Amendment No. 1, and with it perhaps we could take amendment No. 21, which is consequential.
Committee on Finance. - Road Traffic Bill, 1966: Report Stage.
I move amendment No. 1:
In page 5, to delete lines 6 to 9 and substitute the following:
"5.—Sections 119 (which provides for the reimbursement of hospitals in certain cases when a person is injured as a result of negligent use of a mechanically propelled vehicle) and 88 (which provides for the making by the Commissioner of bye-laws for the general regulation and control of traffic and pedestrians in public places) of the Principal Act are hereby repealed."
On Committee Stage Deputy Barrett made the case that section 88 of the 1961 Act was being repealed by section 59, as it then was, of the Bill but that this was not indicated in the index to the Bill. It is now proposed by this amendment to put all repeals into section 5 of the Bill and the index will show that section 5 deals with repeals.
(Cavan): This amendment, as the Minister said, proposes to repeal section 119 of the Principal Act under which it was possible for the governors of a hospital in which a person injured by a motor vehicle had been treated, to follow the owner of that vehicle for the amount due in respect of the maintenance and treatment of the injured person. The Minister is repealing that section and taking away from the hospital board the right to claim compensation or to claim the amount due to it by the negligent driver or the owner of the vehicle which was negligently driven. I do not know why the Minister is repealing this section. Perhaps he could tell us if this section was availed of to any extent by the governors of various hospitals. While I have no violent objection to the section being repealed, it was probably a worthwhile section which could have been availed of from time to time.
Reading the amendment, I was prompted to ask myself why we repealed section 119 and section 88 of the Principal Act in that order instead of repealing them by referring to them in numerical order. I could not follow the draftsmanship of that. I should like the Minister to justify the repeal of this section which would enable the hospital to recover the amount due from the owner of the vehicle which had been driven negligently. Section 88 gave the Commissioner of the Garda the power to make bye-laws. As I understand it, those powers are being taken away from the Commissioner and invested in the Minister for Local Government. That was agreed on Committee Stage so I have nothing further to say on that.
Section 119 of the Road Traffic Act 1961, provided for the reimbursement of private hospitals by the negligent party of costs incurred in treating a person injured in an accident. It has been found in practice that these costs are dealt with as part of the damages recoverable by the injured person and it has not been found necessary to bring the section into operation. For this reason it is proposed to repeal section 119.
Amendment put and agreed to.
Perhaps we could take Nos. 2 and 3 together, as No. 3 is a cognate amendment.
(Cavan): I move amendment No. 2:
In page 7, lines 16 to 18, to delete all words after "importation".
Section 9 of the Bill with which we are dealing enables the Minister to make regulations to control the importation into the country and the sale within the country of certain vehicle parts. These amendments are put down by me to limit the power of the Minister because the power which he has taken in subsection 5 (2) (a) and (b) of section 9 is too wide. Section (2) (a) prohibits the importation either absolutely or save under a licence, which may contain conditions, issued by the Minister or by specified persons. I am, in principle, against the granting of powers to the Minister to issue these licences and I would much prefer if subsection (2) (a) merely enabled the Minister to prohibit the importation of certain categories of vehicle parts which he thought should not be used in the country. I readily concede that I cannot make as strong a case for objecting to subsection (2) (a) as to subsection (2) (b).
Subsection (2) (b) enables the Minister to make regulations prohibiting either absolutely or save under licence, which may contain conditions, issued by the Minister, persons from supplying, or offering to supply, specified goods or specified classes of goods. This particular subsection enables the Minister, and this thas been conceded in the Committee Stage debate, to say that firm A may be permitted to sell certain vehicle parts but firm B may not sell them. I know that the Minister says that that is not the intention and Deputy Booth conceded on Committee Stage that he would be alarmed if my interpretation of subsection (2) (b) were correct. I am satisfied that it does enable the Minister to confine the sale of certain vehicle parts to certain individuals or certain firms.
It may be the Minister's intention to issue a general licence saying that these parts may be sold only on certain conditions, but, if that is so, then it should be stated in the section. In my opinion —I have no doubt about this; I have carefully considered it since Committee Stage—the section as it stands enables the Minister to say, in effect, that firm B may sell certain types of motor tyres while firm A may not. That is highly undesirable and I am disappointed that the Minister did not do something about this since Committee Stage. I do not say he promised to amend this but he certainly promised to consider the position further. That promise will be found at column 635 of the Official Report of 10th May last.
In making the case for taking these powers, the Minister said it was desirable that he should be in a position to exercise control over unsafe parts or parts which were calculated to be dangerous to those who used them or to other members of the public. I pointed out then that this particular section did not ensure that these parts would not be used on vehicles other than the vehicles on which they were intended to be used because, once they are sold to a customer, he can apparently use them for any purpose he likes. I should prefer to see the Minister taking power to ensure that specified parts are used only on vehicles for which they are suitable. This particular subsection does not guarantee that. In view of the statement by the Minister on Committee Stage that he would look at this again, I put down this amendment because I feel very strongly that we should not pass into legislation here a measure which enables a Minister of State, now or in the future, to discriminate between one firm and another and I certainly cannot see the necessity for it. What the Minister is setting out to do could be achieved by altering subsection (2) (b) as the amendment proposes to alter it.
As the subsection stands, it reads:
prohibiting, either absolutely or save under a licence (which may contain conditions) issued by the Minister, persons from supplying, or offering to supply, specified goods or specified classes of goods;
I propose to alter that to read:
prohibiting persons from supplying, or offering to supply, specified goods or specified classes of goods.
The Minister makes the case that the powers he is seeking will be exercised fairly and will not be exercised in such fashion as to discriminate between one firm and another or confer advantages or benefits on one trader to the disadvantage of another. I accept that that is the Minister's intention, but I maintain we are putting into the hands of the Minister, and his successors, a section which will enable him and his successors to do what I say should not be done, namely, to discriminate between one firm and another to the advantage of one and the pecuniary disadvantage of another. It should have been within the competence of the Minister and his advisers to alter this subsection in such fashion as would enable him to achieve the object he has in mind and, at the same time, ensure that he and his successors could not legally abuse the section. It is to that I object; I object to an abuse which could be availed of legally within this particular subsection.
Deputy Fitzpatrick made this case on Committee Stage and I agreed to see if it would be possible to alter the provision in some way for the purpose of introducing the type of safeguards he requested and preventing any possible discrimination. I am afraid, however, that I cannot agree to this amendment. I have considered the matter and it has not been found possible to decide on any change which would so limit the powers as to make it clearer that what the Deputy fears could not, in fact, happen. It is reasonable, I think, to ask the House to agree that what Deputy Fitzpatrick suggests just could not be done. The section empowers the Minister to confine the importation and the supply of certain vehicle parts to persons holding licences. As far as I can gather, Deputy Fitzpatrick approves of the absolute powers to prohibit importation and supply. He agrees this is needed in order to stop the sale to the public of parts which are not up to the required standards.
This is a power which is obviously required and I do not think Deputy Fitzpatrick disagrees in principle with it, but, parallel with these powers of absolute prohibition, there is need in relation to some items to allow as an exception to a general prohibition on importation or supply an item for particular purposes or subject to specified conditions. There is also need to check on the operations of firms importing or supplying an item. These things can be done only by the proposed licensing system. I explained on Committee Stage that this is a control which will be used in only a very limited number of cases, but it is necessary to have the general power because of constant changes in motor vehicle design and equipment. A blanket ban on the importation or supply of an item would not suffice because it might be desirable to arrange for experiment in controlled conditions, with a particular type of equipment, for example, a new type of safety belt or crash helmet, or to permit importation or supply for a very restricted purpose. Every effort will be made to operate the section as far as possible by way of regulations but the kinds of issue that arise in difficult cases for which this licensing is envisaged involve a judgment on a particular type of specialised equipment, so that regulations just would not be appropriate for it.
As well as that, this proposed licensing system has the advantage that it gives a useful and desirable check on those who are engaged in the importation or supply of the few items of equipment that call for this treatment. The licensed importers of safety belts and helmets will be known and can be checked to ensure that they are importing only standard and approved equipment. The same thing would apply with regard to re-cutting of tyres.
I should like to be able to meet Deputy Fitzpatrick on this point but I find that it is not possible to devise powers in this Bill which would give the necessary control and still satisfy Deputy Fitzpatrick that discrimination was not possible. I think it is reasonable to ask the Dáil to accept that this would not be used for that purpose and it has already been discovered that a provision such as this is inevitable for the type of case that is envisaged. A similar provision exists in the Control of Imports Act, 1937 and in the Finance Acts of 1932, 1957 and 1962 and I do not think there has been any abuse under these provisions. It was the only practical way of dealing with what was required. Neither I nor my Department have succeeded in finding any other way of dealing with it in this case.
Deputy Fitzpatrick, to conclude on his amendment, if he so wishes.
(Cavan): I am prepared to withdraw amendment No. 2. I am not prepared to withdraw amendment No. 3 because I feel that the Minister has not made a case for the provision of subsection (2) (b). I am prepared to withdraw amendment No. 2 because that deals with the importation into the country of certain parts and I realise that the Minister has made a case for the granting of licences in special cases.
The position, as I see it, is totally different regarding sale within the country. Either these things should be legally saleable within the country or their sale should be prohibited. The case is different with importation. It might be necessary to import parts for experimentation or for special purposes but when it comes to selling them within the country I am absolutely against the right of the Minister to differentiate between one citizen or another, between one firm and another. I do not think it is necessary for the purpose which the Minister has in mind.
I really cannot see why the Minister was not prepared to accept my amendment. In the words in which the amendment is drafted he could have imposed upon himself and his successors the right to grant a general licence to which he could attach conditions but he is taking the right to grant individual licences. I do not think the Minister has sought to argue that my argument is not well-founded but is doing what, indeed, it has become very fashionable for Ministers to do in recent times, that is, to say: "The power that we are taking may be abused but it will not be abused." That, in effect, is what the Minister is saying. He is asking us to trust him and to trust his successors ad infinitum and that is what I am not prepared to do, especially when I am not convinced that it is necessary to do it and I am not convinced that it is necessary to do it here.
What the Minister wants to do here is to make sure that a tyre that is suitable only for use on land will not be used on the road. This clause of subsection (2) will not ensure that. The Minister could ensure that by taking the power to make it illegal for tyres branded "for use on the land" to be used on the road. Maybe he has that power in some other place. I would be surprised if he has not. Certainly, it is not necessary, in order to achieve that object, to have the power which the Minister is seeking here.
I do not think it is necessary, for the purpose of my amendment, to speak at any greater length on it because the Minister, in fact, concedes my argument but says, "Leave it to me. Leave it to my successors. We will not do anything we should not do." This House would be failing in its duty as a legislative assembly if it were to issue blank cheques indiscriminately in that fashion and I do not propose to do it.
Amendment, by leave, withdrawn.
(Cavan): I move amendment No. 3:
In page 7, lines 19 and 20, to delete ", either absolutely or save under a licence (which may contain conditions) issued by the Minister".
Question: "That the words proposed to be deleted, stand," put and declared carried.
(Cavan): I move amendment No. 4:
In page 7, lines 35 and 36, to delete "and for different circumstances".
More or less the same principle is involved here. It is part of the same section. Subsection (3) of section 9 says:
Different regulations may be made under this section in respect of different classes of vehicle parts and for different circumstances.
I confess that I do not know what that paragraph means. I can only think that the general idea behind the paragraph is to give the Minister unlimited power and to ensure that, no matter what regulations he makes, they will not be ultra vires the Act, when the Bill is enacted. As I said on Committee Stage and, I think, on Second Reading, this Bill is riddled with provisions conferring on the Minister the right to make regulations. I would be quite happy to leave subsection (3) to read as follows:
Different regulations may be made under this section in respect of different classes of vehicle parts
but I really do not know what the last four words "and for different circumstances" mean. I do not think they are necessary. I think they are too wide. I wonder is there any precedent for them in any other Act or is this just another stage in the advance of enabling legislation? I feel strongly that the subsection should be amended as I have suggested. We are drifting from legislation by enactment to legislation by ministerial Order. I do not think that is desirable. We, who are elected to this House to scrutinise legislation going through it, should do our utmost to ensure we are not simply signing our names, so to speak, to blank cheques.
This amendment would restrict the application of my powers to make regulations in respect of the importation and sale of different classes of vehicle parts. If we deleted the phrase "and for different circumstances" it would take away an element of flexibility that it is customary to have in connection with the making of regulations dealing with matters having a high technical content and affecting a wide range of vehicle types and suppliers. This same type of flexibility was provided for under the 1961 Act for making regulations relating to the construction, equipment and use of vehicles, including public service vehicles. The process of change in regard to motor vehicle design makes it necessary to have this type of flexibility. It is the usual thing. It just would not be possible to list all the circumstances for which these types of regulations would have to be made. Circumstances will change in the future and it is necessary that the Bill should be drafted so that it will be possible to take account of those changing circumstances.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 11—
(i) lines 18 to 20, to delete "to every statutory body and to every company (within the meaning of subsection (1) of section 2 of the Companies Act, 1963) which", and substitute "to every person who";
(ii) line 26, to delete "a body or company to which", and substitute "a person to whom";
(iii) line 28, to delete "him" and substitute "the Minister";
(iv) line 30, to delete "body or company" and substitute "person".
The purpose of this amendment is to extend the provisions of the section to private persons as well as to companies. Deputy Fitzpatrick made this suggestion on Committee Stage.
(Cavan): When we were dealing with the Committee Stage, section 13 struck me as unusual. It proposed to apply a certain type of inspection to fleet owners, provided the fleet owner was a statutory body or a company within the meaning of subsection (1) of section 2 of the Companies Act, 1963. There was a difference of opinion as to whether the proposal in the section was in relief of or an added obligation on the company. On the face of it, it appeared to impose a further obligation on the semi-State body and the company, but I had a feeling that really the intention was to relieve these companies from spot checks and to leave them to do their own checking, provided they kept records. The one thing that struck me about the section was that there was some different treatment being meted out to a company who owned 20 vehicles, let us say, and to an individual who owned 20 vehicles. I could not see the sound reasoning of equity behind that proposal. I am glad the Minister has accepted my suggestion that in the eyes of the law the owner of 20 vehicles, whether a statutory company or a private individual, should stand in the same light. I welcome the amendment.
Amendment agreed to.
(Cavan): I move amendment No. 6:
In page 15, line 40, to add the following to subsection (6):
"unless the instructor is a wife, husband, parent, child, brother, sister, uncle, aunt, nephew, niece, grandparent or grandchild of such holder".
Section 18 of the Bill very rightly seeks to provide that people undertaking the instruction of novice drivers or learner drivers for reward shall be up to a certain standard and shall be licensed. With that I am in full agreement. I believe that driving schools who teach people to drive motor cars for reward should be up to a certain standard and should comply with certain standards. I am not quarrelling with that at all but I am complaining about subsection (6) of section 18, which I will describe as the "onus of proof" subsection of section 18. It provides that, if the holder of a full licence is seated in a motor car beside the holder of a provisional licence while the holder of the provisional licence is driving a car, the holder of the full licence shall be deemed to be giving instruction to the holder of the provisional licence for reward until that person, the holder of the full licence, proves to the contrary—that means until he goes into the witness box and swears he has not been accepting money for instructing the provisional driver.
That is the position, even if the holder of the full licence is the father of the holder of the provisional licence or even if the holder of the full licence is the husband of the holder of the provisional licence or the brother of the holder of the provisional licence or a near relative of the holder of the provisional licence. I feel very strongly that this is going too far. My amendment seeks to provide that this presumption will not arise if the holder of the full licence is the wife, husband, parent, child, brother, sister, uncle, aunt, nephew, niece, grandparent or grandchild of the holder of the provisional licence.
I do not think it reasonable that some unreasonable member of the Garda Síochána should be able to issue a summons against a father who is out instructing his son or daughter to drive a car and impose on that father the obligation of going into court and swearing he was not accepting a cash payment for the instruction given. Unless we accept this amendment, that will be the law when this Bill becomes an Act.
Again, the Minister agreed in principle with my sentiments and arguments at column 664 of the Official Report of the Dáil debates on Committee Stage on 10th May, 1967. He promised to look into the matter and see what could be done. I do not see any difficulty in the Minister accepting this amendment. He may have been busy with many other things in which he has perhaps more interest—and I do not mean to be offensive—since the Committee Stage of the Bill. I should certainly like an assurance now that he will take this into account before the Bill goes to the Seanad, and that he will at least exclude from the provisions of subsection (6) some of the people I have mentioned in my amendment.
Surely he could exclude the parents? Why imperil a parent and put him under an obligation to prove that he was not accepting payment? Surely he could exclude a wife, husband, parent, child, brother, sister? I do not think that is going too far. The Minister is not prepared to yield an inch on these things. He asks us in his regulation section to accept that the Minister will not make regulations which would operate unfairly as between one section of the trading public and another. He asks us here to accept an assurance that no member of the Garda would do anything like this and that it is most unlikely that it would happen. How far can we go? How far is it necessary to go with this sort of authority?
I concede that it is unlikely that a prosecution would be brought against a father on the basis that he was instructing a child to drive a car for reward. I agree it is unlikely that a prosecution would be brought against a spouse or against a brother or sister, but why write this sort of thing into an Act of Parliament? Why not create reasonable exceptions? The fact is that if this Bill becomes an Act in its present form a member of the Garda who feels he must carry out the law strictly—and there may be many such members — cannot be blamed for issuing a summons against a father who is the holder of a full licence for sitting in a car beside his son or daughter who is the holder of a provisional licence because that is the law as we are passing it. That is the law as we are sending it out of this House. The Minister for Local Government will cease to be the enforcing authority in respect of this section once the Bill is signed by the President. We are handing it over then to the Minister for Justice, the Commissioner of the Garda and members of the Garda who will enforce the law as we make it.
As I say, the Bill in its present form provides that a husband or father who is sitting beside his wife or child—the husband or the father being the holder of a full licence and the wife or the child being the holder of a provisional licence—is guilty of an offence until he proves to the contrary. I will go further and say that if a garda is carrying out his duties strictly, he must report the occurrence to the superintendent, and the superintendent, if he is carrying out his duties strictly, must initiate proceedings, and the holder of the full licence must go to court and prove on oath—and I know his oath will be accepted—that he was not accepting a reward.
Why pass that type of legislation? It is really holding the law up to contempt. I strongly and confidently appeal to the Minister to reconsider this between now and Committee Stage in the Seanad with a view to meeting the amendment I put down to a considerable extent.
As I think Deputy Fitzpatrick knows, I sympathise with the aim of this amendment, but if I accepted it, I think it would put anyone outside the excluded classes in a more difficult position in proving that the instruction was not being given for reward. Deputy Fitzpatrick found the list of excluded persons difficult to compile. In his first attempt he left out the husband and wife, and in his second attempt he includes uncles, aunts, grandparents and grandchildren but leaves out first cousins who might, I think, be considered to be more likely to be giving instruction.
I think the amendment is unnecessary because in practice it is most unlikely that a garda would take proceedings under subsection (6) against near relatives. This is only the onus of proof, and any court will accept that a close relationship such as father and son would easily rebut the charge of giving instruction for reward. I think no garda would bring a prosecution in a case like that.
I do not want to accept this amendment because I do not think we would ever get a really satisfactory list that would exclude every type of person we would like to have excluded, and whom a garda himself would automatically exclude. The danger I see is that in putting a list of these people into the Bill, it might be held that only those people are excluded, and no one else would be excluded by the garda. I do not know if Deputy Fitzpatrick would agree to a suggestion that, if experience shows this to be desirable, it could then be done by regulation. There is power in the section to frame the regulation so as to exclude near relatives from the prohibitions. It could be done by regulation but I do not think it is necessary. It might possibly worsen the position with regard to prosecutions. I certainly should prefer to wait for some experience in the operation of the section to see whether or not it appears to be desirable and, in those circumstances, it could be done by regulation.
It is not so long ago that my wife got her driving licence. I was her instructor, maybe rather an impatient one at times, but nevertheless——
Maybe that is why it took her so long to get it.
The only reward I got for giving this instruction was to see her enjoy this greater facility and have this greater mobility not only for doing her shopping but also for attending to her interest in the theatre. If I were to go to court, in reply to the question: "Did you get any reward," I should say: "Yes, it has been a great reward to me to see her get this extra facility." The Minister probably means monetary reward. I certainly have not got that. It is costing me a considerable bit more to see my wife enjoy that facility.
At the same time, I have a son who is now the holder of a provisional licence. As a result of activities at by-elections, and so on, I have not been free to instruct him, and his mother has been giving him the instruction. While he can now drive a car reasonably well, he requires a great deal of practice in order to get his full licence which I understand he is hoping to obtain in the course of the next two or three weeks. To enable him to get this practice, my wife lent her little car to him last weekend, and in the car was the holder of a full licence who was the mother of his girl-friend. They drove to Skerries and back.
The Minister's point is that this person is no relative—at this stage, anyway—and this person would have to go into the court. I think Deputy Fitzpatrick, in presenting his case asked the Minister to consider some of the people on his list. I think that husband, wife, parent, brother or sister should be left going no further, that is, members of the immediate family.
I consider them all.
Could we not write these few into the Bill and deal with the others by experience?
I am afraid the Garda would look on that automatically as these people only——
Of course.
This is a most desirable section. Everybody in the House is unanimous that it should be introduced. What the Minister is obviously trying to protect against is a situation where, for instance, with two chaps of university college age or leaving certificate school age one might say to the other: "I will teach you and you can give me 5s or 10s at the end of the week", and not be a qualified instructor at all. The Minister should try to guard against that. But the blood relatives—mother, father and children collectively—should be excluded and written in. The Minister should look at this. Aunts and uncles can be dealt with by regulation on experience.
I am afraid the type of person the garda would consider it his duty to prosecute is the type of person Deputy Lemass mentioned.
I appreciate what Deputy Lemass has said. Indeed, I think the kind of example he gave is the kind of example that would be met with fairly commonly where members of a family are helping other members of a family—whether they be spouse or children—to learn to drive. I think I can at least say that the idea behind this whole section of having regulations governing the driving instructors is understandable. My particular quarrel with subsection (6) is partly what has been urged in Deputy Fitzpatrick's amendment, that there should be some modification where members of a family are involved.
Principally, however, I feel it is necessary to object to the kind of omnibus power contained in this section so far as proof in the courts is concerned. This is another example of the kind of thing we have been having so often in legislation, particularly legislation of this type, and I feel at times it is simply beating the air to object to it. Time and time again, I have objected to this type of provision and I want to object to it here again also.
The ordinary concept of the law that we in this country have understood down through the years, the ordinary concept which has been appreciated and, indeed, taught to legal practitioners in this country, is based on the principle that a person is innocent until proved guilty. Time after time in our legislation we have departed from that. Instead of leaving the onus of proof where it should rest—squarely on the shoulders of the prosecution—we are shifting that and shifting the burden of proof on to the shoulders of the defendant. This is another example of that. Ordinarily, where, in a statute, a particular matter is made an offence, the question of proving whether or not an offence has been committed should be one for the authorities. They should be required to go into court and to prove that an offence has been committed. Here, we are saying that the mere fact that a certain set of circumstances existed will automatically be deemed to mean an offence has been committed unless the defendant can prove otherwise. The burden of proof is being shifted from the prosecution to the shoulders of the defendant. I think a protest should be made whenever that is done in our legislation.
It is no small matter in this instance. In some cases, it might be a question merely of a token offence with a minor penalty. Here, the offence can involve, as I read the section, a fine of up to £100. Simply because a person happens to be in the car in the circumstances set out in subsection (6) of section 18 an offence is deemed to have been committed. No proof is necessary. The Garda are not required to furnish one iota of proof to the court. There is the evidence that that particular set of circumstances existed, that the two people were in the car and on the giving of that evidence immediately an offence is deemed to have been committed unless the defendant can prove to the contrary.
I would feel that if this carries, as it does, the heavy penalties set out in subsection (7) of this section it should not be too much for the Legislature at least to query the proposition that is being put before us and to ask the Minister to go slow on this kind of provision. I think he could do that without harming in any way the effect or the strength of the provisions which he wants to see in this Bill dealing with the qualifications of instructors and so on. I do not think it would weaken the position at all to require the Garda to produce their proofs in court.
I know the case is often made in rebuttal of the point I am raising that the time of the gardaí should not be wasted in having to produce formal proofs. Indeed, I think on other occasions when that case was made, it was accepted on the basis that all that was being done was avoiding waste of time and red tape in gardaí having to produce formal proofs to the courts, such as the production of a register or something of that description. But here it is not a question of formal proof. Here it is a question of substance, a question of fact, and, to my mind, it is in a completely different category from the tendering of some formal proof to the court.
This is not in that category at all. Here we are legislating, if this subsection goes through as it stands, in a way which will impose or which will at least open the door to the imposition of heavy penalties merely because a matter is deemed to be so by an Act of Parliament which might not be so at all. I know the Minister is entitled to say that the defendant has the opportunity of proving that that is not so, that it is only an offence until the contrary is shown by the instructor under this particular subsection. That is so but it does not alter the principle of which I am talking at the moment that where a charge or allegation is made that an offence has been committed, it is up to the prosecution to prove its case and unless that case can be established by evidence before the court, the defendant should be regarded as innocent and not regarded as guilty. I would ask the Minister to have another look at this subsection in that context.
There is the amendment.
I was talking about the subject generally and I am coming to the amendment. The amendment at least seeks to modify the provisions of the subsection by providing that at least in any set of circumstances where the instructor is related to the person being instructed, this shifting of the burden of proof will not take place, and that, where relationships mentioned in the amendment by Deputy Fitzpatrick are established, these presumptions of guilt will not arise.
I agree with Deputy Lemass that if the Minister, as he appears to be, is prepared to concede that at least with regard to certain categories that situation should obtain, then there does seem to be a virtue rather than a weakness in writing that into the Bill, in accepting the amendment at least to the extent to which the Minister regards it as reasonable.
In an interjection, the Minister expressed apprehension that if that were done the Garda might feel they were being confined to the particular relationships written into the Act. I am not sure that that is so. It certainly does not weaken the position to put this in. It does make it abundantly clear if this amendment is acepted, in whatever modified form the Minister thinks proper, in the case of the parent, the husband, the wife, or whatever words the Minister may wish to accept, that this presumption will not arise. There is a lot to be said about being clear and unambiguous about the matter by writing it into the Bill when we are considering it at this stage.
While I know that Deputy Fitzpatrick and Deputy M.J. O'Higgins, having knowledge of the practice of law, are perhaps far better able than any of us in the House to judge the effect of this section without the amendment suggested by Deputy Fitzpatrick, as a layman I would be inclined to agree with the Minister. I feel that the exclusion clause would, in fact, bring in everybody else except those excluded. Normally in the mind of a garda who stops somebody on the road for contravention there is some section of the road traffic law. If he finds anybody, except a person mentioned in the amendment, if the amendment is accepted, in the car with the driver who was the holder of a provisional licence, I imagine he would feel the onus on him to issue a summons against such a person. If the section is now amended in this way, it is commonsense that the garda would take it as a direction as to whether or not a prosecution should be taken. I listened to Deputy Lemass and I am not sure whether he was giving his family history.
I was saying the Garda were a very intelligent group.
I would think there is a far greater likelihood of the boy with a provisional licence having his girl friend with him showing him how to drive the car, or the other way around, the girl having the boy friend showing her how to drive the car rather than having the prospective mother-in-law. This is an angle which I could not follow at all.
It is the boy who needs the experience.
I agree; I could not agree more. The position seems to be that it is suggested that if certain people are excluded, this will mean that the section will be more easily interpreted by the courts. I suggest it would make it more confusing. If the people are excluded whom Deputy Fitzpatrick says should be excluded it will mean that the Garda will feel they have been given a direction to prosecute everyone else whom they find in that situation. This is only a personal opinion which cannot match that of the two legal gentlemen in the Fine Gael Front Bench.
Deputy Fitzpatrick mentions a number of people. There are others also, such as fathers-in-law, mothers-in-law, fiancés and people like that. Why not put them in?
Can the Minister deal with it by regulation?
It can be done by regulation.
(Cavan): I doubt it.
The parliamentary draftsman says it can.
(Cavan): I should not be surprised if you could not do anything under this Bill as it stands. The remedy is to scrap the whole thing and bring in a new one.
I should be satisfied if the subsection stated that provided certain circumstances come into being an offence is automatically committed.
The type of case mentioned by Deputy N. Lemass would not be an appropriate one for a prosecution even if some classes are excluded.
A prosecution can be made under the provisions of the Bill, and should be made.
(Cavan): Notwithstanding what Deputy Tully has said, I am approaching this section not as a lawyer but as a parent and I do not want to be in a position that if I go out in my car to teach my daughter how to drive my car I am, as far as the law is concerned, guilty of a breach of the Act until I go into the witness box and swear to the contrary. The Minister bases his whole argument for failing to accept the amendment on the suggestion that if he were to accept it and exclude certain categories of people he would make it more likely that all others would be prosecuted, and Deputy Tully agreed with him. What neither seems to appreciate is that under the subsection as it stands the garda is given no discretion. He is simply told in black and white——
He is not. The wording of the section leaves him discretion.
(Cavan): I did not interrupt Deputy Tully.
The Deputy should not make dogmatic statements which are not true. The section does not say that. It says "until the contrary is shown".
(Cavan): It says you would have to go into court.
Only if the garda brings the prosecution.
(Cavan): Under the section, a member of the Garda Síochána who finds people of the category mentioned may say: “Here is a man breaking the law as laid down in this section”, and until the person proves the contrary——
Does Deputy Fitzpatrick think his own list is sufficiently comprehensive?
(Cavan): Before Deputy N. Lemass spoke, I had drawn a pen through “uncle, aunt, nephew, niece, grandparent and grandchild”. I should be satisfied with the list if wife, husband, parent, child, brother and sister are excluded because they are the people who ordinarily in the community are regarded as immediate members of a family.
I should be more inclined to extend it.
(Cavan): The Minister can make a better case for making an absurdity of it by extending it. If he extends it far enough, he can make the case that it would be possible to work it. I am prepared to confine it to the members of a family within the category mentioned by Deputy N. Lemass and myself.
What about a father-in-law?
(Cavan): I do not think we can regard a father-in-law as an immediate member of a family.
The boy friend gives most of the instruction.
(Cavan): I am prepared to accept the categories husband, wife, father, mother, brother and sister. I do not accept for one moment the argument put forward by the Minister and Deputy Tully that this will lead to more prosecutions because I think that argument would hold good only if the section sought to confer on the members of the Garda Síochána a discretion. However, the effect of the subsection as it stands is to deprive the members of the Garda of that discretion and to say to them: “You will treat the holder of a full licence, sitting in a car in a public place with the holder of a provisional licence, as giving instruction for reward to the latter until such time as the former proves to the contrary”. That is, in a nutshell, the direction given to the garda.
I want to make an exception in the case of immediate members of the family within the terms accepted in this country. As I said when moving my amendment, the Minister in his regulation section is asking us to say that the Minister will not make unreasonable regulations—that he is imposing on the garda the means of getting round this section by closing the blind eye to it. He is putting the father who is teaching his daughter how to drive a car in the same category as the motorist who comes across the Border with 56 lbs of butter in the boot of his car —he is putting the parent instructor in the same category as the smuggler was put a hundred years ago. That is not reasonable. The Minister agreed with me on Committee Stage and I do not think he would be conceding very much by accepting the amendment in the limited form I have suggested. He would only be accepting the privileged place in which the family unit stands in Irish life.
Before Deputy Fitzpatrick sits down, I should like to ask whether he thinks the fears expressed by Deputy Tully and me would be allayed by waiting to see if this type of person would be prosecuted in fact.
(Cavan): It might never happen, but even if it never happens I am against writing it into an Act. That is what we are doing here. I agree it is unlikely it will happen frequently.
What we fear is that if it is put in it is likely that people such as a young man teaching his fiancée or a father-in-law teaching his son-in-law might be prosecuted, whereas they would not if there were no specific exclusions.
How could this Act be affected by any regulations?
The parliamentary draftsman says it can be done.
(Cavan): Perhaps it can, but I cannot see it. You have a subsection saying that in certain circumstances an offence shall be deemed to have been committed and how you can alter that by regulation I do not know.
If I showed that between now and—in any case I would have to consider the list.
(Cavan): I just want to conclude on this note: the Minister believes that the Garda have a discretion under the section as it stands. I do not, but what I am saying is that while we are giving this onus of proof section to the Garda in general, we are going to say to them: “You will not operate this onus of proof section against a small specified category, to wit, the family unit.” I do not think that this is unreasonable and I am not here seeking to talk in high-falutin terms. I am saying that we are saying to the Garda Síochána: “There is an onus of proof section ...” such as is contained in the Road Transport Act and another Act, the title of which I cannot remember, but we are giving it here and I concede that it would be necessary and that it is necessary, and I differ perhaps somewhat from Deputy O'Higgins in that respect; I could see it being impossible to sustain a conviction if you had not a section like this in certain cases: “... you are not to use that against this limited category of people, the family unit.” I still think that is not an unreasonable proposition.
I will consider it again.
Amendment put and declared lost.
(Cavan): Since putting down amendment No. 7, I have reconsidered section 20 of the Bill and I am satisfied that subsection (3) (c) of section 20 meets the points I had in mind. In fact, I think that subsection was introduced by the Minister as an amendment on Committee Stage. In the circumstances, I am satisfied with section 20 as it stands and I do not propose to move amendment No. 7.
Amendment No. 7 not moved.
Amendments 8 and 11 are cognate and may be taken together.
(Cavan): I move amendment No. 8:
In page 20 to delete lines 41 to 46, and substitute as follows:—
"Section 49 of the Principal Act is hereby amended by the insertion after ‘the vehicle' in subsection (1) of the following:
‘and if there is present in his body a quantity of alcohol such that within 3 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 milliliters of blood he shall be deemed until the contrary is proved to be incapable of having proper control of the vehicle'."
This amendment seeks to amend section 29. Section 29 is the point where the Minister and myself violently disagree on principle. Section 29 as it stands introduces a new offence. It makes it an offence for a person to drive or attempt to drive a motor car if the concentration of alcohol in his blood has reached 125 milligrammes of alcohol to 100 millilitres of blood. That is an offence, whether the driver can or cannot exercise effective control of the car. It is an absolute offence for him to drive with that concentration of alcohol in his blood, whether he is or is not capable of exercising effective control over a car. The Minister must admit that certain people with that concentration of alcohol in their blood are capable of exercising effective control over a car. I know the Minister will say that by and large experience has shown that a person with that concentration of alcohol in his blood will not be so fit. My amendment seeks to delete subsection (29) which creates the new offence and to substitute for that offence my amendment which amends section 49 of the Principal Act by indicating that a person with the concentration of alcohol in his blood mentioned shall be deemed to be unfit to exercise effective control over a car until the contrary is proved. Here again we have the onus of proof section with which we were dealing a few moments ago in the driving instruction section.
We had a lengthy discussion on Committee Stage on this particular section and I do not propose to drag out the debate at this stage because I feel that the Minister is adamant and has made up his mind, but I feel that he has wrongly made up his mind and that he is taking more power than is necessary. I am suggesting to the House that we should not have this absolute offence and that in lieu of it we should create a situation where the concentration of alcohol mentioned would be prima facie evidence that the person was drunk—and do not misunderstand me—within the meaning of section 49 of the Principal Act, that is, that he was unfit to drive a car and that he would then have to go into the witness box, or by other satisfactory evidence discharge the onus of proof and prove that he was in fact fit to drive a car. That would be a heavy onus and it would be an onus that he would not be able to discharge unless he were in fact clearly capable of driving a car.
In putting forward this amendment, I am not acting in any reckless fashion. I strongly support the Minister in his effort to rid the road of the drunken driver, the impaired driver, the man who, because he has somewhat too much alcohol, is a danger to himself and others. I am with the Minister 100 per cent there and this Party is with the Minister 100 per cent. I think the Commission on Driving while under the Influence of Drink or a Drug set up by the Minister's predecessor on 15th May, 1963, were also strongly of the view that the road should be rid of the drunken or impaired driver. They in their wisdom thought that if the Minister created an absolute offence, he was going much too far at this stage. They recommended to the Minister that he should make the concentration of alcohol mentioned prima facie evidence of the offence as I suggest. I have the authority of the report of the Commission to support the case I am now making. I have already put on the record of this House the names of the distinguished and learned members of that Commission, and I do not propose to repeat their names. I gave the wrong date when I said that the Commission was set up on 15th May, 1963; it was, in fact, set up on 14th September, 1961, and reported on 15th May, 1963.
The Minister stated in answering my case in support of the amendment that if they were reporting now, they would report differently. I found it necessary to point out to the Minister as recently as last November that a distinguished member of the Commission, Very Rev. D. P. Kennedy, S.J., President of the Safety First Association of Ireland, expressed grave disappointment that the Minister had not accepted the recommendation in the report. It is with a certain amount of fear and trepidation that I mention the name of Very Rev. Fr. Kennedy, S.J., to the Minister in case he would resent his interference as he has resented the interference of another reverend clergyman in another sphere recently.
At any rate, this Commission consisted of a number of very experienced and learned people, doctors, members of the Garda, members of the judiciary and members of the voluntary motorists' organisation and the Safety First Association of Ireland. They strongly recommended to the Minister what I am now recommending. As I say, we had a long debate on this on Committee Stage. I cannot see why the Minister is going as far as he is going here because when we were discussing the simple matter of the driving test the Minister suggested to me that I should wait and see how things would work out.
That is the very thing this body said to the Minister. They suggested he should try the experiment of making this concentration of alcohol in the blood a prima facie offence, and if he was not satisfied that that was effective enough, he could then take further measures. There is an old rule in this country in common law and in our statute law that a man is innocent until he is proved guilty. Here we are in fact saying that he is guilty and he is given no opportunity of defending himself. I know the Minister will answer that by saying that he is creating a new offence, that he is not saying that the driver is impaired or drunk within section 49 but that what he is saying is that he should not be on the road.
As I say, we set out here as far back as 14th September, 1961, when this body was set up, to rid the road of the drunken driver, to rid the road of the impaired driver and to rid the road of the driver who, because of the consumption of alcohol, was no longer safe on the road. It is none of our business, and it is not our intention, to penalise the man who has taken a few drinks but is still in possession of all the necessary qualifications to make him safe on the road, whose reasoning and whose effective control of a motor vehicle are in no way impaired. The Minister is pursuing a general policy, which I do not like to see creeping into legislation, of going for the easy proof of evidence. We impose on the father of the driver of a motor car the onus of proving that he is not accepting a reward. We say he is guilty until he proves himself. Here we are going one step further and saying to the man who has consumed alcohol: "You are drunk. You should not be on the road. You are not capable of exercising effective control of a car."
That is what we are saying, no matter what the Minister says because that is the only person the Minister wants to put off the road, the man who is not safe on the road. In order to do that, he is going to take a certain standard and say: "Beyond that you cannot go and I am not going to let you go beyond it." It is useful to have experience of courts and to have legal experience on occasion. I venture to suggest to the Minister that if he accepts my amendment, that a specified level of alcohol in the blood is prima facie evidence, no matter who should be convicted, he will get off. I know from considerable experience in the courts that if you do not get off. on a direction, if a client does not get off because the State has failed to prove its case, it is very unlikely that a man who was, in fact, drunk will get off if he has to give evidence himself. I think that is the experience of most practitioners. All my legal life has brought me into contact with the district courts practically weekly, sometimes daily, and I am satisfied that the Minister would considerably strengthen the powers of the Garda, and would make it much more difficult, if not impossible, for an impaired person within section 49 to get off, if he accepts my amendment. But at the same time, he will ensure that a person who is perfectly fit to drive a car will not be convicted of an offence which he has not, in fact, committed and that he will not suffer the penalties of losing his licence and heavy monetary penalties and, perhaps, a prison sentence.
I know that the Minister will argue strongly that the difference between myself and himself is that he is creating a new offence and that he considers it reasonable that a person who goes out on the road with a motor car should confine his drinking to a certain limit. My answer to that is that the onus is on a person driving a car to ensure that he is fit to drive a car and I do not want to relieve him of that onus. This amendment does not seek to relieve him of that onus: it puts that onus fairly and squarely on that person's shoulders and imposes on him the obligation not alone of satisfying himself that he has not, by the consumption of alcohol, lost effective control of the car, but of satisfying a court also.
I think that is going a long way and far enough to ensure that the road is made safe for other users. As I said at the beginning, we had this out at considerable length on Committee Stage and nothing I have heard since then has convinced me that there is necessity for section 29 as it stands.
Thank God, I have very little experience of courts but I have a lot of experience of driving as I drive an average of over 1,000 miles a week. I have a great deal of experience of the type of driver that Deputy Fitzpatrick has in mind, the person who has had a good few but is a great driver and the more he takes the better he feels. He feels quite confident that another one would make him a better driver still. I think Deputy Fitzpatrick would be doing some of these fellows an ill turn rather than otherwise if the second chance was given to them. I give the Government and the Minister credit in that this section will not be a very popular one with certain sections of the community who feel it is an infringement of their rights.
Recently I was speaking to an eminent surgeon who is in a hospital in this country and he told me that of the people who come in there, drivers of motor vehicles involved in road accidents, over 80 per cent show signs of having consumed a considerable quantity of alcohol, perhaps in some cases not so much; it may affect different people in different ways. The evidence in Britain was decried by Deputy Lemass on the last occasion and he said that the number of people killed here or involved in fatal accidents and under the influence of alcohol was very small and that if you took half the number of vehicles off the road in Britain you would have the same result as you have now. I do not think so. Unless we are blind to the facts the situation in Britain has proved that one way to cut down the horrifying accident level in any country is to prevent the driver who has too much alcohol taken from driving motor vehicles. I do not say that a man or woman is not entitled to have all the drink they can afford to buy or carry but I say that having taken drink which makes them incapable of driving a car, they are not entitled to drive that car and if caught driving a car, having more alcohol in their blood than they are entitled to have under this Bill when it becomes an Act, they should not be entitled to dawdle around and delay until eventually, as is happening at present, because the delay is so long until a doctor is procured, they have sobered up sufficiently to be able to do certain parlour tricks. I do not know how picking matches off the floor proves a person to be capable of driving a car after being caught doing something very silly because they were under the influence of drink.
I do not propose to detain the House on this matter but I believe this section should not be interfered with. I believe there is only one thing wrong, that the alcohol content prescribed is, if anything too high, and I believe that in Britain where it is 80 milligrammes as against 125 milligrammes here, it is a lot nearer what it should be. The Minister told me he was sure it was possible to procure the necessary equipment to test for the 125 milligrammes. I said I did not think it was and I want to repeat that I still do not think it is possible. That is the only weakness I can see in the Bill. When the Bill becomes law I do not think it will be possible to test accurately the alcohol content in the blood at the level of 125 milligrammes of alcohol per 100 millilitres of blood, as laid down here. That is all the comment I have to make. I think the section should not be interfered with and that by giving what I describe as a second chance to a person caught in charge of a motor vehicle under the influence of drink, you would be doing something wrong. There should be no way out for such persons and until that is done we shall still have numerous fatal accidents on the roads. Unfortunately, accidents have occurred and will continue to occur involving people who never touch alcohol. Be that as it may, the vast majority according to the information I have, of accidents are caused by people who have taken alcohol and who believe it improves rather than impairs their driving.
I should just like to correct a point made by Deputy Tully. I said that the available statistics here would indicate that the number of accidents associated with drink, those in which alcohol was a contributory factor, was very small. I complained that we had not kept proper statistics and that there had not been enough research and homework before this Bill was introduced. I brought in with me documents from European and world organisations at the early stages of the Bill. I did not bring them in this time because I came in to discuss my amendment and that was all. I prefer Deputy Fitzpatrick's amendment because it does conform more to my mind with the recommendations of the Commission but from the discussions we had on Committee Stage I do not think that it is likely the Minister will accept it. That is a pity but apparently that is the inescapable conclusion.
In certain States in America—I did not introduce this before—every case of a fatality on the road is investigated in detail and some States have come up with the suggestion that 50 per cent of all accidents are due to the consumption of alcohol but on the type of investigation and study we are now setting up under a different section of this Bill we must find out the true position. My complaint is that we brought in the Bill before actually establishing the true position. On the available information here, something between 3 per cent and 4 per cent of accidents is all we can attribute to drink—serious or fatal accidents. The same statistics apply in Northern Ireland. In fact, per road mile of driving the road accident rate in the Six Counties is very much higher than it is here. I also pointed out that while Ireland is the only country in the world with a reducing rate of accidents per road miles of driving, we are following the countries that are experiencing a disimproving situation.
I spoke merely because I did not want to be misunderstood about what Deputy Tully said. We have not done our homework in creating this new offence which might deprive a man of his livelihood. That is what I said on Committee Stage, and I still think it is wrong.
I do not know whether Deputy Lemass is right or not in saying we have not done our homework.
Statistically.
Presumably he is referring to the Government when he says that. It seems to me that a certain amount of homework has been done——
I cannot get information.
——in regard to this matter, but it has been disregarded by the Government. They did go to the trouble of setting up a very worthwhile Commission to examine into that problem, and very eminent members of that Commission did come up with views on it. Those views were presented to the Minister, and the Minister has decided not to accept them. The Minister's reasons for doing that—I think, from seeing his Committee Reading speech on it—were that he thought the point made by the Commission that public opinion was not, so to speak, ripe for a section such as he is proposing here, section 29, may not have been accurate; that this report was published in 1963, that here we are five years later and that public opinion has progressed and accelerated so that this type of section would now be acceptable. There may be something in that argument. At least it does explain why the weight of the views of an eminent Commission of this sort has been set aside by the Minister.
Surely the position regarding this problem is that there is no difference whatever among Deputies as regards the objective to be achieved? The Minister and his Party, Deputy Fitzpatrick and the rest of the Fine Gael Party, and the Labour Party, are all agreed as regards the objective, the necessity to deal with the problem of the drunken driver, and to do whatever we can by legislation to rid the road of the drunken driver, as Deputy Fitzpatrick put it. What is under discussion here is not the object; it is the method. While from one point of view there may not seem to be any radical difference in the result likely to be achieved either by the Minister's section or Deputy Fitzpatrick's amendment—and I think that is the position, that there will not be any radical difference in the result—there could be and, I think, there is a fairly fundamental difference in the solution being applied.
The Minister, in section 29 of the Bill amending section 49 of the Road Traffic Act, 1961, is providing for a new offence which will be an absolute offence and to which there will be no defence whatever. If the charge is made, and if the fact is proven, that a particular percentage of alcohol is found in the blood, there will be no defence whatever. That will be a statutory offence carrying, as Deputy Fitzpatrick pointed out, very heavy penalties. Under the section which the Minister is proposing, it does not matter whether the person charged with the offence is incapable of driving a car or not. That does not enter into it. It is no longer a matter even of any relevance to the court whether the person is unfit to drive or not. If a particular level of alcohol is found in the blood, that is an offence, and that is that, so far as the accused person is concerned.
There is a certain simplicity in that approach, and to many people concerned with the problem of the drunken driver, simplicity obviously will present itself as a virtue. While I appreciate in this matter the virtue of directness and simplicity and the avoidance of any shadow of doubt, I do feel it is important that we should not panic on this question, that we should not throw caution completely to the winds, that we should not utterly disregard personal rights, and rights which many people would feel are fundamental.
The amendment suggested by Deputy Fitzpatrick, to my mind, would achieve the same result as the Minister wants to achieve but would achieve that at the same time as it allows the accused person an opportunity of a fair hearing before the courts, and of establishing for the benefit of himself and the courts and of the public whether or not he was a danger to other users of the road, whether or not he was capable or incapable of driving. As Deputy Fitzpatrick has explained, the difference between what the Minister proposes and what he proposes is that, on the one hand, the Minister's section creates an absolute offence to which there is no defence, and, on the other, Deputy Fitzpatrick's amendment proposes that in the same set of circumstances as is envisaged in the Minister's section, there will not be an absolute offence but that an offence will be presumed until the accused establishes otherwise.
Dealing with an earlier amendment, I made clear my own personal dislike for legislation which alters the customary pattern of things so far as the onus of proof is concerned, my dislike for seeing the burden of proof being shifted from the prosecution to the defence. However, I am quite prepared in relation to this problem to go along with the suggestion made by Deputy Fitzpatrick, who was prepared to regard the problem of the drunken driver as one of the cases in which the Legislature would be amply justified in taking what I think should be an unusual step in shifting the burden of proof from the shoulders of the prosecution to the shoulders of the defence.
Deputy Fitzpatrick is suggesting that should be done and that if a particular level of alcohol is found in the blood of a driver, that driver shall be presumed to be incapable of driving, until or unless he can establish to the contrary. It is not very easy to follow a Bill like this which is in part an amending Bill because it is not always easy or convenient for Deputies to go back to the Principal Act and see where different sections which are proposed fit into the context of the Principal Act. Fortunately section 49 of the 1961 Act, the Principal Act, is a comparatively short section, with just four subsections. It starts off with the subsection which 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 drugs to such an extent as to be incapable of having proper control of the vehicle.
Seven years ago when the Legislature was considering this, and of course it came from an earlier Act, what was concerning the House and the country was the position described in the last few words of that section, that a person was under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle. Now we are going to get away from that if we accept the Minister's section 29 as it stands. It is no longer to be a question of whether or not the person is affected by drink to such an extent as to be incapable of having proper control of the vehicle; it is to be a new statutory offence related not to a person's ability to control a vehicle but related merely to the quantity of alcohol which he has consumed.
I go a long way with any Deputy who feels we should even cut corners in dealing with the drunken driver, in trying to solve this problem, but we are entitled to jib at the proposition contained in this section that because a particular quantity of alcohol is found in the blood, an offence is thereby committed, an offence which, as I say, leaves no room for a defence, to which a defence is absolutely impossible. It does not matter whether or not that person in fact is capable of driving; the offence has been committed.
It seems to me that the Report of the Commission to which Deputy Fitzpatrick referred demonstrated that the members examined this matter very carefully and look, if I may say so, a very sane and balanced view. It was quite clear from the Commission's Report that the Commission, just as the Deputies here, were concerned to try to get a solution to the problem as far as that can be done, at least as far as it can be done by legislation. The view taken there was that legislation as suggested by Deputy Fitzpatrick was the appropriate legislation to deal with the problem.
As I said at the beginning, I can understand the argument made by the Minister with regard to the Report, and who knows but that the Minister may be correct: it may be that public opinion has advanced at a greater speed than was anticipated by the members of the Commission but I wonder how that can be tested. In so far as a yardstick can be applied from the contribution of Members of the House, there are two Fianna Fáil Deputies present and they are equally divided on the subject. The Minister thinks that his section 29 is the proper way to deal with it but Deputy Lemass, the other Fianna Fáil Deputy present, thinks the amendment suggested by Deputy Fitzpatrick is the proper way to deal with it. In that situation, when you have that division of opinion within the Fianna Fáil Party —and I am not saying this in any political sense because I do not think any of us regards this Bill as in any way controversial politically—when you have that division of opinion expressed amongst a few Deputies, it seems to me that the Minister must find it very difficult to assess the acceleration in the rate of progress in public opinion on this topic.
Whatever we do in relation to legislating on this problem, we should be careful to avoid legislating in such a way that when the Bill becomes an Act, it will become an Act which is not going to have the full force of public opinion behind it. All of us, of course, will be satisfied that the public generally will welcome whatever measures can be taken in a realistic way, while preserving ordinary human freedom and human rights, to solve this problem. It would be doing more harm than good if in our legislation we disregarded the force of public opinion and the viewpoint of the ordinary member of the public. If by legislating in such a way, we run the risk of making a martyr out of the drunken driver, we will be doing far more harm than good.
I do not see that in the actual result which will be achieved there is any great difference between Deputy Fitzpatrick's proposition and the Minister's proposition. In those circumstances, having regard to the fact that the proposition of Deputy Fitzpatrick tallies with the Report of the Commission, having regard to the fact that the proposition of Deputy Fitzpatrick has the support of a member of the Minister's Party. Deputy Lemass, then if the Minister is disinclined to get away from his own section, it would seem to me that it might be worth his while having another look at it and possibly considering it again between now and the time when the Bill goes to the Seanad.
As Deputy Fitzpatrick said, this ground has already been more than adequately covered. I have explained on a number of occasions already just why it was decided to make a specified blood-alcohol content level conclusive evidence of a separate new offence and not prima facie evidence of the appropriate existing offence; that is, in effect, what is being asked for here. I suppose I had better recapitulate. I have already explained that at a blood-alcohol content of 125 milligrammes per 100 millilitres, the driving ability of the great majority of drivers will be seriously impaired. That has been scientifically established. There is no doubt whatever about it. Very probably the driving ability of everybody who raises his or her blood-alcohol content to this level will be seriously impaired. It has been scientifically established that the majority will be so affected and it just is not possible to establish that any single individual will be capable of driving at all times and in all circumstances with this blood-alcohol content.
Even if that were so now in regard to some particular individual, it might not be so in a year's time and how is such a person to establish that he retains this capacity, or this ability, which, as I say, nobody has, to raise his blood-alcohol content to this level and drive capably and safely? Even if he has that ability now, how will it be possible for him to establish that he still has the ability next year, the year after, or in two or three years time? Even if there were such people and it is doubtful that there are, the fact that this is a dangerous thing to do in the vast majority of cases makes it entirely justifiable to provide that any person who puts the community in general and himself and his passengers to such a very great risk by driving with this level of alcohol in his blood shall be committing an offence and not merely providing prima facie evidence that he was incapable of having proper control over the vehicle he was driving.
Furthermore, if this blood-alcohol level were to be accepted as prima facie evidence only, then, in order to discharge the onus of proof placed on him, a defendant would have to call on evidence based on clinical examination or observation, a misleading and unreliable procedure at the best of times, a procedure which, in fact, establishes something completely different from what we want to establish in this Bill. In my opinion, it would be neither desirable nor fair to expect the courts to accept such evidence in rebuttal of the State's evidence provided by this objective blood test provided for in this Bill.
Deputy Fitzpatrick said that I must admit that certain people would be capable of driving safely with this concentration of alcohol in the blood. I do not admit any such thing. The furthest I will go is to say that it may be that there are such people, but it is extremely doubtful, and, to a large extent, it depends on the interpretation of the word "capable". Even if there were such people, they may not, as I said, retain this facility in all circumstances and for all time. With the passage of years, their ability to absorb alcohol to this level and drive safely will almost inevitably deteriorate, gradually and possibly imperceptibly, and it has also been established that the ability to consume alcohol and remain capable depends on the physical condition of the individual, among other things, and nobody, therefore, can be certain that he can do this safely. It has not been established—I do not think it is possible to establish —that there are people who can do this safely in all circumstances.
It is certain that driving a vehicle with this blood-alcohol content is a dangerous thing and it is the Government's opinion that it is essential that doing this should be made an offence in itself. We consider it essential that it should be an offence to drive after consuming alcohol to this extent. With regard to the Commission's Report, the Commission's advice was clearly related to the Commission's assessment of the state of public opinion in 1963, five years ago. I quote from the Report of the Commission:
It may be that, as a result of experience, public opinion would in the course of time be conditioned to accept and approve of a prescribed level which would be conclusive evidence of impairment. We doubt very much if the education of opinion on the matter has yet reached that stage.
That was in 1963—five years ago. In the five years since, we have had many serious accidents, some fatal, some causing grievous badily harm. We all know, I think, that public opinion has been affected by these serious accidents on our roads in this five year period. As I said in my Second Reading speech:
I fully appreciate that the support of the bulk of public opinion is extremely desirable for legislation of the kind now proposed. There have, however, been developments since the Commission's report. World opinion has moved sharply against the drinking driver and the further studies undertaken since the report have confirmed very forcefully the importance of an objective test. The increase in serious road accidents here has undoubtedly strengthened public opinion, and indeed I wonder if the Commission under-estimated the extent to which the public even in 1963 were prepared to support legislation designed to deal with this problem. For my part, I have no hesitation in recommending to the House the proposal put forward in the Bill, that a specific blood-alcohol level should be made conclusive evidence of a new offence. I should emphasise that the Commission did not rule out the introduction of such a system at some future date—they merely considered that it was unlikely to be acceptable at the time they reported.
That was in 1963. We have had five years disastrous experience since then. I do not accept for one moment that this new offence I ask the House to create is in any respect a less serious offence than that of driving while drunk.
In fact it could be considered a more serious one because it could be maintained that, at least, the driver who was really drunk did not appreciate what he was doing but that if a person raised his blood-alcohol content to this level and is not drunk in the ordinary sense of the word, well then, he is capable of appreciating the fact that he is committing an offence by proceeding to drive his car and to do that is, if anything, more serious than to drive a car when not in possession of full reasoning faculties.
Deputy Fitzpatrick, once again, said that this was a case of establishing by legislation a position in which a person would no longer be held to be innocent until proved guilty. As Deputy Fitzpatrick knows, I do not accept that that is the position at all, because what we are doing is creating a new offence and if it is established that a person drove his car at a time when his blood-alcohol content was at or above this level, then this new offence will have been committed and he will in fact be guilty of that offence but, of course, it does not establish that he was guilty of the previously existing offence.
Deputy O'Higgins maintained that if Deputy Fitzpatrick's amendment was accepted the position would be that an offence would be presumed until the accused established otherwise. But, how is the accused to establish otherwise? How is he to establish that although his blood-alcohol content was raised to this level, he was still capable of driving? This is getting back to the old system of clinical examination. Deputy Tully referred to the test of picking matches off the floor and said he could not see how that could establish that a person was capable of driving a car. Of course, it does not. It establishes something altogether different. Deputy Dillon's example on Committee Stage was that a person was asked to say such things as "British Constitution". These things may establish that the person is not drunk but they do not establish that his ability to drive a car is not impaired due to the consumption of alcohol. As I said, it has been established that the person who consumes alcohol to such an extent as to raise his blood alcohol content to this level of 125 milligrammes of alcohol per 100 millilitres of blood will have his driving ability seriously impaired in practically all cases and very probably in all cases. Therefore, it is definitely in the public interest that it should be made an offence to do this and that a person who does this should be disqualified from driving.
So far from accepting that public opinion is not prepared to accept this proposed new offence, I think, and the Government think, that the public in general demand this protection when they use the public roads system. They demand that they be protected from people who are not in a condition to drive as capably and as safely as possible.
Deputy Tully, who was in agreement with what is proposed, stated that he believed that it was not possible to determine the blood-alcohol content accurately. That is agreed, in so far as the breathaliser instrument is concerned. The development of these instruments is not yet at a stage where the results can be accepted as conclusive evidence and that is why it is intended only to utilise these instruments as an indication to the garda concerned that an offence has probably been committed and an indication justifying him in requiring the person who is suspected of committing the offence to provide a sample which will enable this to be established beyond doubt. I think that is what Deputy Tully had in mind when he said that this could not be established accurately. I have agreed before that, unfortunately, it is not yet possible to establish this beyond reasonable doubt by means of the breathaliser test alone and that is why the other tests are provided for but, under the Bill, it will be possible to depend on a breathaliser test alone if the development of that instrument proceeds to a stage where it is sufficiently accurate for the results to be taken as conclusive evidence.
I have to oppose these amendments because they strike at the fundamental principle in the Bill in so far as this aspect of it is concerned, which is, to create this new offence, to make it an offence to drive a motor vehicle if the blood-alcohol content has been raised to this level. This can only be done under the proposals that we have here. If any of these amendments is accepted it means that this new offence is not, in fact, being established.
(Cavan): When dealing with a matter like the driving of a motor vehicle while the driver is under the influence of drink we must be very careful to ensure that we do so calmly and reasonably. It is very easy to let our emotions run away with us when dealing with such a subject. I think that is exactly what Deputy Tully did. Deputy Tully, when dealing with this amendment, seemed to proceed on the basis that the amendment was designed to protect the drunken driver. Nothing could be farther from the truth. We are all here, as has been said, in an effort to ensure that people who have consumed alcohol and as a result, as the Minister said, cannot drive as carefully or as effectively as they otherwise would, should be put off the road.
It is wrong to proceed on the basis that every fatal accident and every serious accident is caused by drink. I can remember two bad accidents, which I do not want to identify, which occurred within the last couple of years, where it was absolutely certain that the driver in neither case had any drink taken. Both of these accidents involved loss of life and both of them involved very bad and very dangerous driving.
I disagree with the Minister's statement that everybody who has raised his blood-alcohol content to a level at or above a concentration of 125 milligrammes of alcohol per 100 millilitres of blood is unfit to drive. I say that such statistics as we have do not prove that. When the Minister says that he is going in the face of the report of the Commission set up by his predecessor. As a matter of fact, it would be a fair interpretation of the findings of the Commission to say that not everybody whose blood-alcohol level was at the 150 to 100 point would be unfit to drive. Paragraph 7 on page 51 of the conclusions and recommendations on major issues of the report states:
The higher the blood-alcohol level selected the greater will be the number of persons unfit to drive at a selected level. The weight of scientific opinion is in favour of the view that most persons will be unfit to drive when the blood-alcohol level reaches the range of 100-150 mg. We consider, therefore, that the standard to be fixed should be a concentration of alcohol in the blood represented by a blood-alcohol level of 125 mg.
I think that paragraph means that the research carried out by the Commission established to their satisfaction that some people whose blood-alcohol concentration had been raised to 150 mg. could still drive safely. It follows that their research established that many people with 125 mg of alcohol to 100 millilitres of blood would be perfectly fit to drive. I put it to the House and the Minister that that is not an unfair interpretation of clause (7) of the recommendations. That is the reason the Commission recommended that a concentration of 125 mg of alcohol to 100 millilitres of blood should be prima facie evidence—and prima facie evidence only.
The Minister asks how is the accused person to rebut that onus of proof. If the doctor who comes along to take the blood test says he is satisfied that the man was perfectly normal, that he had no doubt at all about his capacity to drive a car, and if the guard who apprehends the man and brings him into the barracks because he was involved in an accident says he is satisfied that the man was perfectly normal, should that not be accepted as establishing that, notwithstanding the fact that his blood-alcohol level was 125 mg, he was perfectly fit to drive a car? What the Minister should bear in mind is that in every one of these cases where this evidence of the alcohol level in the blood is to be used there will be a doctor available. The doctor will usually have seen the accused within a short time after his driving. All I am saying is that if the doctor who examines the man is satisfied beyond doubt—not that he is a borderline case, because that would not discharge the onus—but satisfied beyond doubt that the man was perfectly fit to drive a car, then I am saying that that discharges the onus of proof.
As I have told the Minister, prosecutions are failing at present because the onus of proof is on the State, on the prosecution. The court must be satisfied that the State has discharged the onus of proving that the accused was unfit within the meaning of section 49 of the Principal Act. My amendment proposes to shift the onus of proof from the prosecution to the defence and to make it incumbent upon the defence to discharge the onus of proving that the accused was, in fact, fit to drive. That is a heavy onus. In my opinion it is an onus which an unfit person would never be able to discharge.
That is where we differ.
(Cavan): It is an onus which only a man who is fit to drive a car, who should not be convicted or put off the road or subject to imprisonment or heavy penalties, would be able to discharge. In my opinion I am arguing from a sound basis—from the report of the Minister's own Commission set up to advise the Minister. You find in this Report that in some countries a concentration at that time at any rate of 150 mg was only accepted as prima facie evidence. In some States of America 150 mg is accepted as prima facie evidence. In Sweden, where the law is supposed to be very strictly enforced and a dim view taken of drunken driving, 150 mg is conclusive. We are making it 125 mg. In the Federal Republic of Germany and other countries 150 mg and over is evidence of chronic impairment but it is not conclusive. We are going further here than most countries. I know we have the recent example of Great Britain but there are also the other countries I have mentioned. I think we should legislate here for our own temperament and our own people.
I want to repeat that there is no intention on the part of this Party or on my part to excuse the drunken driver, to excuse the man who is not fit to drive. I want to conclude by saying that I am satisfied that the amendment which I offer the Minister and which his own Commission recommended to him is adequate to ensure that a person who is not capable of driving safely on the road will be convicted and will be put off the road. I think that is as far as the Minister wants to go. It is as far as public opinion wants to go. I do not think it is reasonable of the Minister to say that the position has changed since 1963, that public opinion has changed. As far as I am aware, there is no evidence of that. The only member of this Commission who spoke publicly since the Report was published in 1963 spoke after this Bill was introduced. That was the Reverend President of the Safety First Association of Ireland. He said he thought it was wrong to make the concentration of alcohol mentioned in the Bill an absolute offence, and still recommended that it should be prima facie evidence. That is the best evidence I can tender to the Minister as showing that there has been no change in public opinion since 1963.
This is another case of the Minister going too far, going too quickly, and taking the easy way out. I know he will not change his mind at this stage, but I think it a great pity that he did not accept the recommendation of the Commission which he set up to advise him, and introduce legislation on the terms recommended by it.
Amendment put and declared lost.
I move amendment No. 9:
In page 21, before line 1, to insert a new section as follows:—
"Notwithstanding anything contained in section 26 (2) of the Principal Act, a person found guilty of having a concentration of alcohol in his blood exceeding a concentration of 125 milligrammes per 100 millilitres of blood, but not having been found guilty of consuming alcohol to such an extent as to be incapable of having proper control of the vehicle, shall not suffer a consequential disqualification and will only be disqualified from holding a driving licence at the discretion of the Court."
Deputy O'Higgins assured the House that he had no intention of trying to introduce political aspects into the discussion on this Bill, and I think it is quite right that we should argue the Bill on its merits. The Minister has the general approval of the backbench members of the Fianna Fáil Party in the Dáil and Seanad for this Bill but there are some Deputies like myself who are extremely worried by some of its provisions. I explained my concern at a Party meeting first then on Second Stage in this House, and I explained it again on Committee Stage. By a little mistiming, a number of my amendments fell but that was my own fault and not the fault of anyone else. Perhaps if I had been here, we would still be on Committee Stage.
I listened very carefully to everything the Minister said. I tried to consider in what way I could propose amendments which would be acceptable to him and which would still enable me to justify even in the smallest way the viewpoint I have been putting forward on this Bill. On Report Stage this is the only amendment in my name. I accept the view of the Minister, the Government and the majority of the Party to which I belong that the provisions of this Bill are necessary and desirable, but I cannot reconcile one thing with my conscience, and that is what I am here to discuss now.
We are introducing a new offence of which a person can be guilty without his knowledge. I believe we are not justified in taking away a person's means of livelihood in those circumstances. The Minister was less generous on Report Stage with regard to the number of people who might be capable of driving when their blood-alcohol content exceeded 125 milligrammes to 100 millilitres. He was not nearly as severe earlier as he was today in saying that there may be people who would be capable, but that it is doubtful.
As Deputy Fitzpatrick pointed out on the last amendment, the scientific evidence presented to the Commission was that 100 to 150 could be evidence with regard to most people, and it did not go any further than "most people". I cannot quote it exactly but the sentiment is in the Proclamation that we should cherish all the children of the nation equally. In a matter like this, it may be difficult to treat all the people equally. We have to average it out. At what level we are going to average it out? The Minister did not decide on the lower level or the higher level. He averaged it out in the middle but he cannot treat all the people equally if he takes away a person's licence and takes away his means of livelihood for committing an offence of which he has no knowledge.
As this Bill stands, a man can be stopped, given a breathaliser test and brought down to the station for a blood test. He sends for his own doctor who gives him the ordinary clinical test to see what his capabilities are. He asks the police doctor who takes the blood test to put him through a similar series of tests. No matter how he looked or how he acted, or no matter how many witnesses he brings forward, it may be found that he has committed an offence which was not of his knowledge and not apparent to anyone else, and he loses his licence.
If I were a member of the NBU or the ITGWU, I would be concerned about a bus driver who took his family out on a picnic on a Sunday and who slipped into this offence unawares. This man would lose his livelihood. I am in the Irish Commercial Travellers Federation, a branch secretary and executive member of that organisation. The first rule of a commercial traveller is that he will not call on a customer with the smell of drink on his breath. That is a basic rule of any commercial traveller. At the same time, in the West and South-West no sale can be completed without being sealed by a drink. You cannot do business with some people in the West and South-West without having a drink afterwards.
Not even political business?
Not even political business. I know travellers who have this difficulty, or pleasure, as some people might like to call it, but it is a difficulty for the commercial traveller. He may try to time his call so that he will be having a meal immediately afterwards, or so that it is the last call of the day before he goes to his hotel for the night, but even going to the hotel or on the way to having a meal, he may be caught and held for three hours. The result may be negative but these three hours can be very serious for a traveller. His competitor may get in ahead of him. However, we cannot argue that. That is not the point we are discussing.
A senior commercial traveller can earn from £1,500 to £2,000 per year. He is a useful member of society, performing the useful function in the distribution of goods. It would not be possible to distribute these goods if, in the first instance, the commercial traveller were not able to sell them to the retail trade. He is prohibited from getting a house under the regulations of Dublin Corporation. He will be buying his own house and making a contribution to society. He may find himself in a situation where he will commit this offence—and his complete means of livelihood is gone.
I do not want to give the impression for one second that commercial travellers are people who go around drinking all over the country. I will say this. Occasionally, say, among the drapery travellers at a spring or autumn showing, a number of them will meet at a hotel and this may be an occasion for a party some evening. The position is that if some of these men drink whiskey to excess—whiskey, in particular; beer goes out of the blood stream much more quickly than whiskey—then go to bed and sleep it off for maybe eight hours and then have breakfast and maybe even lunch as well, their blood content could still contain 125 milligrammes of alcohol to 100 millilitres of blood.
When this new offence is brought in, I should like in the Rules of the Road and in the questionnaire that is given for tests, to see this question clearly examined. I should like it to be said: "If you drink in excess of whiskey, you are not to drive a car for 24 or 36 hours", and so on, and I should like to see some kind of guide given as to when they might legally be entitled to drive a car even though they are perfectly capable of doing it but, by so doing, commit an offence, unknown to themselves. This is where my difficulty arises and this is where my main problem is. So I did not frame an amendment on the lines of Deputy Fitzpatrick's amendment.
I tried not to interfere with section 49 of the Principal Act which deals specifically with drunken driving. I am dealing only with the new offence. I am asking that this new offence be excluded from the consequential disqualification provisions of the last Act —the one between the Principal Act and this Bill. As I said, I did not come in here tonight with notes because it is not my intention to hold up the Minister and I did intend to speak only on this one amendment.
The position is that some people with 125 milligrammes of alcohol to 100 millilitres of blood could be absolutely incapable of driving, could clearly and demonstrably be incapable of maybe even walking a straight line, whereas another person, with the same level of alcohol in his blood, could be perfectly capable of doing fine art work, all kinds of precision calculations in his head, which other people could not do, and could drive a car. Deputies will see the point. It is that there is a degree here of level so that when a person commits this offence, he can be guilty to a certain degree, to a lesser or to a greater degree. He can be guilty of the offence and get all the consequential punishments but, if to a lesser degree, he should not lose his licence. In this instance, where the garda, the doctor and other people give evidence to the effect that, in their opinion, the man was capable of driving the car, the judge should then be allowed to use his discretion and not to take away the licence.
Even if this is not totally acceptable to the Minister—I have reason to believe it is not totally acceptable to him—I would ask him to consider, between now and the time the Bill goes to the Seanad, the granting of this concession even for a first offence, so that, if a person finds himself guilty of this, unknown to himself, he will be very cautious about getting caught a second time. I did whatever homework I could do and I got whatever international statistics I could get. I have just completed my term of office in the Council of Europe and I had available to me whatever information was produced there. I do not want to bring all that into it now. I just want to get down simply to this one point, that here we have a situation where a person can be capable of driving a car but still be guilty of an offence which may cost him his livelihood.
I admit that, even to give this concession and even, as I say, as a last resort for a first offence only, the degree of justice a person will get will vary from judge to judge. The important thing may not be whether the man is a commercial traveller, a bus driver or a lorry driver but the degree to which he is intoxicated. Therefore, I appeal to the Minister either to accept this amendment as it now stands or to give me some type of assurance that he will consider drafting an amendment on these lines even in the case of a first offence, for a new offence only—not in the case of section 49. In all sincerity, I ask the Minister to do this. I believe it should be done.
I should be very worried to think that it could be possible that anybody could sleep during the night, eat his breakfast, have no drink and have his lunch and still be found guilty under this measure as is suggested by Deputy Lemass.
I shall give the statistical information. I have not got it here. I shall bring it down.
It is something on which the Minister should enlighten us. In the first instance, as one who is not without some experience of this particular recreation of drink—now happily in the past, the middle past, the middle distant past, happily; not the distant past—it strikes me that anybody who would get so saturated as the Deputy suggested would be far from wanting to eat his breakfast or his lunch and would be in a condition of alcoholic poisoning or something approximating thereto.
Beer goes out of the blood. You can have the same amount of beer and stout but it goes through your blood more quickly.
I am familiar with the process. It is a very elementary one. It is very difficult to accept that that could be the case and, indeed, I would be very worried if it were so. I should like the Minister to tell us something about the case of a person earning his living as a commercial traveller, an agent of any kind, or any citizen whose livelihood would be put in jeopardy in this way when what is intended, I take it, by the legislation is mainly to act as a deterrent; in the heel of the hunt to create a deterrent against drunken driving. It would be very wrong that it should result in such a penal imposition on the citizen that such should occur. I am doubtful that it could occur.
I am very doubtful about the bus driver, as invented by Deputy N. Lemass, taking his family for a picnic unless he brought them in the bus and that is not permitted by CIE. The earnings of those drivers, members of the union to which the Deputy referred or any other union, are not of such magnitude as to enable them to purchase a car; so, therefore, in the case of most bus drivers, unless they are moonlighters, and that is a trying business—that is doing two jobs and some of them are compelled to do that because wages are so inadequate many workers find difficulty in their efforts to meet the cost of living—it is highly unlikely that they would have a car.
That does not arise. I must say the efforts made by Deputy N. Lemass on behalf of his fellow workers are certainly praiseworthy and I must join with him in asking the Minister to ensure in his anxiety to reduce drunken driving to its absolute minimum that he should take care not to do an injustice. It seems from results in Britain anyway and the great work done by Barbara Castle as Minister for Transport, particularly from the holiday figures that we have seen cited that the reduction in accidents has been significant because of the introduction of the breathaliser tests and so on. It would appear so and, therefore, it would appear to be a good thing that we should follow it here. We all have our qualms about the intrusion on privacy and on privacy by examination of this kind.
We certainly do not welcome a new offence. It is not desirable but it seems to be inevitable because one is frequently frightened at night time by the near misses that are commonplace on the roads, particularly at late hours in the neighbourhood of public houses, especially if one has been a practitioner in that particular line himself and gives thanks for the good luck of the past.
We should support the Minister in the general idea he is putting forward here, regrettable though the necessity is, but I do think on the lines of Deputy N. Lemass. The problem is by no means an easy one. It seems to verge on the borders of being insoluble. If there is any answer it lies in ensuring that injustice is not done to people who depend on having a car for their livelihood. By the application of this law there is on the Minister an equal obligation to see that that is achieved as well as the obligation of seeing that he does his utmost to reduce the accident rate.
(Cavan): Very briefly, I should like to support the amendment moved by Deputy N. Lemass. I think it has considerable merit. Section 49 of the Road Traffic Act, 1961 deals with the offence of driving a mechanically propelled vehicle in a public place while the driver 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. Suspension of the licence followed automatically on conviction under that section. The Minister quite readily admits that he is now by his addition to that section creating a new offence. I think, as a matter of fact, that he boasts that the amendment of section 49 which he proposes creates an entirely new offence, an offence which does not necessarily involve the driving of a vehicle while incapable of having proper control over it. The new offence is the offence of driving while the concentration of alcohol in the blood is 125 milligrammes to 100 millilitres, whether or not the person having that concentration of alcohol in his blood is incapable of having proper control over the vehicle or not. I think that is the position.
It follows, therefore, that the new offence could in certain circumstances be a lesser offence than the offence originally envisaged by section 49 of the Road Traffic Act, 1961 and it would be quite open to a court to convict the accused person of what I would call the old offence under section 49 of the Act of 1961 if the court was satisfied that the evidence justified it. However, you could quite easily have a case, and I am perfectly certain you will have cases if the Bill goes through as the Minister wishes it to go through, where the court would say that the evidence does not justify a conviction under section 49 of the Act of 1961—because it was not satisfied that the accused was incapable of exercising proper control over the vehicle, but notwithstanding the fact that he was capable of exercising proper control over the vehicle it is satisfied on the evidence that the blood-alcohol level was 125 to 100 and must convict him on that evidence.
That is obviously a lesser offence and I agree with the proposal of Deputy Lemass that the offence should not carry automatically the same heavy penalty as section 49 of the 1961 Act as originally drafted. Therefore, the Minister should accept the amendment and if he does not go the whole way he should go as far as to say that only in the case of a second conviction under the section as amended should there be automatic suspension. For those reasons I support the amendment of Deputy Lemass.
I have given this amendment my full consideration but I cannot agree to accept it. If I accept it it will mean that this new offence which we create will be a lesser offence than the existing one. As I have said, it is the intention to make this offence of the same gravity as the existing offence. I am fully convinced that this whole exercise will be largely a waste of time if this offence does not fully match the existing offence. As I said on the previous amendments, it could be contended that this is a more serious offence than the existing one.
For cases of hardship the Bill makes reasonable provision in section 20 which provides that the court may postpone the operation of the order for a period not exceeding six months. Under section 29 of the 1961 Act, the court has discretion to remove the consequential disqualification after a period of six months.
On the question of blood-alcohol content being above the level of 125 milligrammes per 100 millilitres when a person wakes up in the morning after a heavy drinking session, it is theoretically possible that this could happen but quite apart from the fact that it is extremely unlikely that it could happen, we all know that it is quite possible that a person might be unfit to drive after a night's drinking, that his reactions might be more impaired in the morning, that he would jump two feet when you spoke to him in the morning.
How very true.
His reactions might be worse in the morning than before going to bed. That is completely apart from the blood-alcohol content which could conceivably exist but which is unlikely. The rate of elimination of alcohol is comparatively constant— approximately equivalent to one fluid ounce of whiskey per hour. Assuming that a man has eight hours of sleep, it could happen that if immediately before going to bed he succeeded in raising the blood-alcohol content to 300 milligrammes per 100 millilitres, he could get up with a blood-alcohol level still in excess of 125 milligrammes, but to succeed in raising it to 300 milligrammes would be quite an achievement. Converted into terms of small whiskeys or pints of beer, this would mean that a man weighing 11 stone would need to drink, fasting, seven pints of stout or 12 small whiskeys very quickly. Not only would he need to drink them fasting, he would need to drink them fast. He would have to have drunk them before the process of elimination commenced in order to reach the blood-alcohol content in the first place and he would have to go to bed then. In such circumstances it is quite possible his blood-alcohol content in the morning might be at that level. If that exercise were to take place after a meal rather than fasting, the man would have to consume the equivalent of one bottle of whiskey.
Does the Minister say that 12 small whiskeys equal seven pints of stout?
Yes. He would have to consume the whiskey and be fasting. If Deputies will look at Table II of the Commission's Report, page 13, they will see the record of a test carried out on a man of 48 years of age, 12 stone in weight, a regular heavy drinker. In that case, the consumption of 12 small whiskeys during a period of 2¼ hours, 1¾ hours after a very light meal, only succeeded in raising the blood-alcohol content to 217 milligrammes per 100 millilitres. Twelve small whiskeys during a period of 2¼ hours is quite good drinking—one small whiskey per 11 minutes during a period of 2¼ hours.
Only a TD could buy it at that rate.
It is reasonable drinking. That is a case of a man of 12 stone weight, 1¾ hours after a very light meal, and still it only succeeded in raising his blood alcohol content to 217 milligrammes per 100 millilitres. In order for a man to wake up with 125 milligrammes per 100 millilitres, he would have to have raised the blood-alcohol content to 300 milligrammes per 100 millilitres before going to bed, not a very easy thing to do if it could be done at all.
It would be possible to achieve it only by drinking at an almost competitive rate while fasting and then going to bed or being carried to bed before the process of elimination had set in. I think that people who have experience of people who do that kind of thing would not be surprised if in the morning a person who had done it was, in fact, not fit to drive. As Deputy Dunne has said, he would hardly be likely to be anxious for a meal. His quest might be more for a hair of the dog that bit him. It is very unlikely that this would happen. There would have to have been a considerable amount of drinking the night before, taken at a rate which would be far above the normal rate of even heavy drinking. I do not think it is a serious point. With regard to this suggestion that the disqualification should not be on the same basis as for the existing offence, the intention in the Bill is to make this new offence have the same consequences as the existing offence because it is at least equally serious. Therefore, I am afraid this amendment conflicts with the whole purpose of this provision in the Bill.
I must say that I am disappointed. I do not believe that my proposal would make it a lesser offence. What I did say is that in certain circumstances, the judge should certainly be given discretion. I said: let us get experience of this. I appeal to the Minister, even if he found objection to the amendment as put, to give me an indication that he might be prepared between now and when the Bill is brought to the Seanad to consider an amendment something on these lines in relation to the first offence only, and let us get some experience as to how this works. There will be some people who because of their social habits, their physical activities or their ordinary physical makeup, the bodies that they were born with, will be perfectly capable of driving a motor car—maybe not all their lives; as they grow older, this capability may go—while having this alcohol content in their blood stream, perfectly capable. The Minister says that it makes no difference, that he will take away their livelihoods, that the whole Bill rests on this and that the whole exercise will be in vain if we give any indication that there is anything lesser about this new offence. I am not saying that there should be anything lesser about it but I am saying we should treat our citizens equally, and if a person is incapable of driving a car, certainly put him off the road but do not create a situation where people can unwittingly commit an offence and as a result lose their livelihood. That is what I am talking about.
I said clearly in my opening remarks that if a person, and particularly a person for whom a driving licence is necessary for his livelihood, commits one offence unwittingly and is caught, you can be quite sure he will not commit a second one. He cannot afford to take the risk. What contribution is it making to society to put a very competent person who is promoting and building up a trade and making jobs out of his livelihood because he committed one offence inadvertently?
The Minister refers to section 20 and the right of appeal. As I understand the right of appeal, it is that the consequential disqualification can be adjourned while the appeal is being heard. But what are we appealing against? It is established that there are 125 milligrammes of alcohol to 100 millilitres of blood. That is an established fact. What do you appeal about? How do you get your licence back? You make an appeal. What are you appealing about? The Minister made this quite clear when dealing with Deputy Fitzpatrick's amendment. He said the person is guilty of the offence because it is an established fact. There is no defence against it. Now, if that is the case in relation to Deputy Fitzpatrick's amendment, how is there a case against it in relation to my amendment? Have I misunderstood the Minister entirely? I am talking only about the new offence and nothing else.
If there is no defence against that, as the Minister said, in relation to Deputy Fitzpatrick's amendment, how can he state that there is a defence against it in relation to my amendment? I do not know. There is something screwy about that. You may be able to postpone the losing of your licence by making an appeal but your licence is gone for six months and that would mean an absolute minimum cost of £300 to a commercial traveller working in the city to maintain his runs, and £900 to £1,000 to a commercial traveller working in the country to do his journeys, whereas the man who takes out his car only on Saturday or Sunday to go out for pleasure or to the races must pay a few bus fares, maybe a couple of shillings a week. How is that cherishing our citizens equally?
I ask the Minister in this one final appeal: will he between now and the Seanad debate look at this just with a view to having an amendment on these lines in the case of a first offence and a first offence only?
Is Deputy Lemass withdrawing his amendment?
No. Deputy Lemass is withdrawing nothing, except himself, a Cheann Comhairle.
Amendment put and declared lost.
If it is agreed, amendments Nos. 10, 12, 13, 14 and 24 could be discussed together.
(Cavan): That is agreed.
I move amendment No. 10:
In page 21, to delete lines 24 to 32 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.”
Amendment No. 8 sought to delete the Minister's proposal to create a new and absolute offence and instead to provide that the concentration of alcohol in the blood mentioned by the Minister may be prima facie evidence of an offence, I urged that I thought it was adequate for the purpose of this Bill and that it would preserve to the citizen the right, so long enjoyed, of being presumed innocent until he was proved guilty. The Minister has refused to accept that amendment and has defeated it by his majority in the House. The extraordinary position in which we now find ourselves in discussing section 30 of the Bill flows from the Minister's attitude in insisting, unnecessarily in my opinion, on creating the new offence.
Section 30 of the Bill provides that when a person is arrested under section 49 of the Act of 1961 as amended and is brought to the Garda station, to provide a specimen of his breath, he may be asked to provide a specimen of his urine or of his blood. If he fails to provide a specimen of his blood in certain circumstances, he is guilty of an offence. That offence carries with it the very same penalties as the offence of driving with a concentration of alcohol of 125 milligrammes to 100 millilitres of blood. I want to say that this proposal is going much too far.
It has been long established in this country that a man is innocent until he is proved guilty. It has also been accepted as part of our law that a man need not make a statement incriminating himself but here in this section we are saying to an innocent person: "You must in certain circumstances submit yourself to a minor surgical operation and provide the State with a sample of your blood and convict yourself. If you do not do that, you will be guilty of an offence which in effect carries the same penalties as the offence for which you are being brought in on suspicion." That is the effect of subsection (3) of section 30. What it is really saying is: "If you do not provide a sample of your blood, as requested, you will be deemed to be guilty of the offence with which you are charged because the penalties which will be imposed on you are the same." This is going much too far and it is a very dangerous departure from the accepted principles of criminal law in this country.
Again, I propose here, as a way out, in my amendment that the person may still be invited to give a sample of his blood if he is brought in on suspicion of offending against the new section, or the old section, as amended, but that if he does not give a sample of his blood, he will not be guilty of an offence but his failure will be regarded as prima facie evidence that he is guilty of an offence against section 49 of the Road Traffic Act, 1961. The onus will shift to him to prove he was capable of driving a car at the material time. I wish to repeat that, in my opinion, this is a very heavy onus and an onus which will not be lightly discharged by any accused person.
I think the amendment would meet the desire of the Minister to rid the road of people who, due to the consumption of alcohol, are not capable of exercising effective control of motor vehicles. I repeat that that is as far as we wish to go in this House. Most of the arguments that are applicable to this amendment also apply to amendment No. 8. I have made them, and I do not intend to take up the time of the House unduly in repeating them here, but I say that it is fundamentally wrong that a person should be obliged to convict himself and should be obliged to submit himself to what is in effect a minor surgical operation to provide blood in order to convict himself.
I know the Minister will probably say that the accused person has the alternative of providing a sample of his urine. The section provides for that. Yet it also provides that there might be certain circumstances where a person, through no fault of his own, did not provide the sample of urine. Then he might be subjected to the request that he provide a sample of his blood and could be prosecuted under this section. I think this section is totally unnecessary. Public opinion is very much against it. As I say, seeing that the Minister is insisting on pushing this new offence through, the accused person should have the option of providing a sample of blood, if he so desires, and his failure to provide it should only be regarded as prima facie evidence that he is guilty of the other offence, the old offence under section 49 of the Road Traffic Act, 1961. As I say, all the arguments against the section as it stands and in favour of the amendment have been made before. I have merely put down this amendment on this Stage to emphasise that I am still of the opinion that subsection (3) of section 30 of the Bill is unnecessary and should not be proceeded with by the Minister.
I think this is all part of the same fundamental argument we have been having. Deputy Fitzpatrick and I are divided on the question of whether or not this new offence should be created. Deputy Fitzpatrick said a new offence had been created. We have passed that section. This may be as he said, because of the fact that the Government have a majority, though I think the Labour Party—certainly my interpretation has been that the majority of them—agree with the creation of this new offence. Even if it is a fact that it is passed because the Government have a majority, that is the system and that is the way much of legislation is passed. These amendments follow from amendments that have already been discussed here and have been rejected by the House. The same principle is involved.
The aim of the amendments is to provide that failure to comply with a request for a blood specimen should not be an absolute offence but only prima facie evidence of the appropriate existing offence under section 49 of the Road Traffic Act, 1961. I have already stated that a blood-alcohol level in excess of 125 milligrammes is conclusive evidence of impairment. Once this has been accepted, it is obviously essential that a person suspected of committing the offence must not be allowed to evade detection by refusing to give a blood or urine specimen. If these amendments are accepted, the position will be that a person who is suspected of this offence and who has good reason to believe he has committed it can adopt a procedure which will give him a reasonable chance of evading the more serious consequences of the offence he has committed. It would be frustrating the whole intention of the creation of this new offence if I were to accept these amendments and therefore I cannot accept them.
Is the Deputy withdrawing the amendment?
(Cavan): No.
Amendment put and declared lost.
Amendments Nos. 11, 12, 13 and 14, which have already been discussed, are not moved.
I move amendment No. 15:
In page 23, between lines 37 and 38, to insert the following new paragraph:
"(a) to show that, when brought to the Garda station and before a requisition under section 30 (1) (b) or section 33 (1) (b) was made on him, he was not given an opportunity by the member of the Garda Síochána then in charge there (having requested such an opportunity of such member) of providing in the prescribed manner a specimen of his breath by exhaling into an apparatus designed for the purpose of indicating the presence of alcohol in the breath, or".
On Committee Stage I promised to consider the possibility of providing that a person when brought to the Garda station should be entitled to ask for a further breath test before he is required to give a blood or urine sample. This amendment makes provision to that effect.
(Cavan): May I ask the Minister one question arising out of this amendment? I know it is an improvement on the situation in the Bill as drafted in that a person who has given a sample of his breath on the road and is brought to the Garda station may ask to have a further sample taken but is that a condition precedent to compelling the accused person to submit to a blood test? I do not think so. I think that irrespective of the result of the breathaliser test, the garda may subject him compulsorily to a blood test. Am I right in that?
No. That is not my understanding of it. That is certainly not the intention.
(Cavan): I shall put it this way and the Minister can reply afterwards. Suppose a person is brought to the barracks and submits to a breathaliser test which does not disclose that the concentration of alcohol in the blood is above the specified percentage, may the accused person then say: “I will not submit to a blood test”? Or, must he submit to a blood test if requested to do so by the garda, notwithstanding that the breathaliser has exonerated him?
The position is that if a person requests a second breath test, the garda must give the test. He is not specifically bound by the figure shown because this device is not necessarily completely accurate and he may, in fact, ask for the blood sample, but I think that generally it is unlikely that the garda would do this. I think this amendment meets the case that was made that a person may ask for a further breath test and it is on the result of the breath test that a garda decides whether to ask for a blood or a urine sample. Unless the garda had some reason to believe that the person had not co-operated in the operation of the breathaliser test, it is reasonable to take it for granted that if the test did not give him reason to believe that this offence had been committed, he would not ask for the sample to be provided. That is as much as can be expected.
(Cavan): Am I right in thinking that in effect the breathaliser tests provided in this Bill are meaningless and that the results can be ignored by the garda, and that irrespective of whether the results are in favour or are against the motorist, the garda can still insist on the blood test?
Yes. They are intended as an indication to the garda but obviously if the garda had reason to believe that the person was unfit and if the breathaliser test did not give that indication——
(Cavan): But that is not even in the Bill.
What is not?
(Cavan): There is no provision in the Bill that the garda must have reason for believing that notwithstanding the breathaliser test the concentration of alcohol is excessive before he insists on the blood test.
Why would he ask for it if he had not such reason?
(Cavan): You would never know. At any rate, it is an improvement.
Amendment put and agreed to.
(Cavan): I move amendment No. 16:
In page 25, between lines 8 and 9, to insert the following new subsection:
"( ) The Director shall hold the necessary medical and scientific qualifications to enable him to discharge the duties of his office."
Section 39 of the Bill provided for the establishment of a bureau which will be entrusted with the duties of carrying out an analysis of samples of blood and doing various other things. It is, I think, essential that the director of this bureau—and provision is made for his appointment—should be a person with very considerable medical and scientific qualifications. The purpose of this simple amendment is to ensure that the director shall hold the necessary medical and scientific qualifications to discharge the duties of his office. This amendment was put down on Committee Stage and was not accepted by the Minister. I can see no objection to writing these qualifications into the Bill.
There are various precedents for my proposal in other Acts. For example, a person who is appointed a judge must be a practising barrister of a certain number of years standing; a person who is appointed a district justice must be either a solicitor or a barrister of a certain number of years standing; a person who is appointed a county registrar must be a solicitor of a certain number of years standing. There are various qualifications laid down for the posts of dispensary doctors, for the posts of county surgeons, county physicians. I know they are laid down by regulations made by the Minister, but here we are appointing the director of this very important body to be known as the Bureau, which we are entrusting with very far reaching duties and responsibilities; and yet we are not providing any minimum qualifications at all. So far as the Bill is concerned, a layman might be appointed as director of the Bureau. I know that is unlikely, but we should upgrade this important post by stipulating certain minimum qualifications. These minimum qualifications should be of a fairly high standard to ensure that the person who is appointed will be qualified, will be competent, and will command the respect and confidence of the citizens who will be unfortunate enough to have dealings with him or to be subject to the decisions of the Bureau.
I do not consider that this amendment would be of any advantage. "The necessary medical and scientific qualifications" is a very vague statement and would not be of any value. I do not know how these necessary medical and scientific qualifications are to be determined. No attempt has been made to make a detailed specification of what they should be. Deputy Fitzpatrick said that in the Bill itself we are not requiring any minimum qualifications, but this amendment does not specify any particular minimum qualifications either. I think Deputy Fitzpatrick agrees with me that the person to be appointed is certain to be a person of standing in the medical or scientific field. The person would obviously have to be a person who would have some experience in analysis of specimens and the determination of blood-alcohol concentrations, as well as the ability to organise research work. I think that all that can be given—and I think this should be sufficient to satisfy Deputy Fitzpatrick—is an assurance that the person appointed will have suitable qualifications and will be a person of standing in the medical or scientific field.
(Cavan): I regret I cannot accept the Minister's assurance as adequate. The Minister speaks as if he could speak for the Minister for Local Government for all time. Here we have another example of a trend to legislate in a manner which will give this House the minimum of control over legislation when it is enacted, and which will hand over the maximum powers to the Executive, to the political head of a Department and to civil servants in the Department. I am against that.
The Minister complains that my amendment does not write out the qualifications which should be required. I am humble enough to say that I do not consider I would be capable, without expert advice and assistance, of determining the minimum qualifications which such a person should have. However, the Minister has the advantage of having expert advice at his disposal, and this House should be given the benefit of that expert advice, so that they could consider then whether the standards proposed are adequate or not. As I have said, in other appointments we have minimum qualifications laid down, and that is a good thing. It raises the prestige of the position. It ensures that the person appointed will have adequate qualifications and considerable experience.
Here again in this section there is an example of the Minister resisting any interference by the Dáil, any effort by the Dáil, to write into the Bill what it considers is desirable. Then there is the request from the Minister: "Leave it to myself. Leave it to my Department. I will see that everything is all right." The Minister might as well come in here with a Bill with the long title, "An Act to Regulate Road Traffic" with one section in it saying: "The Minister for Local Government is hereby enabled by Dáil Éireann to take each and every step he considers expedient to regulate vehicular and pedestrian traffic on the road for the safety of the public at large". We are coming very near that, and I do not think this is a good thing. There is regulation after regulation and vague section after vague section, and we are drifting very near the stage where, if the Minister and the Government get their way, this House, whether it is elected by proportional representation or the straight vote, or anything else, will have very little say in any legislation. They will be just invited to pass such Acts as are necessary to scrap existing Acts and to vest in the Executive, the political head of the Department and his civil servants, sufficient authority to do what they think is good for the people. I think this House should not stand for that.
Will the Deputy agree that "the necessary medical and scientific qualifications" does not add much to it? I will consider between now and the Seanad stage whether we can draft something on the lines of the analogy of the legal qualifications that Deputy Fitzpatrick mentioned.
(Cavan): I am quite satisfied with that. As I explained to the Minister on a number of occasions, I put down amendments in a manner that will form a base for the arguments I want to make.
Is the amendment withdrawn?
(Cavan): In view of what the Minister has stated, I withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 26, to delete lines 35 to 39 and substitute the following:
"42.—No action or other legal proceeding shall lie (except in the case of wilful neglect or default) against the Director or any member, officer or servant of the Bureau by reason of, or arising out of, the carrying out of any analysis or determination under this Act."
This amendment arises from an undertaking I gave on Committee Stage to see if it was possible or proper to confine the protection afforded by section 41, as it then was, to the Director, members, or staff of the Bureau. The suggestion for the amendment came from Deputy Dillon and arose from a discussion generated by Deputy Lemass. I think this meets the point made since it makes it possible to take an action against the Bureau but not against the Director or members of the staff. That was what I undertook to consider.
(Cavan): There may be some difference between section 42 in the Bill and the proposed new section but I must say I cannot see it and I can only hope that the brains of the Upper House will be able to penetrate the fine distinction, whatever it is, and sort it out and if necessary, amend it. There seems to be practically no difference between them.
"or against the Bureau" is omitted. It was "against the director or against the Bureau".
(Cavan): The Bureau is omitted from the amendment?
It is omitted now.
(Cavan): Does the new section mean that the Bureau can now be sued for ordinary negligence?
Yes, but not the individuals.
(Cavan): Individuals can only be sued if guilty of wilful neglect or default?
Yes, that is the position.
(Cavan): If that is the position, it is a considerable improvement.
Amendment agreed to.
(Cavan): I move amendment No. 18:
In page 30, to delete lines 19 to 24.
This amendment proposes to amend section 52 and section 52 amends section 55 of the Principal Act which deals with dangerous parking. Section 52 of the Bill as it stands states:
Section 55 of the Principal Act is hereby amended by—
(a) the substitution of the following subsection for subsection (1):
"(1) A person shall not park a vehicle in a public place if, when so parked, the vehicle would be likely to cause danger to other persons using that place.", and
(b) the insertion after subsection (3) of the following subsection:
"(4) 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."
My amendment proposes to delete the new subsection (4) which confers on a member of the Gárda Siochána the right to arrest without warrant a person whom he suspects of dangerous parking. This is totally unnecessary. On Committee Stage the Minister did say that a person who parked a vehicle in a dangerous manner might be from outside the jurisdiction or might have refused to give his name and address. I could understand if the Minister were conferring on the garda the right to remove the vehicle which was dangerously parked. He has that right somewhere else, but this is giving to the guards the power to bring the owner of the vehicle off to prison and still leave the vehicle in a dangerous position. This is going much too far. The Minister has met a suggestion which I made further on in connection with a subsequent portion of the Bill where I objected to the right to arrest a person who refused to pay a bus fare or a taxi fare. The Minister has met that by putting in that that right is only to arise if a person refuses to give his name or gives a name which is false or misleading. I propose in my amendment simply to delete subsection (4) which confers on the garda the right to arrest without a warrant. I would be satisfied if the Minister introduced an amendment providing that the right to arrest without warrant should only arise if the person had not got a fixed place of abode within the jurisdiction, or if he refused to give his name, or gave a name which was false or misleading. I cannot really understand the necessity for this big stick. It is certainly killing a fly with a sledgehammer. The right to arrest without warrant should be conferred only where there is a serious breach of the law and where the culprit is likely to escape if he is not arrested.
I have considered this amendment and also Deputy Fitzpatrick's suggestion on Committee Stage, which he has now repeated, that the power to arrest without warrant for dangerous parking should be restricted to persons resident outside the State or of no fixed abode. While the power to arrest without warrant in this case is primarily intended to deal with people who are able to evade arrest, who are able to evade the consequences of their actions, such as people living outside the jurisdiction, and especially people living in Northern Ireland, or those with no fixed abode, there are other classes of people who find it easy to evade the law also. For example, there are those who have a fixed abode but frequently change from one residence to another and those who steal or borrow cars and park them dangerously. Some of these types of people occur at random in our population and it is difficult for the Garda to distinguish them and it is certainly difficult to specify them. It is essential then that the law should provide for arrest in these circumstances and should apply generally.
Apart from that, it would be wrong in principle to provide that one of the criteria for qualifying for arrest in these circumstances would be membership of a particular class and it is necessary that power should be there to deal with people who can evade arrest and it is necessary that it should be in these general terms. I must say that there is no intention that it will be used generally but only in circumstances where the Garda have reason to believe there is a likelihood of a person being able to evade the consequences of dangerous parking.
(Cavan): That should be written into the Bill. Here again we are being asked to trust the Minister and the Garda, while, at the same time, writing into the Bill that the Garda are to have power to arrest for the offence of dangerous parking simpliciter. I agree that there might be certain occasions, such as those the Minister outlined, on which it might be necessary to arrest a person but, in such cases, the guidelines should be clearly written into the Bill because this Act ultimately will not be read in conjunction with the debate here in this House and the young garda of the future, studying the Act, will not have before him the debate that took place here and will not know that the Minister's intention is that he should exercise this power only in certain specified circumstances. He will know only that he is entitled to arrest without warrant any person whom he finds guilty of dangerous parking. An amendment should be written into this section making it clear that only in certain exceptional circumstances is the power conferred on a member of the Garda to arrest without a warrant.
This has been considered sympathetically and it has not been possible to find a way of doing what Deputy Fitzpatrick suggests. I will not mind having another look at it, but I am not very hopeful of finding a formula.
(Cavan): I think the Minister should.
Amendment, by leave, withdrawn.
(Cavan): I move amendment No. 19:
In page 31, between lines 49 and 50, to insert the following new section:—
"( ) Section 56 (1) of the Principal Act is hereby amended by the insertion before `at' where it first appears in subsection (1), of `or any passenger therein'."
Section 56 of the Road Traffic Act, 1961, is the section which very wisely makes it obligatory on the owner of a motor vehicle which is being used in a public place to have in force a policy of insurance which will cover the liability of the owner to the public and to passengers in the vehicle. Down through the years injury has been caused to third parties through the negligence of passengers in motor vehicles and the courts have held that the owners of the vehicles are not liable for the negligence of their passengers. As a result people who have sustained very serious injuries and have been maimed for life have been left without any remedy because the only persons they could sue were passengers and the passengers might be children of 14 or 15 years of age who were not marks and had no money. I know that the Minister believes that in certain cases the owner of the vehicle is liable for the acts of his passengers. That is so only if the passenger is a very young person or if the owner encourages the passenger to do something dangerous.
I can tell the Minister that I first raised this matter in this House by way of Parliamentary Question and the question and answer were reported in one of the Dublin morning papers. As a result I received a letter from a citizen of this city who had been seriously injured by a passenger in a car opening the door of the car and causing him to be thrown from his bicycle. He sued the owner of the car. He lost his case. He appealed. His appeal was not successful. I think there certainly should be an obligation on the owner of a car to insure against the negligence of his passengers. That is the purpose of this amendment. At best, the law on the subject at the moment is uncertain and, at worst, the injured person has no remedy against the owner of a vehicle for the negligence of his passengers. The matter should not be left in that state. The law should be changed. In this age, especially in cities and towns, when cars are constantly parked and doors frequently opened, very serious injury can be caused to a person and the law, as I say, at best is uncertain and, at worst, the injured person has no redress under it.
The Minister said he would look into this matter but that he foresaw considerable difficulty. I think his principal difficulty was that he was afraid his colleague, the Minister for Industry and Commerce, might be faced with an application from the insurance companies to raise premiums. Now we cannot have it both ways. The Minister argues that the insurance companies are already liable and are already carrying the risk. I do not accept that and, if they are not liable, owners should be made insure against this sort of contingency. I can tell the Minister that every legal practitioner of any experience knows cases of great hardship arise under this very heading; injury is caused by a door being opened or by a passenger letting off the brake while the car is parked and, because the owner is not liable for the negligence of his passengers, there is no redress.
I have sympathy with the Deputy's object but I must ask him not to press his amendment. What he is proposing seems to be a simple matter but, in fact, it raises a number of issues of so complex a nature that quite an amount of study is needed, not merely by my Department but by the other Departments involved, the Department of Justice and the Department of Industry and Commerce, and the insurance companies. I propose to initiate such a study and, if a reasonable solution presents itself, to arrange for legislation in due course. I do not think the matter can be solved satisfactorily before this Bill is passed. I ask the Deputy to accept my assurance that the matter will not be lost sight of;
To give some examples of the issues involved—this is not by any means a comprehensive list—there is, first of all, the question whether it is right to place on an individual the duty to insure against the consequences of a legal liability which really lies on another and not upon him. Prima facie, it appears that this would not be the right way to approach the problem but, rather, that the law on civil liability should be amended to make the owner or the user of a vehicle, or possibly both, liable for the negligence of passengers in stated conditions. Compulsory insurance would then follow. In any event, one has to consider whether all passengers should be covered. Should the owner be liable, for instance, for the negligence of a passenger accompanying a person who has stolen a car?
(Cavan): He would not be liable at all in that case. The car would have been used without his consent.
The effect of the Deputy's amendment would be to make him liable for any passenger therein.
(Cavan): No, I do not think so.
Again, there is the question, should the owner be liable for injury to fellow passengers caused by the negligence of a passenger or for injury to the driver? Should liability be confined to injury caused to a passenger while alighting or entering or should it extend to the period when he is being carried on the vehicle and, as in the case of a bus, when he may be outside the control of the owner and driver? Should liability extend to something done by the passenger even when the driver has forbidden it?
As I said, I have not attempted to examine all the questions which have to be examined but I think Deputy Fitzpatrick will agree that it is not as simple a matter as his amendment would suggest and that the end product of the study that is suggested may be quite a number of amendments to the 1961 Road Traffic Act and the Civil Liability Acts. As I have said, I intend to have the subject studied to see if a reasonable solution can be found and, in the meantime, there is, as I pointed out on Committee Stage, quite a wide range of cover available at present in respect of passengers' negligence. I agree that it is not completely covered, that the driver of a vehicle is liable where he has not taken reasonable precautions to ensure that the passenger does not use the vehicle in a negligent fashion. In a case like that the compulsory insurance covers this and it is just a slight residue of liability about which there is this doubt that has to be examined. As I say, it will take some time to have that examination carried out and the result may be that a number of amendments to these two Acts may be required.
Could I ask the Minister what I believe is a simple question? Stripped of all the legal jargon that has been going on for some time, would the Minister now say that he will insist that insurance companies make it very clear in the policies they hand out to people where their liability starts and finishes?
They have to do that anyway.
(Cavan): I am glad to hear the Minister saying that he realises that there is a problem here and that he proposes to do something about it but I am rather fearful that it will take a considerable time to solve the problem when I hear the Minister saying that his Department and two other Departments of State are involved. This is a problem of which those interested in recovering compensation for injured persons have been conscious for a long time—I suppose for 20 years. The position is thoroughly unsatisfactory at the moment. If I were disposed to advertise one insurance company or one group of insurance companies against another or to say something here that might damage one insurance company and help another, I could do it, but I do not propose to do that. I do propose to say that certain insurance companies accept responsibility and pay for the injuries caused to passengers without any question. Other otherwise reputable insurance companies rely on the strict letter of the law—and I suppose they are entitled to do it— and say they are not liable. Some day or another when some person is maimed for life and confined to a wheel chair for the rest of his life through the negligence of a passenger, this thing will be dealt with, but not until then.
Is that not exactly the question I addressed to the Minister, that it should be included now in this Bill?
(Cavan): That is what my amendment seeks to do but the Minister says that because it is so complicated and involves the insurance companies, the Department of Industry and Commerce which keeps an eye on insurance premiums and the Department of Justice which, I suppose, has an eye on the general law, it will take a long time to consider the whole position and introduce a Bill but, as I say, in the meantime, somebody who would probably receive such frightful injuries that would entitle him to get £75,000 compensation will go without any. That is what I am against.
Is the amendment withdrawn?
(Cavan): I will not withdraw it but I am satisfied with the Minister's reply. It will strengthen the Minister's hand if I press it.
Amendment put and declared lost.
I move amendment No. 20:
In page 32, line 22, after "may" to insert the following: ", if that person refuses or fails to give his name and address or gives a name or address which the member has reasonable grounds for believing to be false or misleading,".
I promised on Committee Stage to consider having this condition written into the power of arrest without warrant. I find that it is feasible to do so and this amendment provides that arrest without warrant for not paying the fare in a public service vehicle will apply only if the person refuses or fails to give his true name and address. I think Deputy Fitzpatrick raised the point on Committee Stage.
(Cavan): I am obliged to the Minister for meeting me in this respect and for adding this safeguard that the person cannot be arrested without warrant unless he refuses to give his name or gives a name which the garda believes to be false or misleading. I am sorry the Minister did not do the same on the question of dangerous parking.
Amendment agreed to.
Amendment No. 21 was discussed with amendment No. 1.
I move amendment No. 21:
In page 34, to delete line 18.
Amendment agreed to.
(Cavan): I move amendment No. 22:
In page 36, to delete lines 32 to 52 and in page 37, to delete lines 1 to 7.
This amendment proposes to deal with section 64 of the Bill which in turn amends section 103 of the Road Traffic Act, 1961. It will take a little time to deal with this amendment because it is fundamental. I raised it on Committee Stage. The proposal in the Bill is to recruit in an offhand way a small army of people known as authorised officers and vest in them powers which, in my opinion, should only be exercised by a properly recruited and adequately trained member of the Garda Síochána, and I am totally against the proposal.
Debate adjourned.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 8th May, 1968.