section were prompted by political rather than practical motives and that the Minister had got himself into a situation from which he could not retreat. In view of the general feeling on all sides of the House, I want to emphasise that I am not advocating the right of the drunken or the inebriated or the impaired driver, and I am not saying to the Minister: "I am not going to give you this Bill or any part of it." However, I am saying: "I think your section is going too far and I am giving you an amendment which will shift the onus on to the accused to establish the fact that he is not impaired," and that the Minister should have second thoughts even at this late stage about this measure.

In this little island, we are moving towards a more reasonable approach to things, and the people in the Republic and the people in the Six Counties are fraternising. They are getting together and they are at least talking. The Minister in Northern Ireland believes that the provisions of this Bill are not necessary and he has refused to follow the lead of the Imperial Parliament of Great Britain and introduce the measures they introduced there. It is going to be a nice state of affairs in my native parish, only a parish, if a person driving a motor car can be guilty of an offence in one part of the parish in which I was born and if he crosses the Finn River, which was discussed in a question here today, and goes into County Fermanagh in the same parish, he will not be guilty of any offence.

The Minister should reconsider this matter, having regard to the general feeling of the Members of this House, having regard to the views expressed by the members of his own Party. He should be satisfied, for the time being at any rate, with the substantial strengthening of the powers of the Attorney General and the Garda which my amendment gives him. He should be satisfied with that for the time being, until, as Deputy Dillon says, it has been proved that that is not sufficient. There are things about which we can disagree with Northern Ireland, and there are things about which we have a mighty right to agree with them, However in the age in which we are living, and having regard to the fact that driving across the border is being facilitated, that you can get a pass at the customs hut now without getting anyone to sign for you, without getting any bond, it is absolutely essential that the laws relating to this fundamental matter of driving motor vehicles should be the same. Until such time as uniformity can be got between the two parts of the country, the Minister should be satisfied with the proposals I have put forward.

I appeal to the Minister, even at this late stage, to indicate that he will, between now and Report Stage, reconsider the matter in the light of the discussion here, and, if he is not prepared to do that, I ask him to agree to an appeal made here earlier this afternoon to leave the matter to a free vote of this House.

Mr. Boland

Deputy Fitzpatrick and Deputy O'Donnell and other Deputies who have spoken on this matter know quite well that a garda cannot enter a house without a warrant, and I do not think there is any point in their pretending that he can or that this Bill permits him to enter a house without a warrant. Deputy Fitzpatrick says we are ad idem on this. I say we are not ad idem on this.

Mr. T.J. Fitzpatrick

(Cavan): Would the Minister tell me——

Mr. Boland

I listened to Deputy Fitzpatrick. I do not think I interrupted him.

Mr. T.J. Fitzpatrick

(Cavan): You did not but——

Mr. Boland

Deputy Fitzpatrick can get up here as often as he likes. He has done it 20 times already. We had the Second Stage. We had it for two days on Committee Stage last May; and we had it again today. He can keep on doing it forever as far as I am concerned.

Mr. T.J. Fitzpatrick

(Cavan): If the Minister will not answer a question, I will get up 21 times.

Mr. Boland

We are not ad idem on this. What I am asking the House to do is to create a new offence, to make it an offence for a person to drive a motor vehicle when he has raised his blood-alcohol content to 125 milligrammes of alcohol per 100 millilitres of blood. That is something that can only be established scientifically. What Deputy Fitzpatrick is proposing is that we should create this offence but that the only way in which it can be established is by means of the old clinical tests which, as we know, are anything but scientific, are anything but conclusive and which definitely result in a large number of cases that would otherwise go before the courts not being taken to the courts at all. This can only be established by means of a scientific test, and that is at present only a blood test or a urine test because the breathaliser test is not reliable.

Therefore we are completely and fundamentally divided on this. I am well aware there is a very definite group of Deputies who are implacably opposed to this proposition I am making and that it has been opposed—I was going to say obstructed but certainly it has been held up—at very great length, as I said, on Second Stage and on the two days we had it on Committee Stage last May and again now. The Government have decided that this proposal is necessary in order to protect the public. Some Deputies have decided that this protection for the public is not required and that it is more important that people should be entitled to form their own opinion as to when they are capable of driving and when they are not.

I do not think there is anything further to be said on it. Everything has been said a number of times. There is one thing. I have been pressed to accept, at least, the Opposition's proposition that we should wait and see, that we should try this amendment. This means that the Garda will have to try to establish, by means of the ordinary clinical tests, if the blood-alcohol content has been reached, to accept that for a number of years and if it does not prove satisfactory, then to come back to the House and say: "I told you so." I look upon that as a request to me to gamble with people's lives, to come back and say: "We have not got any reduction in the number of people killed on the roads, the number of people maimed on the roads. Therefore I am asking you now to do what you were not willing to do some number of years ago."

The only new piece of information that has become available to us since we discussed this last May is that the similar provision has come into operation in Great Britain, and that their experience has been that there has been a considerable reduction in the number of killings and the number of maimings on the British roads in conditions in which there was an increase in the amount of traffic on the roads, and I think that is relevant. I should like to point out to Deputies that if we had had this provision in force here for the year 1967, and if it produced the same results as were produced in England, over 100 lives would have been saved—over 100 fewer lives would have been lost—and over 650 people would have been saved from serious injury.

The figures for 1967 were that the actual numbers of deaths on the road were 415. The British rate of decrease in deaths was 25 per cent, and if we had that, we would have saved over 100 lives. The injured numbered 5,693. The British rate of decrease in injuries was 12½ per cent, and if we had a similar rate of decrease here 763 fewer people would have been killed and injured on the roads. We would have had a correspondingly smaller reduction over the past six months. Is it not obvious that we will not reach agreement on this, because we are fundamentally divided on it? I think there is no more to be said on it, and should we not decide the matter one way or the other?

With regard to the desirability of being in conformity with the position in Northern Ireland, so far as I can see, if we were to aim at conformity with Northern Ireland, we would have to decrease the level of blood alcohol content which we propose to make an offence from 125 milligrammes to 100 millilitres down to 80 milligrammes to 100 millilitres, because the Northern Ireland Government have announced their intention to be in conformity with what has been introduced in Britain. They have not done it yet but if we continue at the rate we are going, they will have done it before us, although we started before them. I do not see any point in continuing to get up here to rebut arguments which are made so often.

Mr. N. Lemass

The statistics the Minister gave us were between 1967 and 1966, but if we take the comparison with 1965, the result is not so encouraging. The 1966 period was a very black period, particularly over Christmas, in England. I do not think this has been proved at all. My attitude all the time is that we should not create this new offence. I could agree to a breathaliser and a blood test being used as evidence in courts and letting the judges have discretion as to the degree of the offence.

Let me say this. A man may be socially drunk but be capable of driving a car. A man who is totally drunk is completely irresponsible and should not attempt to drive a car. In the second case, the man's licence should be taken away and he should be put in jail, if you like. In the first case, the man cannot know that he is technically drunk. He has no way of measuring this. He may be perfectly capable of driving a car. The medical information that has become available to me since the last time we debated this section is that a man can drink this evening and tomorrow, after a night's sleep, after his breakfast and after his lunch, his blood alcohol content can still be 125 milligrammes to 100 millilitres. That man can be perfectly sober in so far as capacity to drive a car is concerned but he can be technically drunk under this section.

Mr. Boland

There is no question of being drunk.

Mr. N. Lemass

It has been said that his reactions can slow down, but this happens to everyone with age. It could equally be said that older people become a dangerous traffic risk but they have got the edge with the insurance companies. The young people have the fast reaction but they are the biggest menace on the roads, according to the insurance companies and they have to pay an extra levy.

Mr. Boland

They have not the same sense of responsibility.

Mr. Kyne

They drive faster.

Mr. N. Lemass

In January, the Parliamentary Secretary to the Minister set up a new board to investigate all the causes of accidents. This should have been done before we debated this Bill. I cannot say whether the Minister is right or wrong because there is not enough information available to me. As I see it, in the political situation the Government will have to go through with the Bill as it stands. I will not open my mouth on this Bill again if the Minister will do one thing on a later section—if he will not abolish the discretion of the judge in taking away the licences of people who are committing a new offence. This is an attempt to average the law down and to average the punishment. One man may be a Sunday driver because he is afraid to go on the roads and this will make him a little uncomfortable, but it will take away another man's livelihood.

All I really want the Minister to do is to give a vote of confidence in the judges. I have full confidence in our judiciary and I know they will administer the law properly. When there was nothing mandatory in England for an offence of this nature, English judges took away 60,000 licences a year. Our own judges would be just as responsible. I gather from the Minister's reply that if you fail the breathaliser test the Minister envisages that you may be in the police station for a period of three hours. That is rather frightening. If the doctor does not come for three hours and ten minutes, you are OK. This is rather harassing.

Mr. Boland

If Deputies come in and speak, go out, come back and say the same thing again, there is no point in their contributions. This could go on forever. I have already dealt with the points Deputy Lemass has made, but he goes out and comes back, and is not here when I am replying. Obviously this could go on forever. At least Deputy Lemass admits that this is a fundamental thing we are divided on. He does not want this new offence created. Deputy Fitzpatrick does not admit this.

Mr. T.J. Fitzpatrick

(Cavan): I do.

Mr. Boland

If the Deputy does, there is no question of going part of the way because my proposal is to create this new offence and if so, what we have to agree on is——

Mr. T.J. Fitzpatrick

(Cavan): I think the Minister goes to sleep at times or sits and thinks about the referendum.

Mr. Boland

We are divided on this fundamental issue. We are making it an offence to raise the blood-alcohol content to this level and then to drive a car, and we should have a vote on that. What I am asking the House to do is to make it an offence for a person to raise his blood-alcohol content to 125 milligrammes per 100 millilitres and to drive a car. It is scientifically established that the vast majority of people will have their driving efficiency seriously impaired at that blood-alcohol level and, indeed, very likely at a much lower level.

With regard to other causes of accidents, everyone knows that there are innumerable causes of accidents. We have to try to deal with them all as well as we possibly can. We know that speeding can cause accidents, and can cause accidents which otherwise would not be fatal. If Deputies looked at the rest of the Bill, they would see that we have in the Bill provisions giving permission for the introduction of an overall speed limit, if that is desirable and we have introduced speed limits at different places throughout the country. Some people observe them Some do not. Some who do not observe them are caught. Others who do not observe them are not caught. It was argued here that, because everybody who does not observe speed limits is not caught, we should not introduce them at all. I cannot accept that.

We have to try to deal with all the causes of accidents and this is one of them. There is no point in Deputy Lemass trying to convince us that it is not. Everybody knows it is. It is not conceivably possible to establish with accuracy what percentage of accidents are due to drink. Everybody knows it is not possible to establish whether or not drink was the fundamental cause, but we do know that it causes accidents. We know it is the most culpable cause. We know it is the cause easiest to avoid and it is reasonable, I maintain, to insist on its being avoided.

I believe the general public demand that the State does everything possible to protect them from people who take this grave risk. I agree with Deputy Fitzpatrick that in May, 1963, the Commission did not think the public were ready to accept the test as a conclusive test. That was their opinion. It was a matter of opinion only. Even at that time I would say there were people who did think the public were prepared to accept it. As I have said, we have gone five years forward since then. Last year over 400 were killed on our roads. I do not remember the figure for the previous year but it certainly ran into hundreds. Those injured were numbered in thousands. It is not realistic for Deputy Fitzpatrick to suggest that this dreadful carnage on the roads in the five years since 1963 has not affected public opinion and has not induced the public to demand the protection I am trying to give them, and have been trying to give them since almost this time last year: it was in May, 1967, that we made the previous attempt to introduce this. I found it impossible to get the Bill before the House all through last year. Now we are making another attempt.

Mr. T.J. Fitzpatrick

(Cavan): The Minister will probably have to adjourn the Bill again until after the referendum nonsense.

Mr. Boland

I can appreciate that there is a considerable volume of opinion in the House determined that I will not get it. Maybe they represent the majority opinion—I do not think they do. I think the public are impatient for this protection. I am asking the House now to allow me to give them this protection, to allow me to require a person who raises his blood alcohol content to this level not to drive a car and, if he does not know how much alcohol he can consume in different conditions without raising his blood alcohol content to this level, then I think the best thing he can do is not to drink at all if he is driving. I do not think it is unreasonable to require every person who takes the enormous responsibility of driving a car in present circumstances to ensure that he does not contravene this new provision I am asking the House to give me.

Mr. T.J. Fitzpatrick

(Cavan): I know it is, perhaps, annoying to the Minister to have this dragging on but, nevertheless, it is essential that we should clarify the position as far as we can and reply once more to certain points made by the Minister. Our object is to keep off the roads people who are not capable of safely driving a car because they have consumed intoxicating liquor. I think that is reasonable. Section 49 of the Act of 1961 says:

A person shall not drive, or attempt to drive, a mechanically-propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control over the vehicle.

I believe that is what the Minister wants to enforce but that he thinks that, in order to enforce it, he must create this new offence.

Mr. Boland

Certainly.

Mr. T.J. Fitzpatrick

(Cavan): I believe it is not necessary to introduce his new offence. The Minister said that I propose to leave him with his old clinical test, and only his old clinical test.

Mr. Boland

That is right.

Mr. T.J. Fitzpatrick

(Cavan): That is not my proposal.

Mr. Boland

It is.

Mr. T.J. Fitzpatrick

(Cavan): I am prepared to go further. I am prepared to give the Minister the blood test and to make that prima facie evidence if the concentration of alcohol in the blood exceeds the amount stipulated in the section and to shift over to the man who has that concentration of alcohol in his blood the responsibility of proving to a court that, not-withstanding the fact that he has that concentration of alcohol in his blood, he was capable of driving a car. That is a substantial onus I am placing on such a driver.

I have told the Minister that I know from my experience that that will make it much more difficult for an accused person to get off, particularly if he is incapable or a borderline case. As the law stands, the prosecution must satisfy the court that the accused is incapable of exercising effective control over a car and, if a district justice or a circuit court judge has a doubt as to whether or not the State has discharged that onus, he must dismiss the charge. If the amendment I offer the Minister is accepted, the onus will shift and, instead of the State having to prove that the accused was incapable of driving a car, the accused will have to prove to the satisfaction of the court that he was capable and the benefit of the doubt will not operate in his favour.

Lest it might be said that I am arguing irresponsibly, I have based my case on the Report of the Commission set up by the Minister to report to him on driving while under the influence of drink or a drug. I have drafted my amendments from that report and the Minister's only comeback is to say that the Commission sat a couple of years ago and reported in 1963.

Mr. Boland

I said five years ago.

Mr. T.J. Fitzpatrick

(Cavan): The Commission reported on 15th May, 1963. The Minister implies that, if the Commission were reporting at the time he introduced this Bill, they would have reported differently. I do not think I am being unfair when I say that is the impression the Minister wants to create—that public opinion has changed and that presumably the views of the Commission would change.

All I can say is that I do not know the collective views of the Commission now or on the introduction of the Bill. I have not heard all of them speak individually but I know, and I put it on the records of the House that in so far as Very Reverend D.P. Kennedy, SJ, President of the Safety First Association of Ireland, is concerned, when he was presenting prizes to bus drivers employed by CIE on 28th November, 1966, after the Minister's Bill had been published, he deprecated the fact that the Minister had not accepted the recommendation of the Commission and had not drafted the Bill in accordance with my amendments rather than the Minister's suggestions. That was as recently as 28th November, 1966, after the Minister's proposal had been made known.

On the Second Stage of the Bill, I quoted Father Kennedy, President of the Safety First Association. As far as I know, he is not a dipsomaniac; as far as I know, he is a responsible churchman in this country who has displayed a great deal of interest in the safety of the public using the roads. On 28th November, 1966, he agreed with me and disagreed with the Minister. He was a member of the Commission set up by the Minister and it is reasonable to assume that, because none of the other members has said he now agrees with the Minister, collectively the Commission, who spent so much time on this and who travelled so widely to collect information, are of the same opinion as they were when they published their report in May, 1963. Finally, I wish to say, unless I am provoked to get up again——

Mr. Boland

That is what the Deputy said on 18th May.

Mr. T.J. Fitzpatrick

(Cavan): Yes, but the Minister came back this evening and spoke here on the basis that that was all very well in 1963, trying to leave with us the atmosphere that we knew nothing about what has happened since. This shows it is not the slightest harm to draw things out. In reference to what has been said by Deputies Tully and O'Donnell, I do not think the Minister is doing any service to his argument by insisting that the measure as introduced by him is flawless, impeccable and cannot be amended in the slightest degree. Deputy Tully said that as a result of consideration during the Christmas recess, and presumably discussion with other people, he is afraid that a person could be arrested in his own house two hours after he had been driving a car, after he had parked the car in his garage, without having had a drink for a fortnight and after he had taken a couple of glasses of whiskey in his own house. The Minister said blandly that the garda could not go into a man's house and arrest him without a warrant, as Deputy Tully had said.

Mr. Boland

I did not refer to Deputy Tully. I mentioned Deputy O'Donnell.

Mr. T.J. Fitzpatrick

(Cavan): Deputy O'Donnell and the rest of us. Section 49 (4) of the 1961 Act reads:

Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

That means to me—and I should think it means to every layman, to anybody who understands ordinary English, never mind a lawyer—that a garda can arrest a man wherever he finds him— in the public street, in his own house, at any place he finds him. The garda must be of the opinion, rightly or wrongly, that an offence has been committed under the Act by the person concerned. But the garda may be wrong. Once he bona fide comes to the conclusion that an offence under section 49 of the 1961 Act has been committed, he can arrest the man wherever he finds him. It cannot be contradicted that the accumulative effect of section 107 is that a citizen driving home lawfully after a day's work, without having taken a drink that day, with no trace of alcohol in his blood, parking his car in his garage, going into his house and drinking two glasses of whiskey, may be visited by a garda who had seen him drive the car a mile away— perhaps the man was putting a cigarette out of the window or had swerved to avoid a dog or had acted in some funny way. The garda may have formed the wrong conclusion that the man was drunk. The garda may go into that man's house, bring him to the station, subject him to the blood test prescribed by section 49 of that Act, bring him to court and put on him the onus of going into the witness box and proving beyond yea or nay that he was sober on the occasion, that he had taken drink after putting his car in the garage. That would be a case for saying: “I will believe you but thousands would not.” Would the Minister say at this stage that this is a technical thing, that there is nothing fundamental or basic about it, that he will have another look at it with the assistance of his advisers?

Mr. Boland

Will Deputy Fitzpatrick look at section 106 of the 1961 Act? He will see that where it is required that a member of the Garda Síochána shall enter a premises, it must be specifically provided that he must apply for a warrant and obtain one. There is nothing in section 49 or section 107 authorising a garda to enter any premises without a warrant. Apart from that, everything that can be said has been said. I have replied to this point a number of times and I do not intend to reply again.

Mr. T.J. Fitzpatrick

(Cavan): Section 106 is quite a long section.

Mr. Boland

Subsection (6).

Mr. T.J. Fitzpatrick

(Cavan): Irrespective of that, and without reading it—I will take the opportunity of reading it later—I do not think all the Minister has said is correct.

Mr. Booth

Does the Deputy mean that the Minister's reading from the Act was not correct?

Mr. T.J. Fitzpatrick

(Cavan): He did not quote it.

Mr. Boland

I will quote it for the Deputy if he likes. It does not deal with this offence. It deals with an occasion when it may be required that a member of the Garda shall enter a premises in order to obtain evidence.

Mr. T.J. Fitzpatrick

(Cavan): I should be glad if the Minister quoted the part he relies on.

Mr. Boland

It is fairly long. It is subsection (6) of section 106 of the 1961 Act:

(a) Where—

(i) a member of the Garda Síochána has reasonable grounds for believing that an injury has been caused to person or property in a public place and that a vehicle was involved in the occurrence of the injury (whether the use of the vehicle was or was not the cause of the injury), and

(ii) the member has, either consequent upon a statement made pursuant to subsection (2) of this section or otherwise, reasonable grounds for believing the vehicle is being kept in any premises,

the member may, on information on oath, apply to any Justice of the District Court or Peace Commissioner for a warrant under this subsection.

(b) On an application being made under the foregoing paragraph, the Justice of the District Court or Peace Commissioner to whom the application is made may, if he so thinks proper, by warrant—

(i) authorise any specified member of the Garda Síochána to enter, within one week from the date of the warrant, and if necessary by the use of force, the premises to which the application relates, and

(ii) authorise any person or persons entering the premises under the warrant to search the premises and to examine, and take possession of for the purposes of examination, any vehicle found during the search,

and any such warrant shall operate in accordance with its terms.

I am pointing out that where in the Road Traffic Act, 1961, it was felt it might be necessary for a member of the Garda Síochána to enter a premises, it was necessary to enter with a warrant for that purpose. That was done under section 6 and not under section 49 and, therefore, I maintain that under section 49 a member of the Garda has no authority to enter on premises without a warrant. Certainly even if he has, it is surely a very fanciful suggestion. I can see no purpose whatever in introducing such a fanciful suggestion except to prolong this debate. I do not know what the objective is, but, as I said, it is apparently to prolong it.

Major de Valera

I should like to ask in this connection, whatever about warrants, supposing you take the case of the driver who has had no drink that day and commits a traffic offence. He crashes the lights and goes home and, as Deputy Fitzpatrick says, has a few drinks and afterwards a garda calls. There is no question of a search warrant and he asks to see the driver and the man innocently comes out, as any of us would, to the door and speaks to that garda. He admits he was driving the car. The garda smells the drink which the man has had since he came home and acts accordingly. This is not a fanciful case; it is a reasonable case.

Mr. Booth

I think a number of Deputies are trying to sift all possible evidence to avoid injustice being done, but I feel this is leading them up the garden path. If, as Deputy de Valera suggests, a man crashes the lights, he is not stopped by a garda but his registration number is taken. It will take a hell of a long time for that garda at that hour of night probably, or even in daylight, to get back to the Registration Office and track down the name and address of the owner of car registration number so-and-so. He will never do it in three hours. Section 49 states that a driver may be arrested if he is committing or has committed, or is believed to have committed, an offence. That has led some people to believe that this frightful time lag will take place and that we in our own homes will be harried by the Garda.

The reason that section is phrased in that way is that you cannot arrest a man while he is committing an offence. You cannot arrest him as he crashes the traffic lights. Therefore, you must arrest him when he has committed or after he has committed it. It must be done damn quick, as quickly as possible. It has been clearly stated times without number that the garda has no right to come in to a person otherwise than in possession of a warrant. That does not arise. By the time the garda would get a warrant the three hour period would have gone anyway. There is no question of this fanciful suggestion having any merit in it at all.

As far as the argument goes that this is creating a new offence and as Deputy Fitzpatrick says, it would be better if we put the defendant on proof, that is entirely unrealistic. I agree that this is a new offence and it is basically a technical offence and merely as just or unjust as a speed limit. There are many people who can drive in excess of a speed limit with complete safety, and each one of us would always claim we are one of those, but we have to conform with the law.

If the law says the maximum permitted speed in an area is 30 miles per hour you may not go faster and if you do, however safely you are going, you are prosecuted. I found that out to my cost, too, and I was not driving dangerously. I was driving at 36 or 37 miles per hour with no house near me but the law says I could go only 30 miles per hour. I have learnt a lesson and I have been a damn sight more careful since.

That is what we are doing here. We are creating a new technical offence and, taking all personal opinion out of it, I would not pay any attention to any inquiries taking place at the moment by which the number of accidents has been shown to be due to over-consumption of alcohol over the last year. At the moment it is purely a matter of opinion.

That is the whole fatal weakness of the law at the moment. In view of the fact that there are so many cases of doubt and in view of the fact that the accused must very properly have the benefit of the doubt, there are many cases coming before the courts where the judge is practically certain the accused was guilty of driving while incapable of controlling the vehicle properly but he is not absolutely certain and he never will be. It is no use Deputy Fitzpatrick coming back with the suggestion of just passing the onus of proof on to the defendant. He is only codding himself because days or weeks or months after the offence, no driver can produce evidence to show that he was thoroughly capable of driving a car.

In view of the fact that it is practically impossible to prove yourself innocent, why cod yourself by putting it in? It is in the Bill that to raise your blood-alcohol level above a certain limit is in itself an offence. We have gone high enough. In my view, we have probably gone too high. The fact remains that this creation of a technical offence has had the most staggering results in the United Kingdom. Granted the overall reduction in fatal accidents has not been colossal—it has been 20 per cent—but, if it were one per cent, I would still be in favour of it.

What convinces me that we are right is that the reduction in the rate of accidents between 9 p.m. and midnight has been fantastic. It has been cut by 50 per cent and the rate of accidents after midnight and in the early hours of the morning has been cut by 75 per cent. Those are the clear figures that show that late at night in particular accidents are being caused by excess drinking. It is in the power of anyone to avoid prosecution here. It is ludicrous to say that you will be caught without any real responsibility on your part. You might as well say you could be caught without any real guilt in a speed-restricted area. It is perfectly easy to keep on the right side of the law, and when you see a 40 mph sign come down to 40 and when you see a 30 mph come down to 30. If you do not, and if you get what is coming to you, you deserve it.

It is exactly the same with drink. It is quite possible and should not be asking too much of anyone to say: you shall not drink if you are going to drive. None of us would like to set foot on an airliner knowing that the pilot had been drinking at all and driving a car on the roads today is far more dangerous than flying an aeroplane. You have too many risks far too close to you and you can kill just as many people. It is perfectly right that we should protect the great majority of our people by saying: you shall not drive too fast and if we say that 40 mph is the maximum speed permitted on that stretch, you shall not exceed it. That is perfectly right and everyone accepts it now. It is perfectly right also that we should say, so far as your nervous or mental reactions are concerned: you shall be deemed to be below standard if your alcohol content is above a certain figure. I agree that it is slightly arbitrary: so are speed limits. It is the only way we can get certainty. I agree with the Minister in all he is doing. Deputy Fitzpatrick may have got a wrong impression. The Minister is so quick to jump in and so well able to put the case for the Bill that many of us who are supporting the Bill do not easily get a chance of coming to his assistance. He gets in too quickly.

We have had criticism from this side of the House and it is only right that we should examine those criticisms, but I am still as satisfied now as I have always been, that this is the only way in which we can deal with this problem. I am terribly sorry that, for reasons over which we have no control, this Bill is not already an Act. If we could have enacted it last year there would be many people alive who are dead today. It could easily be said that under this section a man may be found incapable of driving although he was really doing fairly well. But that man was taking a hell of a risk by drinking at all and I would not apologise to anybody for saying: if you are going to drive lay off drink for hours in advance. Do not take a chance not only for your own sake but for the sake of all the other road users.

I have heard of some fearful cases of people driving miles off their route, completely lost, blinding off into the country looking for places such as Cabinteely or Ballymun a little distance from Waterford. There was a lady looking for Ballymun but heading south through Mount Merrion and Stillorgan, for instance. Those are incidents which came to my own personal knowledge. I am going to make sure that we do everything we can to stop this sort of thing. I wish that Deputy Fitzpatrick would not try to introduce these niggling criticisms. I know he is trying to make sure that there will be no injustice but I should much prefer to see slight injustice—I do not see any chance of it—and somebody still living who would be dead if we had not got this Bill through. That is the alternative. I do not honestly believe there will be any injustice particularly when we make it clear to people in advance that anyone who drinks and jumps into a car is taking a tremendous risk not only of killing himself or somebody else but also of losing his licence and being put off the road for a long time. He has been warned in advance and if he takes that risk he deserves everything coming to him.

Mr. Dillon

Deputy Booth's interventions always threaten to make me blasphemous.

Mr. Booth

I am so sorry.

Mr. Dillon

Therefore, I am deliberately exercising restraint. Deputy Booth trots out the old statistics with which Mrs. Barbara Castle was floundering around in the British House of Commons. Of course, those statistics are notoriously invalid. I want to say quite categorically that, exercising the same discretion as has been accorded to me by my Front Bench colleagues and Deputy Kyne claimed from his colleagues, I am in favour of the arbitrary definition of alcohol-blood content and I accept that as being a statutory inhibition on the driving of a mechanically-propelled vehicle. I believe that, faced with the problem the Minister is confronted with, it is not practicable to establish in court the existence of the declared maximum alcohol-blood content and thence to proceed to an argument as to whether that constitutes drunkenness in one particular case or not.

I am prepared to accept that the statutory definition shall be the test, provided I am satisfied as to the method by which that determination has been reached. But we are in this extraordinary straitjacket that we are asked to debate section 28 utterly divorced from section 29 which, to my mind, makes a complete farce of the whole discussion because if section 29 is to pass in its present form, then I am 100 per cent behind Deputy Fitzpatrick and a variety of other problems arise.

However, in the existing situation, I am in favour of a statutory definition of incapacity to drive, and I think that can be established with a reasonable degree of certainty, bearing in mind that the acceptance of that does not exclude the right of the garda to go on claiming that, if we fail to establish by expert evidence or chemical evidence, that the man was drunk, we can advance all the existing proofs which were available to us under previous traffic laws to establish it, such as inability to say "British Constitution," to walk a straight line, to speak coherently and all the other recognised old marks of what is ordinarily understood to be alcoholic or drug intoxication. But the statistics produced by Mrs. Castle for justifying the use of the breathaliser are of quite a different character from the statistics produced to justify the imposition, by the same Minister of Transport in the British House of Commons, of speed limits.

Now there you have something concrete because the situation on the M.1, which is the principal autobahn, if we may popularise the word, in Great Britain, in regard to accidents became so horrifying that they actually built a casualty hospital to service accidents on the M.1. From the time of the opening of the M.1, that casualty hospital was kept busy night and day and then in the special circumstances of Great Britain a limit of 60 miles per hour was imposed on that carriageway, and then there emerged the dramatic statistic that the staff of the hospital had nothing to do. If they got two or three accidents a day, it was quite exceptional. Now, those are statistics that have significance because there suddenly occurred a dramatic change in a given set of conditions and only one factor has been altered. There was no substantial change in the volume of traffic, or substantial change in the character of the traffic using the highway; one thing that had been altered was that no vehicle was allowed to travel more than 60 miles per hour. Instantly the accident rate dropped.

Here we have the astonishing situation that you cannot travel more than 60 miles per hour on the Naas dual carriageway, but you can travel at 90 miles per hour on any country road. I find myself in a very great difficulty in agreeing to section 28, in the absence of appropriate measures in relation to the other obvious driving hazards that exist. If I were told that the Minister intended to prohibit large lorries from parking on the side of the road, if I were told that he proposed to stop articulated vehicles of 30 feet long from waggling down the road, if I were told he was going to stage a publicity campaign to persuade people walking in dark clothes on main roads at night to wear some kind of scotch tape, or illuminated armband or scarf, and that over and above these things he was going to set a statutory definition of alcoholic incapacity to drive a mechanically-propelled vehicle, I would be very much happier. That is not to say that I do not despair that he will go on to do the other things as well, but do not let us imagine that if we pass the section, we have done everything that needs to be done, because we have not. But doing what we are doing in section 28, without any regard to what is proposed in section 29, is, to my mind, procedural insanity.

I want to ask the Minister a question in regard to section 28, which sets out:

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.

How does he propose to arrive at that conclusion? We are told we must have regard only to section 28. Deputy Dunne was not here when that ruling was made. How do you arrive at that conclusion?

Mr. Booth

Could the Deputy not wait and see?

Mr. Dillon

No, because I am asked for my judgment now.

Mr. Booth

The Deputy knows perfectly well that we debated all this on Second Reading. We went right through the Bill then, not quite section by section.

Mr. Dillon

If I have to accept the assignment also of educating Deputy Booth in parliamentary procedure, even my endless patience will snap.

Mr. Boland

The Leas-Cheann Comhairle did not succeed in educating Deputy Dillon, apparently.

Mr. Dillon

There is no one who can educate me on procedure. That is the plain fact.

Mr. Boland

The Leas-Cheann Comhairle failed.

Mr. Dillon

I know more about it than the whole lot of you together.

Mr. Booth

The only one in step.

Mr. Dillon

You can put that in your pipe and smoke it. We are asked to deal with this Bill section by section, and having agreed to the principle of the Bill, we are now going through it section by section. Now we are being asked to give specific approval to section 28 and I think——

Mr. Boland

The Deputy wants to do it two sections at a time.

Mr. Dillon

If we create a new crime—and we are creating a new crime—we are entitled, when considering whether it is expedient to create that crime, to ask the Minister who seeks to inject that new crime into our criminal law: how do you propose to establish the existence of such a crime, and the Minister——

Mr. Booth

It would be better to ask the Ceann Comhairle whether it would be in order to do so.

Mr. Dillon

I do not have to ask him, because I know.

An Ceann Comhairle

There is a section dealing with these specific matters and we cannot debate them in advance.

Mr. Dillon

Do you hear that? That is the situation and so we cannot debate how you are going to establish the existence of this crime.

Mr. Booth

Not yet, but we may in a couple of minutes.

Mr. Dillon

The trouble is that we are going to be asked to determine whether we should create the crime before we ask ourselves how it will be established that there is a crime.

Mr. Boland

The Deputy does not like a package deal?

Mr. Dillon

Not when it is offered to me by shysters. Then the rule of caveat emptor arises, and this here “emptor” is going to “cave” as long as he likes to. Happily, the procedure of this House still entitles him to exercise that discretion. I said recently in public, and I want to repeat it, that theology is too important in the lives of all of us to leave it to theologians; economics is too important in the lives of us all to leave it to economists; administration is too important in the lives of us all to leave it to administrators. Our only function as politicians, for those of us who do not occupy ministerial rank, is to operate as the correcting authority on the administration.

Those of us who have had any ministerial experience will know that in the procedure of drafting or preparing a Bill, we tell the experts the ends we seek to achieve; then they draft the appropriate legislation and submit it to their Minister so that he may bring it to the Government for the Government's approval and thence to this House, for the approval of the Oireachtas. If the Minister says to his permanent officials: The object I want to secure is that nobody will drive a car on the roads of Ireland 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 that of 125 milligrammes of alcohol per 100 millilitres of blood." That is all right. Their duty is not to recommend to him what they think is a reasonable political decision bearing in mind all aspects of the case, their duty is to recommend to him the way in which that which he informs them he desires to achieve can be achieved. It is his function to say to them then: "I am prepared to concede the method proposed by you gives me 100 per cent assurance that I shall achieve that end but no rational legislature would be prepared to pay that price to get 100 per cent assurance that we would achieve the particular end of section 28."

That is the function the Minister for Local Government has failed to discharge. He is coming before this House and asking us to accept a certain artificial standard of alcoholic incapacity to drive a car without having asked himself what is the reasonable procedure by which we can evidence such a crime, and, remember, it is a crime we have to find beyond all reasonable doubt in a court of law. That is the danger in which we are at the present time. If I am right in believing that the fact required to be established under section 28 can be established in no other way than the machinery of section 29, then section 28 is a thoroughly bad section but believing, as I believe, that the facts required to be proved for the purpose of bringing somebody within the ambit of section 28 can be established by procedures which are acceptable to human dignity, then I would be in favour of section 28 but that is a very vital and important decision to take and I think the Minister ought to be in a position to say to us: "Could we get substantial agreement on section 28 and let us then argue on section 29 with an open mind and free conscience?"

Mr. Booth

This is a decision of the Ceann Comhairle, not a decision of the Minister.

Mr. Dillon

What is?

Mr. Booth

What is in order.

Mr. Dillon

Oh, no. The Deputy finds it hard to get the wheel of his intelligence around the axle of my argument. I cannot blame him. You cannot put a wheel designed for a more modest purpose around a substantial axle. The Minister's function is to say to the House: "Here is my suggestion".

Mr. Booth

The Deputy is suggesting that we go on to section 29, and then come back to section 28.

Mr. Dillon

Oh, no. The Minister can say: "If we can agree substantially on a definition for the purpose of section 28 the contents of section 29 are open to free discussion. I do not propose to put pressure on any Deputy to accept all or any part of section 29." That would create an entirely new situation. However, as we stand at present in the light of the Second Reading debate the acceptance of section 28 implies acceptance of section 29 or substantial acceptance of it which I never could accept and which I want to warn the House again in my judgment would get this Bill struck down by the Supreme Court under the Constitution. Anything I can do to get it so decided I will do because it ought to be decided as to its constitutionality if it passes with section 29 in it.

There are those who will say, as the Minister has himself implied and as Deputy Booth almost said, that anyone who seeks to discuss or consider this Bill is precipitating the death of a number of people. That is wide open to doubt. I do not believe in the validity of that proposition for a moment any more than one could say the Minister does not enforce regulations controlling lorries or the carrying of goods——

Mr. Booth

But he does.

Mr. Dillon

He does not. He himself said it is not his job to enforce them. He makes them but does not enforce them. He got quite hot under his collar protesting that although he made regulations it was not his job to enforce them.

Mr. Booth

Of course, he cannot.

Mr. Dillon

Cannot?

Mr. Booth

No, not being in charge of the Garda. We are getting a little bit away from section 28. Could we try to get back to it?

Mr. S. Dunne

Do not run away from the discussion.

Mr. Dillon

He does not like discussion. It is a great strain on his intellectual capacity.

Mr. Booth

I have much more respect for the rules of order than Deputy Dillon has. He never had. I do not blame him.

Mr. Dillon

Do not let us have a barging match across the floor.

Mr. Booth

I did not start the barging.

Mr. T.J. Fitzpatrick

(Cavan): You started the interrupting. If you want to raise a point of order, stand up and do so.

Mr. Dillon

He is already grotesque. To allow him to confound us would be preposterous.

Mr. Booth

Section 28, for a change.

Mr. S. Dunne

He is also usurping free debate.

Mr. Dillon

He is a grotesque person, and I am determined to resist the temptation to tell him what I think of him.

Mr. Booth

You are determined to avoid section 28.

Mr. Dillon

The Minister should make it known before the discussion on this particular section concludes what the position will be in regard to section 29 because that is necessary for many Deputies who have to take a decision on section 28 as it stands.

Mr. T.J. Fitzpatrick

(Cavan): I have already put on the record of this House——

Mr. Booth

We heard this one before.

Mr. T.J. Fitzpatrick

(Cavan): You did not hear this one, if you would just wait. I do not propose to follow Deputy Booth because I listened to him on the Finance Bill the day before yesterday, on the Planning Bill yesterday and, again, today on section 28 of this Bill, selling out on each occasion the fundamental rights of the citizen because the same was proposed by the Fianna Fáil Party to which, apparently, he has sold himself body and soul and has sold the fundamental beliefs he must have. Of the Fianna Fáil Deputies who have spoken in support of the Minister—Deputy Booth was joined by Deputy Dowling and Deputy Moore—he appears to be opposed by Deputy Briscoe, Deputy Gibbons, Deputy Andrews, Deputy de Valera and Deputy Lemass.

Major de Valera

The Minister is not opposed by Deputy de Valera. Deputy de Valera made criticisms of details but the Minister is not opposed by Deputy de Valera.

Mr. T.J. Fitzpatrick

(Cavan): So much for Deputy Booth. I have given up hope of the Minister yielding one iota on this section 28 and if I wanted proof of his intention not to yield I have it in abundance in his attitude towards the fundamental technical legal point raised by Deputy O'Donnell and Deputy Tully. I do not propose to yield on that or to shut up on that without putting it on the records of this House in black and white that the Minister is simply saying that black is white and trying to ramrod that through the House without even offering to reconsider it.

Deputy O'Donnell and Deputy Tully stated here this afternoon that section 49 of the Road Traffic Act, 1961, as it is proposed to be amended by this section 28, means—and I repeat —that a law-abiding citizen who has not taken a drink for days, who drives home, parks his car in his garage, goes into his house, takes two glasses of whiskey, may be visited by a guard, may be arrested, brought to the garda barracks, submitted to a blood test, brought before the courts and compelled to go into the witness box and establish beyond yea or nay that he had no drink taken when he was driving. In opposition to that, the Minister has stated that a guard cannot enter a man's house without a warrant.

An Ceann Comhairle

I think the Deputy covered that point fully on the last occasion that he spoke.

Mr. T.J. Fitzpatrick

(Cavan): With the greatest respect——

An Ceann Comhairle

With the greatest respect, the Deputy covered nearly every point he has mentioned at least two or three times.

Mr. T.J. Fitzpatrick

(Cavan): May I make a point, Sir?

An Ceann Comhairle

Yes.

Mr. T.J. Fitzpatrick

(Cavan): Since I spoke the Minister has invoked —and I think that is the word—section 106 of the Road Traffic Act, 1961, which had not been mentioned in this House when I last spoke and it is with section 106 that I wish to deal. In order to do it in an intelligent manner I have to lead up to it. The Minister said that a guard could not enter a man's house without a warrant. I drew attention to subsection (4) of section 49 of the Principal Act and to the fact that, coupled with section 106 of that Act, the cumulative effect of these sections was to permit a guard to enter a man's house and arrest him in the circumstances outlined by me. The Minister, in order to establish the pluperfectness—if there is such a word —or the infallibility of the measure brought into the House asked me did I ever hear of section 106 and, luckily, I asked the Minister to read section 106. Section 106 subsection (2) reads:

Where—

(a) a member of the Garda Síochána has reasonable grounds for believing that an injury has been caused to person or property in a public place and that a vehicle was involved in the occurrence of the injury (whether the use of the vehicle was or was not the cause of the injury) ....

That deals with damage to property.

Mr. Boland

I know that.

Mr. T.J. Fitzpatrick

(Cavan): That has nothing whatever to do with the drunken driving——

Mr. Boland

It has.

Mr. T.J. Fitzpatrick

(Cavan):——that is provided for in section 49.

Mr. Boland

What I said was that where it was necessary to provide that a guard could enter on premises the production of a warrant had to be specially provided for and it is not provided for in section 49, and he cannot go in.

Mr. T.J. Fitzpatrick

(Cavan): If the Minister consults the Attorney General or perhaps some people nearer now to him he will find out that they do not agree with him. Section 106 deals with damage to property and says that if he is going to enter to investigate damage to property he must go and get a warrant but subsection (4) of section 49 says:

Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

I say that there are two separate and distinct things. I do not blame the Minister, if he has not had an opportunity of considering this before, for not having the answer straight away, but I do blame him for not listening to arguments and for not saying that he will have a look at it, not in the rushed manner in which he can take advice in this House, but will consult his law officer and see whether there is any substance in what I say or there is not. But, I want to put it on record that section 49 coupled with section 27 gives power of arrest in the circumstances stated by me and that section 106 has no relevancy whatever, good, bad or indifferent.

Mr. Dillon

With reference to what Deputy Fitzpatrick says, is it not clear that a member of the Garda Síochána may arrest without warrant a person whom he suspects of having committed an offence under section 27?

Mr. T.J. Fitzpatrick

(Cavan): Section 49.

Mr. Dillon

Section 27 of this Bill— when you come to its providing in section 29 that where a person (in this section referred to as the arrested person) arrested under section 49 (4) of the Principal Act or section 27 (3) (a) of this Act....

Mr. Booth

On a point of order, is it right that we should be going on to a discussion of the terms of section 29? There is no reference in section 28 to any of the matters which are being raised at the moment.

Mr. Dillon

Nonsense. Section 28 starts with the words "section 49 of the Principal Act". Deputy Booth ought to learn to read.

Mr. T.J. Fitzpatrick

(Cavan): Deputy Booth is arguing here and has not the Principal Act before him. He should be more responsible.

Mr. Dillon

Does section 29 not begin with the words——

Mr. Booth

The Deputy is talking about section 29 of this Bill?

Mr. Dillon

I am. Section 49, subsection (4) of the Principal Act says:

Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

Mr. Booth

That is not what is referred to in section 28.

Mr. T.J. Fitzpatrick

(Cavan): Of course it is.

Mr. Dillon

Read section 28.

Mr. T.J. Fitzpatrick

(Cavan): It says, “Section 49 ... is hereby amended”.

Mr. Booth

Exactly. We are discussing the amendment to section 49 but not section 49 itself.

Mr. Dillon

The conditions under which a member of the Garda Síochána is permitted to arrest a person without warrant are set out in section 28 of the Bill we are now considering.

Mr. Boland

But it does not give him permission to enter premises.

Mr. Dillon

Wait a minute.

Mr. Booth

Section 28 does not even mention arrest.

Mr. T.J. Fitzpatrick

(Cavan): Section 28 becomes part of section 49 and if section 28 is passed it will be no longer section 28 of this Bill but will be part of section 49 of the parent Act.

Mr. Booth

Yes; and if we are to go on in that way you can say that because it is section 49 of the parent Act we, therefore, can go on to a discussion of the Principal Act.

Mr. Dillon

Of course, we do.

Mr. Booth

The Lord bless us.

An Ceann Comhairle

The Chair has already pointed out that on section 28 what is relevant is the concentration of alcohol in the body.

Mr. Dillon

What is relevant is the amendment of section 49 of the Principal Act. Surely we have not reached the stage that what the section says is not relevant to the debates of Oireachtas Éireann?

An Ceann Comhairle

The Chair feels that what is in the section is relevant.

Mr. Dillon

What is in the section is that this section hereby amends section 49 of the Principal Act.

An Ceann Comhairle

That does not open up discussion of the Principal Act.

Mr. Dillon

I am discussing section 49 of the Principal Act and this section.

An Ceann Comhairle

According to Deputy Dillon, it opens up discussion on everything except what is in the section.

Mr. Dillon

The Ceann Comhairle ought to study what I have said. What Deputy Dillon is saying is that section 28 of this Bill amends section 49 of the Principal Act, and that to proceed to amend section 49 of the Principal Act without referring to section 49 of the Principal Act is procedure acceptable only to a Deputy as inexperienced as Deputy Booth.

Mr. Booth

I am not quite so inexperienced. At least I do not allow my personal prejudices to interfere with my judgment.

Mr. Dillon

Deputy Fitzpatrick has pointed out that if the new definition of "statutory alcoholic incapacity to drive a vehicle" is accepted under section 28, a situation could arise which manifestly was never contemplated under section 49 of the Principal Act, as originally passed. That section, in subsection (1), set out:

A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

That a member of the Garda Síochána can arrest a person subsequent to the alleged commission of such an offence —we are at one. The only evidence he has to produce to establish the commission of this crime is that when he arrested the man, he had more than a certain alcohol level in his blood.

I begin to wonder. It is not as simple as that because all he has to establish is that within three hours after the alleged commission of the offence, the concentration of alcohol in his blood exceeded 125 milligrammes per 100 millilitres of blood. That is an entirely different offence from that prescribed in section 49 of the Principal Act. Under section 49 of the Principal Act, he had to establish to the satisfaction of the court that at the time the person was driving a mechanically-propelled vehicle in such a place, he was under the influence of alcohol or drugs to such an extent that he was incapable of driving.

How many Deputies realise that we are creating a new offence? We are creating an offence that you drive home, never having consumed a drop of alcohol all day, put your car in the garage, lock the garage, then having gone into your own house, having taken two glasses of whiskey, a knock comes on the door and a member of the Garda Síochána asks you to come down to the station because you have committed an offence.

Mr. Booth

That is what Deputy O'Donnell and Deputy Fitzpatrick said.

Mr. T.J. Fitzpatrick

(Cavan): Deputy Booth wants to get on to the referendum.

Mr. Booth

I want to get on to the section.

Mr. Dillon

Is this true or false? If we pass section 28 of this Bill, if a man or woman who has not consumed a drop of alcohol all day——

Mr. Booth

We know the answer is "no".

Mr. Dillon

——drives home, garages the car, goes into the living room, takes two glasses of whiskey, and there is then a knock on his door and he goes to answer the door, and is there confronted by a civic guard who lays his hand on that person's shoulder and says: "I arrest you under section 49, subsection (4) of the Road Traffic Act, 1961; I believe you are a person in respect of whom it can be truly said that there is present in your blood alcohol in excess of a concentration of 125 milligrammes per 100 millilitres of blood, and I require you to come with me now to the Garda station and submit yourself to a blood and a urine test". The man says: "Listen; I have been on the road since 8 o'clock this morning. I never touched a drop of alcohol while I sat behind the wheel of the car. I arrived home in my car and locked it up. I am now in my bedroom slippers sitting by the fire and have been so for the past couple of hours".

The garda is still entitled to say: "It does not matter, but under subsection (4) of this section, you have committed an offence and I propose to bring you now to the baracks, to apply the appropriate tests. Bear in mind, if you refuse to submit to them, that in itself is a crime. There is no use arguing with me that you have not had any alcohol before you locked the car up in the garage. That is irrelevant. Oireachtas Éireann has created a new crime. They may not have meant to do it, but they have, and I am not going to argue with you. I am merely a member of the Garda Síochána and I am sent here to deal with you. I am not arguing whether you were drunk in the accepted sense when you were driving your car. I am stating that within three hours of driving the car, there is a certain alcohol level in your blood which is accepted by subsection (4) of section 49 of the Road Traffic Act, 1961."

The garda then says: "I am not interested in the Act, but for the purpose of getting evidence and establishing beyond yea or nay in the district court of the town in which you live, you must come with me to the barracks and undergo those tests." Does the House want to do that? Is there one Deputy who believes that a person who has so comported himself as I have described has done anything which should be stigmatised by this Oireachtas as a crime punishable by prison? The real truth of it is that we have been confronted with this Bill because people have taken up positions from which they are not prepared to retreat.

We have been through this before. Look what happened on the Succession Bill. It ended up with the Minister for Justice, Deputy Lenihan, who succeeded the present Minister for Finance, going to Deputy Costello and asking him if he would, for God's sake, redraft the Bill, which Mr. Costello, in his benevolent way, proceeded to do. We are now drifting into a position here which nobody intended and which nobody in the House wants, but which we are going to be constrained to take up because the Minister has got himself into a jam and is not prepared to listen to anybody. He will get this or bust. I do not believe there is a Deputy in the Fianna Fáil Party who believes this ought to be done. Daft and all as I believe them to be, I do not believe they are that daft. I do not believe there is a single creature in the country who wants it. I do not believe there is any precedent in any civilised country in the world for conferring on the police the right to arrest you on your own threshold on a wholly artificial charge which neither the court nor the Legislature, nor, indeed, the police force itself, believes to have any validity.

It should not be necessary seriously to argue a case of this kind. It only goes to show how dangerous it is to treat Bills of the kind we are here considering without the protracted study which, fortunately, Deputy Fitzpatrick and Deputy O'Donnell have given to this Bill.

Who amongst us, in studying section 28 of this Bill, related it fully to section 49 of the Principal Act? All of us knew, because the section itself says so, that it is an amendment of section 49 of the Principal Act but did anybody really put the two together in order to discover the true meaning of what that combination involved? Certainly, I had not done so and, if I had, I would have represented to the House the absurdity of the position at an earlier stage. Fortunately, Deputy O'Donnell and Deputy Fitzpatrick did so and have brought the matter to the attention of the House.

There are seven Deputies listening to me, in addition to the Minister. Is there a single one who is listening to me who believes——

Mr. Boland

No, not one.

Mr. Dillon

Is there a single one of you who believes that any member of the Garda Síochána ought to have the power——

Mr. Boland

No, not one.

Mr. Dillon

Is it not manifest that, under section 49 as amended by section 28, they acquire it?

Mr. Boland

No.

Mr. Dillon

Why?

Mr. Boland

It is only in Deputy Dillon's fertile imagination.

Mr. Dillon

Subsection (4) of section 49 of the Road Traffic Act, 1961, provides:

Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

If a person opens the door of his house to the garda and comes out, as any normal Deputy in the country would, is it not open to the garda to arrest him?

Mr. Boland

No.

Mr. Dillon

What is stopping him?

Mr. Boland

He must first undergo the preliminary breathaliser test, which he need not do.

Mr. T.J. Fitzpatrick

(Cavan): Anybody who commits an offence under this section——

Mr. Boland

I know Deputy Dillon does not want information, so why ask for it? I am fully aware of Deputy Dillon's position. Let Deputy Dillon proceed. I do not think cross-examination is in order. Let Deputy Dillon say what he has to say. I have said what I had to say.

Mr. Dillon

We reach a glorious stage at which the House will not be informed——

Mr. Boland

The House has been informed. I informed the House while Deputy Dillon was looking up his speech about the theologians.

Mr. Dillon

I have already read what subsection (4) provides. Either it is true or it is false. I say that, as section 49 will read if section 28 of this Bill is passed, it will be an offence to have the alcohol-blood content set out in section 28 for a period of three hours after one has ceased to drive. Is that not true? Therefore, if a person comes home stone cold sober, not having consumed a drop of alcohol all day, locks his car in the garage and, having entered his home, drinks two glasses of whiskey and is then called to the door by a garda, that garda can, under section 49 of the Principal Act, arrest him for having committed a breach of section 49 of the Principal Act as amended by section 28 of this Bill. Is there a Deputy who thinks that ought to be within the power of any member of the Garda Síochána or of any other police force in the world? I do not believe any Deputy believes that.

Mr. Booth

Deputy Dillon does not believe it is a fact, either.

Mr. Dillon

You must be able to read. How can you deny it when it is set out in black and white?

Mr. T.J. Fitzpatrick

(Cavan): Deputy Booth has not got the 1961 Act with him. He has probably never read it. He has given up the practice of law. Deputy de Valera has now gone over to explain it to him.

Mr. Dillon

Even if Deputy Booth had read it I very much doubt he would understand it. It is important that we do the best we can. Let us excuse Deputy Booth. We have the Minister bawling in his receptive ear that the black and white of the text of the statute is not true. Who will blame poor Deputy Booth for getting confused? Our job is to try to clarify his mind as best we can with the other Members of the House.

I should be interested to hear any Deputy, who knows the context of the Principal Act and the amendment proposed to it, who can convincingly deny my interpretation of it. I should be glad to hear any rational Deputy defend it on its merits. I do not think there is one who can do so.

Mr. T.J. Fitzpatrick

(Cavan): It is a pity that the last hour or so of the House, in dealing with this section 28, had to be taken up in trying to get the Minister to see reason. I get rather apprehensive about having this Minister in charge of important measures such as this, in view of his attitude to this section. If the Minister had behaved within the past hour like a legislator in charge of a Bill, instead of a political ramrod, he would get much more co-operation from this House and he would get this measure through the House quickly.

Experienced members of the Minister's Party know that what I am saying is correct. The Minister did not speak since I dealt with his introduction of section 106 of the 1961 Act. Will he now inform us whether he says that a Garda has the right to enter a man's house and arrest him in the circumstances complained of or whether his attitude is that a Garda has not that right? If the latter is his attitude, I want him to explain on what grounds he says that the Garda has not the right to enter and arrest in the circumstances of which we so bitterly complain. I think the House is entitled to that explanation before leaving this section.

The Minister, I know, did introduce section 106 (6) as an explanation. I have dealt with that as the Minister raised it. The Minister has not refuted my objections to section 106 as being a protection to the citizen. We are leaving it now and we do not know whether the answer is that the guard can arrest or cannot arrest. The Minister does not give a damn and he will not tell the House.

Question put and declared carried.

Mr. T.J. Fitzpatrick

(Cavan): In view of the Minister's attitude, and as a protest against his refusal to give information to the House, I am calling a vote.

Mr. Boland

You got the information several times.

The Committee divided: Tá, 48; Níl, 32

Tá

• Aiken, Frank.
• Blaney, Neil T.
• Boland, Kevin.
• Booth, Lionel.
• Boylan, Terence.
• Brennan, Joseph.
• Briscoe, Ben.
• Browne, Patrick.
• Calleary, Phelim A.
• Carter, Frank.
• Carty, Michael.
• Collins, Gerard.
• Corry, Martin J.
• Cotter, Edward.
• Cronin, Jerry.
• Crowley, Flor.
• Cunningham, Liam.
• Davern, Don.
• de Valera, Vivion.
• Dowling, Joe.
• Egan, Nicholas.
• Fahey, John.
• Fanning, John.
• Fitzpatrick, Thomas J. (Dublin South-Central).
• Flanagan, Seán.
• French, Seán.
• Gibbons, Hugh.
• Gibbons, James M.
• Gogan, Richard P.
• Healy, Augustine A.
• Hilliard, Michael.
• Kenneally, William.
• Kennedy, James J.
• Kitt, Michael F.
• Lalor, Patrick J.
• Lemass, Noel T.
• Lenihan, Brian.
• Lenihan, Patrick.
• Lynch, Celia.
• McEllistrim, Thomas.
• Meaney, Tom.
• Millar, Anthony G.
• Molloy, Robert.
• Moore, Seán.
• Moran, Michael.
• Nolan, Thomas.
• Ó Briain, Donnchadh.
• O'Leary, John.

Níl

• Barry, Richard.
• Belton, Luke.
• Belton, Paddy.
• Burton, Philip.
• Clinton, Mark A.
• Cluskey, Frank.
• Connor, Patrick.
• Coogan, Fintan.
• Corish, Brendan.
• Creed, Donal.
• Dillon, James M.
• Dockrell, Henry P.
• Dockrell, Maurice E.
• Dunne, Seán.
• Dunne, Thomas.
• Esmonde, Sir Anthony C.
• Farrelly, Denis.
• Fitzpatrick, Thomas J. (Cavan).
• Harte, Patrick D.
• Hogan, Patrick (South Tipperary).
• Jones, Denis F.
• Kenny, Henry.
• Kyne, Thomas A.
• L'Estrange, Gerald.
• Lindsay, Patrick J.
• McAuliffe, Patrick.
• Murphy, Michael P.
• O'Donnell, Tom.
• Reynolds, Patrick J.
• Ryan, Richie.
• Tierney, Patrick.
• Tully, James.

Tellers:—Tá: Deputies Carty and Mrs. Lynch; Níl: Deputies L'Estrange and James Tully.

Question declared carried.

SECTION 29.

An Ceann Comhairle

Section 29, amendment No. 13 (b). Deputy Lemass. Amendment No. 13 (b) not moved.

Mr. Dillon

Has Deputy Noel Lemass been hunted away?

An Ceann Comhairle

Section 29, amendment No. 14. Deputy Fitzpatrick.

Mr. Dillon

What has become of Deputy Noel Lemass's amendment?

An Ceann Comhairle

The amendment is not moved.

Mr. Dillon

Is it due to Deputy Noel Lemass's disappearance from the House that we are to proceed on the assumption that it is not moved, or has the mover been forcibly removed from the House?

An Ceann Comhairle

Since the amendment is not moved, it may not be discussed.

Mr. Dillon

I want to inquire whether the Deputy has been physically carried from the House or has he left of his own free will?

Mr. Booth

Deputy Lemass is in excellent health.

Mr. Dillon

I am delighted to hear it. I see Deputy Carty, the Chief Whip, here. On a point of order, may I inquire if the mover of this amendment, Deputy Lemass, has been in any way interfered with by Deputy Carty?

Mr. Carty

I can inform the Deputy that he has not, and he voted in the last Division.

Mr. Dillon

Where is he now?

An Ceann Comhairle

We cannot have a discussion on the matter.

Mr. Dillon

We cannot have a discussion on whether Deputy Noel Lemass left the House of his own accord?

An Ceann Comhairle

I cannot answer that question.

Mr. Dillon

May I move that, as a special concession to Deputy Noel Lemass, owing to the distinguished name he bears, we suspend Standing Orders so that amendment No. 14 be taken while Deputy Lemass is sought, for it may be due to some oversight on his part.

An Ceann Comhairle

We cannot have a debate on this matter. The Deputy is quite well aware of that.

Mr. Dillon

Is there any procedural device whereby——

An Ceann Comhairle

The procedure in such case is to proceed to the next amendment, and I have called Deputy Fitzpatrick.

Mr. Dillon

I am sure that is something we all deeply regret. I see Deputy Moore up there in the lobby moved almost to tears at this distressing misfortune that has overtaken his colleague.

Amendment 13 (b) not moved.

An Ceann Comhairle

Amendment No. 14. Deputy Fitzpatrick.

Mr. T.J. Fitzpatrick

(Cavan): I move amendment No. 14:

In page 19, to delete subsection (3) and substitute the following:—

"(3) Failure by an arrested person (other than a person who has provided a specimen of his urine in accordance with the prescribed procedure) following a requisition under this section to permit a designated medical practitioner to take from the arrested person a specimen of his blood shall be prima facie evidence that the arrested person is guilty of an offence under section 49 (1) of the Principal Act.”

An Ceann Comhairle

May I point out to Deputy Fitzpatrick that there are other amendments which are cognate and consequential. If he wishes to debate them together, he may do so.

Mr. T.J. Fitzpatrick

(Cavan): Could you mention them?

An Ceann Comhairle

No. 17 is cognate; and Nos. 16, 18 and 21 are consequential. If the Deputy does not wish to discuss them together, it is a matter for himself.

Mr. T.J. Fitzpatrick

(Cavan): I think I shall discuss them separately. We need not, perhaps, have a lengthy debate on the others. In order to explain what I intend by my amendment. I should like briefly to refer to section 29(1) which says:

Where a person (in this section referred to as the arrested person) arrested under section 49 (4) of the Principal Act or section 27 (3) (a) of this Act has been brought to a Garda station, the member of the Garda Síochána then in charge there may do either or both of the following—

(a) require the arrested person to provide in the prescribed manner a specimen of his breath...

In other words, he may use the breathaliser on him or (b) he may require the arrested person to submit to a blood test or a urine test. Subsection (2) says that if a person who has volunteered to provide a sample of urine fails to do so, he must then submit himself to a blood test. Subsection (3)—and this is the subsection to which I object and which I propose to delete—reads as follows:

An arrested person (other than a person who has provided a specimen of his urine in accordance with the prescribed procedure) who, following a requisition under this section, refuses or fails to permit a designated registered medical practitioner to take from the arrested person a specimen of his blood shall be guilty of an offence and shall be liable on summary conviction to imprisonment for any term not exceeding six months or, at the discretion of the court, to a fine not exceeding one hundred pounds or to both such imprisonment and such fine.

I think it is right to say that that person also shall automatically have his driving licence suspended for one year. What we are saying here is that the person who is brought to the Garda barracks on suspicion, whether he is arrested on the public highway after having committed an offence, or whether he is dragged from his own home, as the last division will entitle the Garda to drag him, if he is invited to submit to a blood test which entails a minor operation and refuses, he is guilty of an offence and may be fined £100, and may be sent to jail for six months, and will lose his driving licence for 12 months. I think that is fundamentally wrong. I am convinced that this subsection is unconstitutional because I believe it will make it obligatory on an accused person to convict himself. He has to submit to a test which may be used in evidence against him, and this may convict him of a serious offence. This also violates his personal and individual rights. I do not think any citizen of this State should be compelled to submit himself to a blood test.

The wording of the subsection is: "...to permit a designated registered medical practitioner to take from the arrested person a sample of his blood..." I understand that in certain cases it is difficult enough to get a specimen of one's blood, and certainly it is a procedure to which many people would object. At any rate, it has always been the law in this country that no person is bound to convict himself, that no person is bound to provide evidence against himself. Now that section 28 has been accepted by the House which provides that a certain concentration of blood in a person's body is an offence if he is driving a car——

Mr. Carty

A concentration of alcohol in the blood.

Mr. T.J. Fitzpatrick

(Cavan): The Parliamentary Secretary's contribution to the debate has been very helpful. Short and all as it was, it was quite helpful. A certain concentration of alcohol in the blood is an offence. That provides the problem of ascertaining the concentration of alcohol in the blood. Deputy Dillon had a big objection to 28 on these very grounds but, just as I was prepared to go a very considerable distance with the Minister in section 28 in order to enable him to strengthen the machinery for detecting impaired driving, I am now prepared to go a long way with him in section 29 in order to enable him to strengthen the hand of his legal advisers and the Garda, but I certainly will not be a party to making it a criminal offence for a citizen to refuse to allow his blood to be extracted from his body. I do not think that is necessary in order to attain the objective the Minister has in mind.

For that reason I move this amendment, and I hope the Minister will accept it. If he does not, and if he uses his majority in the House to force the section through as it stands, I will have something to say on the section. As I say, subsection (3) as it stands makes it an offence for a person to refuse to submit to a blood test which entails a minor surgical operation. I am offering in this amendment the same remedy as I offered the Minister in substitution for section 28. The blood testing machinery can remain within the Bill as far as I am concerned, and the person who is brought to the station can, if he wishes, submit to a blood test, and consent to a blood test, but if he does not consent, the official in charge of the Garda Station or the doctor cannot compel him to submit to a blood test.

I know the section does not provide that they can hold him down and take blood from him but it does provide that if he fails to submit to a blood test, he is guilty of an offence carrying all the consequences of the offence of driving a motor vehicle while impaired. In substitution for that, I say that his failure to submit to such a test shall be prima facie evidence that his judgment was impaired, and seriously impaired, from the consumption of alcohol within the meaning of section 49 of the Principal Act. The onus would then be shifted on to him to prove that at the time he drove the vehicle, he was perfectly competent, that his judgment was not impaired, that he was not intoxicated, and was perfectly capable of exercising effective control over a motor vehicle. That onus is a heavy one.

Unless the person who refused to submit himself to a blood test was in fact capable at the time of the alleged offence, he will not be able to satisfy the court that he was so capable, and he will be convicted. My experience over the years has been that if a person who is charged with drunken driving is not granted a direction at the end of the State case, it is most unlikely that he will be acquitted unless he was clearly sober and able to drive.

I am putting this amendment to the House as a reasonable proposition, as a proposal to replace a thoroughly objectionable subsection, the most objectionable subsection which has ever been put to this House for enactment. I do not think that such a proposal has even come before this House before, that a person should submit himself to a minor surgical operation in order to provide evidence against himself. That is fundamentally wrong and it is against the concept of justice which we have cherished here since the foundation of the State, and against the concept of natural justice that has prevailed in this part of the world since long before the foundation of this State.

My proposal is quite adequate to enable the Minister to achieve the object he has in mind. Let me repeat that I am not here to defend the drunken driver. I share with the Minister and all right-thinking Members of this House the belief that those who take alcohol in excess of their capacity to carry it, thereby impairing their effective control over motor vehicles, should be dealt with stringently, should have their licences suspended or should be put off the road altogether. I am here, however, in defence of the sober driver who does not break the law, the responsible citizen who realises his obligation to society.

There are rights both ways. The motorist owes a duty to his fellow-citizens. Just because a man is licensed to drive does not mean that he forfeits the rights society and his fellow citizens owe to him. But that is what will happen under this subsection. It will take away from a citizen who purchases a driving licence the right which he, as a citizen, should enjoy. I trust those Deputies who believe as I do will persuade the Minister to accept my amendment. It is a reasonable and effective alternative to this objectionable subsection.

Mr. Ryan

The only criticism which could be offered against this amendment is that it goes too far because it moves the onus of proof on to the accused person. The reason it does so is that Deputy Fitzpatrick is anxious to meet the tremendous obligations which society insists should be imposed on people who drive motor cars. There is no escape clause in the amendment other than that which should be properly available to a person who has some medical justification for not undergoing a blood test. There is, therefore, no merit in not accepting the amendment. To refuse to accept it is tantamount to saying that a person who refuses to have a blood test must be deemed to be guilty. Within the last few weeks, I was quite surprised to become aware, for the first time, of a number of hardy individuals, whose stomachs would remain unturned at the most unpleasant sight, unable to undergo a blood test without fainting. There are such people and it would be grossly unfair for this House to lay it down that these people must be damned. It can, I know, be argued that such people can undergo a urine test, but they should be treated in the same way as all other citizens and not have this additional burden imposed on them. That is what the Minister seeks to do in this provision. They will have no choice.

Major de Valera

There is an option.

Mr. Ryan

It is not at all adequate. The subsection is mandatory: it is absolute. If it is not, why not put it beyond doubt by accepting the amendment?

Major de Valera

The blood test, it must be said in fairness, is optional to the extent that a urine test can be taken instead of it. Am I right in that?

Mr. T.J. Fitzpatrick

(Cavan): Yes.

Major de Valera

Coupled with section 35 there does seem to be an option. My objection to Deputy Fitzpatrick's amendment is that it is out of line and, frankly, it makes the situation worse. My objections to section 28 are procedural, but I am accepting it whole-heartedly. My argument would be that we should stand on the breathaliser test. Deputy Fitzpatrick's amendment is, I think, unnecessary. The position could be met perfectly well by standing on the breathaliser test and leaving the other two optional.

Mr. Dillon

Hear, hear.

Major de Valera

Then the court will draw its own conclusions on the general law as it is. In other words, let the prosecution stand on the breathaliser test. I do not want to repeat what I said on Second Reading but, after all, what the Minister is trying to do is give further protection to the accused person.

Now, if we start from the premise that we have section 28, as we have, and that the person who is guilty of an offence under section 49 of the earlier Act, as amended by section 28, is not entitled to any particular consideration —I do not think anyone was arguing to try to protect such a person; the arguments were to save the implications going further—then, if you accept these two principles, surely no injustice is done to anyone who opts to stand on the breathaliser test under section 29(1) (a). Let the prosecution stand on that. Just as the urine test is optional let the blood test equally be optional. Let the defendant, if he wishes, call for these other tests.

Mr. Dillon

And let it be mentioned in court that he did not so opt.

Major de Valera

Exactly. If it stands on the breathaliser test, I do not think any great injustice will be done. That will give the person involved an opportunity, if he feels he is innocent, of proving his innocence. Deputy Fitzpatrick has been trying to make the point of a person convicting himself. There may be something in it, but I think it could be counter-argued. It is open to the accused to call evidence in his own defence. My suggestion would be to withdraw the amendment. I would suggest to the Minister then that he should make section 29 (1) (b) optional to the accused. If he does not exercise his option to have a urine test or a blood test, then the breathaliser test is required. That is, I think, the simple, straightforward way out of the situation.

Mr. T.J. Fitzpatrick

(Cavan): Surely, if the Deputy's suggestion were accepted, section 28 would be meaningless?

Major de Valera

It would not because the person who puts himself in jeopardy by taking drink is not entitled to more than mere justice and mere justice is being done to him if one stands on the breathaliser and calibrator.

Mr. Coogan

What about the haemophiliac? What happens to him?

Progress reported; Committee to sit again.