Road Traffic Bill 2016 [Seanad]: Report Stage (Resumed)

Debate resumed on amendment No. 1:
In page 8, between lines 34 and 35, to insert the following:
“(1C) Subsection (1A) does not apply to a person in respect of a drug specified at reference number 6 in column (1) of the Schedule where the person is the holder of a medical exemption certificate which indicates that at the time at which that drug was found to be present in his or her blood it had been lawfully prescribed for him or her and which is signed by the doctor who prescribed it.
(1D) The Minister will, upon commencement of this Act, in conjunction with the Garda Commissioner, make regulations specifying the minimum Levels (units in whole blood) in respect of each drug specified at reference number 6 in column (1) of the Schedule.”,”.
- (Deputy Robert Troy)

On a point of order, how much time do I have in this slot? Do I have ten minutes or another amount?

The Minister has as much time as he needs, but he does not have to get carried away.

No, that is alright. I thank the Ceann Comhairle.

As I had only just begun my response to these amendments when we ran out of time yesterday, I would like to begin by again thanking both Deputies Troy and Munster for tabling these amendments to extend the list of drugs listed in the Bill. I am fully sympathetic with their intent and I do believe the list will grow in the future. I would like to explain why this is not the time to do it and why, when they are looked at closely, both amendments would unintentionally undermine rather than extend the law on drug-driving. The same attitude applies to virtually all of the amendments on Report Stage, that is, that nearly all of them are aspirations I share.

However, there are difficulties with the drafting and there would be, quite understandably, unintended consequences if we were to accept them in their entirety. I am learning on the job myself that road traffic legislation is extremely complicated and very difficult to get right. If there are any drafting problems, this can give rise to unintended consequences which we cannot accept and obviously cannot allow into law. That said, I am happy to work with those Deputies who have tabled amendments which we cannot accept for those reasons. I am happy to push them further and include their provisions in future road traffic Bills. There are almost always road traffic Bills pending or being drafted by officials in my Department.

I will now remind the House of what the law already says on drug-driving. It is an offence under the Road Traffic Act 2010 to drive a mechanically propelled vehicle while under the influence of any intoxicant to such an extent as to be incapable of controlling the vehicle. The law covers legal and illegal drugs. If gardaí find a person driving while intoxicated, a specimen will be taken for testing by the Medical Bureau of Road Safety, MBRS. The bureau tests for 42 different drugs. This covers the whole range of drugs likely to be found and to cause intoxication in drivers.

The law as it stands also has quite a different offence in it, namely, driving while over the limit for alcohol. In this case, the prosecution needs to prove only that a driver was over the legal limit, not that he or she was actually impaired. This Bill is putting three drugs, cannabis, cocaine and heroin on the same basis as alcohol by setting legal limits for drivers for these drugs. It will be an offence to be driving while over this limit without any need to prove impairment. This is a major step forward in Irish law. It will still be an offence to be impaired due to any other drug and as I said, the bureau's wide-ranging tests will identify all likely drugs.

I have selected three drugs, cannabis, cocaine and heroin, based on the best scientific advice. I am not sure why Deputy Troy believes that my proposals are based on 16 year old evidence. They are based on detailed discussions with the MBRS during 2015 and further ongoing discussions with the bureau since then. The bureau's advice is clear. Setting specific levels for drugs is extremely difficult and inevitably the evidence base for drug-driving internationally lags far behind what is available for dealing with alcohol. The bureau is clear that it is possible to set scientifically reliable levels for these three drugs now but not for others. It is not that we do not want to include other drugs. We do and we will, as and when the scientific basis for doing so exists. The time is not yet right and the evidence basis is not yet there to extend the list today.

I also believe that accepting either of the proposed amendments could have a damaging effect on drug-driving law. To take Deputy Munster's proposal first, it would replace the list of drugs and levels agreed with the bureau with a new list. The proposed list would double the level of cannabis recommended by the bureau and would remove cannabis acid from the Bill. This is a by-product of cannabis which is often traceable when the original drug is not. The effect of taking it out would be to make it easier, not harder, to get away with driving after taking a serious quantity of cannabis. The other drugs in Deputy Munster's list also present a few problems. For example, the proposed limit for flunitrazepam is set at 300g/L but I understand that it is possible to be seriously impaired well below that level. This presents a risk that persons charged under the existing offence of being under the influence of an intoxicant could argue in their defence that they were under the legal limit.

Deputy Troy is proposing to amend the Schedule of drugs in the Bill by introducing a link to Part 1 of Schedule 6 of the Misuse of Drugs Act. This would bring all of the drugs in that Schedule into the new presence only offence being created in the Bill. There are several reasons this could cause serious problems. First, the Misuse of Drugs Act is focused on the dangers posed by drugs while road traffic legislation is about road safety. Many of the drugs listed in the Misuse of Drugs Act may be addictive and damaging to human health but are not necessarily of relevance to safe driving. This would create confusion between drug enforcement law and road traffic law and would require the Garda traffic bureau to spend time dealing with drugs which have no relevance to traffic. I have said that it is important to proceed on the basis of sound scientific evidence. When it comes to the drugs in the Misuse of Drugs Act we do not have, in many cases, the scientific evidence base to tie them to road safety dangers, much less to contemplate setting appropriate limits for them.

The proposal to allow me, as Minister, to set levels for these drugs in regulations is not likely to be constitutional. Members may remember the Bederev judgment. In that case, it was found that the practice of allowing the Minister for Justice and Equality to add drugs to the list of illegal substances by way of regulation was unconstitutional. Only the Oireachtas can create an offence. It cannot be done in regulations. As Deputy Troy's amendment stands, it asks the Minister to set levels for drugs and being over those levels would be an offence. A Minister cannot do that, constitutionally, which is precisely why we are setting levels for each drug in the Bill.

Deputy Troy's suggestions are fine. I do not have much of a problem with them, with many of the other suggestions for the Bill or with the list but the point is that the Minister cannot make such regulations. To do so would mean that the Bill would be open to constitutional challenge. We do not want the Bill to be open to such a challenge. That is the problem with some of the amendments. We do not want any part of this Bill to be subject to legal challenge. It would be very detrimental to the entire Bill and could delay it for a very long time.

I am happy that we are taking the right approach at this stage with a limited number of illicit drugs being included in our new presence only offence. Setting drug levels is complicated and requires careful scientific review. Expanding the list of drugs and limits is not something we would want to rush into at this time. The drugs covered by the new law will be kept under review and once the new system has bedded down we will consider, with the MBRS, whether to expand it based on the operational experience gained and any further advances within the scientific community with regard to setting appropriate threshold levels for other substances.

Deputy Munster asked on Committee Stage for an assurance that the list would be expanded within a year. If we are to rely on scientific evidence, which we should, then it is not possible to guarantee when the scientific evidence will have advanced to the point where we can add more drugs to the list. However, I can promise that when the evidence is there, we will definitively act on it.

The beauty of being on that side of the House is that one has an army of officials to help one to draft legislation, unlike those of us on this side of the House. We put forward amendments in good faith in the hope that we were improving the legislation.

I seek some clarification from the Minister because my understanding is that when this Bill was originally brought before the last Dáil, when I was not in my current role and the Minister was not in his, a more comprehensive list of illegal drugs was included. If that is the case, why are we now curtailing the list of drugs for which a person can be tested at the side of the road?

My amendment states that the Minister will, "upon commencement of this Act, in conjunction with the Garda Commissioner, make regulations specifying the minimum Levels (units in whole blood) in respect of each drug specified at reference number 6 in column 1 of the Schedule." Does that not give the Minister an opportunity to accept the amendment and to work on it at a later stage, in conjunction with the Garda Commissioner and bring forward a statutory instrument outlining and specifying the drugs? The Minister is correct that the types of drugs people are taking are continuously evolving and what we are doing in this legislation is far too restrictive in that context.

I thank the Deputy who is right. I do have a certain advantage in that I have officials beside me to brief me, but it is necessary, particularly in areas which are so complicated, to have people advise me on issues, although not on policy, on which I am at one with the Deputy on this issue. We are all together on policy. They advise me on the consequences of something which has been drafted in good faith but which, in effect, is open to legal challenge, unconstitutional or will have unintended consequences. Unfortunately, that is the case in this instance. I do not think there was a more comprehensive list available. I am advised that when the original Bill was introduced, there was not one. Like the Deputy, I would like to see a more comprehensive list and hope he will accept my assurances that, in time, there will be, but I cannot accept an amendment which asks me to do something which it has already been decided is unconstitutional. I know that he will understand this.

To be clear, the Garda will be able to test for 95% of drugs found in drivers. They include the majority of drugs included in Deputy Imelda Munster's list. I point out to the Deputy that in the United Kingdom the police only test for two drugs, namely, cannabis and cocaine. We will be testing for these two drugs, plus all of the opiate drugs and the different benzodiazepines set out in the Deputy's list and which Deputy Robert Troy aspires to include in the Bill. This is possibly the most important part of the Bill because it is its nexus.

I will accept what the Minister has said because he has the legal advice available to him. My one concern is that while he might have the best will in the world in terms of amending the Bill at a later stage, he might have a difficulty in securing time on the floor of the House because if we do not pass the Bill by 10 p.m., I understand it will be the new year before we will be able to come back to conclude it. The purpose in having the legislation go through on Report and Final Stages is that we will have had an opportunity to make amendments to improve it. That is what we are doing. I accept that perhaps it is not being done in the most appropriate manner in this regard, but the reason we have tabled amendments is to try to improve the legislation. I will take the Minister's ruling that he cannot accept this amendment because it would be unconstitutional, but I hope he will approach subsequent amendments we table in a more open manner.

Amendment put and declared lost.

I move amendment No. 2:

In page 9, to delete lines 1 to 10 and substitute the following:

Reference Number

(1)

Drug

(2)

Level (units in whole blood)

(3)

1

benzolecgonine

50ug/L

2

cocaine

10ug/L

3

delta-9-tetrahydrocannibinol (cannabis)

2ug/L

4

ketamine

20ug/L

5

lysergic acid diethylamide

1ug/L

6

methylamphetamine

10ug/L

7

MDMA

10ug/L

8

6-monoacetylmorphine (heroin)

5ug/L

9

amphetamine

250ug/L

10

clonazepam

50ug/L

11

diazepam

550ug/L

12

flunitrazepam

300ug/L

13

lorazepam

100ug/L

14

methadone

500ug/L

15

morphine

80ug/L

16

oxazepam

300ug/L

17

temazepam

1,000ug/L

Amendment put and declared lost.
Amendment No. 3 not moved.

Amendments Nos. 4 and 5 are related and will be discussed together.

I move amendment No. 4:

In page 18, between lines 5 and 6, to insert the following:

“Amendment of section 2 of Road Traffic Act 2004

22. The Road Traffic Act 2004, is amended in section 2, by the insertion of the following:

“ ‘housing estate’ means an area consisting of a self-contained group of dwellings with a single or multiple entry points for mechanically propelled vehicles;

‘residential road’ means a road, whether public or private, within an area defined as a housing estate.”.”.

Amendments Nos. 4 and 5 primarily deal with the matter of road safety, particularly for children and pedestrians in residential areas, including housing estates. Concerns raised were addressed through the Jake's Legacy campaign and also in Jake's law, but the main concern, as we are all aware, is speeding in residential areas which is a daily problem and not being addressed. While serious issues arise regarding local authorities providing funding to implement road safety measures, including ramps, chicanes and signage, what also needs to be looked at is the better design of residential estates to try to curb speeding.

On Committee Stage it was mentioned that local authorities had no powers to implement speed limits in housing estates that had not been taken in charge. There are thousands of such estates. This poses a real problem for their residents. I note that the Minister makes provision in the Bill for a 20 km/h speed limit, which is to be welcomed. However, will he commit to making a progress report or providing statistics in a year's time in the context of the requests to have a 20 km/h speed limit in residential areas and also for the compliance rate of local authorities? That would allow us gauge the success of the measure or determine if we needed to strengthen it. Local authorities use every excuse about having to combine many by-laws and so on. This causes delays, but where requests are made to have a 20 km/h speed limit through local authorities, I hope they will implement it.

I support amendments Nos. 4 and 5 and express the wish that we can get through the legislation by 10 p.m. because when I spoke on Second Stage, I welcomed the Bill which I described as a positive measure in promoting road safety. I also said it was a missed opportunity, particularly in the context of Jake's law, to impose a mandatory 20 km/h speed limit in housing estates. I had hoped the Minister might see his way to bring forward an amendment in that regard, but he has stuck with the provision included in the Bill which provides an option for local authorities. I do not believe, however, that they have shown their ability to implement a 20 km/h or even a 30 km/h speed limit. Not only is a 20 km/h speed limit needed, but we also need better road engineering and design, including in private housing estates, to ensure the safety of children.

I acknowledge the presence in the Visitors Gallery of members of the PARC organisation which has been campaigning since 2006 on the issue of road safety and which has been very successful in that regard. On an annual basis it has updated the booklet, Finding Your Way, which is hugely beneficial to families and those who have been involved in road traffic accidents.

I echo the comments made by Deputy Seamus Healy on finishing the Bill tonight.

It is so important to get the key elements of this Bill on the Statute Book as an additional armoury for the Garda Síochána and the RSA. I hope the Minister will continue to work for a consolidated traffic law to bring together the key elements of law. He stated this is a difficult area and perhaps it needs to be simplified and codified better so that no citizen, garda, member of the RSA or anybody else would be in any doubt as to what are the provisions of the traffic law.

I support strongly Deputy Munster's amendments Nos. 4 and 5. Approximately 18 years ago, I proposed, at Dublin City Council, that we would have something similar to the home zones which the Netherlands and some of our other European neighbours have, where on going into an estate, the speed limit reduces to what in those days was 25 mph or approximately 30 km/h. The roll-out so far, recently, by Dublin City Council, of the speed limit of 30 km/h or 50 km/h between the canals, is valuable. Every driver should know precisely what the speed limit is and it should be clear on every road on which one travels. That is the work of the local authorities. Also, in a previous traffic Bill, I helped to insert a 40 km/h limit - the old 25 mph limit. Local authorities should not be afraid of using that and I support those amendments.

With Deputy Healy, I warmly welcome the members of the Promoting Awareness Responsibility and Care, PARC, road safety campaigning group which is in the Gallery, in particular, Ms Susan Gray, Ms Ann Fogarty, Mr. Noel Clancy, Ms Fiona Clancy, Mr. Declan Clancy, Mr. Alec Lee, Mr. David Walsh, Ms Louise Doyle, Mr. John Fleming and Mr. James Regan who have campaigned so hard for so many of the measures that are coming forward in this Bill.

I merely want to add my support to the previous speakers' contributions. I suppose if we are serious about getting the business finished by 10 p.m., we all had better not be repeating one another.

Obviously, I share the House's wish to get this important Bill finished. Every day that it is delayed there is the potential for loss of life but I do not want to make it bad legislation by rushing it through. We have debated quite a lot of this previously but there are important issues here, particularly in this amendment.

Deputy Munster's request is reasonable. I will certainly ask for a report on this after one year, if this amendment is withdrawn or if the Bill goes through in its present form. It is fair enough that we should look at how it is working and whether the options are being exercised by the local authorities on 20 km/h. I would certainly be happy to do that. I am not sure what sort of report would do. I might ask the Road Safety Authority or someone to do it. I will talk to Deputy Munster about it afterwards, if she likes. We will find an independent body to have a look and report to us on how it is working.

I also welcome those long-time crusaders in the Gallery who crusaded for road safety for so long and their interest in this Bill. We all agree that speeding is one of the main causes of death and serious injury on our roads. Tackling speeding means setting appropriate speed limits for all areas, enforcing those limits and, above all, getting the message across to all drivers of the risk they pose to themselves and others by speeding.

Deputy Munster is proposing to make a speed limit of 20 km/h mandatory in housing estates. What I have proposed in the Bill is different, as Deputy Munster acknowledges. The Bill gives local authorities the option of imposing a 20 km/h speed limit where they believe it is appropriate. I appreciate the motivation behind Deputy Munster's amendment - we are on the same page - but I do not agree that her amendment is the way to go forward at present. I certainly will look at it and report back within a year. There are several reasons for this. First, we have what I think is a sound principle in law, as it currently operates, that local authorities decide what is the appropriate speed for a given road in their area. These roads can vary enormously, with visibility, straightness and other factors which affect the question of what is a safe speed. While the law sets blanket limits for motorways on the main national routes, this is because all of these roads are built to defined standards. The variety of roads covered by local authorities means that each road needs to be looked at in its own terms and the law has always rightly conferred this task on the local authorities.

Deputy Munster may argue that she is applying this specifically to housing estates. This brings me to the first of a number of additional reasons I believe that it would be a mistake to put the amendment the Deputy has proposed into law. Definitions in law are notoriously difficult to make precise, particularly in road traffic law. The definition of "housing estate" in Deputy Munster's proposed amendment is problematic. As proposed, a "housing estate" is defined as "an area consisting of a self-contained group of dwellings with a single or multiple entry points for mechanically propelled vehicles". This would definitely not work. It could mean both an apartment complex or Dublin's North Circular Road.

Next we come to the question of where the Deputy proposes to make the amendment. Section 9 of the Road Traffic Act 2004 deals with special speed limits. These are precisely the kind of optional speed limits on which local authorities can decide to which I referred earlier. At present, the default speed limit for roads under local authority jurisdiction is 50 km/h, with authorities allowed, by section 9, to apply special speed limits of 40 km/h or 30 km/h. My proposal, as stated in the Bill, is to add the option of a 20 km/h limit. I note in passing that Deputy Munster's amendment would keep the 30 km/h limit but drop the option of a 40 km/h limit. In any case, Deputy Munster's amendment, if accepted, would include a mandatory 20 km/h limit as one of the optional limits in section 9. This would, obviously inadvertently, be confusing if not contradictory. We would have legislation that would state that among the options for a local authority was a mandatory one. I need hardly point out that this would make the operation of section 9 completely impossible since it would become contradictory. The net effect would be that local authorities, quite unintentionally, would not be able to use section 9 and all roads in their areas would have to be left at the default speed limit of 50 km/h.

Finally, one key issue which was highlighted by the Jake's Legacy campaign which the amendment does not address is the question of what happens where developments have not yet been taken in charge by the local authorities, and Deputy Munster referred to this. This is a matter currently being examined by my Department in consultation with the Attorney General's office and I look forward to it being properly addressed when that process is concluded.

I will not press the amendment on the basis that the Minister has included the 20 km/h speed limit but it needs to be enacted and there is an onus on every local authority that has requests for the 20 km/h speed limit in housing estates and residential areas to implement it.

It is not only speed signage that needs to go up in estates. In fairness, this is where the Department is lacking in funding of local authorities for road safety measures. A sign itself is not enough. We need resources for the traffic corps to ensure that those who speed are caught and punished for it. We also need funding to provide ramps, chicanes and other such safety measures within residential areas. The fact the Minister has included the 20 km/h speed limit and that local authorities can now implement it certainly is progress.

I recognise that defining a housing estate could be problematic. The Minister gave the example of there being no clarity around five houses on a dual carriageway.

Certainly, the fact that it is there is a significant step forward for the campaigners. The onus is on the Minister to ensure that when requests are made, the local authorities need to implement those or it will come straight back.

I thank Deputy Munster for that. The Deputy can be sure that she will get a report within a year about how this is working, particularly the 20 km/h option, and how it is being exercised by local authorities.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.

Amendments Nos. 15 and 16 are related to amendment No. 6, so amendments Nos. 6, 15 and 16 will be discussed together.

I move amendment No. 6:

In page 24, between lines 12 and 13, to insert the following:

“Regulation of Rickshaws

31. The Taxi Regulation Act 2013, is amended in section 20, by the insertion of the following subsection:

“(5) (a) The Authority may make regulations, to be known as nonmotorised passenger transport regulations, in relation to the operation of non-motorised passenger transporters in towns and cities.

(b) ‘non-motorised passenger transporters’ means hackney carriage or rickshaw propelled by pedal cycle, pedal tricycle, horse, pedestrian or other such non-motorised means.”.”.

This amendment relates to rickshaws. Currently, there is no legislation covering rickshaws. The rickshaw operators are essentially classed as cyclists, yet they carry passengers and work on a commercial basis. Consider that for a moment. Taxi drivers and bus drivers are taxed, insured, licensed and regulated, but the rickshaw operators both carry passengers and work on a commercial basis in the absence of legislation or regulation. They are not obliged to be registered. The authorities have no idea how many rickshaws are operating as there is no register. It is a massive road safety issue in so far as the operator has no insurance or insurance for the passengers they carry. If there is an accident involving a rickshaw and passengers are seriously injured, the rickshaw operator has no insurance to cover whatever damage is caused. There is huge risk for the passengers, as well as other road safety issues.

In fairness, I raised this matter with the Minister early last July and he said he was examining the introduction of legislation. He also said the NTA was getting legal advice on it. I do not know whether the Minister or the NTA is dragging their heels on the matter but it appears to be taking a long time, given that huge problems are caused by rickshaws. There were reports recently in some local media, although I do not know to what extent they are accurate, that some rickshaw operators were dealing in drugs and using the rickshaws as a means of getting drugs across the city. What would put that idea into their heads? It is the absence of legislation. Every day they get on their rickshaws and operate from one end of the city to the other carrying passengers, knowing that nobody is taking a blind bit of notice of them and certainly not the authorities or regulators. If it is the case that they are involved in drug dealing and are using the rickshaws to get drugs across the city, it is because they have had a free hand. They are allowed to operate at will as there is no legislation.

I am sure the Minister will vote against the amendment, but its inclusion in the Bill would allow the NTA to regulate. I cannot see a reason for the Minister opposing it when its acceptance would provide an opportunity to the NTA to regulate rickshaws.

I have tabled an amendment in this regard. I also tabled it on Committee Stage. At present, no agency or public body has the authority to regulate rickshaws. The NTA, which regulates small public service vehicles such as taxis or hackneys, cannot regulate rickshaws because a public service vehicle is defined as a vehicle that is mechanically propelled. Likewise, Dublin City Council and other councils do not have the authority to regulate or license rickshaws because they are not pedal-powered vehicles. I understand there are three types of rickshaw - some are pedal powered, some are operated by a throttle and some are operated by a combination of pedal and battery. In 2013, Dublin City Council made draft by-laws to try to introduce regulation for rickshaws. Obviously it did so because it was aware of the difficulty they present in the capital city. Rickshaw operators have now moved out to other large urban areas as well. However, the draft by-laws were withdrawn on legal advice, because the great majority of rickshaws are neither pedal nor mechanically powered but battery assisted. This means that under the current legislative definitions they are not small public service vehicles, which are defined as mechanically propelled vehicles. Hence, the NTA is not authorised to regulate them.

Our proposed amendments alter the definition of small public service vehicles to include battery powered, pedal powered and non-mechanically powered vehicles. This creates a new category of public service vehicle called "public service rickshaws". It includes all rickshaws, mechanically powered, manually powered and cycled. This closes the legal lacuna and means the NTA will be the authorised body for regulating rickshaws across the country. The amendments also oblige the NTA to make certain regulations in respect of rickshaws. The amendments afford the Minister the opportunity to work with the NTA on bringing forward comprehensive regulations to deal with this matter. They do not tie the Minister's hands in terms of specifying what those regulations should be, but give him the opportunity, if he accepts them, to work with the NTA on introducing regulations.

As my colleague said earlier, there is no regulation at present. An increasing number of people are using rickshaws as a means of getting from A to B. No character check is carried out on the people who are carrying passengers in the rickshaws. They might be convicted of rape or murder, or be the most unsavoury characters. I am not saying the majority are. In fact, I am sure the majority are genuine, decent, ordinary, hard working people who are just trying to earn a livelihood. However, there is no character reference so people getting into these rickshaws have no confidence in the person operating it. We would not allow that in the case of taxis or buses, so I see no reason to allow it in the case of rickshaws. There are also no inspections carried out on the roadworthiness of the vehicle. A person could be getting into a vehicle that is extremely dangerous. Again, that would not be permitted with a taxi, so why allow it with this type of public service vehicle? In fact, taxi drivers are put through a rigorous process to ensure their vehicle is roadworthy. Rickshaw operators are competing with taxi drivers each day, particularly for short hop-on, hop-off fares around the capital.

Rickshaws have no insurance. God forbid, if anybody was involved in an accident in one, and left paralysed or, worse, killed, there is no insurance. This Bill is an opportunity. When it was brought before the committee a number of weeks ago I was on Newstalk to discuss why we had tabled this amendment. I was surprised at the number of people who contacted me afterwards. They were genuine people. One person told me that he could not get a job so he had used his savings as he saw operating a rickshaw as an opportunity to make a few bob. I said: "More luck to you". I outlined what we were trying to do and he told me we were right. "We need to be regulated", he said, "because if we are regulated it puts us on a better footing".

Nobody has anything to fear with this. It is a sensible, logical proposal. Like the case made by my colleague, Deputy Munster, I hope the Minister will accept it.

Before calling Deputy Broughan, I should point out that there are 40 minutes remaining and Members have expressed the view that they wish to see the legislation passed this evening. I do not wish to curb anybody's contribution but there are five more groups of amendments to be discussed. I call Deputy Broughan.

I will brief. We are all used to rickshaws being brought out when there is a big gig, an all-Ireland final, a rugby international or late at night in the city. Most comparable cities regulate their use. I have asked this Minister previously about regulating their use and I raised the issue in previous Dáileanna. We should regulate their use. I support the amendments.

On a similar note, I wrote to the Minister on this issue last summer and I got a reply. This issue has been highlighted by people who have had bad experiences travelling in rickshaws. We know from other jurisdictions of the outrageous charges being demanded of people by the drivers of rickshaws. Rickshaws are not only a Dublin phenomenon, their use is spreading to other areas. Other colleagues have spoken about the lack of health and safety regulations that apply to this means of transport. Anybody can put a cart together and go out and seek business and he or she can charge anything he or she wants. There are no safety implications. Rickshaw drivers are renowned for travelling in pedestrian only areas. There is a lack of enforcement of regulations on their use. The local authorities are at a loss to know what to do about them. They are looking to us to give leadership on this. That needs to be done. There is anecdotal evidence of people having being injured and involved in crashes when being transported by rickshaws. The drivers have no insurance and no liability. That is very unfair when other transport users pay insurance and ensure their cars are roadworthy.

The use of rickshaws is an increasing phenomenon. Regardless of the drivers' backgrounds, and others have spoken about the danger posed by these individuals, people do not know who they are getting in beside when they travel by rickshaw. They do not know their background. At least there is some regulation of taxi drivers and other transport providers. This issue needs to be addressed. The Minister may say that this issue cannot be dealt with in this legislation but, if not, when will he address it? Clearly, it needs to be addressed.

I thank the Deputies for their contributions. I think Deputy Munster used the phrase "if I was not opposed to it". I am not opposed to anything the Deputies have said here. I will accept an amendment later but there are very good reasons this amendment cannot be accepted, although that is regrettable. I agree with the sentiments expressed by Deputy Crowe and by others.

This is a pretty lawless activity and it is not acceptable. I and I am sure others have been subject to this and have seen unregulated vehicles of this sort. It is totally unfair. I regard it as a matter of great urgency. I will tell the Deputies why these amendments are inappropriate and they will probably understand the position.

I note that both proposals address this matter through amendments to the Taxi Regulation Act. That is the right place to deal with the matter and it is where I propose to deal with it as soon as possible, but it therefore falls outside the scope of the Road Traffic Bill as set out in the Long Title to the Bill. It is in the wrong place to deal with it. This does not mean that I am not accepting responsibility for it, I am, but it is not the right Bill in which to regulate rickshaws.

I am not citing this as a technical way to get out of the issue, because it is my responsibility, but I agree it has to be dealt with. However, I also believe it is important when we come to writing matters into law that we to proceed carefully and correctly.

The National Transport Authority, NTA, to which the Deputies have referred, is currently working on a proposed policy and potential framework for the future regulation of rickshaws which it has advised will be submitted to my Department by the end of January next, in just over a month's time. My Department and I will urgently consider the proposals when received with a view to obtaining Government approval to draft the heads of a Bill in the context of the Government's legislative programme.

While amendments Nos. 6 and 16 are to the Taxi Regulation Act, Deputy Troy's amendment No. 15 is not. Deputy Troy is proposing to amend the existing definition of a public service vehicle in the Road Traffic Acts and add a definition of "rickshaw". This is quite a sensible suggestion but changing the definition of a term set out in law can have, as we have already seen, many unforeseen consequences and I would be very concerned about the risk of changing such a well established definition as that of a public service vehicle. It would have many knock-on effects. The existing provisions relating to intoxicated driving, in particular with respect to public service vehicle drivers, would be impacted by such a change in the definition and there would be negative implications for these provisions. The definition of a rickshaw proposed around what a rickshaw is not is too wide to be of any meaningful effect.

I cannot give a definitive timeframe for the introduction of new legislation - it would be dishonest of me to say it will happen in March, May or June but I recognise it is a matter of urgency - until I receive and examine the proposals from the National Transport Authority, which should be within six weeks. I have stressed to the NTA the importance and urgency of submitting its proposals and it has given a timeframe in the early part of the first quarter.

I appeal to the Deputies to withdraw their proposals at this point to allow the NTA to develop a comprehensive response and to introduce legislation under the right Act to regulate rickshaws.

Are there any further comments?

As I said earlier, we have waited too long for this. It is too serious a road safety issue for all the reasons the speakers have outlined. It is something that should have been given more priority. I will be pressing the amendment. I will also be supporting amendments Nos. 15 and 16.

I do not know whether it was a slip of the tongue or it was genuine but the Minister said initially that the NTA was going to bring forward proposals by the end of January and then he said it would be in the first quarter of 2017. He will then try to get Cabinet approval on the heads of a Bill and try to get space in what will be a tightly sought after space in the new year in terms of getting legislation through. I do not believe we can wait. This Bill was pretty much ready in the first quarter of 2016 and here we are in the dying hours of this Dáil term debating it in the hope that we can get it through before we adjourn. I accept the Minister's bona fides. I put my amendment forward in order that this proposal would be able to go through under this legislation, which in turn would enable the Minister to work with the NTA to bring forward regulations quite quickly. If a rickshaw is not a public service vehicle, then what is? The person who cycles or powers it is carrying members of the public. The public are using these vehicles and are paying to do so. That is a pubic service vehicle. The Minister said that this would have consequences in terms of drink driving. I do not believe that people in control of two or three passengers to the rear of them, whether it be on a bicycle powered by a battery, a motor or a pedal should be under the influence of alcohol in the same way as I do not believe a passenger in the back of a car or bus should be under the influence of alcohol.

This amendment was framed in a manner to enable us to progress this issue. It has been on the agenda too long. In 2013 Dublin City County brought forward by-laws. We are still talking about it and are not giving the authority to the NTA to bring forward regulations. We should move ahead with this amendment.

I understand what Deputy Robert Troy is getting at. I am not, however, inclined to agree with him because of the unintended consequences of this and because it is in the wrong Bill. I am somewhat surprised it is in the Bill at all and it was permitted. However, it is there because two of these particular amendments come under the Taxi Regulation Act. The issue will not be resolved just by amending the definition for small public service vehicles.

The policy being developed by the National Transport Authority, NTA, will include consideration of several key elements. These include the vehicle standards applicable, the body responsible for testing the vehicles, the licensing of the vehicle for hire for reward, the licensing of the driver and associated suitability criteria, the fare structure, the appropriate vehicle markings to show it is licensed, the enforcement of the requirements and associated penalties. The draft policy will be submitted to the Department - I apologise if I made a mistake earlier - by the end of January for consideration and approval, following which any amending legal provisions will be identified and including, in future, primary legislation which would be a Bill to amend the Taxi Regulation Act 2013.

If the proposers will agree to amend this, I will certainly bring the results of the NTA report to the House immediately when I get them.

Amendment put:
The Dáil divided: Tá, 58; Staon, 0; Níl, 50.

  • Adams, Gerry.
  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Breathnach, Declan.
  • Broughan, Thomas P.
  • Browne, James.
  • Buckley, Pat.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Collins, Joan.
  • Cowen, Barry.
  • Crowe, Seán.
  • Cullinane, David.
  • Curran, John.
  • Doherty, Pearse.
  • Funchion, Kathleen.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy, Seamus.
  • Howlin, Brendan.
  • Kelleher, Billy.
  • Kelly, Alan.
  • Kenny, Martin.
  • Lahart, John.
  • Lawless, James.
  • McGrath, Mattie.
  • McGrath, Michael.
  • Martin, Micheál.
  • Mitchell, Denise.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Munster, Imelda.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • Nolan, Carol.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Snodaigh, Aengus.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • O'Sullivan, Jan.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Rabbitte, Anne.
  • Ryan, Brendan.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Tóibín, Peadar.
  • Troy, Robert.

Níl

  • Bailey, Maria.
  • Barrett, Seán.
  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Creed, Michael.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Griffin, Brendan.
  • Halligan, John.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kyne, Seán.
  • Lowry, Michael.
  • McEntee, Helen.
  • McGrath, Finian.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • Phelan, John Paul.
  • Ring, Michael.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.
  • Varadkar, Leo.
  • Zappone, Katherine.

Staon

Tellers: Tá, Deputies Imelda Munster and Robert Troy; Níl, Deputies Regina Doherty and Tony McLoughlin.
Amendment declared carried.

Amendment No. 7 in the name of Deputy Thomas Broughan arises from committee proceedings. Amendments Nos. 7, 10, 11 and 12 are related and will be discussed together. Members should leave quietly. There is further business to be transacted.

I move amendment No. 7:

In page 24, between lines 12 and 13, to insert the following:

31. The Minister shall instruct all motor insurance companies to write to all present and future learner drivers stating that driving unaccompanied by a specified qualified driver and/or without displaying L plates invalidates the terms and conditions of their insurance policy and that any payment made to a third party in the event of a collision may be recouped from the learner driver and/or the main policy holder.”.

Amendments Nos. 7 and 12 attempt to deal with issues that have arisen with regard to drivers on learner permits and the serious level of deaths and casualties which have occurred involving unaccompanied learner drivers. Last year, some 3,200 drivers on learner permits were caught with no qualified driver present. To the end of October 2016, a very large number of penalty points - 10,000 - were applied to learner and novice drivers, which included 6,148 applied to drivers for driving unaccompanied. In amendment No. 7 I was trying to suggest a formula whereby the mere act of driving unaccompanied or without displaying L plates would invalidate the terms and conditions of the insurance policy. A key issue that would arise here is that many drivers on learner permits are named drivers on their parents insurance policies.

What I have asked the Minister to pursue in this regard will be very difficult.

Had we been heading for finishing the Bill tonight, I was proposing to ask the Minister for a view on it and then to withdraw it.

In amendment No. 12, I proposed to amend section 36 of the principal Act by inserting the section to provide that a driver with a learner permit, without an accompanied specified qualified driver should be deemed in law to be driving without valid motor insurance. The person could, therefore, be arrested by the Garda Síochána and charged with the offence of driving without insurance and the vehicle could be seized on the spot. The Garda Síochána has alerted us to the fact that there is no power to seize the vehicle in this case and that a driver on a learner permit caught in this situation ends up laughing at the garda and driving away unaccompanied. There seems to be a grave lacuna in the law. My Sinn Féin colleagues have tried to address it in other ways. This is one aspect of the issue we could have approached. It is a very serious issue, given that 87 unaccompanied learner drivers died between 2007 and 2012. A distinguished visitor to the Gallery, Mr. Noel Clancy, lost his wife and daughter, who were fatally injured by an unaccompanied learner driver this time last year. It was a colossal tragedy for the Clancy family at this family time of the year. The Minister needs to examine it very seriously and address it. In two amendments, I tried to give one way forward by giving additional powers to the Garda Síochána. There definitely seems to be a lacuna in the law in this regard and I urge the Minister to accept amendment No. 12.

The amendment was debated on Committee Stage and I will not go through the case I made. It was driven by a response to the Clancy tragedy this time last year in Cork. Mr. Noel Clancy called on the Minister for Transport, Tourism and Sport to implement legislation to the effect that allowing one's car to be driven by an unaccompanied learner driver would be an offence on the part of the car owner. My amendment seeks to address the issue and to be helpful to the Minister. Members of the Clancy family are in the Gallery along with the PARC Road Safety Group and I welcome them.

The proposal brings responsibility to bear on the owner of a vehicle driven by an unaccompanied learner driver which is involved in an accident, not merely the driver. It would put the onus on the car owner to ensure the vehicle is not being driven illegally by a learner driver. Learner drivers operate vehicles unaccompanied. The hope with the amendment is that the owners of the vehicles involved will be liable, thereby reducing the number of unaccompanied learner drivers on the roads.

Deputy Tommy Broughan has done a service by proposing the amendments. In the main, young drivers, when learning, understand there is a serious consequence to driving unaccompanied. There is also an onus on us to ensure that when people want to apply for a test, a test is available promptly and that there is a proper insurance regime. Deputy Broughan also addressed the question of the liabilities with insurance. It is important that unaccompanied learner drivers understand they are not insured in any way and that, given that they are breaking the law, they are not covered by insurance, although the victim, if there is a victim, would be.

They must also understand that the car, whether their own or their parents', can be seized. Presumably, a fine or a recovery scheme would have to be put in place to ensure the State was not suffering the expense of seizing cars. In the past, when a car was seized and the owner went to recover it from the Garda station, or wherever it was stored, there would have been a payment of sorts to the Garda, which was forced to confiscate the vehicle.

Far too often, I have been driving around the country and seen people with L plates driving on a motorway. One presumes it is perhaps the father driving, not the son or daughter who also has access to the car. However, on looking through the window one quickly notices that it is probably an unaccompanied learner driver. If I can see this on a motorway, I presume the gardaí can also see it. Not enough is done. Of late, there has been a major campaign to try to encourage learners to drive accompanied.

Progress has been made in recent years in terms of insurance products. If they reduced the price, it would be good. Some insurance products specifically tell people that if they exceed a certain speed, which is monitored by a GPS, their insurance premiums will increase substantially. Other policies are based on speed inhibitors. These will work in tandem with a fully licensed driver. While the licensed drivers cannot do everything, they may be able to steer people or explain where they are making mistakes in their driving. Without this, people will take chances and drive. One of the keys is to ensure that many of those who are driving and who want access to driving tests as quickly as possible have this access. Otherwise, people will chance their arm. At least, Deputy Tommy Broughan is ensuring they understand the full consequences if they do chance their arms.

I support what my colleagues have said. I will be interested to hear the Minister's rationale for rejecting the amendment. It is a very worthwhile amendment. Unfortunately, there is a family in the Gallery who require this, having suffered an unimaginable tragedy, a fatality because of the lack of such an amendment. As I said at the outset, the reason we have Committee and Report Stages is so we can bring forward amendments to improve and enhance the quality of Bills. The Bill is about improving and enhancing road safety and the amendment would go a long way in this regard.

I will accept an amendment on the issue. I do not know why the Deputies assume I would not. Deputies Brendan Ryan and Imelda Munster proposed amendments to make it an offence for the owner of a vehicle to allow the vehicle to be driven by an unaccompanied learner. Deputy Tommy Broughan has also proposed measures regarding insurance and unaccompanied learners. It raises a very important issue and the law is very clear. A learner permit is a permit permitting somebody to drive without a licence for the purpose of learning. It is not to be treated as a licence, nor do we want to go back to the old culture whereby some people were happy to remain learners for decades.

Since 2010, a range of measures has been introduced as part of a graduated driver licence system including developments such as mandatory lessons for learners, lower alcohol limits for learner and novice drivers and lower penalty point thresholds. We need people to understand driving is not a right. Taking charge of a mechanically propelled vehicle puts a person in a position of responsibility for his or her own safety, that of any passengers and that of other road users they encounter.

This is why we expect people who are still learners to have an accompanying qualified driver.

I thank the Minister.

May I just finish this paragraph?

Unfortunately, there is a real and continuing problem of learners who persist in driving unaccompanied. The question of the responsibility of car owners who knowingly allow learners to drive their cars was raised recently by the family of Geraldine and Louise Clancy, who were tragically killed in an incident for which an unaccompanied learner driver was found responsible. I have given some thought to this and I agree that there ought to be a legal responsibility for owners in such cases. Learners who drive unaccompanied are committing an offence, and it is very reasonable that people who knowingly facilitate this offence share responsibility for it. On consideration, I believe amendment No. 11, in the name of Deputy Munster - I acknowledge that Deputy Ryan tabled a similar amendment - is preferable in that it reflects the language used in existing road traffic legislation and is therefore less likely to be challenged.

I will continue this discussion at a later date.

Debate adjourned.
The Dáil adjourned at 10 p.m. until 10 a.m. on Thursday, 15 December 2016.