Carlow-Kilkenny): Amendment No. 1 is in the name of the Minister. Amendment No. 39 is related and it is suggested that both amendments be taken together. Agreed.
Road Traffic Bill, 1993: Report Stage.
I move amendment No. 1:
In page 5, line 36, to delete "and 101 (8)" and substitute", 101 (8) and 101A (inserted by the Act of 1987)".
I am glad to have the opportunity to thank the Front Bench spokesmen who are present and other Members who will be joining us.
So much for Deputy Keogh's argument. It did not have a great impact on the Minister.
I have tried since the Committee Stage debate to take on board some of the suggestions.
Amendment No. 1, a consequential amendment, provides for the repeal of section 101A of the Road Traffic Act, 1961, which currently provides for ramps and bollards. That section is to be repealed and replaced by a new general provision governing traffic calming.
Amendment No. 39 proposes a new section to give local authorities flexible new powers to carry out traffic calming works. One of the main advantages of these measures is that they encourage drivers to make their speeds appropriate to local conditions through measures which are self-enforcing. The only specific statutory powers currently available to local authorities for such measures is the power to provide ramps or bollards. These latter powers have been in operation for about five years. While they have been useful, the powers are limited and quite restrictive.
A wide range of new traffic calming techniques have been developed in other countries in recent years. The new power will give local authorities the maximum flexibility to decide on the measures best suited to individual streets or areas. The intention is to allow local authorities as much design flexibility as possible. However, many local authorities will, at least in the early stages, have no significant expertise in this area and provision is included to provide for the issue of general guidelines to assist them in selecting the most appropriate measures. This amendment proposes to extend power and flexibility to local authorities to determine the measures they should take in tandem with experiences we gain from systems in other countries.
I welcome the Minister's amendment. I made the argument on Second Stage, and on Committee Stage, that local authorities should be given the power to adopt a flexible approach in relation to traffic control measures. One difficulty with the traffic problem, particularly in urban areas, is that there has been a phenomenal increase in the volume of traffic. For example, in the past 20 years the number of cars on the road has doubled, resulting in an increased traffic problem, and there are difficulties in dealing with it. I attended a local authority meeting yesterday at which the question of the introduction of a traffic management system was considered.
The proposal to give the local authority power and discretion as to what to do in certain circumstances is to be welcomed. I am a little concerned about the Minister issuing general guidelines to the roads authority, as set out in subsection (6). I hope it is not intended that local authorities should not take whatever steps are necessary in advance of any such regulations or that the regulations will have the effect of restricting or diminishing the discretion granted to local authorities in the operation of this section.
I welcome this amendment. During the lengthy and useful Committee Stage debate I commented particularly on traffic calming and other measures that might be taken by the roads authority or local authorities. Those involved in local government are aware of the difficulties in relation to traffic, and any powers vested in local and roads authorities are to be welcomed.
Subsection (6) provides that the Minister may issue general guidelines to local authorities and may amend or cancel any such guidelines. I hope the guidelines issued will be minimal. The Minister has shown by tabling the amendments that he is open to suggestions.
I have no intention of issuing guidelines which will increase my workload. As Deputies will appreciate, a number of local authorities are unfamiliar with developments in this area. The amendment provides that local authorities should have the greatest possible flexibility and be given all possible information derived from what one would call a profile of good practice in this area. It is a helpful provision as distinct from a provision that seeks to return control to my Department.
We now come to amendment No. 3. Amendments Nos. 5 and 7 are cognate and Nos. 28, 31, 32, 50 and 52 are related. It is proposed, therefore, that amendments Nos. 3, 5, 7, 28, 31, 32, 50 and 52 be taken together, by agreement.
On a point of order, it has been the practice to distribute a list of the amendments that are grouped together. I suggest that such a list be distributed.
I will ensure that is done.
I move amendment No. 3:
In page 8, line 9, after "drive" to insert "or at the time of the sample being taken, in any case where the driver has been involved in an accident and leaves the scene of the accident before the gardaí have had an opportunity of taking a sample".
I agree with what Deputy Doyle said because I am at somewhat of a disadvantage in that my amendments are grouped with other amendments. My amendments deal with the problem of hit-and-run accidents, about which we had a lengthy discussion on Committee Stage. The Bill proposes that a person may be breathalysed or have a urine or blood sample taken up to three hours after an accident occurs. The difficulty is that in the case of a hit-and-run accident the chances are that the person involved may not be caught within three hours.
Under the law as it stands there is a strong incentive for people involved in accidents to leave the scene of the crime. There is also a strong possibility of a lighter sentence being imposed on them if they do that than if they stay at the scene and are breathalysed. If a person who has been drinking and who may be over the limit stays at the scene of an accident he will be breathalysed by the Garda, who presumably will arrive shortly after the accident. In addition to the charges brought against him for dangerous driving and causing injury or, worse, death, he will also be charged with drunken driving and will have to face the severe penalties proposed in this legislation. If the person leaves the scene of the accident he will have three hours within which the Garda will have to catch up with him. It will be very difficulty for the Garda to catch up with somebody involved in a hit and run accident within three hours. In all probability it will take the Garda longer than three hours to arrive at the scene of an accident, establish what happened, find out whether somebody has seen the registration number of the car which caused the accident, establish the owner of the car, establish who was driving it and locate the driver. If it takes them three hours and ten minutes to do all this, then the person involved in the hit and run accident cannot be breathalysed, cannot have a sample taken and, therefore, cannot be charged with drunken driving.
With regard to the penalties provided for in the legislation, unless a death is involved, the penalties for dangerous driving are still very low — a maximum fine of £1,000 or a maximum period of six months in prison. The penalties for drunken driving are much more severe — for example, a driver may lose his driving licence, etc. Therefore, there is an incentive for somebody involved in an accident to leave the scene of the crime because he will have three hours within which he cannot be breathalysed.
After which he cannot be breathalysed.
I stand corrected. This is a very serious anomaly. On Committee Stage the Minister referred to the practical difficulties involved in changing the provisions. For example, at what stage could a person be breathalysed, would it be within three and a half hours or six hours or even the next morning? There is also the problem that the level of alcohol in the blood will have decreased after a certain time. I appreciate that those practical difficulties exist, but nevertheless we have to address the situation which has arisen. For example, in one of the more celebrated cases brought to public attention in recent times, involving the death of a young woman, it was alleged by the parents of the young woman that the driver, who received a very light sentence and who was subsequently released very early, had been drinking. There is no way of establishing whether this was true. There is also the problem that a person involved in a hit and run accident will claim that he drank the proverbial bottle of vodka to steady his nerves after he got home. This issue needs to be dealt with.
Even if we run the danger of the level of alcohol in the blood being lower after three hours, the Garda should still have the discretion to breathalyse a driver, take a sample from him and produce it as evidence in court. Of course, it will ultimately be a matter for the court to decide to what extent it takes account of the evidence. It makes a nonsense of the law if a person can be breathalysed after two hours and 55 minutes but may not be breathalysed after three hours and five minutes. The culprits I am most anxious to get at in this amendment are those cowardly people who, having caused injury or death, leave the scene of an accident. We have to deal very forcibly with those people and ensure there are no loopholes in the law which they can exploit. Unfortunately, there is a loophole in the law as it stands — a drunken driver who leaves the scene of an accident can get off more lightly than if he stays at the scene of the accident. This loophole should be covered. I am interested in hearing the Minister's explanation for his amendments and I will respond to it when I conclude.
Deputy Gilmore is seeking to remove the three hour period within which a blood or urine specimen must be taken in certain circumstances so as to facilitate drink-driving prosecutions against persons who leave the scene of the accident. This issue arose on Committee Stage and many Deputies emphasised their great distaste for hit and run drivers. I want to further emphasise my distaste for them. I am determined to ensure that no provisions in this Bill will provide a safe refuge or haven for anybody involved in this type of accident.
Deputy Gilmore referred to a number of the practical difficulties involved in implementing the proposed changes in the law, including the proposal in his amendment. On Committee Stage I said that I would consider the matter further before Report Stage. There are major practical difficulties involved in removing the three hour period within which a blood or urine specimen can be taken. The removal of the three hour period, as suggested by Deputy Gilmore, would require the redefinition of the offence of drink-driving to confine it to an offence committed only by driving when the alcohol level is over the specified level. Such a change would place an onus on the prosecution to prove the actual alcohol concentration at the time of driving. As specimens must for practical reasons be taken sometime after the event, it would therefore become necessary to introduce one or both of the following: (i) a presumption in legislation that the alcohol concentration at the time of driving was not less than the concentration determined by the later analysis——
——and (ii) a system of back calculation of the alcohol level to the time of driving, based on standard alcohol elimination rates. This would constitute a significant change to existing legislation and would without doubt give rise to new legal challenges which could be successful. I am not prepared to take that risk. Extraordinary efforts have been made over the past number of years to try to find loopholes in the law governing drink driving. I have read many of these cases, some of which were quite embarrassing. I have no intention of opening up the possibility of further loopholes which could be used as a rescue package by individuals involved in this kind of criminal activity.
I accept the point behind Deputy Gilmore's amendments and I am in full agreement with what he is trying to achieve. I stated on Committee Stage that a person who leaves the scene of an accident is liable to be prosecuted under section 106 of the Road Traffic Act, 1961 in addition to any other offence committed such as drink driving or dangerous driving. The maximum fine and term of imprisonment for drink driving offences and for leaving the scene of an accident where injury to a person is caused are identical, namely, £1,000 fine and six months imprisonment, but there is no mandatory disqualification for the offence of leaving the scene of an accident. Thus, as Deputy Gilmore has already said, a person who stays at the scene of an accident and who is subsequently convicted of drink driving faces a greater penalty, namely, a mandatory disqualification and a requirement to pass a driving test, than the hit and run driver who subsequently is convicted only of leaving the scene.
I recognise that this is an anomaly and, accordingly, the amendments which I am proposing provide that a person convicted of leaving the scene of an accident where death or injury to a person is caused will be automatically disqualified for two years for the first offence and four years for the second offence. In addition, they will be subject to a requirement to pass a driving test before their licence is returned. This brings the penalty into line with penalties for drink driving.
I hope Deputies can accept that there are very real difficulties in relation to any change in the practice of taking blood and urine specimens within a three hour time frame. My amendments are an alternative method of dealing with hit and run offenders and will eliminate any incentive to leave the scene of an accident. I have given considerable thought as to whether there is any other way to deal with this problem. I agree with the points made on Committee Stage and again today and I believe I have found a way to deal with them which is more safe from the point of view of a successful prosecution.
I accept the general tone of what the Minister is saying and I accept that what Deputy Gilmore is proposing may generate a whole series of legal arguments. However, it is fair to say that a reasonable estimate can be made of the levels of blood alcohol at a given time when a sample is taken somewhat later. One of the characteristics of the metabolism of alcohol is the fact that it is metabolised at a given rate. I realise there will be variations for body size, experience of drinking, etc. but it is possible to make an estimate within a certain margin of error and it is unfortunate that more consideration was not given to this aspect. I accept that there are grounds for legal argument in this regard but there is a margin of error in every estimate. The level of 80 milligrammes per 100 millilitres of blood is open to variation; it may be estimated at 81, 82 or 85 milligrammes. One cannot be absolutely certain that the level is 82 milligrammes. That figure is accepted within a certain framework of probabilities.
The same idea holds true for blood alcohol levels which are estimated on a retrospective basis arising from a sample taken. A fair estimate can be made of what the blood alcohol levels were two, three or four hours previously. I accept the general tone of what the Minister is saying and I accept also that while this may be true on a scientific or physiological level, lawyers and various other scientists will have a field day with these cases when they reach the courts. It probably would not get us any further in what we are trying to achieve.
This is an extremely important part of the Bill and these amendments are very important because of omissions in the original Bill. I would like the Minister to put on the record the definition of drink driving in this Bill as distinct from the changes that would be needed if, for example, Deputy Gilmore's amendment was taken on board. We need to understand clearly the changes that this would introduce and why his proposal would not, in fact, achieve the effect that he has stated. In other words, how would his proposal affect the present legal definition of drink driving?
The anomaly whereby leaving the scene of an accident was more leniently treated in our courts than drink driving needs to be rectified. The Minister is now proposing two years imprisonment for a first offence and four years for a second offence, with a mandatory disqualification for anyone who leaves the scene of an accident, in other words, a hit and run driver. We will not quibble with the Minister in this regard because leaving the scene of an accident is probably one of the most heinous crimes in this context.
I would like the Minister to clarify whether these penalties apply only in the case of injury or death to a person in such an accident. Very serious motor accidents can occur involving severe damage to property but by some miracle, the person receives no injury. A driver involved might leave the scene of the accident before the Garda arrive. Are any penalties envisaged in that kind of situation? We need clarification as to the scope of mandatory disqualification in hit and run cases.
The three hour limit is a vexed issue. The Minister gave sound reasons for concern about extending the scope of this Bill beyond three hours and the legal problems that might cause. There is no reason blood and urine testing should not be carried out beyond three hours but that would be treated differently in the courts when those results were produced. Most people involved in serious hit and run accidents, where there is a fatality or serious injury, will have far more than the legal level of 80 milligrammes of blood alcohol. Consider a person who drinks seven or eight pints or the person who drinks five, six or ten glasses of spirits, the chronic drinker. We are talking about the person who severely abuses the legal levels of blood alcohol and drives at the same time. It is possible that long after the three hours those people will be above the 80 milligrammes permitted blood alcohol level. Therefore, there is sufficient reason to breathalyse those people and follow that up with a urine or a blood sample. If they are still over the limit five hours later, there is no reason those results cannot be produced as evidence in court. If they are below the limit after the three hour period one cannot then prove that they were over the limit at the time of the accident, but the chances are they will still be over the limit if they leave the scene where there has been a serious injury fatality. That type of person would probably be over the limit for more than three hours and there should be some system whereby they could still be tested. A judge can then decide whether to accept that evidence when it is produced before him.
In another section of the Bill, we deal with the problem of those who deliberately try to frustrate prosecution by going home and drinking a bottle of vodka so that when they are questioned more than three hours later they can say that they were sitting in front of the television drinking at home, but that they were not drunk at the time of the accident. That section should apply also in a case where someone deliberately tries to frustrate prosecution. A judge should have the liberty of taking into account that a person may have taken some drink at the time of the accident.
It is most important that we get this right. Without any notice having been given, eight amendments were grouped together. We are frustrated in our ability to respond to eight different amendments, because we thought we would have been taking most of them sequentially. I had expected Deputy Gilmore's amendments to be taken together, but I have to admit that I did not expect the Minister's amendments and the section all to be taken together. I would hope we would be afforded an opportunity of some further discussion, although I recognise that this is Report Stage. I still await circulation of the list of grouping of amendments.
Carlow-Kilkenny): The list was distributed while the Deputy was speaking; obviously, they missed the Deputy.
Without meaning any disrespect to those involved, perhaps we should not have agreed that all of these amendments be taken together, because as it transpires Deputy Gilmore's amenment goes considerably further than the Minister's. I welcome the fact that the Minister has endeavoured to address the hit-and-run aspect described. There was considerable discussion of this aspect on Committee Stage. I said already that it was ironic that somebody who actually stood their ground, even though they might have been over the legal alcohol limit, and endeavoured to help at the scene of an accident, would find themselves in greater trouble than somebody who had left the scene and escaped, as it were. Therefore I welcome the fact that the Minister has tabled amendments to cater for these type of circumstances. My reading of the amendments tabled is that they would apply in circumstances in which injury only had occurred. I would like the Minister to throw more light on that aspect.
I might revert to the case of a driver who has left the scene of an accident, returned home, perhaps realising he or she was over the limit, and then consumes an additional amount of alcohol, in the knowledge that they will be apprehended and that, if they are breathalised or tested in any way, they will be found to be above the limit. This is a very difficult question. I think Deputy Upton is correct in saying that scientifically there should be a way of getting around this problem. I believe there is a way of getting around it. However, I accept what the Minister says, that unfortunately the spirit — if the House will forgive the pun — of the law is ignored in this case by the legal profession. We witness countless such cases. The Minister rightly says it is embarrassing to read of so many; it must be embarrasing for him and equally for the Minister for Justice to read of these cases. We all abhor the fact that technical details are combed over so that people get off scot-free or with much lighter sentences than should be meted out to them.
Whereas I understand the Minister's difficulties, perhaps there should have been greater indepth investigation in the interval between Committee and Report Stages to ascertain whether there is not a way in which the spirit of Deputy Gilmore's amendment could be incorporated here. I support what the Minister is endeavouring to do, but I do not think that in this case he has gone far enough.
First of all, the Minister's set of amendments deal with the anomaly to which I referred, whereby somebody involved in a hit and run accident could actually get off with a lighter sentence or penalty than somebody who had remained and faced the music. I acknowledge that that does cover the loophole that had obtained. However, I am disappointed that he has not addressed the three-hour problem, for this reason. He has taken the amendment to task largely on technical grounds, largely on grounds of the redefinition of the drink driving offence. Indeed, he may well be right in that. The difficulty we have on this side of the House is that we labour without the kind of Civil Service professional advice and the hired advice now available to Ministers and Ministers of State in addressing such matters. We have to endeavour to do this ourselves. Inevitably, particularly whenever we are dealing with matters of great technicality, technically we can be slightly off the mark. But I do not think that in any way absolves the Minister from his responsibility of addressing what is at issue here.
I do not know whether three hours is appropriate. My understanding is that up to 90 minutes after consumption the blood alcohol in the body maximises and thereafter begins to tail off. Therefore, I do not know what is the basis of this three-hour cut off point. But probably there is an argument for saying that at a certain point, because of the variations in individual size, one's capacity and all the rest of it, it may not be possible to trace back and say that one must have had a certain level of alcohol in the blood at the precise time the accident occurred. There may well be some grounds for that kind of logic.
But I would have thought whenever an accident occurred it would be of interest to the court to know whether the person who had caused the accident had consumed drink. It is not just a matter of simply establishing whether there was a neat offence committed under the drink driving legislation. Surely it would be a matter of interest to the judge hearing the case to know whether or not this person had consumed drink.
If a hit and run accident occurs and everybody ends up in court at some time subsequently, there are a number of matters the judge will have to decide. First, he will have to decide whether offences were actually committed. If he satisfies himself that offences were committed, he will then have to decide what is the appropriate accompanying sentence. I would have thought that it would have been of interest to and important for the court to know whether the person had consumed drink, because somebody who leaves the scene of an accident will subsequently go into court and state that they had a fit of nerves and had to rush home. For example, somebody may go into court and say they had gone out to do a bit of shopping, that they had left very young children alone at home and had to rush home to them. People will come up with all kinds of excuses why they had to leave the scene of an accident. The court will then be left to assess how valid were those reasons advanced, particularly in relation to the sentence to be imposed. But many people will wonder whether the driver of the vehicle had consumed drink. This has arisen already in one recent case when there was a very strong allegation made by the relatives of the young woman killed in the accident that the person who was driving the car had consumed drink. It may not be possible to establish the precise level of alcohol the person had in their body at the precise time the accident occurred, but if this three hour limit were extended at the very least it would be possible to establish whether drink had been consumed. One would then be able to bring in one's expert witness who would be able to say: "Well, if at four hours after the accident occurred there was that level of alcohol in the body, in all probability the person was quite drunk at the time the accident occurred". It is important for a court to know that, when dealing with a charge of drink driving, dangerous driving, a hit and run accident or whatever it may be.
I am disappointed that the Minister has not found some way to deal with this, even if only to permit the Garda to take samples and bring those samples into court; even if it were only a provision in the Bill stating that a court, in deciding on a sentence under the provisions of this Bill, would take into account the evidence assembled resulting from breath tests, or blood and urine tests, albeit after the three-hour limit had expired.
I am disappointed that the Minister has not found some way of doing that. While the issue is important, I will not press this to a division but I want the Chair to put it formally to the House. It is certainly not something I will withdraw as it is an important issue.
I hope that when the issue is disposed of here and before the Bill goes to the Seanad that the Minister will find some way — if what he says is true, that without a time limit we would have to redefine the drink-driving offence — of enabling the Garda to take the samples. He should find some way of requiring the court to take account of evidence produced as a result of those samples when assessing charges under this legislation, particularly when the court is about to hand down a sentence.
The real problem with Deputy Gilmore's amendment is the risk involved. I am not prepared to risk well established and accepted practice which could end up invalidating what we are setting out to do. Deputy Gilmore will accept that evidence taken a considerable time after the accident would be questioned. If the Garda authorities fail to breathalyse a suspect within four hours it may be decided that he was being held in unlawful custody. Failure to get a conviction because the breathalyser equipment could not be brought to a scene within that time is an indication of what we have to cope with. I want to ensure certainty of prosecution is maintained.
I thought the Minister was giving a quick reply. I think he is slightly out of order.
I understand that under the rules of this House if questions are raised on ministerial amendments he has a right to reply.
Only the Member who tabled the amendment has the right to reply.
My amendments are being dealt with simultaneously. I understood I have a right to reply.
I was told otherwise.
It is a long established practice. Deputy Doyle also asked a question about the definition of drink-driving. A drink-driving offence is committed not only by driving when the alcohol level is over the specified limit but by driving when the amount of alcohol in the body is so great that it will cause the concentration of alcohol to exceed the specified level at any time within three hours after the person has been driving. Thus, it is not necessary to prove the actual alcohol level at the time of driving. That is where the real problem arises. I am prepared to examine this again between now and the debate in the Seanad. I have to be honest and say that we have looked very searchingly at this whole matter. We have produced a definite proposal which ensures a prosecution and levels the playing field, as it were. I am reluctant to give an indication that I may be able to respond in a more concrete way than I have done today because of the risks involved.
Amendment No. 4 is in the name of Deputy Keogh. Amendments Nos. 6, 8, 11, 12 and 13 are related. If the House agrees it is proposed to discuss them together. Agreed.
I move amendment No. 4:
In page 8, line 10, to delete "80 milligrammes" and substitute "50 milligrammes".
I do not have any difficulty in agreeing to the amendments being taken together because they are related. A prolonged debate on this issue took place on Committee Stage. The various amendments seek to reduce the blood alcohol levels that are acceptable. Much of the protracted debate on Committee Stage was totally irrelevant. There was a debate about rural Ireland, the male dominated pub culture of rural areas and so on.
We should send for Deputy Nealon.
He was not the only Member involved. My reason for tabling this amendment is that I believe, and I think the Minister believes, that people who drink should not drive. The Minister said that throughout the debate and I agree with him and all Deputies should. The reason I seek to delete "80 milligrammes" and substitute "50 milligrammes" is because of the general acceptance that we could not have a nil blood alcohol level defined and that we had to have some room for discretion. If we are to come into line with our partners in the European Union — as it is now — we should accept the 50 milligrammes limit which, in general, is accepted throughout Europe. The whole issue of the correct blood alcohol level is not an exact science and even within the limits the Minister is setting down of 80 milligrammes there is room for error. It is a little like the opinion polls where there is a margin for error of 3 per cent.
That is very important at the lower limits.
To a member of a smaller party it is of particular importance, but we err on the generous side. This is a very serious issue. It is not acceptable to drink and drive. All the signals we send during the course of this debate should be to the effect that a person who drinks should not drive. We heard in the debate of how difficult it would be for Irish society, particularly in rural areas, to operate if we were to insist on this. The farmer would have to be allowed to have his pint after his long day's work in the hot sun. That does not apply in the winter. Certainly, coming up to Christmas we should be particularly vigilant. On Committee Stage I said it was very important that this provision be implemented and that the Garda be given adequate resources.
We are very familiar with the Garda scaring us at Christmas into submission, making us realise we should take our responsibilities seriously. We are told often that the Garda have the necessary resources. That is not enough. It is important that the whole issue of drink-driving be addressed throughout the year. We dwelt at length on the very sad statistics of the deaths, injuries and so on that occur as a result of drink-driving. The Minister is sincere in his efforts in this regard but it would give a much stronger signal if we were to reduce the blood alcohol levels.
My party will not be supporting this amendment. Even though I have a great deal of sympathy for the case put by Deputy Keogh, I believe that even by lowering the blood alcohol level to 80 milligrammes per 100 millilitres of blood one cannot drink and drive. It is academic. If one is going out for a few drinks or a meal, or even visiting a friend's house with a view to having a drink, one will have to make other arrangements to get home. It is as simple as that. Only this morning I received a letter from a lady which expresses the views of many ordinary Irish people who are alarmed at the moves in this Bill to reduce the limit of blood alcohol levels to 80 milligrammes per 100 millilitres of blood. I think it deserves to be read into the record:
Dear Ms. Doyle,
I wish to protest vehemently at the proposed changes in the law on drinking and driving.
While I empathise fully with those who have suffered as a result of drunk drivers and I have, in fact, been a victim of one myself, I do not think that reducing the limit to 80 millilitres from 100 is the answer to the problem. I have no difficulty accepting that alcohol may be a contributory factor in many road accidents. However, I would contend that drunk drivers would have consumed much more than the current legal limit for driving.
What the proposed legislation will do is cause problems for those, like myself, who try to keep within the current levels but I do not think it will change the behaviour of those who drink 7 or 8 pints and then drive home.
When I am out at night, either in the pub, having a meal out or visiting a friend, I would generally have around two glasses of wine if I am driving home. To go out and have one glass of wine, particularly if one is eating, just isn't worthwhile.
Getting someone else to drive you home or taking taxis is not the answer either for most people as the former is simply not practicable and the latter too expensive.
Once again, I should state that I have no sympathy for drunk drivers. While I appreciate fully the sentiments of people who have lost loved ones because of over-indulgence in alcohol, I do not think this is the solution to the problem and is simply pandering to those who will not be satisfied until the limit is nil. This proposed measure will simply penalise those who are careful. Do you really believe that this problem is created by those who drive with a blood alcohol level of between 80 and 100 millilitres? I certainly do not.
That letter expresses the views that have reached other Deputies as well.
Generally, the correspondence to The Irish Times refers to the high moral ground that the Minister has taken in relation to this issue. In replying to these amendments it would be worthwhile if the Minister were to explain very clearly how he arrived at the opinion that the blood alcohol level needed to be reduced from 100 milligrammes to 80 milligrammes per 100 millilitres of blood. There is a great deal of confusion as to why the Minister is reducing the blood alcohol level. This is not being done simply because the rest of Europe has done so and most states have done so, but for sound scientific reasons. For the record will the Minister explain his reasons to those who point the finger accusingly at those of us who support this Bill? It is important to get wide acceptance for a principle that I believe in.
Will the Minister indicate the resources that will be provided by his Department and by the Department of Justice to the Garda to implement the Bill. We will have wasted our time if the legislation is enacted and not enforced. I believe that if the Garda had sufficient resources to implement the existing law in relation to blood alcohol limits at the rate of enforcement we can expect between now and Christmas, there may have been no need for change at all.
When the Minister is responding to these amendments, perhaps he might explain what is meant by section (5) (a):
The Minister may, by regulations made by him, vary the concentration of alcohol for the time being standing specified in subsection (2), (3) or (4) of this section, whether generally or in respect of a particular class of person,...
This has begged a great many quips and cartoons. One of the Minister's Fianna Fáil colleagues ventured to suggest on Committee Stage that we could have a two-tier system, a blood alcohol level for the country people and a different one for the townspeople. I am not sure if that is what the Minister has in mind, but that could be interpreted from the subsection I have just read into the record. Will the Minister clarify the matter for the record?
Members have drawn attention at various Stages to the fact that what is proposed is a very major change in the relationship between drinking and driving. When introducing the Bill the Minister's grandiose intention was "to take drink out of driving". That is what it comes down to. At present most people try to translate the permitted limit of 100 milligrmmes of alcohol per 100 millilitres of blood into measures of alcohol, pints if they are drinking beer and glasses if they are drinking wine. People try to figure out how much they can drink. Under the existing limits I understand that one can drink about two pints of beer, depending on capacity, so that two friends going to the pub could buy a round each and in all probability remain within the limit. A couple going out for a meal could share a bottle of wine and still be within the limit when driving home. In reducing the blood alcohol limit to 80 milligrammes of alcohol per 100 millilitres of blood, this will change. One cannot share equally a bottle of wine, as the person driving will have to consume much less than the passenger or leave the remainder.
I agree with Deputy Doyle that the Minister needs to clarify why he proposes to reduce the blood alcohol level and to state the evidence that supports this reduction. I have not had a satisfactory response to this to date. I think I know what the Minister is trying to achieve. He is right in wanting to take the drink out of driving, but if that is his intention he should accept Depuy Keogh's amendment, so that there is no ambiguity that it is still OK to drink a little if driving. We need to be clear on the message we send out. Either it is you do not drink and drive, or it is left near enough to where it is at present. We are presented with that choice.
There is carnage on our roads — over 400 deaths and 10,000 people injured per year, which is worse than the carnage in Northern Ireland. Even if one accepts that a quarter of the accidents are attributable to drink driving and that the real offenders are those who drive having consumed seven or eight pints — not the farmer who goes out and drinks two or three pints, as he has been doing for years, and drives home at 25 or 30 miles per hour, as Deputy Doyle outlined — even if one accepts all that, it still comes down to the fact that one's senses are very considerably affected by having this level of alcohol in one's system. If it will minimise the carnage on the road I will support it. Indeed I support Deputy Keogh's amendment.
Since this Bill was introduced the Minister has peddled the line that it will solve the problem relating to the degree of road accidents, death and injury on our roads. It is wrong to send out that message because other factors are involved, many for which the Minister has direct responsibility, contributing to the death and carnage on the roads. The level of alcohol is immaterial if gardaí are not out checking it. The Garda force is 1,000 fewer than it should be and there are not enough gardaí on the roads. Unlike other countries we do not have traffic police and we have a problem with enforcement. When the Minister announces his drinking curfew for Christmas the incidence of accidents drops dramatically due to enforcement.
Other factors, for instance dangerous driving which does not involve drink, which contributes to the death on our roads must be addressed. The young super stud who wants to show off to his girlfriend may not have taken any drink but is a menace on the road. The condition of non-national roads, for which the Minister has responsibility, is a disgrace as is the condition of road signs and so on. The local authorities do not have the money to do anything about this and it is the Minister's responsibility. That contributes to the carnage on our roads.
We must decide whether we want to ban drinking and driving. I have come to the conclusion that drinking and driving should not be allowed. That will cause inconvenience for everyone but it is a decision one must make if one is seriously trying to reduce the appalling level of death and injury on our roads. We have to do more than just ban drink. We must enforce the law and ensure that the roads are capable of being driven on safely. We have to address the other factors contributing to death and injury on the roads. If the Minister does not address that in a practical way all the grandiose statements about taking drink out of driving and reducing death and injury on our roads are not worth anything. We need honesty about what is being done.
We debated this at length on Committee Stage. Because the cities have an efficient taxi service which is not available in rural areas, rural Deputies, including me, were concerned about the reduction in the level of alcohol in the blood from 100 milligrammes to 80 milligrammes for driving purposes. We tend to see the hundred milligrammes limit as meaning a limit of 2 pints. I would not consider myself incapable of driving after taking two pints. I am concerned about the reduction to 80 milligrammes and I oppose the amendment reducing the limits to 50 milligrammes.
None of us condones drunken driving. Coming up to Christmas a lot of media attention is focused on drunken driving, the Garda are more vigilant and people are conscious of the danger. It is a pity we cannot be conscious of the danger throughout the year. I wonder whether the Minister's reduction from 100 milligrammes to 80 milligrammes will have a significant impact on statistics — I think not. If one expresses reservations about a reduction like this one is almost considered to be in favour of drunken driving and there is a tendency for people to take the high moral ground and believe that if you do not go along with these proposals you are opposed to moving in the right direction. I do not support Deputy Keogh's amendment as the limit is low enough at 80 milligrammes.
When we market Ireland abroad we talk about the marvellous social life of people who live here, our pub culture and pubs being a focal point. In rural areas the pub is the main focal point for socialising and meeting people. The cities give a wider choice of entertainment in that they have cinemas, theatres, restaurants and so on. In many country towns the ordinary farmer comes in and drinks two or three pints and then drives home, he has done that religiously for years. Such people will be extremely concerned about the reduction to 80 milligrammes and it will impact on business. Another consideration to be taken into account is the revenue which drink provides for the Government.
I do not support the amendment. The reduction to 80 milligrammes is adequate. I agree with the point made by a number of Deputies when they spoke in terms of the basis for the reduction of blood alcohol levels in the Bill to 80 milligrammes. That is the essence of this Bill if one leaves aside the legal technicalities. The Minister has not clearly outlined the improvement that change is likely to bring. There has been much talk about the effects of drunken driving and there is no doubt it is a major problem. People who drive a car with in excess of 100 milligrammes of alcohol in their blood are breaking the law. There is ample evidence in the data available from court cases and from simply observing the way people behave in public houses that a large proportion of our population consume above that level. If those people drive cars they are breaking the law.
As Deputy Gilmore said, it is wrong to suggest that this change alone will bring about a major improvement. It will not, unless it is enforced and we address other factors which contribute to road accidents. We are making the mistake of lumping all those factors together and assuming that this change will make a difference.
In regard to the effects of alcohol on a person's capacity, we must recognise that one's capacity changes in accordance with the level of alcohol in the blood. The effects of 50 milligrammes of alcohol per 100 millilitres of blood is relatively small, but the effects increase with 100 milligrammes per 100 millilitres, and a person would be practically incoherent with a level of 300 or 400 milligrammes of alcohol per 100 millilitres of blood. If a person's level of alcohol exceeds 500 milligrammes it is almost the equivalent of having an anaesthetic. It is possible for a person to die from excessive consumption of alcohol. That is the reality, but in this legislation we are dealing with levels of alcohol of between 80 milligrammes and 100 milligrammes per 100 millilitres of blood. That is what the Minister should be addressing. He should supply us with the data which indicates that there will be a significant change because of this incremental reduction. I have not seen that data. Are we not simply following the European line?
It is important that the public know the amount of alcohol they can consume before exceeding blood alcohol levels of 80 milligrammes. I agree with what has been said in relation to the consumption of two pints. At present a person could probably get away with consuming two pints before exceeding the limit, but under the law limit a person will have exceeded the acceptable drink driving level following the consumption of two pints. That will undoubtedly have adverse effects for life in rural Ireland, although I do not wish to defend drunk driving. We should consider the full consequence of the enforcement of this legislation. It is unacceptable that a set of laws should be placed on our Statutue Book and that, in effect, the position remains unchanged. That is part of the difficulty at present. In general, people do not observe drink driving limits and in most cases get away with it.
Deputy Keogh's amendment appears to have run into difficult water in terms of the contributions so far. From what has been stated I would want to be Solomon to decide the correct level of alcohol consumption for drink driving. On the one hand, Deputy Keogh requested that I reduce the level from 80 milligrammes to 50 milligrammes and, on the other, it has been suggested that the level should remain at 100 milligrammes. although some Deputies supported this reduction to 80 milligrammes. It has been suggested that I should do nothing to interfere with tradition in rural Ireland. It is abundantly clear that there is no consensus in this House in regard to the appropriate action which should be taken at present. There is no safe level of alcohol consumption when mixed with driving and the fact that an upper limit is set does not encourage or condone driving with alcohol levels below that limit.
The thrust of our education and publicity programmes in this area has been to promote the message that drinking and driving should not be mixed. Nevertheless, soft arguments do not hide hard truths about drink driving. I do not wish to have a long debate on Report Stage about the effects of alcohol on a person's ability to drive. Suffice it to say that small quantities of alcohol can impair a driver's concentration. Factors such as fatigue, illness, stress and drugs can exacerbate the effects and cause severe concentration loss even when a small quantity of alcohol is consumed. When a person's blood alcohol level exceeds 80 milligrammes the normal reaction is overestimation of ability, impairment of peripheral vision and of one's eyes reaction to light and dark. Impaired judgment of distance and speed of oncoming vehicles, impairment of ability to react and a tendency to take risks can result at lower levels. Research carried out in America estimated that drivers with blood alcohol levels of approximately 80 milligrammes had twice the risk of being involved in accidents as those who had not taken a drink. Research in France and in other parts of Europe shows the graph in respect of accidents rising dramatically at alcohol levels about 80 milligrammes. We are a very sparsely populated country, but we have the third highest level of car accidents in the Community and statistics show the number of those associated with drink driving. Such accidents take place not alone in cities but in every parish and town in this country.
We should distinguish between drinking and driving. I have stated on numerous occasions that I do not wish to interfere with people's right to have a drink. Statistics show that on average every man, woman and child in this country consumes one and a half pints of alcohol per day at a cost of £5 million. On previous road traffic legislation Deputies stated that reducing the alcohol levels would ruin life in rural Ireland. This legislation does not hinder people from having a drink and enjoying themselves. I am delighted at the reaction in many parts of the country and the fact that people are arranging that one person in a crowd does not drink while the others enjoy themselves. People can make such arrangements. It is ridiculous to try to argue about an absolute point at which the legislation should be enforced because we are talking about a cultural change, the right to enjoy a drink but not cause a threat on our roads. We should distinguish between those two matters; otherwise people will misread the provisions of the legislation. As Minister for the Environment, I cannot stand up here and say what the absolute level of alcohol should be for drink driving. I do not know the answer to that.
The Minister is inserting it in the legislation.
No other Deputy could categorically state what the level should be, but we all know that we need to change the attitudes of a hard core of people who will not face reality and as a result of whose actions many people continue to suffer. There is no hiding from that fact.
It is not fair to suggest that the only effort made by the Garda authorities takes place at Christmas time. A total of 8,000 prosecutions have taken place throughout the year as a whole. I accept that enforcement of the law generally could be stepped up and I have made proposals to the Department of Justice in that regard. The question of manpower and more sophisticated equipment is essential, because legislation is only one element of the matter. There will be publicity campaigns, educational programmes, law enforcement, research and proposals for a cultural change which this legislation promotes. It is not a question of high moral ground. Such a suggestion totally misrepresents what is involved. The stark statistics of the fatalities and horrific injuries which place us third in the Community in respect of traffic accidents, despite our low population, shows the necessity to step up our performance in terms of law enforcement and road improvements. In this regard additional resources are being made available to the local authorities.
So far as the amendment is concerned, I have outlined clearly the reasons I am taking these steps. As I said earlier, I am not in a position to indicate to the House the precise figure, but I do not want people to drink and drive. However, we have to set limits which are enforceable. We also need to receive a reasonable degree of democratic support. In this regard there is no consensus in this House. I have been asked to introduce a lower or a higher figure or to do nothing. Having listened to all of the contributions, I am making my best judgment in this matter.
On the question of different classes of driver, I should say in response to Deputy Doyle that there are people who drive buses and trucks carrying chemicals and other dangerous substances. The question of whether these should be treated in a different way because of the responsibilities on them can be considered. This is the position in other countries and I would like an opportunity to consider this option. It should not be laughed at.
It was one of the Minister's colleagues who made this suggestion.
We have had a lengthy debate on this matter and it has proved useful. There is little that separates us. However, I am adamant about the principle involved. I do not accept that because this is an inexact science we should not agree to a figure of 50 milligrammes. The principle should be "If you drink, do not drive" and I make no apology for saying that. We should not ignore the law as it stands. This applies equally to those in rural Ireland about whom we have heard who are ignoring the law. That ought to be the position regardless of whether a person lives in Dublin or Limerick.
Those of us who have met the families of people killed or injured in road accidents feel very strongly that people should not drink and drive. I am no kill-joy; I will have a drink with anybody. But we should avail of the opportunity in this debate to make the point that if one wants to have a drink, they should not drive, but that they should make other arrangements. As I said, it is appropriate to make this point in the runup to Christmas.
I do not agree with the Minister when he says there is no consensus. I think there is consensus when we come to the question of enforcement. In this regard the Minister said that he has made proposals to the Minister for Justice. This is the crux of the matter. If resources were made available to implement the legislation as it stands, we would find ourselves in a far better position. It makes no sense to introduce legislation if we know in our heart and soul that it will not be implemented. It appears that we have developed a culture whereby laws are meant to be broken or ignored. It is critical therefore that resources be made available to implement the legislation.
I agree with those who say that the dangers associated with driving are not confined to those who drink and drive; other issues have to be examined. In this regard the Minister has a responsibility to ensure that our roads are safe and that cars are roadworthy.
He should fill the potholes.
Taken together — those who drink and drive cars which are unroadworthy, bad roads and drivers who are badly trained — constitute a recipe or cocktail for disaster. The Minister must have regard to each aspect. I think he is sincere. Neither do I doubt the sincerity of those who are fearful that a particular culture will disintegrate, but the truth of the matter is that we will have to say to those who drink seven or eight pints and drive that they cannot legally drink and drive.
We now come to amendment No. 9. Amendments Nos. 14, 16, 23, 40 and 47 are related. Amendment No. 10 is an alternative to amendment No. 9, while amendment No. 15 is an alternative to amendment No. 14. It is proposed therefore that amendments Nos. 9, 10, 14, 15, 16, 23, 40 and 47 may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 8, lines 48 to 51, to delete all words from and including "and" in line 48, down to and including "be" in line 51.
There are a number of amendments to be discussed together. All are related to the question of powers of entry.
Amendment No. 40 proposes to insert a new section in the Bill to clarify the specific powers of members of the Garda Síochána to enter private property and the circumstances and conditions under which the power of entry may be exercised. The new section is intended to replace the provisions which are currently contained in sections 10, 11 and 15 of the Bill.
The provisions in sections 10 and 11 to allow members of the Garda Síochána to enter private property to effect an arrest were included in the Bill to overcome a difficulty highlighted by the Supreme Court. In March 1991 the Supreme Court determined that a garda who entered a person's driveway to arrest a person for a drink driving offence was a trespasser and that the arrest was unlawful. In giving its decision, one of the Justices of the Supreme Court expressed the view that "although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent repetition".
The proposed powers of entry in the Bill were developed in the light of that judgment and on the basis of legal advice. Arising from that legal advice, the proposed powers were confined to effect an arrest — the powers were restricted to circumstances where the garda has, prior to entry, sufficient evidence to form an opinion that an offence had been committed which would be essential to justify an arrest. The powers do not extend to allow a garda to enter a dwelling to take a preliminary breath specimen in cases where the garda may only have suspicions that the person had been drinking.
These provisions were debated at length on Committee Stage. Significant reservations were expressed at that time by the Select Committee; and, while I indicated that I could not agree to withdraw the measure, I did undertake to reexamine the provisions to see how the concerns raised might be addressed. This amendment gives effect to that commitment.
The main objections raised on Committee Stage to these new powers were that the power would infringe constitutional rights, that the use of force could be excessive, that it would be open to abuse, and that there could be a danger of errors being made with the wrong person being arrested.
In debating this issue on Committee Stage, Deputies on all sides expressed contempt for hit-and-run drivers and indicated that they would support additional measures in dealing with people who run away leaving dead or injured people on the road. Several Deputies expressed the view that a power to enter a dwelling could be justified to arrest a person who had left the scene of an accident where death or injury to a person occurred.
I have now reconsidered the proposed powers in the light of all the comments aired on Committee Stage and I have sought ways to alleviate the fears expressed by many Deputies.
The most fundamental and significant issue is the question of the constitutionality of the provision. I had previously taken legal advice on this aspect but I arranged to have the matter reviewed again in the light of views expressed in committee.
Article 40.5 of the Constitution states that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". The Constitution clearly envisages that the Oireachtas may, in legislation, limit that constitutional protection in specified circumstances.
While a final determination of the constitutionality of a statutory provision can only be made by the Supreme Court, I am advised that it should be possible to successfully defend the provision I am proposing.
The other issues raised in committee are not of the same fundamental importance but they do require the same serious consideration.
Many Deputies have queried whether the commission of a drink driving offence on its own is sufficient justification to permit a person's home to be entered. I personally believe this to be a serious offence. I have previously said I was anxious to ensure that there would be no safe havens for people who commit criminal offences and that I was satisfied the provision can be successfully defended in any constitutional challenges.
Nevertheless, I have listened carefully to the views of my colleagues and, to meet what I perceive to be genuinely held concerns, I am proposing in this amendment to allow entry to the curtilage of a dwelling but to exclude entry to the actual dwelling of a person for the purpose of drink driving arrests. I am, however, proposing that entry to a dwelling be permitted to apprehend and arrest any person who runs away from the scene of an accident having caused death or injury.
To meet the concerns of Deputies about possible cases of mistaken identity, I am proposing that entry to the dwelling in a hit-and-run case will be permissible only in cases of hot pursuit where a garda has actually seen the person enter.
As regards use of force, it is implicit that any such power given to the Garda may only be exercised in a reasonable manner but to put the matter beyond doubt this is being explicitly stated.
I believe that the amendments I have just outlined meet the main concerns of Deputies and I am seeking the support of the House for the new proposals. The bottom line is that some power is needed, both to tackle the hit-and-run offender and the drink driving offender who, as of now, can evade justice simply because he has reached the sanctuary of his own property.
The proposed new section also contains the powers regarding entry to hospitals. These are included to incorporate all powers of entry in one section.
The other amendments which are consequential upon, and grouped with, this amendment are as follows:
Amendments Nos. 9, 14 and 23 delete the existing powers of entry which are to be replaced by the new section.
Amendment No. 47 provides for a new power of arrest in section 106 of the Road Traffic Act, 1961. The purpose is to allow a member of the Garda Síochána to arrest, without warrant, a hit-and-run offender who has caused death or injury.
Amendment No. 16 is a consequential amendment to provide that a breath, blood or urine specimen may be taken for analysis following such an arrest.
Deputy Doyle has related amendments, Nos. 10 and 15. I believe that the thrust of what Deputy Doyle is proposing is catered for in my own amendments.
I thank the Minister for reconsidering his original proposals. As one who raised this matter on Second Stage, and again on Committee Stage, I felt strongly that the bald provision in the Bill as initially circulated would be wide open to abuse and proved unconstitutional when challenged.
The Minister caters for the sentiments in my amendments which are less technically drafted because of the lack of resources available to the Opposition relative to the Minister's Department.
There is one area on which I still need clarification. I have no difficulty with the Minister's proposal to give the Garda powers to enter a dwelling in cases of hot pursuit. The section of the Bill was too broadly drafted and this proposal makes it specific. The Minister has made it quite tight in that a member of the Garda must actually have seen somebody leave the scene of the crime and pursued them to their house. That is a very reasonable power, given the safeguards. However, I wonder if there is a case for extending the time within which the garda has power to enter a private dwelling to three hours in the case of a hit-and-run. I specify three hours because there is a presumption that alcohol levels can rise in the blood for up to three hours after consuming the last drink, and after three hours, if no more alcohol has been consumed, the blood alcohol level reduces in normal metabolic circumstances. I am attempting to make specific this extension of the power of the Garda to enter private dwellings, with force if necessary, and arrest without warrant, if necessary. The Minister's proposal is to do that in cases of hot pursuit. However, in hit-and-run cases where the garda may not have actually seen the person leave the scene of a crime but can reasonably be of the opinion that that person was involved in the accident, is there a case for giving the garda the power to enter that person's home for up to three hours after the accident?
I understand that a Supreme Court judgment adds to our case in regard to drunk driving and being drunk in charge of a vehicle, dealt with in sections 10 and 11 of the Bill. I refer to the case of the Director of Public Prosecutions v. William Forbes with which I am sure the Minister is familiar. Apparently the court decided that, this Bill apart, under present law a garda is entitled to enter private property to effect an arrest for drunken driving and, furthermore, a householder gives “an implied authority” to a member of the garda to come on the forecourt of his premises. I would like to know the Minister's thinking on how that extends our ability to deal with the type of cases we are discussing here. In proposing his amendments the Minister made the power to enter a dwelling and arrest without warrant specific to cases of hot pursuit, but in ordinary drunk driving cases he is extending the power to the Garda to come on to the curtilage or forecourt of a private dwelling or private premises generally. Although it is probably neater to have this nailed down in the Bill, is it necessary, as apparently the Supreme Court has already decided that that power exists? I was not aware of that when we discussed this Bill on Committee Stage; perhaps the judgment had not then been handed down. However it brings a step further the case law used in deciding these issues.
I will put on the record the views of the Incorporated Law Society of Ireland in respect of the original subsections 10 (8) and 11 (10) which gave rise to extreme concerns. I was very unhappy with the original wording of those two sections which have been amended subsequently. I received a letter from the Law Society which states:
The Society's Parliamentary Committee has considered subsections 10 (8) and 11 (10) of the above Bill [namely, the Road Traffic Bill, 1993 before us today]. The Committee's view is that the provisions amount to an abuse of power; [that is strong language from the law society] that the powers of arrest contained in these subsections are excessive in relation to the offences and the frequency with which they are likely to occur.
It was felt that if such powers are not necessary in other legislation dealing with greater offences, they are not necessary in this instance.
The Minister appears to have accepted the spirit of the views of The Incorporated Law Society of Ireland and may have communicated with it. Its view is that the extention of such power to the gardaí was excessive given that other legislation dealing with more serious matters did not extend such powers to them. We are all aware that powers which are a cause of concern to many are extended to gardaí in areas covered by other legislation. I am pleased the Minister made crime specific. Having regard to what the Minister said when proposing his amendments I have no reason to believe that the extension of his power to the gardaí has been restricted to make it crime specific. I would welcome his views on where the line should be drawn in a case of hot pursuit and extending the time limit for alcohol content by up to three hours following a hit and run accident. I will not press my amendments given that their spirit has been fully incorporated in what the Minister said.
When replying I ask the Minister to consider an amendment which has been ruled out of order because it would be a potential charge on the Revenue. When the powers that be are at a loss to know the basis on which to rule an amendment out of order it is ruled out on the basis that it involves a potential charge on the Exchequer. I asked the Minister to consider the spirit of that amendment because it relates to the amendment he proposed. If powers are extended to gardaí to enter private property, with reasonable force if necessary, and to make an arrest without a warrant in any circumstances — they have been clearly defined today — the gardaí must be protected against claims for damage to property or subsequent injury to the person. Powers have been extended to the gardaí to enter private property with reasonable force and make an arrest without a warrant under other legislation, for example, legislation covering the case of a victim in peril or where an attempt is made to dispose of evidence. That provision is included in the protection of the Constabulary Act of approximately 1800. I am not sure of the year but it is an old Act.
It sounds old.
When "constabulary" is included in the title of an Act one can be sure it is old. My amendment, which proposed the inclusion of the protection of the Constabulary Act in this Bill has been ruled out of order because it involved a charge on the Revenue.
That Act is old fashioned.
Something like that. Serious consideration must be given to protecting the gardaí in their role of protecting citizens. If powers — even crime specific ones — are extended to gardaí to enable them to enter private property and make an arrest without a warrant, damage will probably be caused to the property and injury may be caused inadvertently to a person who may object to an arrest without a warrant. In such cases are the gardaí protected by the protection of the Constabulary Act or other legislation? I do not believe they are. In other legislation involving the extension of such powers to the gardaí, they are specifically protected by the Constabularly Act against subsequent claims in respect of injury to the property or the person. I give the Bill a guarded welcome. The area is a legal and constitutional mine-field. Even though the Minister proposes to make the extension of powers to the gardaí under this Bill crime specific — in cases of hot pursuit, curtilage and drunken driving, although the Supreme Court would hold that those powers exist in certain circumstances — the risk of a constitutional challenge is strong because we are stepping into the area of the private home and protection within it, covered by Article 45 of the Constitution, which people guard jealously. I ask the Minister to cover those points when replying. I will withdraw my amendments and support those of the Minister.
The Minister will recall that this area provoked heated discussion on Committee Stage. Many Members expressed reservations about the openness of the powers given to the gardaí, especially in relation to the privacy of the home. I recall Deputy Doyle saying to the Minister that nobody condones a hit-and-run accident and she favoured granting the Minister powers in such cases. I compliment the Minister for taking on board the sentiments expressed on Committee Stage. I am sure most Deputies will support the Ministers amendment. The Minister referred to the curtilage of the House and the Supreme Court judgment and I am sure Deputies will not object to that provision. Many of the concerns expressed by Members on Committee Stage have been allayed by the Minister's amendment.
I agree with the comments made by other Deputies. Obviously, the Minister listened to the heated debate on Committee Stage. The view of the Law Society in respect of the powers being excessive was expressed by Deputies on all sides, but at that time the Minister was concerned to give the gardaí what he considered to be appropriate powers. Deputy Doyle referred to a case of hot pursuit referred to on Committee Stage. The person involved in that case pulled into the driveway of another person's home and that might have influenced the decision in that case. That case was an example of where the violation of the privacy of the home might be open to challenge through the Supreme Court and that was an area about which all Members were concerned. Regarding cases of drunken driving, the challenges in court are numerous, every device is used to challenge prosecutions and cases may be appealed to the Supreme Court. The Minister's amendments address the various reservations by Members.