I move amendment No. 1:
In page 2, between lines 19 and 20, to insert the following:
"‘mechanically propelled vehicle' has the meaning assigned to it by section 3 (1) of the Act of 1961;".
Local Authorities (Traffic Wardens) Bill, 1975: Committee Stage.
SECTION 1.
Amendment No. 6 is consequential. Amendments Nos. I and 6 may be discussed together.
There seemed to be difficulty about some of the sections of the Bill. I promised on Second Reading that I would see if I could clarify them. They should not cause much difficulty but because I agree with Deputy Faulkner that it is very important that there should be no doubt as to what is meant, I have put down the amendment. The amendment is self-explanatory. I do not think there is any need to labour it.
It is only moving the definition from a later section to an earlier section.
That is right. It is in a later section and because it was suggested that we did not make it clear, we are inserting it here. We are removing it from the later section later on by another amendment.
As a matter of interest, will the section empower gardaí or wardens to move vehicles? Does it refer to mechanically-propelled vehicles which are not in a propellable condition?
The question whether the car is able to go or not does not arise. If it is a mechanically propelled vehicle, it is so whether it is operable or not.
I raise the matter because there is so much trouble with cars being left on the roadway which were at one time mechanically propelled.
Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."
Is the Minister satisfied that it is right to give town commissioners power to employ wardens? Town commissioners normally relate to a very small area; some of the towns are very small with a population of less than 1,000.
Some of them are very big. Mullingar is one that comes to mind.
Is that not an urban district council?
No, town commissioners.
Some are very small. I can think of one or two that I shall not name. The population of one that I can think of is about 700 or 800. Is the Minister satisfied that it is right to enable a very small local authority like that to employ wardens when parking problems in such towns are usually not at all acute? Is there not some danger that town commissioners might look on this as a potential additional source of income rather than as a traffic regulatory system, particularly if the towns are very small and there is not normally a parking or similar problem?
I do not agree on two counts. First, while it is true that there are some very small town commissions there are also very large ones. I have mentioned Mullingar, and Balbriggan is another that comes to mind where there are serious traffic problems. There are serious traffic problems in Mullingar and in a number of other places. It would be unreal not to include those. Secondly, as regards making it a revenue-raising function rather than anything else, I think it is unfair that this should be repeated so often because town commissioners are elected representatives. They are not sadists and will not go out to punish somebody. As I said on the Second Reading, we are dealing only with people who deliberately break the law.
Deputy Faulkner, and I think Deputy Andrews originially, mentioned the question of how much discretion traffic wardens should have. We must accept that traffic wardens must have a certain amount of discretion. If any of us parks a car at present in a restricted place and either a traffic warden or a garda comes along as soon as we stop for a second and threatens to prosecute, we become annoyed. But that does not happen as a rule. A person who parks like this may be told: "You cannot park there; move on." I assume this sort of thing will continue; but if somebody deliberately parks a car and leaves it where it is causing traffic jams, it is right that some action should be taken. Both sides of the House will agree on that. Unfortunately, this applies in the area of town commissioners just as it applies in urban or larger areas. Therefore, we must include town commissioners : if we do not, we will leave a loop hole in the Bill which would be used by certain people.
Question put and agreed to.
SECTION 2.
I move amendment No. 2:
To delete subsection (1) and substitute the following:
"(1) A local authority may, subject to the approval of the Commissioner of the Garda Síochána—
(a) make arrangements for the carrying out of the functions specified in subsection (2) of this section in the functional area of the authority and
(b) employ a person or persons to carry out such functions."
During my Second Reading speech I said that the main concern I had was in connection with section 3 (1) as then drafted, and I am glad to note that the Minister has taken heed of the points made then. There are some further objections and I have submitted a number of amendments which I think will help, including this amendment. I should like it to be noted that the amendments do not contain any material relating to qualifications or training of traffic wardens: I assume that the Minister will deal with this matter by regulation.
The main reason for this amendment is that I felt it was undesirable to remove the control at present exercised by the Garda Commissioner under existing legislation. The Minister does not seek in the Bill to repeal the legislation, and I contend that the standard of appointment and control should be no less under this Bill. No case has been made by the Garda Commissioner, so far as I know, that he finds the work in regard to this matter too onerous. On the other hand I have received a number of objections from members of the gardaí, some senior members, to this subsection as it stands. The Minister stated that he did not receive any objection from the gardaí except a letter which he received just prior to the ending of the Second Stage of the Bill. I would assume that representations had been made by the gardaí to the Minister for Justice and that the Minister has since received from his colleague some indication or information in regard to the protests which I have no doubt the Minister for Justice received in regard to the section as it stands.
The section as it stands requires the local authority to consult with the Garda Commissioner. This is rather futile because the local authority can ignore with impunity what the Commissioner may suggest, even any valid objections he may have. On the grounds that the functions now exercised by the traffic wardens and those which will be handed over to them under this Bill are garda duties I feel that the wardens now should have a direct relationship with the Garda Commissioner as they had under the previous legislation. I think the service operated very well under the previous legislation as regards the relationship between the traffic wardens and the Garda Commissioner and it would be well worth while making the amendment we suggest here.
In my Second Reading speech I quoted the recommendation from the Conroy Commission Report that "the traffic warden system should be divorced entirely from the Garda Síochána and should be the sole responsibility of the local authority". I was under the impression that this had been accepted by my predecessor and the former Government and that as a result, they were prepared to introduce a Bill to that effect. I cannot understand their line of reasoning now.
It has been reported that some of the gardaí are objecting to this. I did mention that I had received a letter, and it is true that there have been discussions with the Minister for Justice, but there is a very important principle involved here. This is my personal view: if we get the gardaí to vet legislation of a punitive nature such as this is before passing it through the House we are doing something which we, or somebody in the future, might regret. It is not in order, I believe, that the matter should be dealt with in this way. For some strange reason those who made the representations were under the impression that the matter was just as Deputy Faulkner and Deputy Andrews had stated on the Second Reading, that the Bill was introducing a new element and that traffic wardens would be controlling traffic in every way. As I have explained, the warden's duty will be in relation to parking, tax discs and so on.
The Minister may be confused. He referred to what our amendment states, "subject to the approval of the Commissioner of the Garda Síochána". That is the wording in our amendment, not in the Minister's amendment or in the Bill. What is in the Bill, and what presumably the Minister wants to retain is, "may, after consultation with the Commissioner". There is a difference of degree only but it is a fundamental difference. It is important to the extent that the phraseology in legislation, such as "after consultation with", which is frequently used, simply means that the Minister or the local authority has to inform the Commissioner of what it is proposed to do and, having informed the Commissioner and possibly having been told by the Commissioner that he disapproves of the proposal, the Minister or the local authority can go ahead and put the proposal into effect.
The amendment that Deputy Faulkner and I have put down is different from the subsection as drafted only to the extent that in addition to consultation of the nature I have described, it insists that the actual approval of the Commissioner would be obtained to the proposals of the local authority. I do not think it is unreasonable to ask for that. It is a modest request and we think it should be there to safeguard the overall position in relation to the appointment of traffic wardens.
Traffic wardens come into contact with the public to a very great degree from the time they begin work in the morning until they finish in the evening. During the time we have had them they have had brushes with the public, and the nature of their job is such that there should be some basic overall supervisory position held by the Garda. The most important aspect of the traffic warden in this context is the question of his appointment. Normally, if a person is appointed to a job like this unless he seriously abuses his powers he will not be dismissed. Therefore somebody who is appointed as a traffic warden, to all intents and purposes, will be in that position during the rest of his life. It is important then that the Commissioner, acting through his local officers in the different areas, should be in a position to say in relation to a particular appointment that he has reason to believe it would be unsuitable. The Garda Commissioner frequently has reason to believe that somebody is unsuitable though he may not make it public because of his desire to be fair to the person concerned. He may have reason to doubt the suitability on one ground or another of a proposed appointee and he should be in a position to stop that appointment. He can do so in relation to a lot of other matters.
Therefore, rather than simply have consultation with the Commissioner as subsection (1) provides, the appointment should be subject to his approval. It is taking the matter a small but an important step further. One could have the position, particularly in the case of a small local authority, where the local authority would wish to appoint a certain person or type of person whom the local officers of the Garda would not regard as suitable for this rather delicate job which entails such a high degree of contact with the public. It is, therefore, not unreasonable for us to ask that simple consultation with the Commissioner, whose advice could be disregarded, is not quite adequate and that the actual approval of the Commissioner to the proposed appointment should be forthcoming. I am not suggesting that every local authority would disregard the Commissioner's advice, but in legislation we must cater for the awkward cases and for the possibility that, perhaps, one or two small local authorities might take it on themselves to try to force their views locally against the wishes of the Commissioner.
Deputy O'Malley is correct that I may have misquoted his amendment, which is so similar to the subsection. There are a couple of mistakes in his argument, though I agree he made a fair argument for his case. However, responsibility for staffing does not lie with the elected representatives of local authorities but with the managers of local authorities. We are not talking about somebody being appointed at local level by the members. We are not talking about a situation where the town commissioners might go out and appoint, say, a petty thief who would go round imposing on the spot fines all over the place. That is what could be understood from the arguments advanced.
The local authority manager or a person delegated by him is the person who has responsibility for staffing. We have evidence of how traffic wardens are at present appointed. For instance, when a vacancy occurs in the Dublin area, Dublin Corporation advertise and among the qualifications are good health, physical fitness, good character and so forth. I expect that to continue and that these people would have to be of good character to be appointed. If the manager consults the Garda Commissioner and, after consultation, makes the appointment, I cannot see the danger that Deputy O'Malley talks of. One important factor is, as the Conroy Commission suggested, that the responsibility for the appointments should rest with the local authorities so that we could not say we were accepting the Conroy Commission if, at the same time, we were to say that while the local authorities are responsible for these appointments, Big Daddy must decide whether any person can be appointed. If the Commissioner should be aware of any reason why a man should not be appointed, that matter, no doubt, would be brought to the notice of the manager who could then make up his mind. If the Garda Commissioner were a one man appointments commission for the whole country I expect he would soon tire of it.
We are not suggesting that he should be.
The subsection states that:
(1) A local authority may, after consultation with the Commissioner of the Garda Síochána, make arrangements for the carrying out of the functions specified in subsection (2) of this section in the functional area of the authority by persons employed by the authority.
What I read into that was that the local authority would consult with the Garda Commissioner in relation to a scheme for traffic wardens rather than to relate it to the appointment of traffic wardens. However, the Minister has suggested now that the local authority—in this case, the manager—would consult with the Commissioner regarding the appointment of traffic wardens but it does not appear that that is what is intended in the subsection but that what is intended is that the local authority would devise a scheme relating to traffic wardens and would consult with the Garda Commissioner in that regard but that this would have no bearing on the appointments. I took it that, having consulted with the Garda Commissioner in relation to the scheme, they would make the appointments without any further reference to the Commissioner.
Because the duties of traffic wardens are the same as those performed by the Garda in the past and as the Garda Commissioner had a direct say in the appointment of traffic wardens up to now, I do not see why we should change.
This is extraordinary. I wonder whether Deputy O'Malley would recognise this quotation. It is from what was prepared by the last Administration.
A local authority may, with the consent of the Minister and after consultation with the Commissioner of the Garda Síochána, make arrangements for the carrying out in the functional area of the local authority or any part of it by persons employed for that purpose by the local authority (who shall be known, and are in this Act referred to, as traffic wardens)...
That is the text which the people opposite approved while they were in Government.
Included in that were the words "with the consent of the Minister".
Is Deputy O'Malley suggesting that any local authority would proceed to do this without the consent of the Minister? Is he saying that he is prepared to withdraw his amendment and have included the words "with the consent of the Minister"? Surely the consent of the Minister is accepted as being a prerequisite in all these matters
There is nothing in the Bill about the consent of the Minister.
In any of the local authority Acts, the local authorities operate with the consent of the Minister. Deputy O'Malley is trying to throw in a red herring. I am telling him what the Opposition suggested when they were in Government and what they had prepared to put before the House. They were right then and we are right now. There is very little difference except that the local authorities will have the responsibility to make these appointments. We must insist on this.
The Minister states that this was something that had been approved by the previous Administration but it must be pointed out that no such proposal came before the House, that two-and-a-half years have elapsed since then and that, if we find there are aspects of this which we would not regard as suitable today, we are entitled to make those changes.
The Minister will agree that had the Bill to which he is referring but which I regard as being irrelevant since we are dealing with another Bill, come before the House there is no knowing what amendments would have been accepted or what changes would have been made before it became law. Therefore, there is no point in referring to something which the Minister says, was approved two-and-a-half years ago. Irrespective of what was in that earlier Bill, the Minister had a certain power in previous legislation, power to which nobody, so far as I know, objected. It is our opinion that this power should be continued in this Bill particularly since the matter under discussion relates to duties which were performed previously by the Garda. The general public would be very much more satisfied if they knew that the terms under which traffic wardens were appointed were continued in this Bill.
Deputy Faulkner is suggesting that traffic wardens should continue to be employees of the Department of Justice. The whole concept of this Bill is that that will no longer be the position and that traffic wardens will be employees of local authorities. This was one of the Conroy recommendations which was accepted by our predecessors and which is accepted by us. There is no point in Deputy Faulkner's saying that the Opposition are now taking a more responsible view in this regard. It is a matter which must have been given the usual very tight scrutiny. I cannot see why a change should be considered necessary now. The whole principle of the Bill is involved in this amendment. Either we agree that the local authorities have the responsibility of appointing traffic wardens or we agree that the Department of Justice continue the responsibility. We cannot have it both ways.
Unfortunately, this Committee Stage is not proving as rewarding or as fruitful as I had hoped it might.
I am very reasonable.
There is an unnecessary argumentative tone in the Minister's contributions on the amendment which I do not think warrants such a view. However, that is a matter for the Minister.
I want to make it clear that our amendment does not, as suggested by the Minister, seek to make the Commissioner of the Garda Síochána the appointing authority. We accept in principle that the local authority should make the appointment but we feel that a safeguard is needed and the appointment should be made subject to the approval of the Commissioner of the Garda Síochána. In practice he has to approve every appointment to the public service. Every appointment to the Civil Service or the Local Appointments Commission is approved by him. The name and the address of a proposed appointee has to be submitted to the Secretary of the Department of Justice and the Commissioner of the Garda Síochána expresses his opinion in relation to each one. If the Commissioner disapproves of someone that person is never appointed. Many of the jobs are of little importance. They relate to people who will not be in contact with the public. The posts of traffic warden may not be important financially but they are important from the point of view of the people holding them being constantly in contact with the public in a situation which can give rise to disagreements and possibly arguments. We all know that people rightly or wrongly sometimes feel aggrieved when approached by a traffic warden or on receipt of a ticket.
People appointed as traffic wardens need considerable discretion. The best people to judge the discretion of potential employees would be the local officers of the Garda Síochána through whom the Commissioner works. There is no question of the Commissioner being the appointing authority. If our amendment is accepted and if a local authority drew up a list with the names of a number of people on it these names would be submitted to the Commissioner of the Garda Síochána. In 99 cases out of 100 the Commissioner would have no objection to making the appointments but there may be one case in 100 where he would have an objection and that objection might be a valid one in the public interest. If he has an objection the person concerned should not be appointed to a junior although not very important post of this nature where contact with the public is so great that conflict can arise through misunderstandings, valid or otherwise, and where feelings of grievance in relation to the activities of the traffic wardens can be aroused.
We are merely suggesting that the Commissioner should approve of those whom the local authority propose to appoint. The Commissioner should be in the position of refusing to approve of someone whom he regards as unsuitable. Why should anyone be appointed to this service, where there is a considerable possibility of conflict with members of the public, against the wishes of the Commissioner? As the subsection stands the appointment could be against the wishes of the Commissioner. Consultation does not necessitate agreement.
Surely it would be unlikely that the local authorities would take steps if the Commissioner did not approve? The Garda know the position in regard to traffic in large towns.
It is unlikely that the larger and more responsible local authorities would do so but all local authorities are involved in this. Why should this House be asked to pass legislation which would permit abuses by one or two local authorities if they so desire? We want to pass legislation to ensure that a local authority, if their members were bad-minded enough, would not be able to abuse their appointing powers? We know that most local authorities will not do anything wrong but why leave it open to one local authority to do something wrong?
Leaving such a situation in existence leaves holes in the legislation. Deputy Faulkner made the point that under subsection (1) as it stands the local authority after consultation with the Commissioner may make arrangements for the carrying-out of functions described in subsection (2). It does not make it clear that the local authority after consultation may actually employ the people. It seems to refer only to the functions specified in subsection 2.
How would they carry out the functions without appointing people?
That is one of the problems. There should be a provision in subsection 1 to enable the appointments to be made. Under the existing legislation the appointments are made by the Commissioner of the Garda Síochána. The Minister may defeat his own purpose if he does not specifically enable the local authority to make the actual appointments. The existing appointing authority under the 1961 Act may well be carried forward. In spite of the desire of the Minister and ourselves that the appointments be made by the local authority we could end up with a situation where because they are not specifically given the power, the existing appointing power would be carried over from the previous Act. That would be the Commissioner.
Yes, the Commissioner.
That is not the desire of either side of the House. Our desire is that the appointment should be made by the local authority and that they should be given specific power as set out in our amendment and that the actual appointment should be made with the subsequent approval of the Commissioner. That is a reasonable approach to the situation. We would thus get over the problem which may exist that there is not an existing appointing authority in this Bill. This refers only to the functions specified in subsection 2. They do not specifically include appointments as such.
I do not wish to sound contentious but it appears as if Deputy O'Malley's memory is not as good as it should be. This has been going on for some time. In the preparation of the legislation by the Opposition when in office documentation was passed between various Government Departments. I would refer Deputy O'Malley to one document from his Department when he was Minister for Justice. It is relevant. It is from the Department of Justice to the Department of Local Government.
This is about a very technical matter which is of no great importance or significance. It is about a minor technical aspect of a Bill. I have no objection to that as such being quoted by the Minister, but I want to put on record once again my strong disapproval and my party's disapproval of the practice that has grown up on the part of several Ministers in this Government of quoting ad lib from confidential documents that passed between Ministers in the previous Government or between Departments and the Government as such. This letter does not matter tuppence because——
Deputy O'Malley is aware this is a document that passed between the Department of Justice and the Department of Local Government and is on file. When I finish in the Department of Local Government any documentation will be on file for anybody who wishes to examine it. It is very relevant now. Therefore, I would ask that I be allowed to read it.
I want simply to place on record my abhorrence and this party's abhorrence of the continual quotation of confidential documents by members of the Government.
This is not a confidential document.
If this practice is allowed to continue——
Deputy O'Malley obviously is anxious not to have this on the record. I think it should be and I think he will agree himself when I have finished.
If this practice is allowed to grow up in relation to trivial, unimportant matters such as this it will be used in relation to others not trivial or unimportant.
Sir, am I in order?
It has a fundamental consequence for the work of any Government—that communication between Departments and the Government and between Ministers, within the Government, are to be bandied about afterwards and can no longer be regarded as confidential.
The reference is as follows: it is a letter from the Secretary of the Department of Justice to the Secretary of the Department of Local Government relevant to the legislation about which we are speaking. I am sure the Department of Justice have not changed their views and, therefore, I assume it to be very relevant. He says—and the Minister was, at that time, Deputy O'Malley—
The Minister is opposed to the continuation of the provision in the 1968 Act whereby the Commissioner may appoint "authorised persons". Retention of the provision would, in his opinion, be likely to lead to disputes in regard to which kind of service (warden or "authorised person") should be provided and he thinks it clearly preferable that the onus of providing the service in a town should be fairly and squarely on the local authority concerned.
That is very definite. This is the view of the Department of Justice now and apparently was their view when Deputy O'Malley was Minister. In fact Deputy O'Malley says it should not be placed fairly and squarely on the Department of Justice but should be left with the Commissioner of the Garda Síochána. I agree with Deputy O'Malley that perhaps we are spending a lot of time on something not terribly important. But I believe the Bill is important: either we are going to have the local authorities making the decision or we are not. By local authorities, I mean the county managers in consultation with the Commissioner of the Garda—who I assume will not be the Commissioner but somebody acting for him. If Deputy O'Malley is suggesting that there is in this country a county or city manager who, having received from the representative of the Commissioner of the Garda a report that a particular man or woman is not a suitable person to act as traffic warden, will continue to appoint that person, then he does not know the calibre of people appointed to jobs as city and county managers. We should not continue this debate any longer, and I am quite sure that Deputy O'Malley will accept the justice of that argument.
I thought I had made it clear but, unfortunately, even though I may have, the experience that other Members of the House have found is that the Minister for Local Government will blatantly, in the face of all the facts, make statements which he must know, if he reads the amendment or whatever is in question, are not so.
When Deputy O'Malley has not got an argument, or when the Opposition have not got one, it is the usual thing, to abuse the Government.
The only abuse heard here this morning—and it is regrettable that there should be any on a Committee Stage of a Bill such as this, when the whole House should be endeavouring to improve the Bill—did not come from this side of the House.
Our amendment reads:
To delete subsection (1) and substitute the following:
"(1) A local authority may, subject to the approval of the Commissioner of the Garda Síochána (a) make arrangements for the carrying out of the functions specified in subsection (2) of this section in the functional area of the authority and (b) employ a person or persons to carry out such functions."
Could anything be clearer than that? It is the local authority—as I pointed out rather painfully before—that is envisaged as making the appointment. Apparently that is contained in the letter which the Secretary of the Department of Justice wrote some years ago to the Secretary of the Department of Local Government. I may or may not have been aware of what was in that letter; the probability is that I was not aware. Nonetheless, as it happens, I agree fully with it and that is precisely what is enshrined in our amendment. The Minister or anybody else has merely to read it: a local authority may make arrangements and employ a person or persons to carry out such functions. What the point is of trying to allege that that means something else I do not know. But, unfortunately that is the practice that arises with this Minister at present. I do not propose to push it any further than that. I do not think any further argument is likely to be fruitful. If the Minister wants to close his mind to what is down in black and white in front of him, clearly I cannot change that, but there is provision here that the local authority shall employ the person or persons and that they shall do so subject to the approval of the Commissioner of the Garda Síochána.
Deputy Faulkner and I made the point that subsection (1), as it stands, does not give the employing or appointing authority specifically to the local authority. We feel it should do that because, if it does not, the existing appointing authority will be carried over, and that is the appointment by the Commissioner. We feel that is wrong and should be changed to the local authority.
What about the last line of subsection (1) where it is said: "by persons employed by the authority"?
By implication one could argue that that seems to envisage that appointment being made but it gives no specific power to do so. One could argue from that, by implication, that it probably was the intention of the Legislature to give that power. Now that our attention has been drawn to it, the Legislature should avail of this opportunity to make it specific that the local authority has the power because, if there is doubt about it, the appointing power or authority will be the existing one, carried forward, on the basis that the Legislature does not change the law unless it makes it clear that it is so doing. As I have said, that appointing authority would be the Commissioner, which I think is wrong in spite of the Minister's efforts to try to allege that we want the Commissioner to remain. In fact what we are trying to do here is ensure that he does not remain. For those reasons I would commend to the Minister a careful reading of the amendment.
Deputy O'Malley has been speaking about a careful reading of the amendment and of being careful about everything. I am very careful about anything I say here because I am conscious of the fact that I can be misrepresented. Deputy O'Malley has made a charge here. He asked if I knew—perhaps I was aware of the fact—that public service appointments are submitted to the Department of Justice for vetting. Of course, nothing could be further from the truth. That is not so. Deputy O'Malley made the categorical statement that this is so and I want to place on record that it is not so. This is the sort of thing that can cause a lot of trouble in other places. There is no truth in it whatever, and it is quite misleading and incorrect to suggest that all public service appointments are submitted to the Department of Justice before appointments are made. As Deputy O'Malley may also be aware, there may be occasions on which representations would be made that appointments should not take place. That would be a very rare occasion. But to say it is the general practice is not correct and takes the whole ground from beneath Deputy O'Malley's argument, that traffic wardens also should be included in these public service appointments and that they also should be vetted by the gardaí, when in fact there are no arrangements made to have that done at all. Deputy O'Malley says he does not want to proceed any further with it. I am quite satisfied that the section, as amended, and with the amendment I propose later on, will do exactly what we want done.
Is Deputy O'Malley withdrawing his amendment?
No, Sir.
Does the Deputy want it put?
Yes.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 58; Níl, 55.
Tá
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bruton, John.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- Fitzpatrick, Tom. (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Burke, Joan T.
- Burke, Liam.
- Clinton, Mark A.
- Cluskey, Frank.
- Conlan, John F.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Donnell, Tom.
- O'Leary, Michael.
- Pattison, Seamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Ryan, Richie.
- Spring, Dan.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- White, James.
Níl
- Barrett, Sylvester.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Carter, Frank.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Cronin, Jerry.
- Crowley, Flor.
- Cunningham, Liam.
- Daly, Brendan.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Gibbons, James.
- Haughey, Charles.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Browne.
Question declared carried.
Amendment declared lost.
I move amendment No. 3:
3. In page 2, to delete lines 27 to 33, and substitute the following:
"(2) The functions referred to in subsection (1) of this section are—
(a) functions in respect of offences under the Road Traffic Acts, 1961 to 1973, which relate to the prohibition or restriction of the stopping or parking of mechanically propelled vehicles,".
I have already indicated, in reply to the Second Stage, that I would have the question of eliminating any ambiguity which Deputy Faulkner felt there was in the text of this section looked into. I have now done so and I hope the amendment satisfies everybody. Section 2 is being amended by the deletion of lines 27 to 33 and the substitution of the words in the amendment.
We welcome this amendment which is precisely on the lines advocated by Deputy Faulkner and other Deputies from this side of the House. This is as the Bill should be. Potentially the Bill as it was gave power to traffic wardens to deal with every possible offence under the Road Traffic Acts. That would have been unthinkable to our eyes. They clearly should be confined to matters relating to parking and the stopping of vehicles and matters related to the display or non-display of tax discs. This makes a major change in the Bill which we welcome. We are glad the change has been made because if this had not been done we could not have supported a Bill which would have purported to give power to traffic wardens to deal with serious offences such as drunken driving or dangerous driving causing death which carries a penalty of three or four years' imprisonment. The matter is now made clear by this important amendment which was suggested by this side of the House.
Amendment agreed to.
I move amendment No. 4:
In page 2, after line 42, to add a subsection as follows:
"(5) A traffic warden appointed under this section may be dismissed by the Chief Superintendent for the Division in which such warden is employed whenever, after consultation with the manager of the local authority, such Chief Superintendent is satisfied that such dismissal is warranted."
The Garda Síochána, at various levels, have expressed a considerable disquiet about aspects of the Bill and about the fact that traffic wardens who are dealing with the public in a sphere in which arguments and conflict could arise did not appear to be subject to any form of discipline other than the normal type of discipline which would apply to public servants generally. For that reason we feel that if a traffic warden has shown over a period that he is unsuitable for the position he holds the Garda chief superintendent for the division concerned should be in a position, after consultations with the manager of the local authority who appointed the man, to dismiss the traffic warden if he is satisfied that such a dismissal is warranted. In the case of the Garda Síochána, who, apart from Dublin and perhaps other cities, have been dealing with traffic regulations up to now, if any member of that force were in any way to abuse his position or his powers, there is adequate machinery within the Garda force, due to the hierarchical nature of the command there, to ensure that that man is, in the first instance, advised not to abuse his powers, and, if he persists in doing so, taken off that type of work or some form of discipline applied so that the abuse of his powers comes to an end.
With the traffic warden set-up as proposed in this Bill, where the appointment is being made by local authorities, it is essential that more than just the normal local authority or public service non-Garda discipline could be applied because of the possibility that in some cases there might be an abuse of powers by traffic wardens. In the last resort we believe it should be a matter for the chief superintendent of the division concerned to take these disciplinary actions if they were not taken by the local authority.
The manager of a local authority may well find himself in a difficulty in practice, in that people who are appointed as traffic wardens would, I presume, join a trade union, as they are entitled to do. Members of the Garda Síochána, of course, cannot by law, join a trade union, for good reason. If all the traffic wardens in the country or in a particular local authority were to join a trade union, the manager could find himself in a weaker position in regard to them than he would otherwise be in. I am not suggesting for a moment that the wardens would not be entitled to join a trade union. I am saying that, as a matter of probability, that is what they will do, as is their right. The imposition, therefore, of discipline on people who are carrying out functions that are exactly the same as those carried out by members of the Garda Síochána at the moment could, in those circumstances, be prejudiced, and the manager of the local authority, with the best will in the world, might not have the type of control over them that he might wish to have, and when I say "over them" I mean only such a traffic warden, if any, as might be found over a period to abuse his powers. In the last resort, if that situation were to arise, a chief superintendent should be in a position to protect the public interest by being able to step in and impose the ultimate disciplinary action if lesser disciplinary action had failed up to then.
I do not envisage that a power such as this would frequently have to be used. I would envisage that it would have to be used very rarely indeed, if ever, but the fact that that power is there might in itself be a very good reason for its not ultimately having to be used. For these reasons I commend the amendment to the House.
I thought that when the last amendment on which we voted had been defeated the Opposition would withdraw this one. The effect of this amendment would be to keep the involvement of the Garda Commissioner in the warden service. The Bill provides for the establishment of the service by local authorities and, as I said before, this is not another police force, and I am surprised that this has not been understood or apparently has been misunderstood by the Opposition. The Bill provides for establishment of the warden service by local authorities, subject to consultation with the Garda Commissioner. Recruitment, pay, discipline and so on would be matters entirely for the local authority. It would be impractical therefore that dismissals should fall to be dealt with by the chief superintendent of the division in which such wardens would be employed.
In the Dublin area the existing service is run entirely by the corporation and that includes recruitment, pay, discipline and so on. Garda functions are confined to recommendations as to what beats wardens should serve. Minor breaches of discipline such as late for duty, caught off the beat and so on are dealt with by the corporation. The wardens' rights will be adequately protected. As Deputy O'Malley says, they will almost certainly become members of a trade union, as indeed wardens in Dublin are, and supervisory staff also operate in Dublin.
The suggestion that the local authority are not capable of running their own warden service as is implied in the amendment is unfair, and I am quite sure the local authorities will, as they have, in the case of so many other far more important services where employment dealing with the public is concerned, perform this function satisfactorily. Therefore I do not think it would be in order to have somebody from the Garda Síochána, such as a chief superintendent, coming in for the purpose of dealing with some unspecified offence which would result in the dismissal of a warden. Just imagine a warden being dismissed and the case being taken to either a rights commissioner or the Labour Court where there would be a certain amount of publicity and the only evidence would be that of the chief superintendent. How would he give his evidence? This is the sort of thing that should not be allowed. If they are employees of the local authority, the local authority should be responsible for dismissal, if dismissal is necessary.
The Minister, unfortunately, has a habit of attributing to people remarks which they never made. I never suggested in my remarks—and the record will certainly bear this out—that the local authority would be unable to run the service. What I said was that, in matters of discipline, the city manager, as I suppose it would normally be—in some instances it might be the county manager—would find himself inevitably in a difficulty in relation to disciplining a particular traffic warden.
Would Deputy O'Malley explain the circumstances in which he feels the difficulty would arise?
I think I have already explained this. If there is a conflict of opinion, for example, as to whether or not the activities of a particular traffic warden are improper or excessive or an abuse of his powers —and there may well be a bona fide conflict of opinion between the city manager on the one part, and the trade union to which the warden belongs on the other part—the manager may find himself in a difficulty in which the Commissioner of the Garda Síochána would not find himself if some conflict of opinion were to arise between himself and his officers, on the one part, and some member of the force, on the other part.
The Minister has said that Dublin Corporation, under the existing scheme, have been recruiting and supervising the wardens there; of course, the local authorities have not done this in any other part of the country; it has been done by the Commissioner with the wardens operating out of Garda stations. I would like the Minister to give us some idea how, in fact, Dublin Corporation have got on in this regard, because I would not have, and I suppose no Deputies would have, any knowledge of how these aspects of the employment of wardens by Dublin Corporation have gone. In particular, I have in mind the disciplinary aspect of it, whether any problems have arisen in relation to Dublin and, if so, the manner in which they have been resolved, because if the experience there was genuinely satisfactory, I would feel less need to push this amendment.
I can tell Deputy O'Malley that, strange as it may seem, there are no problems between the corporation and the wardens. The person who is aggrieved need not pay the fine.
That is part of the general law.
Yes, it is, but it does not mean that there has to be a dispute. They can go to court, as Deputy O'Malley is aware. There has been no difficulty such as he has envisaged with the employment of the wardens or need for dismissal of them with Dublin Corporation. There have been no disputes of that kind. Cork Corporation have employed 13 wardens recently for the purpose of their new ticket parking system and they employ them themselves. It is a relatively new thing. As far as Dublin is concerned, there has been no difficulty. I could see extreme difficulty arising in the event of an employee of a local authority being dismissed by somebody other than that local authority.
If a dispute does arise there is the necessary legislation which has been in existence for many years whereby they can take it to court, the Labour Court, or to a rights commissioner. The matter can be dealt with in the normal way that these things are dealt with. It would be an extremely dangerous thing to have somebody who had no connection with the local authority having the right—I assume from what Deputy O'Malley said the same right as with the guards—that he could just dismiss somebody if he felt he should be dismissed even though the manager felt that he should not be dismissed, because this is the only place where it would arise. If he should be dismissed the manager would take the necessary action and that would be the end of it. He would go to the Labour Court or he would accept the dismissal. What Deputy O'Malley is suggesting is, I assume, unless I am misunderstanding him, that in the case where this did not happen, where somebody, a chief superintendent of the Garda felt that somebody should be dismissed it would be right that he should dismiss him whether the manager thought that that was right or not. I could see extreme difficulty in the administration of it. So far, there have been no difficulties in the administration in Dublin.
On the basis that there have not been and in the hope that there will not be, with some misgivings I think we would be prepared not to press the amendment. Nonetheless, I am not happy and I know that the Garda Síochána as a body are not happy about this aspect of the Bill.
It is only fair to say that the Garda do not want this amendment under any circumstances. That I do know. They do not want one of their own people being responsible for dismissals only. It is only fair that that should be recorded. We already have said things about the Garda here today which will not be of any assistance to them in carrying out their duty. We should not hold them up as being ogres ready to strike off people's heads.
There is one point I should like to make in relation to what the Minister has said on the amendment and in relation to the Garda. The Minister will agree that this amendment would run with the amendment which was defeated in the House.
Yes.
Therefore, he would regard it as reasonable in the event of his having accepted the original amendment.
I put it the other way round. When the other amendment was not accepted I did not feel there was any merit in this one. If there had been merit in this one it immediately disappeared when the other one was defeated.
The Minister could hardly visualise any other situation if the original amendment had been accepted.
It was not accepted.
It was defeated very narrowly.
A miss is as good as a mile.
There were a lot of misses recently.
Amendment, by leave, withdrawn.
Question, "That section 2, as amended, stand part of the Bill", put and agreed to.
SECTION 3.
I move amendment No. 5:
In page 3, line 5, after "1973" to insert "which relates to the prohibition or restriction of the stopping or parking of mechanically propelled vehicles."
This amendment is in line with the Government's intention to confine wardens' functions to parking control with the addition, of course, of the offence of non-display of a current tax disc. A further amendment of this section is the deletion of subsection (9) which is no longer required in view of the amendment to section 1.
This is the same as section 2, subsection (2) (a)?
It dovetails with the one in section 2 confining it to parking.
I take it that the Minister would now accept that if these words had been inserted originally there would be much less contention?
I quite agree. I said it was in line with Deputy Faulkner's proposal. I do not want to be contentious. I could not see and cannot yet see why it is necessary. I am reasonable and when it was suggested by Deputy Faulkner that it would be necessary to have this I said I would look at it and I have done what he asked. That should be accepted in the spirit in which it was offered. I think it improves the interpretation of the Bill.
Amendment agreed to.
Amendment No. 6 has been discussed with amendment No. 1.
I move amendment No. 6:
In page 4, to delete lines 10 and 11.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
In subsection (3), line 25, there is provision for the affixing of a notice to a vehicle where an alleged offence has been committed and the wording is:
Where a traffic warden has reasonable grounds for believing that an offence to which this section applies, involving the use of a mechanically propelled vehicle, is being or has been committed, he may affix to the vehicle a notice....
In practice, what happens is that the warden finds a car parked somewhere where it should not be or parked in a place for longer than it should be and he affixes a notice. That is fair enough. The offence there is being committed but the clause immediately after that is "or has been committed".
It is taken out of the 1961 Act which gives the guards the powers to do this.
I accept that it is but there are a great many things in a great many Acts going back for a long time which on reflection, perhaps, should not be in them.
If somebody parks a car in a clearway, or something like that.
In that case the offence is being committed and there is no problem.
It was a clearway for a period and it has been cleared and the car is still there, it has been committed. The car has been there during the period. The disc was affixed to it immediately afterwards. The Deputy will agree that it is necessary to tie up all the points.
I agree, subject to this: in my view there should be some form of time limit because the words "or has been committed" could mean six months ago or it could be a week ago. It could even be the previous day. You could have a situation that a car was parked wrongly on a double yellow line, or something of that nature. No notice is affixed but it is noticed by the traffic warden who, for one reason or another does not affix the notice. The driver drives it a mile or two away and parks it outside his home. The traffic warden can affix a notice to it there in relation to an alleged offence which has been committed. That is wrong. I am not saying it is likely to happen very often but the fact that it is not likely to happen very often is no argument for having in the Bill a provision that would enable it to happen. It is wrong because there is no time limit of any kind. The only situation, I would suggest, where a notice can be affixed to a vehicle other than where the offence is being committed is in the very type of situation that the Minister mentioned himself. The offence has been committed because the circumstances had changed but the vehicle had not been moved, from where it originally or previously committed the offence by being there. If the vehicle had been moved, in my view it would be an abuse of the powers of the warden to affix a fine on the spot notice. A much more appropriate procedure in the kind of example I have given would be for the Garda Síochána to proceed by way of summons. It would be quite inappropriate in the circumstances outlined for a warden to use his powers in affixing a notice.
The owner has the option when the notice is affixed to let it go by way of summons.
There is no question but that a person always has the option; that is not in dispute, but if an offence were committed by a vehicle some hours previously, and a fortiori, some days before, that offence that may have been committed in the past should not be proceeded with by affixing a ticket, as it is called, but should be prosecuted by the Garda by summons. No time limit is established here; it could be as long as six months. Probably in practice this is not likely to happen very often but in a small locality you could have a situation where, if a warden had noticed an offence at a certain time when perhaps he was not on duty or did not have any tickets with him, but goes to the person's house the following day, finds the car parked there and then affixes a ticket in relation to the alleged offence of the previous day. That would be unsatisfactory. It should not be open to a warden to do that. Under the phraseology of subsection (3) I fear it would be open to the warden to do this. Therefore, although we have no amendment as of now, I think an amendment should be put down either by the Minister or by us with his agreement for the Report Stage which would limit——
I would hope to get all Stages today but I would consider it for the Seanad if the Deputy wishes.
Does the Minister agree that the point seems to be valid, that there should be a limitation? Telling me he will consider it for the Seanad is no use. It might be forgotten between here and the Seanad.
I do not forget anything. Poor Aunt Sally is getting a terrible bashing today. As the Deputy says, the possibility of this happening is very slight and it is existing law for both guards and traffic wardens that is involved. We have no complaints of anybody going about looking for somebody against whom he has a grievance and putting a ticket on his car six months after he was alleged to have parked in a restricted area. This is necessary particularly because of clearways. Possibly, the Deputy says, a time limit could be imposed. I do not know if this is necessary and it does throw the whole matter of the validity of this provision into question. If it had to be amended now, one would probably end up with a court case. If by any stretch of imagination what the Deputy suggests did happen, I do not think anybody would accept a ticket put on his car six months, or even a week after it was alleged to have been parked somewhere. I believe such a person would go to court and I am sure the matter would be dealt with pretty quickly.
As of now, I cannot see any merit in the Deputy's suggestion but if he is prepared to accept this I shall have the matter fully investigated in the Department and see if (a) there is merit in it and (b) if it has merit, is there a way in which it can be dealt with. I am prepared to consider putting in an amendment for the Seanad.
The amendment could be a very simple one, to insert after the words "has been committed" words such as "within the last six hours" or "four hours" or "two hours", whatever period would be considered reasonable. The fact that this provision in this form is in the existing law is no argument for perpetuating it. There are many things in many Acts which, on reflection, everybody probably agrees should not be there and, in practice, these are frequently discovered to be unsatisfactory.
Would the Deputy agree that the fact that it is in the existing law since 1961 and has never caused a problem is still evidence that it is not too dangerous——
That is a fairly sweeping statement. The Minister would probably not be in a position to know if it has caused a problem. One reason why it has not caused any widespread problem very probably is that, for the most part, the law up to now in relation to these matters has been administered by the gardaí rather than by traffic wardens and the general experience of the public who come in contact with both is that the Garda Síochána have a higher degree of discretion and tend to——
Traffic warden bashing —it is closed season for traffic wardens and the Deputy should leave them alone.
Would the Minister hear me out? I am saying that the gardaí are well known to believe to a greater extent in the application of the spirit of the law rather than the strict letter of the law. Part of the reason why there may not have been complaints about this in the past is that the gardaí would not, after any interval at all, affix a fine-on-the-spot notice. They would proceed by way of summons if they thought it appropriate or necessary to prosecute. It is not open to the traffic wardens to proceed by summons in matters like this. Their only power would be to affix a notice. I am satisfied that affixing a notice after a significant interval has elapsed is wrong. Unfortunately, it is open for that to happen here. I think the situation should be changed and this could be done by a very minor amendment—and if the Minister would agree it could be taken now— to insert after the words "has been committed" some words to the effect of "within the past three hours" or whatever period is considered appropriate.
That might create a difficulty in a very short time.
Even 12 hours.
There is a problem here. Suppose somebody parks a car or lorry on Friday night and leaves it until Monday morning. The traffic warden finds it still there at 10 o'clock on Monday morning. The action of parking took place two days earlier.
But the offence is still being committed on Monday morning.
It is the parking that creates the offence.
It is the waiting, I think.
Has the Minister any idea why this phrase was inserted in the original Act because the Minister refers to clearways which were not in existence then?
No. I assume that when the measure was being introduced it must have been considered by the legal sections of the Department of Local Government and the Department of Justice that this was the proper way to do it. That being so, I cannot see what is wrong with it. I could understand the argument if this was something likely to cause trouble and while, as Deputy O'Malley says, I have no way of knowing that trouble has not been caused, I do not think that a person appointed as a garda or a traffic warden would be so vindictive as to go after somebody and put on a ticket on his vehicle hours afterwards. The whole matter of the discretion used by traffic wardens is something local authorities should provide for when appointing traffic wardens. I have read several excerpts from Dublin Corporation's advertisements. Dublin Corporation have training sessions where they advise wardens what should be done in certain circumstances. A warden guilty of putting on a ticket hours after the person had left the scene would find himself in very serious trouble with those who employ him. I do not think we need to worry too much about this for the reasons I have given.
Up to now, as far as I can recall, the position was that where the warden had reasonable grounds for believing a person had committed an offence he affixed the notice to the car. We are in a different situation here where the warden may serve the person with notice. This makes a considerable difference.
That was always the position.
We agree with the section subject to the Minister having a look at the points we made in relation to past offences and, hopefully, that he will put down an amendment. Subsection (8) states that moneys accruing to a local authority under this section shall be disposed of in accordance with regulations. Will the money be paid into the funds of the local authority?
Yes, in the same way as parking fees. The first charge on such moneys is for the payment of wardens and after that it goes into the funds of the local authority.
Will it be used by each local authority for their own roadwork purposes?
Yes, including traffic management.
Question put and agreed to.
SECTION 4.
Amendments Nos. 7 and 8 are cognate and may be discussed together.
I move amendment No. 7:
In page 4, line 12, after "a traffic warden" to insert "in uniform".
I pointed out at Second Stage the reason why I should be moving this amendment. Subsection (4) states:
Where a traffic warden requests or demands information of a person under this section, the person shall not be bound to comply with the request or demand unless the warden produces, if requested by the person, official identification of his identity.
I pointed out earlier that this leaves it open to any person to request this information from the traffic warden. If a member of the public is not aware of his rights and does not know he is entitled to request the warden to show his identification, a very strange and difficult situation could arise, one which we should not tolerate. This amendment would overcome that difficulty.
I am not prepared to accept the amendment. The effect of the amendment is to ensure that traffic wardens would be in uniform in the course of their duties. It is not considered advisable to specify in the Bill that wardens should wear uniforms. If "uniform" is to be included, the exact type would have to be specified—we would have to give a detailed description of colour, type, length of jacket and so forth. This would lead to an unnecessary cumbersome procedure. At present the colour of uniforms worn by wardens in Dublin and Cork is brown but some local authorities may wish to use a different colour and it may be advisable to have a uniform colour throughout the service.
There may be different opinions on this point. Under the conditions of their employment in Dublin, it is stipulated that wardens must wear uniforms while on duty, and what can be done administratively by one local authority can be done by others. In any event, it is considered undesirable to specify "uniform" in the Bill. It is a matter entirely for local authorities and I should be surprised if any local authority would not have a particular arrangement. I am sure local authorities will ensure that wardens will have some kind of identity. Some local authorities may not be in a position to provide full uniforms. They might decide on an arm band or something like that. Of course the public are protected by the right of a person to request identification from a warden.
I am afraid this leaves the legislation rather loose. Would not the Minister agree that the vast majority of those who commit traffic offences would be unaware of the fact that they could request official identification from the persons who ask them for their names and addresses? As the Bill is, people who are not traffic wardens might, perhaps for undesirable reasons, go around asking people for their names and addresses.
Would the Deputy look at subsection (4):
Where a traffic warden requests or demands information of a person under this section, the person shall not be bound to comply with the request or demand unless the warden produces, if requested by the person, official identification of his identity.
I am fully aware of that. The point I am making is that most people will not know and do not know now that they can request this information from traffic wardens.
When traffic wardens were established they were not dressed as they are now. In some places they had simply a cap and jacket. There are numerous people in important jobs of protection duties who wear arm bands and caps. If local authorities, particularly small ones, are to set up warden services I am sure they will not be anxious immediately to start talking about providing full dress uniforms for them. Some local authorities might employ only three or four. Some wardens might be small, might leave their jobs, and the local authority would be forced to buy more uniforms for bigger recruits. I think we are over-playing this. If we leave it, ultimately it is a matter which will settle itself as it has in Dublin and Cork. I do not think we should make it compulsory as Deputy Esmonde has so rightly said. We do not have to be terribly well up to know our rights. We will not give our names and addresses to a person unless we think he is entitled to have them.
The Minister put forward the practical point that some of the uniforms might be big and some might be small. The uniforms do not all have to be the same colour, nor is that what Deputy Faulkner is requesting. He is requesting a standard. I would hope that a uniform as such will be used.
In the course of their duties the Garda wear uniforms with numbers which make them readily identifiable in case a member of the public wants to issue a complaint. This is the case in the cities. In the country people would be likely to know who the wardens were. In the cities where they would not know them personally, there should be some way of identifying them.
I see Deputy O'Kennedy's point. The only thing a traffic warden can do is put a ticket on a car or ask for a name and address. If the person is dissatisfied, he can go to court. It does not cost him anything until he goes to court. I agree with what Deputy O'Kennedy and Deputy Faulkner have said. My personal preference would be that all traffic wardens should wear the same uniform.
That is not Deputy Faulkner's suggestion. He is talking about a uniform.
I believe it would be better if all traffic wardens were dressed the same so that when people saw them they would know they were traffic wardens whether they were in Galway, or Dublin, or Mullingar. Before a traffic warden can be employed a supply of uniforms must be available. I should like to see this Bill in operation pretty quickly. I have had experience of unnecessary traffic jams in the past few weeks caused by people who persisted in parking illegally. The only people who will be affected by this are people who break the law deliberately. This would hold up the whole idea of instituting a traffic wardens' system for a longer period. I should like to see the Bill passed as it is. I am quite sure that provision will be made by local authorities to ensure that their wardens are identifiable.
Could we ensure that there would be an outward identification? It is not sufficient to say that, if a person is not satisfied that the person interrogating him is a warden, he can request his official identification.
I will be giving instructions to the local authority as to how they should operate this Bill. The question whether there should be a stipulation that they must all wear a uniform could be considered. I do not think it should be insisted on from the start. Possibly it could be insisted that they should wear an arm band or a cap or something like that which would identify them. I would agree that possibly this would be of assistance and I would be prepared to consider that.
From the point of view of presentation and regularity it would be more effective in relation to public reaction that they should wear a uniform. A person with an arm band or a cap, and the proper authority under this Bill, could present himself and the public reaction to such a person might not be what the Minister would wish. We would all like to see our public officials properly presented. Apart from hygiene and presentation, this would guarantee the proper public reaction. The argument about external identification by numbers particularly in the cities is a question of the individual's right.
They have numbers in Dublin.
I hope the Minister will consider that so that the system will work effectively and in the interests of the private citizen
I see the point.
These two amendments are very important in spite of what the Minister says. "A person who obstructs a traffic warden acting in the course of his duty shall be guilty of an offence..." The Minister said a person is entitled to demand official identification. In practice, the demand will be too late and the offence will have been committed. Obstruction of a traffic warden usually consists of some remark being made to him when he approaches a motorist. In practice what will happen is that a traffic warden not in uniform will approach a motorist and say something to him to the effect that he should not be parked there, or where is his tax disc, or why did he not pay his tax, to which the reply will be: "What the hell has it got to do with you? Go to blazes", or words to that effect. The traffic warden then announces for the first time that he is a traffic warden. The person asks for identification. He gets it presumably, but the offence has been committed and the person is liable to conviction.
It is elementary to ask that traffic wardens on duty should wear a uniform particularly if you are creating the offence in legislation of obstructing a traffic warden. It is totally unreasonable to create that offence in relation to a warden who is not in uniform and people are not in a position to know he is a warden. I said several times that it is not enough for the Minister to say he will tell the local authorities to ensure that he wears a uniform. That is not legislation. Legislation is what is here in front of us. If we pass this Bill as it is, there is nothing to compel a local authority to put any of their wardens into a uniform and offences can be committed by unsuspecting members of the public who would not have committed them if the traffic wardens had been in uniform.
In considering a matter such as this we have to think of the rights and interests not just of Irish citizens and Irish residents but of foreigners as well. The variety of uniforms of one kind or another which they may see is extremely confusing to foreigners. If every local authority are to have different uniforms for their traffic wardens foreigners, in particular, as well as many Irish people will be totally confused. If some local authorities are to have no uniforms at all, what chance have foreigners, whatever about local residents, of identifying them? What is the attitude of tourists likely to be in a situation such as that? It is quite unreasonable that this type of situation should be forced on them. It is very elementary that the simple words "in uniform" should be added on the two occasions in this section where they arise after the words "A traffic warden".
I pointed out to the Minister that the offence of obstructing a traffic warden or, under subsection (3), of refusing to give the name and address, will have taken place before the citizen had the opportunity, even if he knew all his rights, of discovering that the man he obstructed or allegedly obstructed during the course of his duties was a traffic warden and was on duty.
But would the same situation not arise with a plain-clothes member of the Garda Síochána?
As he approaches the person he produces his identification, as he is bound to do. If he is on duty he must say he is a member of the Garda Síochána on duty and produce his identification. You have then the situation that the warden has to be acting in the course of his duty and, if he is not in uniform, it will be very confusing indeed for the average motorist, whether Irish or foreign; the motorist will not know, first of all, whether or not the man is a warden and, secondly, whether or not he is on duty. Surely a simple provision that he be in uniform before this offence of obstructing is committed is a basic one and I would recommend it strongly to the Minister. His argument about uniforms not being available is just not good enough because presumably no local authority will order a whole pile of uniforms before recruiting these people. The wardens will have to be measured. The uniforms will not be available for two or three weeks, or whatever time it takes to make uniforms, and they will not be ordered, I hope, before these people are appointed. Each uniform will have to be made to measure.
The Minister's arguments in relation to the problems that would arise are equally valid in relation to the Garda Síochána. Certain members are not expected, or are not allowed in some instances, to wear a uniform while other members have to wear a uniform when on duty. Before a person is put in the position here of committing an offence by obstructing there should be a proviso that traffic wardens must be in uniform.
Let me remind Deputy O'Malley again that this was not covered in the Bill produced by his party. According to Deputy O'Malley, that has no bearing, but it does show a change of thinking.
It does not and that is why we are having a Committee Stage here. That remark is in no way relevant and the Minister knows that.
Three Ministers in a previous Government approved of this without uniforms being included and now they say this will not work.
The likelihood is that none of the three of us ever saw it. The Minister thinks we did nothing in the last Government except worry about traffic wardens.
The Minister also knows that a Cabinet discussion on a Bill of this nature, even if the three of us were present, is a totally different matter from a Committee Stage discussion in this House. The Minister should not make a point like that.
He has no other points to make.
I shall not labour it but it is my personal opinion that there should be some visual method of identification. If I were to write into the Bill that traffic wardens shall wear a type of uniform two of the Members across the way would have great sport in the courts arguing as to whether or not the uniform was or was not of the type laid down in the Bill. What I propose to do is instruct local authorities that there must be some type of identification worn and there must be a number worn to ensure the traffic warden is identifiable. I assume local authorities will eventually have standard uniforms but I am not prepared to accept an amendment writing into the Bill that a uniform will have to be worn because, following on that, we would have to say the type and so on. I do not think this is reasonable. I am giving an assurance now to the House that I will instruct local authorities to have some method of identification. That is as far as I am prepared to go.
Would the Minister be prepared to consider in the Seanad an amendment ensuring some form of outward identification?
I assure Deputy Faulkner and his colleagues that I will give this instruction about some form of outward identification but I will not provide what that identification must be because that again might give rise to arguments in court as to whether or not the identification was sufficient. There could be all sorts of difficulties.
I accept the Minister's word but, as I listened to Deputy O'Malley, I became more convinced than ever of the need for what he and Deputy Faulkner are proposing. I am thinking particularly of tourists. It is important there should be standardisation in this area. We must do all we can to avoid difficulties. You could have 20, 25 or 30 different types of uniform and that would certainly not help the tourist who might unwittingly break the law. If that is ensured against then I will be satisfied. The reason for having uniforms is for the purpose of standardisation. There is a later section under which the Minister can make regulations and I cannot see why the Minister could not prescribe by way of regulation that there should be a specified standard type of uniform. That would be more effective and expeditious from the point of view of what the Minister wants to do. There might be a few weeks delay. I would certainly hope there would not be different types of uniforms or different identification from local authority to local authority. Compare this with the position in European countries and you quickly see the arguments in favour of a specified uniform throughout the country are quite overwhelming. I accept the Minister's word but it is not sufficient.
I am prepared under the section mentioned to try to tie this up but, quite frankly, I am still not convinced we should stipulate in the section that there must be a type of uniform because this could cause trouble. Regulations can be made. My personal preference is, as I said, for a uniform uniform. In the meantime it may be necessary to have a cap and armbands and a number until we get fully away. With large authorities there would not be much difficulty but there could be extreme difficulty with small authorities.
The Minister will agree it is undesirable a person would have authority to interrogate someone else without having some identification.
He would have his identification, visual identification.
The Minister has not replied to the points in regard to a person committing an offence before he can ever become aware.
If the traffic warden is wearing a cap and armband that should be sufficient identification and I propose to deal with that under section 6. We are dealing here with section 4. Deputy O'Malley is anxious to keep this debate going as long as he can. If his two colleagues are prepared to accept something as reasonable I do not see how he can find is so unreasonable.
Unfortunately I have not, as a matter of principle, ever taken part in Committee Stages on Bills dealing with the Department of Local Government. One of the reasons for this is because of certain things I have been told. Rather tragically, on this unimportant Bill, I have found that what I have been told is true.
I object profoundly to these remarks. My record in this House is better than that of the Deputy's. I can get on with anybody here so long as he is reasonable. I have proved that today by accepting reasonable amendments, but I do not want any smart alec remarks from the Deputy.
Every word uttered underlines more strongly what I was told. Therefore, for the course of this Dáil, I shall not deal with any further Committee Stage business concerning the Department of Local Government.
I reiterate that under section 4 a person can commit the offence of obstructing a traffic warden who is not in uniform, without knowing that that person is a traffic warden. That is unreasonable and unfair to the average citizen or non-citizen. There is no obligation under this section that the traffic warden should wear a uniform. The Minister says he will instruct them to wear uniforms and I have no doubt that he will do so but they are not necessarily obliged to comply with such a direction. It may happen that some traffic wardens may decide not to comply with the direction but they would still be within the terms of the section. A citizen could be charged with the offence of obstructing a traffic warden without ever having had the opportunity of knowing that the person concerned was employed in that capacity. It would be too late for identification to be demanded and produced subsequently because the offence would have been committed, and committed unwittingly and unintentionally. That is wrong, and the fact that the Minister proposes at some subsequent date to direct the warden to wear uniform is of no value to the person charged with the offence of obstructing one of those people.
There has been discussion as to the advisability of having a certain type of uniform for the whole country. This is not relevant. All the amendment seeks is to insert the words "in uniform". What that means can be covered subsequently by regulation, but it has to be a uniform of a type that would make it easy not only for Irish people but for foreigners also to identify a person as a traffic warden. The Minister has spoken of the possibility of some traffic wardens wearing caps and armbands. That would be totally inadequate. It would be little better than no uniform. A person who, to many motorists, will appear as an ordinary private citizen, may approach them and make remarks which will cause motorists, in replying, to commit the offence of obstructing a traffic warden. That remains the position and it is immaterial that the Minister may, under a subsequent section, advise local authorities to ensure that traffic wardens wear uniform.
There is no obligation under section 4 (1) for the traffic warden to wear a uniform so that the offence of obstructing one of these people can and, presumably, will take place by citizens who are not in a position to know that they are speaking with a traffic warden. If we are to create offences which people can commit, it is elementary that the people concerned should be put in the position of not committing the offence unless they know clearly that the person is a traffic warden.
If somebody obstructs a garda who happens to be in plain clothes, it is accepted frequently by the court as a valid defence that the defendant did not know that the person he was obstructing was a garda.
Would Deputy O'Malley like to define a uniform?
I do not think that there is any precise definition of a uniform in the Garda Síochána Acts.
I am not talking about the Garda.
It is not necessary to define a uniform.
Of course it is.
I presume that each local authority could, unless the Minister instructed them to the contrary, have different uniforms but at least these would be recognisable as uniforms. It is not a question of whether everybody wears the same type of uniform. It is a question of it being wrong that any citizen or non-citizen be allowed to commit an offence in circumstances in which he would not have known that the person he was obstructing was a traffic warden.
As I said earlier, the courts would have a field day in attempting to define what was a uniform. Deputy O'Malley knows well that attempts have been made here and elsewhere to define what is a uniform but that these have not been very successful. In response to what Deputy O'Kennedy said, I have indicated my preparedness to stipulate that traffic wardens must wear some outward evidence which identifies them specifically as traffic wardens. However, I am advised that if I were to include this in the Bill, it would be necessary to specify what that uniform should be. I am prepared, when giving the instruction to the local authorities, to stipulate (1) that traffic wardens wear apparel which is outward evidence that they are wardens and, (2) that they will have a distinct number by which they can be identified. I cannot go further than that.
I wish to put my own position clearly on the record. When I suggested that section 6 would allow the Minister to make regulations by order I was thinking of the nature of the uniform. The principle is still the same. That is the principle enunciated clearly by Deputy O'Malley—that traffic wardens wear uniform. I accept what the Deputy says.
I misunderstood Deputy O'Kennedy.
In relation to the Minister's remark as to the courts having a field day, Deputy Esmonde or any lawyer can tell him that in relation to a phrase such as "in uniform", the courts will give it its ordinary meaning. It is not necessary to define in an Act what is meant by "in uniform". It is a term in standard usage and will be interpreted by the courts as such. What is being sought by Deputies O'Malley and Faulkner is reasonable. It would be for the Minister subsequently in the regulations under section 6 to deal with the matter as suggested.
Before Deputy Faulkner speaks, I should like to inform the Deputies opposite that, unfortunately, it is necessary for me to be in another place for a couple of hours and that the Parliamentary Secretary will stand in for me.
The suggestion was made that we would accept the section as it is and forego the amendments which were put down. Deputy O'Malley has made a very strong case for the use of a uniform by the traffic wardens on duty. I felt perturbed about this aspect of the matter when I dealt with the Bill on Second Stage. I still feel the same way about it. I asked the Minister if there would be any way in which he could consider amending the Bill in the Seanad. I still press that particular aspect of the matter.
As I understand it, the Minister is not prepared to accept the amendment unless the uniform is distinctly designed with regard to buttons, caps and so on.
Does the Parliamentary Secretary say that if we distinctly design the uniform the Minister will accept the amendment?
He probably would look at it more favourably.
The Minister might find himself in difficulty there. It might be necessary in foggy country such as Deputy O'Malley has in Limerick for the traffic wardens to have a luminous sign.
Deputy Esmonde's remarks have brought great enlightenment.
It might be necessary in Limerick in certain weather.
I would not feel happy to have a situation where a person without any identification would have authority to ask questions. That is why I ask the Minister to consider amending the Bill before it goes to the Seanad if he is not satisfied with the wording we have laid down in the amendments before the House.
I will ask the Minister to take a look at it before it goes to Report Stage. If the Deputy is prepared to accept that, that is good enough.
The Minister has said that he wants the Report Stage today.
That is not so.
That is the impression we had.
There is no hope of the Report Stage today. The amendment is not accepted.
The remark just made by the Parliamentary Secretary is uncalled for.
There was nothing derogatory about the remark. If there was, I withdraw it.
We are in a very unfortunate position. The discussion on the amendment has made considerable progress but the Minister has had to excuse himself. I appreciate that the Minister is involved in his ministerial position in regard to a court case. The business immediately following this is further local government legislation. We know that the Minister will be asked by the Parliamentary Secretary to have a look at this but the Minister had an opportunity to do so a while ago. I came into the House because I heard the Minister abusing Deputy O'Malley who was making a legitimate point. I knew why he was abusing him and I knew he wanted to get away.
The House will decide whether the amendment is being pressed.
It is.
The two amendments are allied. They will have to be taken separately for the purpose of putting them to the House.
Question put: "That the amendment be made."
The Committee divided: Tá, 54; Níl, 58.
Tá
- Barrett, Sylvester.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Carter, Frank.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Cronin, Jerry.
- Crowley, Flor.
- Cunningham, Liam.
- Daly, Brendan.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Gibbons, James.
- Haughey, Charles.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bruton, John.
- Burke, Joan T.
- Burke, Liam.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Connell, John.
- O'Donnell, Tom.
- O'Leary, Michael.
- Pattison, Seamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Ryan, Richie.
- Spring, Dan.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- White, James.
Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and B. Desmond.
Amendment declared lost.
Is amendment No. 8 agreed?
Agreed.
Withdrawn?
I understood the Chair to ask was the amendment agreed and we said it was.
Is the amendment withdrawn? Is that agreed?
The Chair is now asking that we withdraw it.
Amendment No. 8 not moved.
Section agreed to.
SECTION 5.
Amendment No. 9 in the names of Deputies Faulkner and O'Malley.
On a point of order, before Deputy Faulkner starts, the Minister stated that he had to go to another place at 2 o'clock but, ten or 15 minutes later, he turned up for the vote. If he is in the House would not it be preferable that he take over the Bill again?
As far as I know the Minister looked for a pair and was refused it; that is what I understood.
A Deputy
Rubbish.
Could we hear the situation in regard to the Minister; is he available now?
As I understand it, the Minister is on his way to the High Court to give evidence in a case in which he, as Minister, is the defendant. He happened still to be in the House having a very rapid lunch when the bells rang, I brought him into the Lobby, asked the Opposition Whips whether, notwithstanding their agreement to cover his absence, he might vote and they said "yes". I would imagine he is now finishing his rapid bite and is then off to the High Court.
I move amendment No. 9:
In page 4, line 31, after "authority" to add the following:
", save that offences under section 3 (5) or section 4 of this Act shall not be prosecuted without the consent in writing of the Superintendent of the Garda Síochána in whose district the offence is alleged to have been committed".
Might I refer, first of all, to section 3, subsection (5). My first inclination in relation to this was to move the deletion of the subsection because, in my view, this power can be properly exercised only by the Garda Síochána. As it stands it seems to me to be completely unsuitable to this Bill. It would be worthwhile contrasting the subsection with the other subsections of section 3. If this is done it will be clearly seen that it stands out on its won, apart altogether from the scheme of the Bill. The other offences, apart from this one and the related ones in section 4, are in relation to parking offences and to tax discs. The offence outlined in section 5 refers to quite a different offence. I feel that the safeguards we are asking for here are reasonable. I believe what we are proposing will bring the matter into line with the existing legislation, particularly section 103 of the Road Traffic Act, 1961.
Liability for prosecution for offences by local authorities is not new in local government law. Under the Housing Act, 1966 and the Planning and Development Act, 1963 housing or planning authorities may prosecute for offences under these Acts. For this reason I am not prepared to accept the amendment.
The point made by the Parliamentary Secretary has no validity whatever. It is a joke to come in and make that point. We all know that local authorities have been able to prosecute. They have been able to do so as far back as the Public Health Acts of the 1860s and the 1870s and, perhaps, even before that. That is no answer to the argument at all. We object to saying that they shall be entitled to prosecute for offences that are not simply parking offences or tax discs offences but are quasi-criminal offences, such as the ones set out in section 3 (5), the removal of an affixed notice and the two offences under section 4, obstruction of a traffic warden and refusal of a name and address.
These are, at the very least, quasi-criminal offences. They are the sort of offences which should not be prosecuted without the knowledge and approval of the Garda. The Garda, because they are criminal or at the least quasi-criminal offences, should be consulted about them and should approve of the prosecution being taken. I would prefer to see the Garda actually take part in the prosecution of the offences afterwards in court. Even if they did not any prosecution for such a criminal offence as obstruction, refusal to give a name and address or removing notices, should certainly have the imprimatur of the local officer of the Garda Síochána.
These are not just trivial matters where the person can pay £2, if he wants to, or, if he does not, go to court. These are not just technical matters, whether or not an offence is committed and there is no great question of mens rea or anything of that nature. These are criminal or quasi-criminal charges and it is not right that they should be prosecuted by a local authority without the consent and imprimatur of the local officer of the Garda Síochána, who would be the superintendent for the district in which the offence is alleged to have been committed.
There is the fisheries code under which prosecutions are brought up without consultation with the Garda authorities and for which there can be quite serious penalties. This is under the 1959 Act and that can be done by the boards of conservators. There can be a penalty of £100 and more.
If there is an assault the normal procedure is for the State to prosecute. Deputy Esmonde must be aware that fishery boards, particularly the bigger ones, have considerable experience of these matters and they employ solicitors who advise them on the propriety or otherwise of the particular prosecution. There is no proviso for that here. The warden can bring the prosecution in the name of the local authority.
The local advisers in the other codes have to be advised by solicitors, as far as I know, before they take up a stand.
In practice that is always done, but solicitors will not be involved on behalf of local authorities who prosecute in relation to those petty offences. Those offences are far too trivial to warrant that. If there was some proviso that the local authority solicitor would have to approve of the prosecution that would be all right with me, but assuming solicitors are not being brought into it the very least that should be done is that the local officer of the Garda Síochána will give his approval. He may not subsequently take part in the prosecution. I would prefer if he did but that would not be necessary and presumably would not be done. At least he should give his authority to the bringing of a prosecution, not for the trivial offences of parking and tax discs, but for the criminal or quasi-criminal offences of obstruction, refusing to give name and address, removing notices and things of that kind.
That proposal would surely run contrary to what this Bill attempts to achieve, that is to alleviate unnecessary and burdensome duties of Garda Síochána officers. As the Deputy knows, as a practitioner going into the district court, these come in as rafts of petty offences and charges and they are dealt with rather like cases of no lights on a bicycle. It is ridiculous tying up officers of the Garda Síochána in that type of work. This view has long been held by the legal profession and the Garda authorities.
I am sure Deputy Esmonde understands, as I made it clear, that we are not talking about the rafts of petty offences but about the occasional serious offences. I made it clear that there is no question of the superintendent being consulted about prosecutions for, as the Deputy rightly says, the rafts of trivial offences, such as tax discs, parking and that kind of thing.
Section 5 and the amendment to it apply only to offences under section 3 (5) or section 4. There are only three offences we seek to cover in this way to protect the citizen. They cannot arise very often. Some local authorities might perhaps have only one or two in a year.
Another aspect of this, which might be read into the Deputy's amendment and his approach to it—I do not think the Deputy intended this—is that a district justice who would be trying the matter is a rubber stamp and a pro prosecution individual in relation to matters like this. If the Deputy says these have a certain element of seriousness I would imagine they would require exact proof. I would imagine a district justice would know what to do in the circumstances. Even though it was brought by a traffic warden, some local authority or whoever brings the complaint it would have to be proved accordingly. As the Deputy knows the general attitude of incumbents of the benches is that if there is a serious aspect in a case it is dealt with on a serious basis and requires very strict and proper proof and investigation.
There are two distinct categories of cases. There is one which is not proved to the satisfaction of a district justice and is, therefore, dismissed. Naturally one assumes and expects that a district justice would dismiss a case that is not proved. The district justice has to do it but there is another category, the case that should never have been brought. The Garda superintendent or the local authority solicitor would be in the best position to judge whether or not a case should have been brought. From time to time cases are brought before a court which should never have been brought. Needless to say they are dismissed, but that is not enough. A citizen is entitled to protection against a prosecution in circumstances that he should never have been prosecuted.
If a man of experience like a Garda superintendent is involved in these matters he knows when not to prosecute. It is not enough for the citizen simply not to be convicted.
Surely in a matter like this where there is a serious aspect involved it is odds on that a local authority will get advice as to whether they should institute a prosecution or not?
The warden may bring a summons without consulting the local authority.
He may, but that often happens in the case of gardaí. Often they bring prosecutions without consulting their superior officers.
Gardaí are trained in these matters.
They are to a certain extent. We can have the situation of young guards shortly after leaving the training depot issuing summonses. After all, these people undergo a course of training before they go out. That has been the practice so far.
I am in a peculiar position in relation to this amendment. As a member of a local authority I can envisage situations where traffic wardens will have a great deal of consultation with the law agent of a local authority in future. I can envisage some chaotic confusion emerging. Nevertheless, I wonder does Deputy O'Malley want to put Garda superintendents in an invidious position in relation to this section. My view is that the Bill is there. I look forward to the day when my constituents will be asking me to make representations to the law agent to have prosecutions deferred.
That is a criminal offence now.
I am acutely aware of that and I hope my constitutents are also.
Mine are not, unfortunately.
The Deputy is excluded because the constituents go to him for legal advice. He is excluded from the provisions.
This is why, as a member of a local authority I have expressed my unhappiness about sections of the Bill. I am not so sure at this stage of the Bill that Garda superintendents will be desirous of having under the Bill to give consent for the prosecutions in the limited areas envisaged. As public representatives we all know of the enormous complexities of prosecutions in relation to obstruction and in relation to fracas between citizens and gardaí over parking or other traffic offences. One can envisage an appalling burden being placed on the Garda superintendent where not only has he to give his consent but he has to do so in writing. In effect, I can see a double-barrelled system being set up of tremendous bureaucracy and complexity. I should like to know how many superintendents, bearing in mind the implications of certain sections of the Bill, would be happy to tell the traffic wardens that it is their privilege and to consult with their law agent. Having had certain responsibilities removed from them the Opposition would be unwise to impose other responsibilities on Garda superintendents. This is a personal reaction but it is one the Opposition should seriously consider.
In putting down this amendment our main objective was to ensure that the prosecutions brought by the local authorities would be confined to parking offences and offences in relation to tax discs. The other offences in the Bill are different, and these should be dealt with by the garda authorities rather than by the local authority. While we accept that the local authority can prosecute we are asking that the consent in writing of the Garda superintendent should be obtained prior to arriving at a decision to prosecute. This is reasonable because the purpose of the Bill is to deal with traffic offences. We should only be concerning ourselves with prosecutions for this type of offence and not broadening the scope as envisaged in the Bill. I know there are similar situations in other walks of life where local authorities can prosecute but it does not necessarily follow that it is the best system.
On many occasions today arguments were put forward that certain sections in this Bill were taken directly from other legislation but, as Deputy O'Malley pointed out, that does not mean that those sections were as good as they might be or that they were necessary. The case made by Deputy O'Malley is a reasonable one and, to some extent, it was accepted by Deputy Desmond. Deputy Desmond mentioned that the Garda superintendents might not be anxious to have these extra duties, but I am not sure that that is so. Our aim should be to ensure that the prosecutions by the local authorities should be related to the offences which deal with parking and tax discs.
I must point out again that the decision to prosecute lies with the authorities, subject to consultation with the Garda. Deputy Faulkner omitted to mention that the Department of Local Government can institute prosecutions. The side note to section 67 of the Housing Act, 1966 says a housing authority may:
affix notice of serving repairs notice, making closing order or demolition order...
Subsection (3) reads:
A person who defaces a notice affixed under this section, or who, without lawful authority, removes the notice, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding twenty-five pounds.
Section 116 of the same Act states that an offence under the Act may be prosecuted by the housing authority. We cannot accept the amendment because it implies that the local authorities are either incapable or irresponsible.
We are grateful for the Parliamentary Secretary's intervention. He does not intervene as often as his Minister, but nevertheless I cannot feel that the points he has made bear any great analogy to the matters under discussion here that are covered by this amendment. He talks about prosecutions which local authorities are empowered to bring, and they have been, as I pointed out earlier, since the 1850s and 1860s, empowered to prosecute in relation to various public health, housing and similar matters, and it is not just in the last ten years. However, in every such case the prosecution is brought by the local authority on the authority of the manager in consultation with the local authority solicitor, and there is little or no fear of any abuse of the prosecuting system in that way.
Here it is a different matter altogether. Here there are wardens who will operate at a comparatively low level in the local authority hierarchy and who will not go to the manager for sanction or, apparently, to the local authority solicitor for guidance in every prosecution they take, because there would be hundreds of them. But there are certain categories where it should be written in that either they get the consent of the superintendent of the Garda Síochána or, alternatively, of the city manager or the local authority solicitor. I am not just confining it to the Garda Síochána superintendent. What we want to ensure is that someone responsible and in a senior position and with experience of these matters would authorise the prosecutions not for the trivial things that arise out of this Bill but for the three serious or reasonably serious things which arise under it and which are quite different from the local authorities prosecuting for breaches of orders or something of that kind.
The warden cannot prosecute. It must be the local authority who prosecute.
Yes, but as I pointed out the city manager or county manager will not himself make a decision in relation to each one of these things. The warden sends out a summons in the name of the mayor, aldermen and burgesses, or whoever it is. The manager presumably will not deal with 500 or 1,000 or 1,500 parking offences in Dublin every morning. If he does, he will have no time to do anything else.
It is a reflection on our county manager.
Could I direct attention to the word "may" which leaves the position that the general Garda supervision is not excluded? It says: "the local authority may". My reading of it is that if a warden is obstructed in the course of his duty, which Deputy O'Malley says is a serious offence—we might have different views on that—it is unlikely that a warden will take that upon himself. He will go along to the local authority solicitor and say: "I have been obstructed." This is different from the normal parking ticket case. The warden will soon find out that if he goes in and does the thing on his own he will come off worst. He would be far better off to get advice before he moved in a matter like that. I am sure Deputy O'Malley and Deputy Faulkner know that obstruction can take various forms: it can be a belt of a fist or a kick of a boot or just a few words telling him what to do with himself.
Deputies Esmonde and Desmond know we are right, but they are sent in here on behalf of the Parliamentary Secretary to keep the matter going. They are doing as nicely as they can. The Parliamentary Secretary is not the best at this. They are doing very nicely. One of them might even get promoted.
I can assure the Deputy that my interest in the Bill extends far beyond being sent in as he suggests. Deputy Tully is wont to do many things but he does not send Deputy Desmond anywhere. While one can have great sympathy with the amendment, I do not think that at this stage it is desirable.
Is the Minister suggesting it would be desirable at any other stage?
There is always Report Stage.
Has the Parliamentary Secretary any authority to accept amendments?
I have authority to accept amendments, but I am not accepting this amendment.
That is safe enough.
Where a prosecution is to be brought by a local authority it is inevitable that substantial and detailed arrangements will have to be made so that every traffic warden of a local authority is not left to go off half cocked and institute obstruction prosecutions against people who fail to give their names and so on and a fracas develops. There will have to be very rigorous procedures, bearing in mind that traffic wardens will not be well versed in the extremely difficult area of the law we are talking about. The city and county managers trying to implement this will have to have some proper guidance, otherwise there will be widely differing interpretations by the traffic warden corps of each different local authority as to what will constitute an offence under this section. Deputy O'Malley is in a very honourable profession and I have no doubt that, with Deputy Esmonde advising him, it will probably be a lawyers' paradise. However, this is a paradise people have earned for themselves. This is one matter on which I can see great difficulty, but I should not like to see written consent of a superintendent of the Garda Síochána being dragged into the proceedings at this stage.
At what stage would the Deputy like to see it happening?
If I have no power in relation to the appointment of traffic wardens and if I am consulted, why should I have to proceed in relation to an offence which a traffic warden wishes to institute? Why should I have to have a separate office virtually, with my inspectors busily interviewing traffic wardens, getting written statements relating to alleged obstruction, alleged offences on the three grounds that have been alluded to here? Inevitably, you will get the county manager who will tell each traffic warden: "Go down and see the local superintendent and see if he is prepared to have a prosecution instituted." It may all add up to that in the long run, but I am just wondering about the value of the amendment at this stage.
I think Deputy Desmond is in general terms in support of the amendment. The case, very briefly, that we have made is that the offences are of very different natures. We are concerned with confining the offences to be dealt with by the local authority to the traffic offences. The Parliamentary Secretary was adamant that he would not accept the amendment but he has not given us any particular reason. I am sure he appreciates what we are trying to do. Perhaps he would outline his reasons for being so adamant?
I have outlined them to the House. It is not my duty.
With two of them behind him breathing down his neck, the Parliamentary Secretary should be very careful.
Amendment put.
The Committee divided: Tá, 53; Níl, 58.
Tá
- Barrett, Sylvester.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Haughey, Charles.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- McEllistrim, Thomas.
- Carter, Frank.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Cronin, Jerry.
- Crowley, Flor.
- Cunningham, Liam.
- Daly, Brendan.
- Dowling, Joe.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bruton, John.
- Burke, Joan T.
- Burke, Liam.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Connell, John.
- O'Donnell, Tom.
- O'Leary, Michael.
- Pattison, Seamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Ryan, Richie.
- Spring, Dan.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- White, James.
Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and B. Desmond.
Amendment declared lost.
Progress reported; Committee to sit again.