Road Traffic Bill 2009: Report and Final Stages

I move amendment No. 1:

In page 7, line 15, after "provisions" to insert the following:

"provided that this Act shall be brought fully into operation not later than the day that is 12 months from the date of its passing".

Has the Minister thought about this matter since Committee Stage?

I have thought carefully about it but the reasoning I gave on Committee Stage remains valid. There are other elements in the Bill which it might not be possible to commence and make operational within the proposed 12 month period. I made reference at that time to what is now section 44 of the Bill, by way of example, which involved the out-sourcing of certain functions by the Courts Service and all that will entail in terms of IT, administrative supports and so on. I am not prepared to take the chance, and the Deputy would not want me to take the chance, that the Bill will fall in 12 months' time because all sections have not been commenced. That is the effect of what would happen if the amendment were accepted. It is not to be awkward in regard to this matter but to try to ensure we have a safe and orderly passage of the Bill as quickly as possible and that it will not fall in 12 months' time. For that reason I ask the Deputy to withdraw the amendment.

On the basis of what the Minister has said and the consideration on Committee Stage I withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 7, between lines 26 and 27, to insert the following:

""prescribed" means prescribed by regulations made by the Minister;".

This is a technical amendment.

Amendment agreed to.

I move amendment No. 3:

In page 8, lines 23 and 24, to delete all words from and including "includes" in line 23 down to and including "alcohol" in line 24 and substitute the following:

"means any substance or combination of substances which affects the central nervous system, leading to changes in perception or behaviour. This includes alcohol and other drugs and any combination of drugs, whether including alcohol or not".

This arose out of an effort on Committee Stage to include a definition of "drugs" in the law. As there is no such definition it may create a loophole because a driver may argue that the substance he or she has taken was not a drug.

The definition of "intoxicant" should be changed, therefore, to any substance or combination of substances which affects the central nervous system, leading to changes in perception or behaviour. It would include alcohol, other drugs and any combination of drugs and alcohol. I hope the Minister will consider this amendment favourably.

I accept the spirit of the amendment and the Deputy's motive in tabling it to strengthen the legislation. I examined it carefully and took advice from the Office of the Attorney General and the Medical Bureau of Road Safety. Due to the nature and volume of challenges in the courts to all intoxicated driving offences and the current acceptance by the courts of the well-established meaning of "intoxicant" as provided for in the Road Traffic Acts, I was advised it would be foolish to accept this amendment.

The next road traffic Bill will focus on drugs testing and I promise the Deputy I will have his amendment considered in that context. However, I am not prepared to take the risk on it in this legislation. I hope the Deputy will appreciate where I am coming from on this matter.

I accept this Bill is concerned with alcohol and driving. However, it is important we consider drug use and driving in future legislation. On that basis, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 66 is related to amendment No. 4 and they may be discussed together by agreement.

I move amendment No. 4:

In page 8, between lines 26 and 27, to insert the following:

""pedal cycle" means all human-propelled, pedal-driven vehicles including pedestrian rickshaws and electric assisted bicycles which can only be activated when the rider is pedalling and which is speed limited to 25 km/h;".

On Committee Stage it arose that unicycles and pedal cycles with more than three wheels are not covered by the definition of "pedal cycle" in this legislation. This amendment proposes to amend the definition to cover all human-propelled, pedal-driven vehicles including pedestrian rickshaws and electric assisted bicycles.

Mayo County Council has a scheme for improving driver and cyclist performance whereby cyclists have a number plate, a sort of unofficial licence. Recently, a District Court judge banned a cyclist from driving as there was no provision in the law to deal with alleged misbehaviour of a cyclist. I accept an overall consolidation of traffic law will have to be introduced at some point but I urge the Minister to accept this amendment as a start.

I acknowledge the Deputy is ahead of me in this matter and is anticipating future legislation. However, as I explained on Committee Stage, the Road Safety Authority is examining the definitions of mechanically propelled vehicles and pedal cycles in road traffic legislation in the context of the development of a new EU framework regulation on type approval governing two and three-wheeled vehicles. The authority will be making proposals for a legislative amendment in due course. While I accept the principle of the amendment it is better practice to wait for the particular advice from the authority and incorporate it into later legislation.

Amendment, by leave, withdrawn.

Amendments Nos. 5 to 8, inclusive, are related and may be discussed together by agreement.

I move amendment No. 5:

In page 9, line 14, to delete "in a public place".

There is no pressing policy reason to limit the offence of drink-driving to public places. It could also create a technical defence in court to a prosecution.

I clarified this since Committee Stage. The definition provided for in section 3 of the principal Act states, "public place means any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge." I have been advised this covers the Deputy's concerns.

The proposed deletion of the words "in a public place" would have the effect of introducing the offence of driving or being in charge of a mechanically propelled vehicle while intoxicated on private property. This would give rise to difficulties with a person's constitutional right to enjoy his or her private property. For that reason, I cannot accept the Deputy's amendment.

It is a matter of which we are aware from court reports concerning attempts to stop a driver who had drink taken.

Amendment, by leave, withdrawn.
Amendments Nos. 6 to 8, inclusive, not moved.

Amendments Nos. 9 and 10 are related and may be discussed together by agreement.

I move amendment No. 9:

In page 9, line 44, to delete "6 months" and substitute "12 months".

I had similar amendments on Committee Stage which sought to increase the penalty on summary conviction for drink-driving from six months to 12 months. Has the Minister reflected on this proposal?

I have reflected on these amendments. However, I have been advised against introducing such a term of imprisonment in summary trial cases as it would go against the overall intention of such trials. The only instance in road traffic legislation in which a term of imprisonment of 12 months is provided for is in section 112 of the principal Act, taking a vehicle without authority. There is a bit of history attached to that section. Accordingly, I ask the Deputy to withdraw his amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 10 to 12, inclusive, not moved.

Amendments Nos. 14 to 16, inclusive, are related and are an alternate to amendment No. 13. Therefore, amendments Nos. 13 to 16, inclusive, may be discussed together by agreement.

I move amendment No. 13:

In page 13, to delete lines 11 to 18 and substitute the following:

"(a) is of opinion that a person in charge of a vehicle in a public place—

(i) has consumed intoxicating liquor, the member shall require, or

(ii) (I) is or has, with the vehicle, been involved in a collision, or

(II) is committing or has committed an offence under the Road Traffic Acts 1961 to 2010,

the member may require,".

Members will recall we had a detailed consideration of this provision on Committee Stage. I made the commitment then to re-examine the section to see if it could be better drafted to address some of their concerns. Amendment No. 13 provides for the restatement of what was section 8(1)(a), now section 9(1)(a), to remove any ambiguity and address the concerns expressed by PARC, the road safety group, on the absence of the word “or” in the section.

I have been advised by the Attorney General's office that to make any further changes to this section, without a detailed consideration and consultation with key stakeholders, could seriously undermine preliminary breath-testing provisions in general and lead to significant legal challenges.

In summary, the section now provides that where a member of the Garda Síochána is of the opinion that a person in charge of a vehicle in a public place has consumed intoxicating liquor or has been involved in a road traffic collision in which injury was caused, the garda shall require a preliminary breath specimen. Also, where a member of the Garda Síochána is of the opinion that a person in charge of a vehicle in a public place has been involved in a road traffic collision not involving injury or has committed an offence under the Road Traffic Acts 1961 to 2010, the garda may require a preliminary breath specimen. The effect of the amendment I have moved is to try to meet some of the genuine concerns Members raised. The advice I have received is this is as far as I can go at this stage.

I welcome the fact that the Minister accepted a key amendment I moved earlier on behalf of the Labour Party. The formula he has arrived at comes a good deal closer to the introduction of mandatory testing for collisions, accidents involving serious injury and tragic fatalities. I warmly commend the PARC road safety group, a group of activists which has campaigned so steadfastly for improvements in road traffic legislation in recent years, all the leaders of which have suffered terrible tragedies.

These sections remind us of what we are trying to do, that is, to reform fundamentally the law and to change the culture of drinking and driving. We should not forget that the Minister represented us yesterday at the award ceremony where Estonia and ourselves received recognition for the fall in the level of deaths and casualties on our roads during recent years. However, the figures for recent months are disturbing. The data for May of this year were almost as bad as for May 2009, with only one less casualty. There have been tragic cases of young men in particular involved in one person vehicle collisions and who have lost their lives in recent times.

We are aware from the work of our experts, including Dr. Declan Bedford, that alcohol has been a factor in 37% of fatal collisions, that 42% of drivers who died had alcohol levels deemed to be a contributory factor and that 34% of killed drivers were over the then legal limit. We are also aware that 92% of survivors were not tested for alcohol in their systems. This is the system we are trying to change. We do not want those circumstances to occur again. I urge the Minister to consider the amendments.

The Minister is sticking with the phrase "is of the opinion". I am a member of the Garda Forum for Dublin city and Fingal County. The Commissioner of the Garda Síochána appeared before the Committee of Public Accounts last week. I inquired generally about the view of the force on this issue. There is a view that there must be some discretion. I believe this could be best formulated on the basis of the Northern Ireland legislation in which the term "suspects or having reasonable cause to suspect" seems to give a stronger version of the term "is of the opinion" or that used in the previous legislation, "forms the opinion", which we believed to be rather problematic. A formula involving "suspects" would still give a slight flexibility. Deputy Ahern referred to minor tips on the road and so on during the previous debate. We should ensure drivers involved in collisions are tested and that there is mandatory testing.

One last time I call on the Minister to consider whether he could make the language stronger with regard to mandatory testing. Ultimately, the whole discussion has been about forming a different culture. If one wishes to enjoy a drink that is fair enough but, as Dr. Bedford's research shows, it is not possible to drive safely afterwards. His research also shows that if there is a blood alcohol level of greater than 0.04%, there is impairment. We want to change that to bring our limits into line. On Committee Stage, we heard that the UK Government, through the North Commission, was going to introduce the 0.05% limit as well. All other countries in the European Union have a limit of at least 0.02% or below. Some have 0.0% which seems very difficult to manage. Most countries have a limit of 0.02%. We are planning to move to 0.05% and the UK appears destined to follow us.

I call on the Minister to make the formula "is of the opinion" stronger to ensure mandatory testing. We seek mandatory testing for collisions. It is necessary for a new culture of driving in the country and to avoid the shocking tragedies that have occurred. Even this year, the death figures stand at 93 or 94. Each one of these cases represents an appalling personal tragedy and devastation for a family and we should never forget that fundamental point. As Gay Byrne, the chairman of the Road Safety Authority, stated yesterday when he accompanied the Minister, we need to get the number of fatalities as low as possible. Strictly speaking, no one should die in a form of transport; that is ridiculous. We should aim for zero fatalities and this is our purpose tonight. This is an important step we must take.

If a person is aware that he or she will be tested for drink driving, it helps to cut down on speeding. It has a double edge in this regard. Speeding and drink are our two main killers. I call on the Minister to listen to the remarks of Deputy Broughan and to consider the matter.

Education is working with regard to drink driving, speeding and so on. We can do two things with one measure in this case. A person will know the chance of an accident is far greater if he is speeding. However, if that person is also aware that if he has a tip he will be tested for drink driving, the incentive is stronger. I call on the Minister to back the two of us in this regard and to consider the matter.

We held a long discussion on the matter. This will provide for mandatory testing in certain circumstances. The legislation refers to where a member of the Garda is of the opinion that a person in charge of a vehicle in a public place has consumed intoxicating liquor, that member "shall" require and so on. That is mandatory and there is no way out of it.

I made the point the last time in respect of other circumstances in which a test could be carried out that I did not take the view, nor do I still, that it is a good idea or a good use of Garda resources to provide that someone who committed an offence under the Road Traffic Acts, other than in the circumstances outlined here, such as a parking offence should be mandatorily tested in such a case. I have not changed my view on the matter. I have gone as far as I can in the current circumstances. I agree with Deputy Broughan that we should try to ensure in whatever way we can to reduce the number of people killed on the roads. However, we must balance this against practicalities, resources and ensuring the legislation we pass in the House is acceptable and has a degree of public support.

We have taken a major step forward with this legislation. No doubt as we move through other road traffic Bills in future the law may be tightened somewhat more but this is a far as we can go.

Amendment agreed to.
Amendments Nos. 14 to 16, inclusive, not moved.

I move amendment No. 17:

In page 13, line 20, to delete "attends at the scene of" and substitute the following:

"is of opinion that a person has been in charge of a vehicle that has been involved in".

I propose the deletion of the phrase "attends at the scene of" an event which has occurred in a public place and substitute the following: "is of opinion that a person has been in charge of a vehicle that has been involved in". Has the Minister reflected on that since Committee Stage?

We spoke about this and were both in agreement on it. I had a look at it following the discussion we had on Committee Stage. What has been clarified for me is that the provisions of section 7 directly address the Deputy's concerns. The section provides for powers of entry to the Garda Síochána in the particular circumstances about which the Deputy spoke. Where a person has been injured and is perhaps in a doctor's surgery or elsewhere, the gardaí can enter such premises without warrant in order to obtain a preliminary breath specimen, so this is covered.

We had much debate about this and the Deputy was very strong on it. I may have misled him somewhat but what he is looking for is contained in section 7.

The member of the Garda Síochána would not have had to have been at the roadside.

No. The Deputy will remember we had a discussion on this and I thought the Deputy made a very valid point. It could have been a loophole but I am assured it is covered.

Amendment, by leave, withdrawn.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 13, line 40, to delete "may" and substitute "shall".

This is an attempt to strengthen the mandatory aspect of the Bill. The Bill states "where the member does not have such an apparatus with him or her, to remain at that place in his or her presence or in the presence of another member of the Garda Síochána until such an apparatus becomes available to him or her ... the member may then require the person to provide, by exhaling . . .". Why does the Minister not use the word "shall"? It is the same point as——

It is the same and my answer is the same because of the implications it might have in regard to resources and so on. That is the reason the word "may" rather than "shall" is used. For that reason, I cannot accept the amendment.

Amendment put and declared lost.

Amendments Nos. 20 and 21 are related and may be discussed together by agreement.

I move amendment No. 20:

In page 15, line 34, after "opinion" to insert "or suspicion".

I moved these amendments on Committee Stage. Amendment No. 20 inserts the words "or suspicion", again to strengthen the mandatory aspect of the legislation. This relates to preliminary impairment testing where a member of the Garda Síochána forms the opinion that the person in charge of a vehicle is under the influence of an intoxicant. I wish to develop that further to read is of the "opinion or suspicion". In light of the UK and Northern Ireland legislation, it would legally strengthen the position for the garda in question and give a stronger basis on which to ask for an impairment test. Has the Minister thought about that over the preceding few days?

I have done so and, as the Deputy rightly said, there was considerable debate on Committee Stage about the use of the phrase "is of the opinion", which is currently provided for in the road traffic legislation, and the proposed addition of the words "or suspicion". We had a good discussion and I did not have much of a problem with it.

I said I would see if it would have implications for other road traffic legislation. Again, mindful of the considerable level of challenges, in particular in intoxicated driving cases, I did not make any promises other than to look at it, which I did. The advice received from the Office of the Attorney General was against changing the existing terms.

It appears there is a significant difference between the two phrases about which we are speaking, with completely different requirements in terms of proof in presenting evidence in prosecutions. Perhaps there is not much difference at the end of the day but the phrase "in the opinion of" has been well tested in the courts and it is the one with which people feel safest. For that reason, I have been advised not to change it, in particular in this legislation.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.

I move amendment No. 22:

In page 15, after line 48, to insert the following:

"(4) Where the outcome of testing under this section indicates that the person is incapable of having proper control of a vehicle, that outcome shall be evidence in a prosecution under section 4(1).”.

I propose to add an additional provision to tie in the preliminary testing in order that it can be used as evidence in the prosecution. From what the Minister said, he believes it will be problematic. I do not know if he thought about the formula I have in the amendment.

I had a look at it but the problem remains the same in regard to court challenges and so on. To apply an evidential status to the results from the roadside tests I am advised could cause very severe difficulties in the overall evidential process. These are meant to be preliminary roadside tests similar in status to the breath screening devices, the breathalyser one gives to a person. The results of that are used to form the opinion but they do not provide evidence for use in a subsequent prosecution. The impairment test would be solely used to form the opinion so that when the judge asks how one formed the opinion, one will be able to state that this test was done. That is only a part of the process.

The real scientific part of the process, which stands up as evidence in the court, is the test that takes place afterwards. Introducing this as part of the evidence would leave too many loopholes which I know the Deputy does not want to happen. For that reason, we cannot accept the amendment.

I thought it would have helped the Garda Síochána but I have thought about what the Minister said and I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 23 not moved.

I move amendment No. 24:

In page 16, lines 22 and 23, to delete "at the option of the person,".

This amendment relates to the obligation to provide the breath, blood or urine specimen and to perform impairment testing following an arrest. I propose to delete the phrase "at the option of the person", again to strengthen the procedure in giving the specimen. I am sure the Minister has thought about it since Committee Stage.

I have done so and there is a difficulty with accepting the amendment. I am sure the Deputy will understand that we all want to try to prosecute anybody who has taken a drink and drives. However, circumstances can arise and there can be very valid reasons a person who is required to provide a sample is unable to do so. There can be valid reasons a person who is required to provide a sample is unable to do so. For instance, there can be difficulties obtaining an appropriate vein or passing urine. These issues have to be addressed and, for that reason, the person must have an option to select one or other of the tests. Making it compulsory that a garda must decide or the individual cannot have a choice would be too much of an onerous obligation on the individual. Courts could take a particular view of that and, for that reason, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

Did we dispose of amendment No. 23?

We are moving so fast that I did not contribute on it but I want to say something about it if I could.

In a spirit of co-operation, the Deputy may.

I move amendment No. 23:

In page 16, between lines 9 and 10, to insert the following:

"(7) As soon as practicable after the passing of this Act the Minister shall make regulations applying section 9 to random testing of saliva to ascertain whether persons in charge of mechanically propelled vehicles are under the influence of illegal drugs.".

I appeal to the Minister to provide whatever resources are required to introduce a reasonable test for drug driving. On Committee Stage he said this would need another Bill but, in recent years, the states of Queensland, Victoria and New South Wales in Australia introduced a saliva test, which enables testing for cannabis, MDMA and related drugs.

We are making a major amendment to drink driving legislation but there is a great deal of evidence that drug driving is also a serious problem. A CSO survey in July 2009 highlighted an 81% drug driving increase on the previous year and the Medical Bureau of Road Safety's figures show the number of specimens tested for the presence of a drug increased from 569 in 2004 to 747 in 2008, 879 in 2006, 1,555 in 2007 and 1,900 in 2008. I do not have to hand the 2009 figure but I am sure it increased. Aviva carried out a study in 2008 which showed that more than 20% of drivers under the age of 35 had driven while under the influence of drugs. It is a significant problem and many people have been considering the issue over the past year or two following a number of tragedies.

The Minister said there were problems with the European Union in this regard but some of our European partners have begun programmes of drug testing. A saliva test is used in Australia. I wonder why the Minister is not moving on this and, therefore, why he will not accept the amendment.

The Minister will have everybody's support on this serious issue. Drug driving is a massive issue in rural and urban Ireland. The sooner a test is brought in the better. He will have the support of my party and if the tide turns, I hope that will be reciprocated in order that we can push this issue as quickly as we can.

I thank the Deputies for their support but we have not yet reached a stage where there is a reliable test for drug driving and I indicated this on Committee Stage. I guarantee that as soon we have a reliable test, I will introduce the legislation. We are moving on this legislation to make it much more explicit from the drugs point of view.

Deputy Broughan is correct that tests for drug driving are used in Australia but, as I pointed out on Committee Stage, different atmospheric conditions affect the test. We do not have a reliable test at European level but we are working with our European counterparts to ensure one is introduced. As soon as we have a test, we will provide for it in legislation.

The Deputy quoted statistics but the lack of a roadside test does not mean drivers get away when they have drugs in their system. If they have a drug other than alcohol in their system, the blood test can show that and people are being prosecuted. I accept the comments of both Deputies. The impairment test goes some way towards addressing the issue but if we could secure a saliva test or another test, it would be better. As soon as we do, we will move on it.

Amendment, by leave, withdrawn.

Amendments Nos. 25 and 26 are related and may be discussed together.

I move amendment No. 25:

In page 17, line 37, to delete "the said specimen" and substitute "that specimen".

They are two technical amendments.

Amendment agreed to.

I move amendment No. 26:

In page 17, line 37, to delete "the said apparatus" and substitute "that apparatus".

Amendment agreed to.

Amendment No. 75 is related to amendment No. 27 and both may be discussed together.

I move amendment No. 27:

In page 23, lines 53 and 54, to delete all words from and including "a" in line 53 down to and including "by" in line 54 and substitute the following:

"a sum approximating to the costs and expenses incurred by the prosecution and by".

This does not solely affect road traffic legislation. It is intended to tighten the screw on offenders regarding the payment of costs.

The principle outlined in the amendments is contained in the legislation. The amount referred in the section will be prescribed by the Minister. It is not intended that it will reflect the total cost of prosecuting a case but it will be a reasonable reflection. It is similar to the provisions in section 22 of the 1994 Act, which provides for the payment of a prescribed amount towards the cost of the Medical Bureau of Road Safety in intoxicated driving cases and that is made payable to the Exchequer.

The decision on whether to apply the provisions contained in section 22 is at the discretion of the court. I have examined the proposed amendment further and I am advised that to accept such a change at this time would not be desirable but further legal advice and consultation is required in advance for providing for any changes to the section. I will examine this further in the context of the next road traffic Bill. The experience so far is that judges are not very much in favour of section 22 but there comes a time when the House has to make decisions on this. I do not disagree with the Deputy's principle of making offenders pay for this but I cannot do it at this time. However, it is a subject to which we will return.

Amendment, by leave, withdrawn.

Amendments Nos. 28 and 29 are related and may be discussed together.

I move amendment No. 28:

In page 26, line 39, after "breath" to insert the following:

", provided that such apparatus does not operate to allow a standard deduction from the recorded reading of the concentration of alcohol in the breath".

These amendments related to the practice of using a standard deduction of 17.5% from the recorded breath alcohol content, BAC, reading. The road safety campaign group, PARC, has raised the issue of intoxilyzer machines used in Ireland. It strongly contends that there is a 17.5% reduction inbuilt in the readings, which means the evidential reading used in court could be 20% to 25% lower than the BAC at the time of testing. On Committee Stage I asked whether these deductions would be allowed in the recalibrated machines. The Minister addressed this at length and he forwarded a briefing note to me, which he also sent to Ms Susan Gray, the chairperson of PARC. I am concerned about whether a standardised method is used for these machines across the EU. The Minister outlined the reasoning for the deduction and why it was important in the legal process and so on.

However, I still was not quite clear on whether we have a standardised method and whether we are in complete conformity with international practice.

While there are variations in the amount deducted, this is well established in our laws. I mentioned to the Deputy during the previous debate cases such as Director of Public Prosecutions v. Syron, Director of Public Prosecutions v. Curry, and Ashley McGonnell, Oliver Quinlan and John Purcell v. Attorney General and Director of Public Prosecutions, which are extensive judgments and have stood up to all challenges. Thus, there is a strong basis for the system.

Other European countries have made similar allowances. The principle is the same, although the amount deducted may not be the same for a variety of reasons. In the Netherlands the allowance is of the order of 20% for 36 mg per 100 ml. There are also allowances in Sweden and the UK. We did discuss this extensively and there is absolute certainty, from our point of view, in this course of action. It will stand up to court challenges. For that reason I ask the Deputy to withdraw the amendment.

I will withdraw the amendment on the basis of the written report the Minister gave me and the lengthy discussion on Committee Stage.

Amendment, by leave, withdrawn.
Amendment No. 29 not moved.

I move amendment No. 30:

In page 27, between lines 37 and 38, to insert the following:

"29.—The Minister shall review and present to Dáil Éireann a full audit of the level of funding allocated to the Bureau given the increased burden of testing of drivers under the influence of intoxicants.".

This is obviously an issue for the Estimates. I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 31:

In page 28, to delete lines 24 to 38.

Sorry, a Chathaoirligh. We are moving fairly fast.

It deals with fixed penalty notices.

Yes. Amendments Nos. 34 to 38 are being discussed together. I propose to delete lines 24 to 38.

It is amendment No. 31.

Sorry. The amendment proposes to delete the whole of subsection (2) of section 29 on the basis that there does not seem to be a good reason specified that persons should receive a slap on the wrist. Many people feel that everybody needs to be left in no doubt of the significance of driving under the influence of alcohol. The Minister addressed this on Committee Stage.

I hope this is the right time to bring up penalty points. We have all been supportive in the campaign against driving under the influence of alcohol. I would like to ask the Minister one question about fixed penalty notices which confer penalty points. If a person receives penalty points for driving with a blood alcohol level of between 50 and 80 mg per 100 ml, they will stay on the person's licence for five years, while penalty points for speeding, which is also a massive killer, remain for only three years. Did the Minister consider this? Could he reduce the period of application of the penalty points from five years to three years in the interests of fairness?

I will deal with Deputy McEntee's point in a minute. With regard to amendment No. 31, what Deputy Broughan is proposing is that the offer of a fixed penalty notice to specified persons for certain offences be removed. The introduction of the lower blood alcohol limit has been the subject of much debate and discussion and I am anxious that, particularly in the early stages following its introduction, a certain amount of fairness should be applied to allow drivers to adjust to the new lower limits. There is a certain amount of truth in what the Deputy says, in view of the fact that the offence incurs three penalty points rather than the penalty that applied previously. However, I was persuaded by the arguments put by a wide variety of people that initially, because there may be an element of doubt about whether one is over the limit, we should be reasonable about giving people a fair warning. If somebody is caught, he or she will know the next time that a glass of wine is too much, or whatever. On that basis, I do not wish to withdraw the option of a fixed penalty notice.

Deputy McEntee mentioned the retention of penalty points on a person's licence for five years as specified in section 29(5). This has been raised by a few people and I have considered the fact that the points are imposed for five years rather than three years. If the House is willing to agree, I do not have a difficulty with reducing this to three years. The points may remain on a person's licence for five years, but he or she has had a warning and received three points, so it is almost irrelevant whether they remain for five or three years. If the House is agreeable I will amend the section to specify three years instead of five.

The proposed amendment referred to learner and professional drivers, for whom there is a blood alcohol limit of 20 mg per 100 ml. For learner drivers, it is important that driving education is begun in the right way. The Minister has yet to introduce the graduated learner driver system, which we look forward to. It is important to have a good education so that a person remains a good driver throughout his or her life. In addition, professional drivers have a serious responsibility to their passengers. This is what inspired the amendment. However, the Minister made his argument to me on Committee Stage and it is reasonable enough.

With regard to the length of time the penalty points remain on a person's licence, the important thing is the 50 mg per 100 ml blood alcohol limit and the fact that penalty points are incurred for breaching this limit. It is a "one strike" system, which was felt necessary in order to change the culture. It is up to the Minister to introduce amendments. There has been intense lobbying around the House today by vintners, who are perhaps seeking to water the Bill down. This is not acceptable, given the fact that since 1960 we have lost 20,000 people through road deaths, and so many families have been damaged. As I have mentioned, the research clearly shows that alcohol was a factor in almost 40% of these collisions. It is the Government's duty to govern and to propose and it is the duty of the Opposition to respond. Is the Minister now proposing that it be three years instead of five years? Is it possible for the Minister to table an amendment now or must he wait until the Bill goes to the Seanad?

I am responding to Deputy Shane McEntee on the basis of what both he and Deputy Broughan said that it is up to Government to decide. I should say it is not actually up to the Government because I have accepted amendments from the Opposition. However, in deference to what has been said by the Deputies, I am willing to change the provision to allow for maximum acceptability. In section 29(5) I propose to change the words in line 21, to remove the words "five years" and replace them with "three years". I will move that amendment.

We have agreed the key system. On that basis I will not oppose such an amendment from the Minister.

Lobby or no lobby by anybody, we have stood firm together on the issue of drink driving. At times I had to decide for myself what was right and what was wrong. Our young people want to be educated in how to do the right thing and they are acting in that way. I have no problem with the vintners telling it as it was but I do not accept it was a vintners' lobby. It was not really pointed out to me and I accept that. I will go in the interest of fairness, and specifically so that people will realise that speed kills as well.

Speed is a massive problem and it is caused by drug drivers at this stage. They get their cheap drink in an off-licence, they take their drugs and they get into a car and they kill themselves at speed. I am delighted that the three of us are ad idem and I support the Minister’s proposal.

I wish to clarify a point with the Minister. I presume the structure of penalty points and sanctions as the Minister has laid down will not be amended in any way and it will stay the same.

It will stay the same, that is correct. The only change we are proposing in the structures is that the penalty points would remain on the record for three years rather than five years.

Amendment, by leave, withdrawn.

I move amendment No. 31a:

In section 29 (5), line 21, to delete the words, "five years" and insert the words "three years".

Amendment agreed to.

I move amendment No. 32:

In page 32, line 3, to delete "€2,000" and substitute "€5,000".

We had lengthy discussions on this matter on Committee Stage. This amendment proposes to make the penalty up to the maximum District Court penalty of €5,000. I do not know if the Minister has given it any further consideration.

I have not been advised that it has to be proportionate in the context of the provisions. I cannot go beyond what is provided for in section 29(16).

Amendment, by leave, withdrawn.

Amendment No. 33 is in the name of the Minister and Deputy Broughan. Amendments Nos. 33 to 35, inclusive, 39, 41, 42, 69 and 73 may be discussed together.

I move amendment No. 33:

In page 32, line 11, to delete ", Equality".

Deputy Broughan raised this issue on Committee Stage and I agreed to examine it prior to Report Stage to identify all references to the Department's title and to correct them accordingly. Therefore, my proposed amendments provide the required corrections. I thank Deputy Broughan for bringing this matter to my attention as it is important.

I thank the Minister for agreeing to the amendments.

Amendment agreed to.

I move amendment No. 34:

In page 32, lines 26 and 27, to delete ", Equality".

Amendment agreed to.

I move amendment No. 35:

In page 35, line 10, to delete ", Equality".

Amendment agreed to.

I move amendment No. 36:

In page 36, line 32, to delete "address" and substitute "address (inside or outside the State)".

Amendment agreed to.

I move amendment No. 37:

In page 40, between lines 43 and 44, to insert the following:

"38.—As soon as practicable after the passing of this Act, the Minister shall present proposals to the Oireachtas for the application of fines under the Principal Act based on the means of the offender rather than of fixed maxima that apply to all cases.".

This was discussed on Committee Stage. It is a practice in foreign jurisdictions that the wealthier people pay a higher fine. I asked the Minister to consider such a provision. In countries such as Germany and Switzerland, variable fines are applied depending on the income of the individual. If a person flagrantly breaks the law, there is some method of redress which will hurt a person who may be very wealthy or a millionaire. I ask the Minister to consider such a provision.

I made inquiries after Committee Stage. The Department of Justice, Equality and Law Reform has dealt with this matter in the Fines Bill 2009. That Bill applies to all fines and it meets the concerns the Deputy has expressed. Even though the Deputy was talking about it in this context, he managed to get it through in another context. His concerns are met.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 43, line 6, after "made" to insert "by the Minister".

This is a technical amendment.

Amendment agreed to.

I move amendment No. 39:

In page 43, lines 26 and 27, to delete ", Equality".

Amendment agreed to.

I move amendment No. 40:

In page 43, between lines 33 and 34, to insert the following:

"(3) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion has committed an offence under subsection (2).”.

I was trying in this amendment to strengthen the situation where a traffic warden is attempting to carry out his or her business by providing that a member of the Garda Síochána may arrest without warrant a person who in the member's opinion has committed an offence. I was thinking in particular of foreign drivers or drivers of foreign vehicles. A traffic warden might need to call on the Garda for backup. I ask if the Minister has considered this proposal since Committee Stage.

As the Deputy said, it refers to offences enforced by local authority traffic wardens. They are mainly involved in the use of mechanically propelled vehicles. In such cases where the name and address of an alleged offender is not available or is refused on the demand of the local authority traffic warden, the registration number of the vehicle is available for use in pursuing the identity of the owner. This may not always be practicable, particularly, as the Deputy said, if it is a foreign car. However, to arrest a person who refuses to give a name and address for an alleged parking offence might seem to be a little disproportionate. In any event, the current situation allows the local authority traffic warden to call the Garda to assist in such circumstances.

Section 75 of the Bill provides for the arrest by the Garda, if so required and without warrant, of persons who refuse or fail or give false or misleading details. I may not have made it clear on Committee Stage because I was not clear on the matter in my own mind but it is covered in section 75 of the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 43, line 34, to delete ", Equality".

Amendment agreed to.

I move amendment No. 42:

In page 44, line 2, to delete ", Equality".

Amendment agreed to.

Amendments Nos. 43 to 45, inclusive, are related and may be discussed together.

I move amendment No. 43:

In page 46, between lines 27 and 28, to insert the following:

PART 4

PAYMENT DEPOSIT

50.—(1) This section applies to such offences under—

(a) the Road Traffic Acts 1961 to 2010,

(b) the Road Transport Act 1933 (including any Act construed as one with it),

(c) any regulation made under the European Communities Act 1972 providing for the carriage of merchandise by road or the carriage of passengers by road or the harmonisation of certain legislation relating to road transport, or

(d) any enactment or any instrument made under any enactment relating to the carriage of goods or passengers by road or to any vehicle or class of vehicles engaged in such carriage,

as may be prescribed.

(2) Where—

(a) a member of the Garda Síochána or a transport officer has reasonable grounds for believing that an offence to which this section applies is being or has been committed by a person, and

(b) the person does not give to the member or officer an address in the State at which the member or officer is satisfied that it is likely that it would be possible to find the person whenever necessary to do so in connection with any proceedings in respect of the alleged offence,

then the member or officer may, subject to subsection (3), serve personally on the person a notice (in this section referred to as a “payment deposit notice”) in accordance with this section.

(3) Where a payment deposit notice is served on a person, the person shall—

(a) be informed by the member of the Garda Síochána or the transport officer serving the notice that it is likely that proceedings will be brought against the person in respect of the alleged offence, or

(b) if the offence is a fixed charge offence, be served with a fixed charge notice by the member or officer or informed by the member or officer that it is intended to serve the person with a fixed charge notice.

(4) A person on whom a payment deposit notice has been served under subsection (2) who—

(a) resides outside the State, shall give to the member or officer serving the notice the address outside the State at which he or she resides or which is his or her most usual place of abode, or

(b) in a case where the alleged offence involves the use of a mechanically propelled vehicle by the person in the course of his or her employment, has no habitual residence or place of abode outside the State, shall give to the member or officer serving the notice the address of his or her employer.

(5) A payment deposit notice shall be in the prescribed form.

(6) A payment deposit notice shall—

(a) require the person to pay an amount (in this section referred to as a “payment deposit”) in accordance with the requirements of regulations under subsection (7), and

(b) contain details of those requirements.

(7) The Minister may by regulations provide in relation to a payment deposit for all or any of the following:

(a) the amount to be paid and different amounts may be prescribed in relation to different offences, calculated in respect of an offence as a proportion of the maximum fine that may be imposed in relation to the offence or, if the offence is a fixed charge offence, the amount of the fixed charge or a specified proportion of it;

(b) the timing, method or manner of payment or appropriate arrangements for making payment or matters relating thereto;

(c) whether the payment is to be accompanied by the notice and, if so, the details to be completed on the notice;

(d) options for payment (including the possibility of cash payment where in the circumstances and at the material time another means of payment is not possible) so as not to unduly delay a person, who is willing to pay the payment deposit, on his or her journey;

(e) the issue of a receipt in respect of payment;

(f) applications for refunds of payment deposits, including time limits for such applications;

(g) the refund of payment deposits, in whole or in part;

(h) directions which may be given by a member of the Garda Síochána or a transport officer in connection with matters relating to payment, the arrangements for making payments or the vehicle concerned or any load on it;

(i) any other requirements relating to payment of the payment deposit, as the Minister considers appropriate.

(8) A person who fails or refuses to—

(a) pay a payment deposit in accordance with the requirements of regulations under subsection (7), or

(b) give an address for the purposes of subsection (4), is liable to have—

(i) a notice (in this section referred to as a "prohibition notice") served personally on him or her by a member of the Garda Síochána or a transport officer, as may be appropriate, or a nominated person at the request of the member or officer, prohibiting the movement of the vehicle concerned other than in accordance with the directions of any such member or officer, and

(ii) in accordance with regulations under subsection (10)

(I) affixed to the vehicle an immobilisation device and a notice (referred to in this section as an "immobilisation notice") stating that the vehicle has been immobilised and shall not be moved, and

(II) the vehicle detained or impounded,

until payment or a satisfactory arrangement for payment is made in accordance with the directions of a member of the Garda Síochána or a transport officer or the address is given, as the case may be.

(9) (a) A prohibition notice and an immobilisation notice shall be in the prescribed form.

(b) The Minister may prescribe such persons or class of persons who may be nominated persons for the purposes of subsection (8).

(10) For the purposes of this section, the Minister may by regulations provide for all or any of the following:

(a) matters relating to the immobilisation, detention and impounding of a vehicle, including the release of the vehicle upon payment of the payment deposit concerned and any release and storage fee and, where the payment deposit remains unpaid, the disposal of the vehicle and any load on it and any fees relating thereto;

(b) satisfactory arrangements for payment, after any deduction for fees referred to in paragraph (a), where appropriate, of the amount obtained from disposal of the vehicle or its load, to the appropriate person;

(c) the recovery of the difference from the appropriate person, if the amount obtained after such disposal is less than the amount due for fees referred to in paragraph (a).

(11) A member of the Garda Síochána or a transport officer may, for the purposes of this section and any regulations made under it, give directions to the driver or person in charge of a vehicle served with a payment deposit notice or a prohibition notice (including directions requiring or permitting the movement of the vehicle to such place as the member or officer may direct).

(12) A person who fails to comply with a direction under this section commits an offence and is liable on summary conviction to a fine not exceeding €2,000.

(13) A person who, without the permission of a member of the Garda Síochána or a transport officer—

(a) drives or attempts to drive a vehicle—

(i) in respect of which a prohibition notice has been served, or

(ii) to which an immobilisation notice has been affixed or which has been immobilised, detained or impounded,

under subsection (8), or

(b) where the vehicle has been immobilised, detained or impounded under subsection (8), interferes with or removes any immobilisation device attached to the vehicle, or removes or attempts to remove the vehicle, commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months or to both.

(14) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section.

(15) Where a person who has paid a payment deposit and has also been served with a fixed charge notice relating to the same alleged offence agrees to make payment of the fixed charge specified in the fixed charge notice, any amount paid by the person in respect of the payment deposit shall be deemed to be payment or part payment, as the case may be, made in respect of the fixed charge. The remainder (if any) shall be returned to the person.

(16) Where, in proceedings for an offence to which this section applies, a person is convicted any payment deposit he or she has paid shall be applied towards payment of any fine imposed. The remainder (if any) shall be returned to the person in accordance with regulations.

(17) Where, in proceedings for an offence to which this section applies, the person is not convicted any payment deposit he or she has paid shall be returned to the person in accordance with regulations.

(18) Where proceedings are not brought or, if brought, are withdrawn or otherwise discontinued in respect of an offence to which this section applies, any payment deposit paid by the person concerned shall be returned to the person in accordance with regulations.

(19) A transport officer when exercising any power conferred on him or her under this section shall produce his or her warrant of appointment as such under section 15(1) (inserted by section 117 of the Dublin Transport Authority Act 2008) of the Road Transport Act 1986.

(20) In this section—

"fixed charge", "fixed charge notice" and "fixed charge offence" have the meanings given to them, respectively, in section 47;

"prescribed" means prescribed by regulations;

"regulations" means regulations made by the Minister;

"transport officer" means a person appointed under section 15(1) (inserted by section 117 of the Dublin Transport Authority Act 2008) of the Road Transport Act 1986 to be a transport officer.".

I indicated on Committee Stage that I was planning to introduce, subject to obtaining clarification on a small number of issues, the amendment I have now moved. I regret that time has not permitted the full briefing of Members on the substantive issues included in the amendment, but hopefully I can explain them sufficiently now. We sent a note inquiring whether Deputies needed any clarification on what we were trying to achieve here.

This amendment arises because of the number of foreign drivers from the Continent, who may be caught for a variety of offences we have outlined, who because of the current situation escape paying fines. We propose to put in place a payment deposit scheme that will deal with issues, focused on drivers' hours, tachographs, haulage operation offences and so on, in order to ensure there is a level playing field for everybody in the country.

Provision has already been made in the Road Traffic Bill to include offences under the Road Transport Act 1933 not tried on indictment and under any regulation made under the European Communities Act 1972 within the fixed charge system to assist in the enforcement of those offences by both the Garda Síochána and the RSA's transport officers.

The main purpose of the proposed enabling provision is to provide for the payment by the driver or registered owner of a vehicle, in respect of certain detected road transport offences — initially those offences relating to driver's hours, tachographs and operator licensing — at the roadside, and as a condition of permitting the vehicle to resume its journey, to a member of the Garda Síochána or an RSA transport officer of a sum of money — either a fixed charge, if appropriate to the offence, or a deposit against any fine that may be imposed by a court in a subsequent prosecution. It will also provide for the immobilisation or detention of the vehicle, where a fixed charge or deposit is not paid, until such time as payment is made. It is proposed that any payment deposit received will be treated as a fixed charge or as a deposit against a prosecution and will default to being a deposit against any fine imposed by the courts if no selection is made by the driver or registered owner within the prescribed period of time.

Where a prosecution is not taken, the State would return the payment deposit, but not the fixed charge that has been accepted by the driver or registered owner and the same applies where a prosecution is taken but the driver or registered owner is not convicted. Where a prosecution is taken and the amount of the fine imposed by the court on conviction is less than the payment deposit, the State would return the balance of the payment deposit. If the fine imposed by the court is greater than the payment deposit, the driver or registered owner will have to pay the balance. Any penalty points to be endorsed would be so endorsed on payment of the fixed charge or following a conviction in court.

The drafting of the proposed enabling provision has been the subject of extensive consultation with the key stakeholders, including the Garda Síochána, the Courts Service, the Department of Justice and Law Reform, the Road Safety Authority and the Office of the Attorney General. It had been intended to introduce the proposed amendment on Committee Stage, but due to the complexities involved in drafting the enabling provision, it was not possible to introduce it at that time.

I welcome the amendment in general terms. What range of deposits are we talking about in this regard? I note there are no regulations on deposits provided at the end of the Bill and that the Minister has not provided for additional tables relating to how this will operate in practice. What kind of payments are we talking about? It is past time the State began to invigilate heavy goods vehicles, HGVs, properly. I am aware they are part of an important industry and play an important role in our economy. There has been a feeling that the working time directive has been flagrantly ignored and that tachographs have not been properly invigilated. There has been criticism in this regard from PARC and other campaigners. They have complained that at one stage we only had two gardaí in the country who could read the tachographs. There is evidence in this area from the British road safety authority, the Vehicle and Operator Services Agency, VOSA. It has consistently registered a high level of defective Irish HGVs. VOSA's 2007 survey found that over half of our vehicles were defective.

The Minister has introduced transport officers and has promoted the general development of powers for checkpoints at which a transport officer is present. Most people would agree that we must get this right. Other countries seem to have a more effective system, although some countries mirror Ireland. I recall a discussion of the new European legislation on European bus companies, such as Polish bus companies, and on European HGV operators at the Joint Oireachtas Committee on Transport. At that stage, our system did not seem to offer any kind of invigilation. Tragically, HGVs have been involved in some horrendous collisions and have been responsible for a significant number of deaths. It is important that the working time directive is observed and that vehicles operating on our roads are in top class condition.

We did not get a briefing note on this amendment, but we had asked the Minister to do something in this regard. I have an amendment later which proposes action in this regard. This amendment is a first step in the effort to invigilate this area and is important for the country and the economy. We must ensure this area is run on the highest possible standards. The Minister seems to have covered most of the key points, but will there be a schedule of payments and what will these involve in practice?

Like Deputy Broughan, Fine Gael has proposed a later amendment in this area. We must come into line with what is happening in Europe, although I know there are not as many lorries doing business on our roads as we would like now. As I said on Committee Stage, I have noticed a marked improvement with regard to enforcement of regulations in this regard and have seen lorries being pulled in for checks. I urge the Minister to do everything in his power to get everything in line and to encourage lorry drivers. Drivers need help and some of them must work around the clock to make a living. A few hours sleep never did drivers any harm and they will still arrive on time. We have a bad reputation in Europe and we must get ourselves into line in this regard. Fine Gael will support that. We have raised the issue further down the line, but I will leave it to the Minister.

I thank the Deputies for their support. I am glad they have been positive and accept my amendment. It is an issue that has been raised by Deputy Broughan and others on a number of occasions. The Bill will be put into effect by regulation and I undertake to draft the regulations and bring them to the Oireachtas Committee on Transport for its views, before finalisation, in view of the fact we did not have time to go through the issue in great detail.

Amendment agreed to.

I move amendment No. 44:

In page 46, between lines 27 and 28, to insert the following:

"51.—(1) Where, at any stage of proceedings to which this section applies, a person fails, without reasonable excuse, to appear before the court before which the proceedings are for the time being taking place, the court may do any thing or make any order that it would be entitled to do or make had the person so appeared.

(2) Where, by virtue of a person's failure to appear in proceedings to which this section applies, the person does not enter a plea (whether before the District Court or the trial judge), the trial of the person may proceed as though he or she had entered a plea of not guilty.

(3) This section applies to proceedings for an offence to which section 50 applies brought against a person upon whom—

(a) a payment deposit notice under that section has been served, and

(b) a document in respect of those proceedings has been served—

(i) in accordance with subsection (1) of section 81 of the Act of 2008,

(ii) otherwise than by post, pursuant to a request referred to in subsection (2) of that section, or

(iii) in accordance with an arrangement to which subsection (4) of that section applies.

(4) In this section—

"Act of 2008" means the Criminal Justice (Mutual Assistance) Act 2008;

"document" means a document—

(a) to which subsection (1) of section 80 of the Act of 2008 applies, and

(b) that requires a person to appear as a defendant in proceedings for an offence.”.

Amendment agreed to.

I move amendment No. 45:

In page 46, between lines 27 and 28, to insert the following:

"52.—(1) The Minister may make regulations to do anything that appears necessary or expedient for bringing this Part into operation.

(2) Where a provision of this Part requires or authorises the Minister to make regulations, such regulations—

(a) may make different provision for different circumstances or cases, classes or types, and

(b) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) The Minister may make regulations prescribing any matter or thing which is referred to in this Part as prescribed or to be prescribed.

(4) Regulations under this Part shall be laid before each House of the Oireachtas as soon as may be after they are made and if a resolution annulling the regulations is passed by either House within the next 21 days on which that House has sat after the regulations are laid before it, the regulations shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulations.".

Amendment agreed to.
Debate adjourned.