National Health Insurance Bill, 1933. - Road Traffic Bill, 1933—Report Stage
I move amendment 1:—
Section 3. After the word "reward" in line 43, page 5, to add the words "but shall not include a mechanically-propelled vehicle hired by a person for the conveyance of his own friends."
The reason I put down this amendment was to raise a question on a point about which I asked the Minister on Committee Stage. It seems to me that the description of a public service vehicle is somewhat vague. It is defined as "a mechanically-propelled vehicle used for the carriage of passengers for reward." I take it that what is meant is a vehicle which goes out on the road and takes fares from passengers but I am not satisfied that it could not be held that a car hired by a garage to a tourist for a day or a week was not "a mechanically-propelled vehicle used for the carriage of passengers for reward." The Minister said that that was not intended. I am sure it is not intended. That seems clear from the general provisions of the Bill which would not be applicable to such a vehicle. If the Minister has got legal opinion that the provision does not cover the vehicle to which I refer, I shall withdraw the amendment.
I have had this matter examined since last day and I am told that the insertion of this amendment would lead to confusion. The provision is quite clear in law. It has been judicially interpreted more than once and it would not help to have the Senator's amendment inserted.
Amendment, by leave, withdrawn.
Amendment 2 not moved.
Cathaoirleach
Amendment 3— Government amendment:—
Section 15, sub-section (1). Before paragraph (e) to insert a new paragraph as follows:—
"(e) the discharge of soot, ashes, oil, steam or gas from such vehicles."
This amendment was put in to meet certain representations made by Senator Johnson on the last day.
Amendment agreed to.
I move amendment 4:—
Section 16, sub-section (4). After the word "Síochána," in line 56, to insert the words "in uniform."
This amendment was discussed, to some extent, on the last stage of the Bill. It deals with the question of plain-clothes Gárdaí and their right to direct drivers of mechanically-propelled vehicles to do certain things—in this case, to direct the weighing of a loaded or unladen vehicle. My proposal is that a Gárda should not, unless he is in uniform, be empowered to direct, on suspicion, the driver of a machine to go to a weighbridge for the purpose of having the vehicle weighed. The sub-section states: "Whenever a member of the Gárda Síochána observes a vehicle which he suspects of being then used in such manner as to constitute an offence under this section, such member may require the person in charge of such vehicle to do all or any of the following things..." He can direct the driver to go to a weighing machine to have his vehicle weighed if he suspects that the load is greater than that allowed by law. I suggest that the Gárda who does that ought to be in uniform. I know that the Minister has an amendment— No. 50—on the Order Paper which, to some degree, meets my point by providing that the Gárda must show an authority for acting. My feeling is that a driver of a vehicle, in this case and in another case dealt with by a later amendment, ought to know that the man who directs him is an officer of the law, and has power and authority to give directions. I do not think it is sufficient that, if requested, the Gárda shall produce an identification card, because if the driver does not know that the person ordering him is an officer of the law, he is likely to be contemptuous and resistant and he may be guilty of another offence by refusing to obey an officer of the law in the execution of his duty. The identification card may not be produced until after the offence has been committed. Gárda in plain clothes should not be encouraged to act in these cases. The general tendency should be to insist that officers of the police force should be in uniform when acting in cases of this kind. There is too great a tendency to allot duties to the Gárda in plain clothes, and it is not a desirable tendency. I am in favour of limiting it as much as possible.
I think that the Minister has very fairly met the case so fully stated by Senator Johnson on the last occasion this Bill was before the House. I think that the new section introduced by the Minister in amendment 50 (quoted) is a genuine attempt to meet the objections made by Senator Johnson. Moreover, it is a successful attempt, and very well done. If you compel members of the police force to refrain from doing any official act unless they are in uniform, you will completely destroy their efficiency in the prevention and detection of crime. Some of these offences under the Motor Car Act are crimes. If Senator Johnson would give his unbiassed judgment on his own amendment and on the proposal made by the Minister, he would, I think—making allowance for the spirit of advocacy that is in him—admit that the Minister's amendment is better than his own. I do suggest he ought not to press this amendment.
I think I can truthfully state that I am quite unbiassed, as between Senator Johnson and Senator Comyn, and that I would be just as pleased to support one as the other, but, on this occasion, I can support Senator Comyn to the extent of assuring him that I agree that this is a perfectly genuine attempt—I will not go into the question of whether he would have done it better or not—but I do not think that it has succeeded in meeting the real difficulty, which was raised particularly by Senator Mrs. Clarke on Committee Stage, and which is the one thing I think the Seanad ought to try to get into this Bill. We know that it is quite common on country roads for men to hold up their hands with the idea of getting a lift. That is particularly objectionable in the case of lady drivers who are driving alone, and I have been told, not only by Senator Mrs. Clarke, who told us here publicly, but by other ladies, that this does happen, and it is not at all desirable that those ladies should be in a position of feeling that it might have been a Guard if they did not stop. It seems to me that a Guard holding up his hand is making a demand, and it is not clear to me that that is met by this section. It is not good enough to say that the driver did not shout "Show me the evidence."
Cathaoirleach
The section deals with the maximum weight of mechanically-propelled vehicles and not with any other matter.
I am quite willing to deal with it later, but I thought that, following other Senators, it would save trouble if I dealt with the real question of the uniform at this point.
On the general question as to the Guard in uniform, I have always understood that people in the position of police, or Guards, as they are now called, always wear uniform. They may, for some reason, such as when they are going bathing, get into lighter garments, but, invariably, like soldiers they are always in their uniform. I always understood that, under no circumstances, could a Guard interfere with people or go on duty, if you might put it so, in mufti. With regard to the question of stopping vehicles, the practice has not, fortunately, developed in this country, but in England if, while you are driving along a road at night, a man tries to stop you you certainly will not pay any attention to him. The number of robberies and assaults committed under such circumstances is enormous, but, fortunately, I believe it has not developed in this country.
I think the section does involve the holding up of the hand and stopping.
There is no power in any place in this Bill given to a Guard to stop any car. That power might be given later by regulation, but it is not in the Bill so far. There is no section in the Bill which gives power to stop a car, and this particular section relates to the car that is stationary.
It says that whenever he observes it he may make a request and if that does not imply that he may hold up his hand when the car is moving——
The driver is not obliged to stop.
May we take it that, under the present Bill, when a policeman holds up his hand, one is not obliged to stop unless it is a request in traffic?
That is in the traffic regulations.
I am referring to the country roads. I have always been under the impression that one is obliged to stop when a Guard holds up his hand. I am not referring to street requests which I know are covered. I am sure the Minister is right but it is quite new to me.
In uniform, of course, he has the authority to stop you at present.
He has not got the power when not in uniform?
At present he has not when not in uniform, and we do not propose in the Bill to give him the power to stop a car but that power may follow in regulations.
My point is that he ought always be in uniform.
There are occasions when, for different classes of duty, Guards are not in uniform at present. That has always been so.
But that is another section.
Cathaoirleach
This section deals with the weight of these vehicles.
I think that one has to take note of the fact that the section deals with weight laden or unladen and does not merely mean a laden vehicle or goods vehicle. It is a mechanically-propelled vehicle which the Guard may stop, even if it is a motor bicycle, for the purpose of getting it weighed and to see if it is beyond the weight prescribed in the Bill.
Cathaoirleach
The Bill sets out:—
The Minister may by order make regulations for all or any of the following purposes, that is to say:—
(a) prescribing the maximum weight unladen and the maximum weight laden.
Cathaoirleach
What is the act of the Gárda, then?
I am now dealing with the earlier portion of the section which refers not merely to the laden weight but the unladen weight of a mechanically-propelled vehicle. There is, first of all, the offence if a vehicle is being used beyond the weight prescribed and, then, it says:—
"Whenever a member of the Gárda Síochána observes a vehicle which he suspects of being then used in such a manner as to constitute an offence..."
that is to say, if he suspects that it is over the weight prescribed for a particular type of vehicle or carrying a weight greater than is prescribed, he may require the person in charge to do certain things. There is nothing in that sub-section to ensure that the Guard shall act within the limits allowed for a Guard in uniform. He may be a Guard not in uniform acting in this manner and he may require, if he suspects a goods vehicle, or a waggon, carrying, as was mentioned on the last occasion, sugar beet, is being overladen—and it is not set out that it has to be a vehicle that is stationary —the driver to do certain things. He may make the request of the driver of a vehicle on the road and, if that applies to a waggon carrying merchandise, it may also apply to a vehicle of any other kind, so long as it is mechanically-propelled. There may be some provision somewhere in some other Act setting out that the powers given to a member of the Gárda Síochána apply only in the case of a uniformed Gárda. I do not remember it, however, and I should like to have some evidence that that is the general rule governing the actions of the Gárda Síochána.
I appreciate what Senator Comyn has said about the attempt made in the new proposed section, and I realise that it is an attempt. I rather suspect, however, that it is only an attempt to pretend that there is any change and that, in fact, the Gárda may always have an identification card in his pocket to be produced on demand, but I do not think that is enough. What I have in mind is, if there is any reason in police practice to have un-uniformed Guards on this duty, and they require to have them because they suspect that an offender would evade them if they saw men in uniform at a distance, there is the method which would meet my case that a sign or badge of some kind, which would be noticeable at close quarters, could be made available so that the driver would not have to wait until the man got out his pocket book and searched through his records. In the meantime, of course, anything might happen, and the man who pretended to be a policeman would have done all he wanted to do while the request was being complied with in respect of the production of his alleged identification card. I want to see that the man on this duty who is not in uniform will have some kind of badge which can be easily observed, either on his cap or on his coat, by which a driver can identify him at close quarters without having to wait for the footpad, as he may be, to come aboard the car. That is the main purpose of my amendment both on this and on the later section.
Could the Minister give us the law on the matter?
Cathaoirleach
The Minister has already spoken on the matter.
With your permission, sir. The law at present is that nobody need stop for a policeman unless he is in uniform. We are told that there are many classes of offences which it is very difficult to detect nowadays unless police can be used who are not in uniform, especially with regard to the weights of vehicles laden and unladen. The authorities are very keen on getting power to use police without uniforms, but they are quite willing to have any kind of badge or signal worn on the coat that would satisfy those who object to a Guard not in uniform doing this duty. For my part, I certainly have great sympathy with the point of view stressed by Senator Johnson, Senator Guinness and Senator Mrs. Clarke, especially, so far as women are concerned, whether driving by day or by night. It is not wise that they should be put into the position of being held up by anybody and left to wonder whether it was a policeman was holding them up or not. I will see, if the Senator is satisfied, that a type of insignia would be carried by a Guard which would be readily observable.
It is entirely in the hands of the Minister, but if the Minister will promise to deal sympathetically with me on that point. I will not press my amendment.
I am personally in sympathy with it.
I should like it to be dealt with Ministerially.
Amendment, by leave, withdrawn.
I move amendment 5:—
Section 16, sub-section (4). To delete all after the words "shall be," in line 8 down to the end of the sub-section and to substitute therefor the words "an offence under this section and such person upon summary conviction thereof shall be liable in respect of each such offence to a fine not exceeding five pounds."
In this section the Gárda has observed the driver of the vehicle, whom he suspects of having committed an offence, the offence being that he has loaded the vehicle beyond the weight prescribed. The sub-section reads:—
Whenever a person in charge of a vehicle fails or refuses to do anything which he is required under this sub-section by a member of the Gárda Síochána to do, such failure or refusal shall be conclusive evidence that such vehicle is at the time when such requisition is made being used in such manner as to constitute an offence under this section.
It is a common law offence for a member of the public to obstruct the police in the execution of their duty. But if this were to come before the court, and if the prosecution was that the vehicle was over-weighted, then the charge would be under sub-section (3). If the offence was that the person had not done what he was told, that he "fails or refuses to do anything which he is required" to do by the Guard, as the Bill stands such refusal would be conclusive evidence that the vehicle was over-weighted. It seems to me that that is a wrong way of getting at the truth. A man may have been obstructive, he may have been contumacious, and may have refused to do what he was told to do, out of sheer obstinacy, but may be easily able to prove that the vehicle was not overladen. But it is prescribed in the Bill, because he refused to obey the Guard, that he was guilty of carrying too much beet on his wagon. My proposal is that the penalty shall be £5 for refusing to obey the Guard. That seems to me to be much more reasonable, more direct, and more in accordance with commonsense.
I would like to know what the Minister has to say in reference to this amendment. There are certain classes of offences committed by motorists on public roads which are so serious that special legislation is necessary to prevent them. For instance, when a motorist has by reckless driving knocked down a pedestrian, and when he is mean enough to make off, so as to avoid detection, I think it is perfectly fair and reasonable to assume as against him, that he is a wrong-doer. If I have ever said anything in favour of raising a presumption of guilt it was in connection with such an offence as that. Here in this case a presumption of guilt is raised for an offence of a wholly different character. The offence for which a presumption of guilt is raised under this section is for the failure of, say, a beet farmer who, a Guard says, has overloaded, to go to a weighbridge, failure to carry the police officer to the weighbridge, or failure to procure the weighing of the load. If he fails to comply, and if he says to a big sergeant: "Well, I may be on the point of being overloaded, but if you come on, my springs will break." It is not fair to assume, as against a man like that, that he is guilty of the offence of having his car overloaded, because he does not take the policeman on the car as well. I would say that that is of a wholly different character to that of a gentleman driving along a road, who knocks down an unfortunate pedestrian and is then mean enough to get away to avoid punishment.
Do not call him a gentleman.
The Leas-Cheann Chathaoirleach took the Chair.
I must apologise. That is an old and an honourable word that has been terribly misused. I wonder if the Minister would consider the amendment that Senator Johnson suggests. It is a very good amendment. I do not think that action under this section demands that drastic remedy of raising a presumption of guilt. We have knowledge of what will happen in a case of overloading of lorries, and I do not think that in one case out of ten thousand a man will refuse to go back with the policeman or refuse to go to the weighbridge. I am sure he would love to have the policeman in the cart. Senator Johnson's amendment is a very good one. Of course this is a matter of making the Bill as workable as possible.
I am inclined to support what has been said by Senator Johnson, and by Senator Comyn, particularly as the Minister has not seen his way to introduce an amendment to the section. As the section stands a policeman can order a man to go back perhaps two miles. I raised the point previously and I understood that the Minister was to see if he could introduce a suitable amendment. A man who is going to market may prefer to go four miles in that direction rather than have to return two miles. A man might refuse to return because he might have only a certain time to get to the market and he would then be presumed to have overladen the vehicle.
I am prepared to accept the amendment if the Senator will agree to make the penalty £10, so as to bring it into line with the rest of the Bill.
I have no objection although I think the offence is not so serious as the other. I accept the Minister's suggestion.
Can the Minister say why he did not deal with the other matter? Was it overlooked?
I had it gone into and I found there were many objections raised by those who had inquired into the matter more deeply than I had an opportunity of doing. I thought it better to leave it as it was, seeing that many greater objections and obstacles would have been raised.
Moreover, I am sure the matter will be dealt with by Departmental regulations. I am sure that a constable who would make a farmer go back four miles to a weighbridge would not be liable to get promotion.
The Bill says that he must bring him the shortest available road. I wanted to make the matter clear.
We might be able to meet the Senator when the regulations are being framed.
That is what the Minister promised to do, and not to bring in an amendment.
Amendment, as amended, agreed to.
Leas-Chathaoirleach
Amendment 6 —Government amendment:—
Section 17, sub-section (1). To delete in lines 24-25 the words "in public places" and to substitute therefor the words "on roads."
This amendment corrects an error made in the drafting. There is no power under the Bill to regulate the construction of vehicles except when used on roads.
Amendment agreed to.
Leas-Chathaoirleach
Amendment 7 —Government amendment:—
Section 17, sub-section (1). To add at the end of paragraph (b) the words "including conditions as to compensation, or as to securing by deposit the payment of compensation for damage to roads which may arise from the driving of the vehicles to which such special permits relate."
Amendment agreed to.
Leas-Chathaoirleach
Amendment 8 —Government amendment:—
Section 17, sub-section (2). To delete in lines 35-36 the words "in a public place" and to substitute therefor the words "on a road."
This amendment is necessary for the same reason as that given for amendment 6.
I suppose it does not include a private road?
Amendment agreed to.
I move amendment 9:—
Section 22, sub-section (2). After the word "unless" in line 50 to insert the words "such owner has taken all reasonable steps to ensure that".
This is the point I raised on the Committee Stage, when I was assured by Senator Comyn and others that the effect of inserting the word "knowingly" would be to allow the employer to condone all kinds of crime. I saw that my previous amendment went too far and it was suggested that I should bring one forward on this stage. The reason I suggest these words is that I want to provide that when an employer has taken reasonable steps to see that an employee is licensed and that the name is correctly given, the employer will not be responsible if it turns out afterwards that the employee got the licence by fraud. Temporary drivers are engaged every day by garages to take tourists around the country. I want to relieve them of responsibility if it is found that the licence was obtained by fraud, or if a man failed to renew a licence. At present the employer is responsible if he employs a man whose licence is not in order. I think it is reasonable that he should take steps to see that the licence is in order, but he should not be held responsible afterwards.
This is a variation of a previous amendment and I am afraid is one that we could not accept. As drafted the section is simply a re-statement of the law as it exists, and of what has been in force for 30 years. It has not been abused as far as we know. I do not think the Senator can bring forward a case of hardship. I am inclined to think that as people know the law no reason has been given to induce us to make a change.
This is one of those extraordinary cases where we are told what the law is. I consulted one of the associations which deal with matters of this kind. I never knew of a case of an employer being prosecuted. It is the driver who is prosecuted. I do not question what the Minister has said about what has been the practice, owing to the law having gone into disuse. But it may be revived. The practice of the law is that where there is no negligence on the part of the employer, and where he has taken reasonable steps to prevent negligence, he is not prosecuted. We are now in the peculiar position, when we come to deal with a matter of this kind, that the existing law must be put into this Bill, but when we come to the question of police holding up people we go back on the law. Some things are re-enacted and other things are not. I am not criticising the Minister's attitude, but there is great difficulty in dealing with these points.
Amendment, by leave, withdrawn.
I move amendment 10:—
Section 24, sub-section (2). After the word "applicant" in line 23 to insert the words "in the presence of a person appointed by the licensing authority to receive such applications."
When I moved a similar amendment on the last stage the Minister was to look into the matter to see how far it affected the first application and not renewals, and I was hopeful that he would have found a form of words which would meet what I desire. Looking at the matter I could not, with my limited ability in the matter of drafting, fit in an amendment which would apply only to the original application without re-drafting the section.
I still think it is desirable that the authority that is going to give the licence should have some direct knowledge of the fact that the applicant is a human being and does exist. The illustration that I gave in regard to the application for a vehicle licence was quite apt—that it is a wholesale job and purely mechanical. I think that should not be repeated in respect of driving licences. The applicant, I think, should exhibit himself in some way to the authority that is going to give the licence, and not simply send up a written message.
I hope this amendment will not be agreed to. I think it is not really consistent with the principle in the Bill, which is that a person is entitled to a licence unless he is subject to certain disabilities. The test of that disability, in the first instance, is a signed declaration by himself which can be questioned by the police authorities and put in order by the District Court. The only possible object in producing an individual to a clerk in one of the local taxation offices is that the clerk would be in a position to see whether this person, simply from looking at him, had any disability or not. The point that Senator Johnson made about a human being was not, I think, seriously meant. The amendment, in my opinion, would be no improvement on the procedure laid down in the Bill, and I therefore think it should not be agreed to.
We think that this amendment is impracticable. Since we discussed this in Committee we have made inquiries from the local taxation officers and licensing authorities in different parts of the country. We got replies from a number of county councils. They are almost unanimously hostile to the suggestion contained in the amendment. The general view is that it would not serve a useful purpose, and would not be helpful. All the replies that we got, without exception, I think, stressed the inconvenience that this would cause to motorists in many cases. It would mean that they would be obliged to travel anything up to a hundred miles to get a licence. Roughly 70,000 licences will eventually be issued. Under the amendment all these people would have to be examined. That would mean increasing the staffs, and very great additional work on them. It would also mean very considerable inconvenience to the individuals applying for the new licences. We are of opinion that any advantage that might be gained by it would not be worth the additional cost and trouble it would cause.
I am not pressing the amendment.
Amendment, by leave, withdrawn.
I move:—
That the Bill be recommitted to a Committee of the whole Seanad in respect of Sections 30 to 36 inclusive and the amendments relating thereto, viz, Nos. 11 to 32 inclusive.
I do not think this procedure will extend the discussions on the Bill. It will enable us to discuss these sections and amendments without being pulled up perhaps at an awkward moment.
I second the motion so that we may discuss it. I take it the only object Senator Johnson has in mind is to prevent a Senator being strictly ruled as to speaking more than once. I think I am correct in stating that this procedure need not necessitate any delay in connection with the Bill: that when we have taken these sections and amendments in Committee we can resume the Report Stage immediately and get through with the Bill if it is possible to do so this evening. In that case there cannot be very much objection to the motion. The Chair has allowed a reasonable amount of latitude, but I am sure none of us want three speeches on every amendment. Points may arise, however, on which it may be desirable to put supplementary questions to the Minister, and for that reason I support the motion provided that it will not necessarily delay the Bill.
I think it will not delay the Bill at all. In fact, I think it will facilitate discussion.
Question put and agreed to.
The Seanad went into Committee accordingly.
Question put: "That Section 30 stand part of the Bill."
I move amendment 11:—
Section 30, sub-section (1). After the word "drive" in line 61 to insert the words "or is in charge of."
This matter was discussed on the Committee Stage at some length, but my attention has since been drawn to a point which I was not aware of at the time. The section says: "Every person who drives or attempts to drive a mechanically-propelled vehicle in a public place while he is drunk shall be guilty of an offence under this section," etc. I am seeking to add the words "or is in charge of " a mechanically propelled vehicle in a public place while he is drunk. My reason for doing so is that the law has made that an offence hitherto. It was an offence for a man while drunk to be in charge of a vehicle in a public place. By changing the law and restricting the offence simply to driving or attempting to drive is, shall I say, a weakening of the law and favours somewhat the man who is prepared to have charge of a vehicle while drunk so long as he cannot be accused of driving or attempting to drive.
My attention has been drawn to this point: that one of the rules laid down by successive generations of judges for guidance in statutory interpretation is that judges are entitled, in construing statutes, to look at antecedent legislation although repealed, and if they find words in the repealed statutes which are omitted in the subsequent and superseding legislation then they must hold that the omission of such words was intended to omit all cases which came clearly within the purview and intendment of such omitted words. In view of that the omission of the words "in charge of" would be construed to mean that the being in charge of while under the influence of drink was no longer an offence. In that way it seems to be a modification of the law in favour of the drunken motorist. That is what I want to avoid, and that is the reason I am moving the amendment. I cannot add anything to what I said on the previous stage of the Bill, except what I have just quoted, which is from an authority on this matter.
I see no reason to change the view I expressed on the Committee Stage. I think that in the legislation as proposed we will be able to meet fully all the cases which need to be met. After all, if a man is in charge of a mechanically-propelled vehicle but does not attempt in any way to use the vehicle except perhaps to sit in it, I cannot see any necessity for bringing any charge against him, except whatever charge he renders himself liable to by being intoxicated. Suppose a man has taken sufficient drink or drugs to be incapable of driving a car and though being the owner and in charge of the car he is not actually in it, but is standing some yards away from it, if we put in the words in the amendment "in charge of," I am afraid they would render him liable to a prosecution, though he was not near the car at all. He would be charged with being a danger to the public though he was not actually in the car, and perhaps did not propose to use it. I am afraid that might happen under the amendment. In my opinion, at any rate, he ought not to be liable, so long as he does not attempt to use the car.
I support the amendment. I think the Minister's interpretation of the words "in charge of" is very far fetched—that a man a considerable distance away from his car could still be said to be in charge of it. The phrase "in charge of a horse and car" in the old days always meant, I think, that the owner was actually in the car. If the man were at the other side of the street he would not be said, I think, to be in charge of his horse and car. I think the same thing would apply here. I support the amendment.
I think time has not helped us, and I agree with the Minister in the matter. We are making drunkenness a very definite offence and strengthening the law in regard to it. Where a man has gone out for a day with a car and has been foolish enough to get drunk, if he has sense enough not to try and drive the car while in that condition I am not prepared to apply to him the stigma of being in charge of the car when drunk. A man of that kind, provided he does not attempt to drive the car, is still liable to be charged with the offence of drunkenness. I think the amendment would have the opposite effect to what Senator Johnson desires because if you make a man liable for being drunk "in charge of" a car—the same as if he drove it—then he may take the chance, if not very drunk, of driving it and of being a real danger to the public. I believe that the inclusion of the words in the amendment would defeat the purpose which Senator Johnson has in mind and be a greater temptation to a man to drive.
I have no shame in referring to the fact that the law has been as I am desiring it to be continued, and that after a long period these words were re-inserted in the British Act of 1930. I pointed out the difficulty of preventing the running down of a citizen, who is walking the roads, by a drunken motorist. I am not troubled about the man seated in the car, no matter how drunk he may be, if he is not going to run anybody down, but to give a man possession of an instrument of danger, such as a motor car is, when it may be driven at 60 or 70 miles in a public place—that has to be considered, having regard to the public safety. What is going to be the position of the Gárdaí? A man is too drunk to have charge of a car, but he is not too drunk to recognise that there is a Gárda watching him. He knows that it is an offence to drive or to attempt to drive. The Gárda sees the drunken man getting into the car, but the Gárda may have to wait until that man gets sober, lest he may attempt to drive. The Gárda does not wait, and the man drives off. How is the Gárda to prove the offence?
He can arrest him for drunkenness.
It is not an offence to be drunk in the car and it will not be an offence to be in a position to drive a car while drunk under the Bill as it stands. The Guard will have to wait until the man pulls the lever or attempts to drive the car. I feel that this matter is really a present to the drunken motorist. It is giving him a better chance than he has ever had in the past and it is going to put the onus on the Gárda to be not merely a guardian of the law but to have under observation a drunken man until he gets sober, so long as he is ostensibly in charge of the car. I think the Minister is mistaken in refusing to accept the amendment and in refusing to incorporate these words in the Bill.
I suppose Senator Johnson is willing to trust the officer who is watching the car to take care of the situation. If he sees a man drunk he can arrest him for being drunk.
Yes he can. I think anybody who would be in that condition could not possibly attempt to drive a car but he could be prosecuted for drunkenness.
He is on his own private premises.
If the unfortunate man is lying in the car drunk, I do not think the Guards should have power to go in and arrest him for driving or attempt to drive the car. I think it would be going a little too far to make him liable to a prosecution for an offence of that kind.
Surely your own car on the public road is not your private premises.
The law as it stands at the moment was framed at a time when there were not many motor cars. It was framed to deal with the horse-drawn vehicle. It is quite a different thing to be in charge of a horse-drawn vehicle to being in charge of a motor car. If a drunken man in charge of a horse and cart throws his reins over the horse's head and lies down to sleep, you cannot guarantee that the horse will not go off on its own. In the motor car, unless the man does some act, the car will not move. He has to pull a lever. If it has ordinary brakes it is not in ordinary circumstances likely to move off of itself. I feel that we have dealt with the situation adequately. If a man were charged with driving or attempting to drive a car while under the influence of drink, again there is a difficulty about defining whether a man is sufficiently drunk, He might be drunk for the purposes of driving a car. He might have taken too much drink to drive a car with safety and the Guard would have to take that into account. The man might be able to walk home, yet he might not be able to drive, or be able to attempt to drive a car properly. We cannot define drunkenness there.
I think we have dealt with it adequately without exactly defining drunkenness. I am of the same mind as Senator Johnson and many others who have spoken on this question. We are anxious to make it as difficult as possible for anybody under the influence of drink to drive a mechanically-driven vehicle on the road. I think we have covered the point as well as we could without doing an injustice.
Amendment put and declared defeated.
Mr. Robinson
I move amendment No. 12:—
Section 30, sub-section (2). To delete lines 12-17 inclusive, and to substitute therefore the words "the appropriate minimum period."
This amendment and amendment No. 18 are consequential on amendment No. 17, a new sub-section. No substantial change has been made.
Amendment put and agreed to.
Mr. Robinson
I move amendment No. 13:—
Section 30, sub-section (3). To delete the word "be" in line 19 where it secondly occurs and to substitute therefor the words "have been".
This is a drafting amendment to meet some criticisms of Senator Johnson on the last day.
Amendment put and agreed to.
Amendment No. 14 not moved.
Amendment No. 15 which stands in my name is practically of the same character as the amendment moved by Senator Johnson. I do not think there is much use in my moving it considering what happened to Senator Johnson's amendment.
Amendment No. 15 not moved.
I think it is unnecessary to move amendment No. 16 which stands in my name in view of subsequent amendments which the Minister has put down and which cover the point I tried to make clear in this amendment.
Amendment No. 16 not moved.
Mr. Robinson
I move amendment No. 17.
Section 30. To add at the end of the section a new sub-section as follows:—
(5) Where a person is convicted by a Justice of the District Court of an offence under this section an appeal shall lie from such conviction to the Judge of the Circuit Court within whose Circuit the district or any part of the district of such Justice is situate and the decision of such Judge shall be final and conclusive, and on the hearing of such appeal such Judge shall, if he affirms such conviction, confirm the consequential disqualification order made in respect of such person but may, in case the period specified in such order exceeds the appropriate minimum period, reduce the period specified in such order to such period (not being less than the appropriate minimum period) as he shall think proper.
This relates to the question of disqualification orders. The provisions of Section 18 of the Courts of Justice Act, 1928, were not fully set out in Senator Johnson's amendment. On consideration of that section it has been decided to deal specifically with the question of appeals from disqualification orders. Up to the present it was intended to deal with these appeals partly by implication from the ordinary law. The question has been dealt with in Amendments Nos. 12, 17, 18, 19, 21, 22, 23, 26, 27, and 28 and the proposals embodied in these amendments may be summarised as follows:— (1) the Bill gives an express power to confirm, annul, or vary a consequential disqualification order or an ancillary disqualification order on appeal. (2) There is to be no power to discharge a consequential disqualification order or an ancillary disqualification order. This right of discharge given by Section 34 is to be confined to the special disqualification order, that is to say, the disqualification for mental or physical defect. (3) Express provision is made in the Bill that any disqualification order is to take effect as soon as made and is not to be suspended or postponed by reason of a pending appeal. I suggest that these amendments will render Senator Johnson's amendments Nos. 16, and 25 and Senator Douglas's amendment No. 29 unnecessary.
As far as I am concerned I think this amendment is quite satisfactory and taken together with the other amendments meets the point I raised on the Committee Stage. It makes it quite clear that there is an appeal only to the Higher Court as far as the ancillary and the consequential disqualification orders are concerned and that the right to ask for a revision by another District Justice is confined solely to the special disqualification order. It seemed virtually an appeal on a criminal matter from one District Justice to another as the matter stood originally.
I should like to say, as Senator Douglas has said that this group of amendments, which the Minister has put forward covers the two main amendments I have put forward and which were discussed on the last day.
Amendment put and agreed to.
Mr. Robinson
I move amendment No. 18:—
Section 30. To add at the end of the section a new sub-section as follows:—
(5) In this section the expression "the appropriate minimum period" means —
(a) in relation to the first conviction of a person under this section, 12 months from the date of such conviction;
(b) in relation to the second or any subsequent conviction of a person under this section, three years from the date of such conviction.
Amendment put and agreed to.
Question —"That Section 30, as amended, stand part of the Bill"—put and agreed to.
Question put: "That Section 31 stand part of the Bill."
Mr. Robinson
I move amendment No. 19:—
Section 31. To add at the end of the section two new sub-sections as follows:—
(2) In every case in which an appeal may be brought in respect of the conviction of any person by any court of an offence on conviction of which an ancillary disqualification order may be made, the court having jurisdiction to hear such appeal shall have jurisdiction to confirm, annul or vary an ancillary disqualification order.
(3) An ancillary disqualification order made by a Justice of the District Court shall be subject to appeal in like manner as if such order were an order for the payment of a penal sum by the person against whom such order is made and Section 18 of the Courts of Justice Act, 1928 (No. 15 of 1928), shall apply and have effect accordingly.
Amendment put and agreed to.
Question—"That Section 31, as amended, stand part of the Bill"—put and agreed to.
Question put: "That Section 32 stand part of the Bill."
I move amendment No. 20:—
Section 32, sub-section (4). To delete the sub-section.
This is an amendment with which I really intended to deal on the last occasion but we went through rather rapidly at that stage and I was not able to call attention to it. In respect to the special disqualification orders, it was laid down here that an appeal shall lie from the District Court to the Circuit Court. I put down the amendment to delete the sub-section, not knowing what the Minister's amendments were going to be. I should like to point out that still, as far as I can see, in respect to the special disqualification order, the second application for a discharge will be made to a District Justice. That may take place almost immediately after the Circuit Judge has confirmed the original order. That seems to me to be an unwise provision, that what the Judge of the Circuit Court may have decided to confirm, may at once, in effect, be repealed by a district justice. I am not sure that the sub-section is now necessary in view of the late amendments the Minister has indicated his intention of moving.
I am prepared to accept this amendment.
Amendment put and agreed to.
Question—"That Section 32, as amended, stand part of the Bill"—put and agreed to.
Question put: "That Section 33 stand part of the Bill."
Cathaoirleach
Amendment 21— Government amendment:—
Section 33, sub-section (2). To insert before the sub-section a new sub-section as follows:—
(2) The operation of a disqualification order shall not be suspended or postponed by reason of an appeal being brought against such order or against the conviction as a result of which such order is made unless the court by which such order is made otherwise directs.
This is a consequential amendment on amendment No. 16.
Amendment agreed to.
Cathaoirleach
Amendment 22— Government amendment:—
Section 33, sub-section (4). To delete in line 29 the words "and in the next following section."
The same remark applies to this amendment.
Amendment agreed to.
Question—"That Section 33, as amended, stand part of the Bill"—put and agreed to.
Question put: "That Section 34 stand part of the Bill."
Cathaoirleach
Amendment 23— Government amendment:—
Section 34, sub-section (1). Before the word "disqualification" where it occurs in lines 33 and 42 to insert the word "special."
Amendment agreed to.
Amendments 24 and 25 not moved.
Cathaoirleach
Amendment 26— Government amendment:—
Section 34, sub-section (2). Before the word "disqualification" in line 45, where it first occurs, and also in lines 46 and 48 to insert the word "special."
Amendment agreed to.
Cathaoirleach
Amendment 27— Government amendment:—
Section 34, sub-section (3). Before the word "disqualification" in lines 50 and 52 to insert the word "special."
Amendment agreed to.
Cathaoirleach
Amendment 28— Government amendment:—
Section 34, sub-section (4). Before the word "disqualification" in line 54 to insert the word "special."
Amendment agreed to.
Amendment 29 not moved.
Question—"That Section 34, as amended, stand part of the Bill"—put and agreed to."
Question—"That Section 35 stand part of the Bill"—put and agreed to.
Question put: "That Section 36 stand part of the Bill."
I move amendment 30:—
Section 36. To delete all from the word "consequential" in line 9 down to the word "special" in line 12, inclusive, and to substitute therefor the words "disqualification order or an order discharging a".
This amendment raises a point which I do not now see very clearly owing to all the alterations that have been made. As the Bill stood originally, and as, I think, it still is, whenever a court makes a consequential disqualification order or an ancillary disqualification order or a special disqualification order or an order discharging an ancillary disqualification order or a special disqualification order, the court shall cause notice of such order to be sent to the Minister, who shall notify all licensing authorities. I should like to know why the duty to notify the Minister and the licensing authorities should not apply equally in respect of an order discharging a consequential disqualification order. I am not able to say whether the new amendments have seriously affected the application of this amendment, but it was possible under the Bill as it stood for an order to be made by a district justice discharging a consequential disqualification order, while it was not essential to cause particulars of that new order removing the disqualification to be sent to the Minister. That was, however, made an obligation in respect of the less serious offences of ancillary and special disqualifications.
The next two amendments will cover that point.
Amendment, by leave, withdrawn.
Cathaoirleach
Amendment 31— Government amendment.
Section 36. After the word "order" in line 11, where it first occurs, to insert the words "or an order annulling or varying any such disqualification order."
Amendment agreed to.
Cathaoirleach
Amendment 32— Government amendment:—
Section 36. To delete in lines 11-12 the words "an ancillary disqualification order or".
The speech of Senator Johnson has rather bewildered me. On appeal, a judge, though he may confirm the sentence of fine, has power to take away the endorsement on the licence, which would be a consequential or ancillary order. I am now referring to the Government's new amendment making clear the position on appeal. I am wondering whether we are correct in taking that out.
Are you referring to amendment 31 or to amendment 32?
I am referring to an earlier amendment by the Government which makes clear that there is a right of appeal. There may be a consequential disqualification order as the result of a conviction by the district justice. There is then an appeal and the appeal court may discharge that order. They ought to notify the authorities in the same way. Though it will not be removed by another District Court, the order will be removed by an appeal court.
Perhaps the Minister would make clear whether this will be the correct position under the Bill as amended: there will be no application to a District Court for discharge of an order made hitherto; there will be an appeal to a higher court, and the judgment of that higher court will not be in the nature of a discharge of the original order.
Why not? Under the amendment suggested by Senator Johnson, the law operates in the meantime, and notification will be sent to the authorties. If, on appeal, the order is removed, the authorities will want to be notified just the same.
I think they ought to be if the word "discharge" is the technical word.
Under the amendment just passed, the authorities will be notified.
Amendment agreed to.
Question—"That Section 36, as amended, stand part of the Bill"—put and agreed to.
The Seanad went out of Committee.
Amendment 33 not moved.
