As the Chair mentioned this morning, there is a misprint in the number of the amendment. The amendment number is 18, and not 8.
Vol. 65 No. 10
As the Chair mentioned this morning, there is a misprint in the number of the amendment. The amendment number is 18, and not 8.
The Chair suggests that amendments Nos. 18 and 23 go together. Separate decisions may be had, if necessary.
The purpose of these amendments is to make some more elaborate provision in the Bill for the setting up of the Bureau which will be the body concerned with the testing of specimens of blood and urine once the Bill is in operation. As I said last night, it is of particular importance that the Bureau should be so constituted, and be seen to be so constituted, that the public will have no difficulty whatever in accepting its standing. That is highly important for the reason that under section 44 of the Bill, the findings of the Bureau will be conclusive evidence as to whether at a particular time a man was drunk according to the blood or urine test.
Where one finds that a mere certificate of any person is to be conclusive evidence, especially where so much is at stake, we ought to be greatly concerned with the foundations of the body and the establishment of the body whose evidence will thus be made conclusive. For that reason, I am suggesting in the amendment that the order establishing the Bureau should be laid in draft before each House of the Oireachtas. In doing that, I am not at all offending precedents. On the contrary, I can think of many Acts under which very many State bodies of one kind or another have been established and one finds regularly in the Schedules to those Acts the name of the body, with its various functions and powers detailed, but nothing like that is done in this Bill.
There may be very good reasons for not doing that. The Minister's Department may not yet be in a position to say exactly what functions should be assigned to this body and what way it should be constituted, but I think that when we do not have the powers of the body and other matters relating to its functions set out in a Schedule, as has happened so frequently in cases of bodies of this kind, we should have the draft laid before each House of the Oireachtas and have it approved before it is passed.
Again, in relation to amendment No. 23, I would like to have the opportunity afforded to the Oireachtas of pronouncing on the acceptability or otherwise of the regulation which will be made to implement sections 27 to 46. As the House will be aware, those sections are really the heart and soul of this Bill. This is all that is concerned with drunken driving, drunken charges and how those offences will be tracked down. I would suggest that the regulations which will be made to implement those sections, which regulations will be guidelines for the Bureau, for the members of the Garda and for the courts, being so important, and their implementation being a matter of such consequence to the health and well-being of the community as much as to the liberty and freedom of the drivers concerned, should be laid before each House of the Oireachtas and a discussion take place on them.
From the point of view of publicity, the Minister's colleague, the Minister for Agriculture, was of the view that it is important. I am sure this Minister will have the same view, that the greatest publicity be given to this measure when it is about to be brought into operation. From the point of view of publicity, this Bill has been overshadowed by a major debate on another important topic. I am glad to see the Minister back after his long and arduous wars in another House. It would be no harm before those regulations come into operation if the Minister and Members of the Oireachtas were familiarised with what is contained in this Bill and how it will be implemented. In that way a further opportunity of publicity will be afforded and once this Bill is passed by the Oireachtas, it will be seen by the public—I anticipate that they will not give rise to any difficulty—that the regulations are regulations which have the active endorsement of the Oireachtas and it is a good thing that that should be the position.
I cannot agree that it would be appropriate to accept these amendments. The making of a regulation or an order is an executive function and not one for either House of the Oireachtas. The case for divorcing the executive function of Government from the law-making function of the Oireachtas is well known. The time of Parliament, it is generally agreed, should not be taken up with the implementation of policies which have been embodied in law. A degree of flexibility by way of power to make regulations should be allowed in the implementation of policy set out by Acts of Parliament, particularly in relation to matters of a technical nature which are subject to change. For this reason I think it is not desirable that we should provide that the regulations must be ratified by the Houses of the Oireachtas, as is suggested here, that the drafts should be laid before the Houses of the Oireachtas for approval. I take it that we are dealing with amendment No. 23 as well?
In the case of the regulations under section 47, there is a further practical reason why the amendment should not be accepted. If it becomes obvious that the enactment of the procedures and so on to be prescribed in regulations is faulty, it may be necessary to have a minor amendment of the regulations. That could not be done under this amendment if the Houses of the Oireachtas were not sitting. I pointed out that the drafts of regulations made under the 1961 Act are not required to be laid before the Houses of the Oireachtas although these regulations deal with very important matters. Similarly, the drafts of establishment orders made, such as the Health Corporate Bodies 1961, do not have to be laid before the Houses, and I think it is not desirable that this should be required to be done in this case either. Provision for the making of regulations is a usual one and I think it is satisfactory.
The Minister has expressed or adumbrated a philosophy that I think must fall as unacceptable on the ears of Members on both sides of the House when he says that the making of regulations and orders is an executive function and not the subject of day to day surveillance of the Houses of the Oireachtas, that the Houses of the Oireachtas should only concern itself with the legislative process. That is a new philosophy and it certainly is an unacceptable philosophy in the context of this Bill.
Let me say straight away that the Statue Books are littered with provisions enabling Ministers to make regulations in draft and to place them before each House of the Oireachtas. There are customs duties. We have had various orders in draft relating to superannuation schemes. We have had orders accepting or including persons who are not insurable under the Act that are laid in draft before the Houses of the Oireachtas. All of these orders are made and this has never in the slightest degree interfered with the executive functions of the Government. I quite see, and I suppose it is the strongest point the Minister can make, that certain regulations are required without amendment. Does everybody not know that the amendment of a regulation is a matter of wearisome months of toil and work in Departments and the idea of a court decision today saying that a particular regulation does not mean everything that everybody thought it to mean and that the Department of Local Government will fall to and produce a regulation in a matter of weeks is something which nobody will believe? That kind of thing will not happen. It has never happened in the past and I think it will not happen again.
Under the Planning and Development Act we find there was need to amend a regulation in order to prevent the destruction of habitable dwellings at a time when the houses were fit for human habitation, at a time when there was an acute shortage of houses in the city of Dublin. That particular regulation has not yet been amended to prevent local authorities from destroying houses which are habitable. I understand the Minister has some legislation in view to get that done. It is over a year ago since we discussed this particular matter in this House. I remain convinced that there is a need for immediate action. It may be there but one can be certain the action will not be immediate.
With regard to the 1961 Act, of course every regulation made under the 1961 Act and every bye-law made by the Commissioner of the Garda Síochána under the 1961 Act are allowed, if made under regulation by the Minister, to be laid before the Houses of the Oireachtas. They are laid and they do not have to be approved in draft form. What I am talking about in this particular case is that the particular regulations to be made under sections 27 and 46 are all concerned with a completely new principle in our criminal law and of an order of importance away above anything contained in any of the regulations under the 1961 Act because the regulations will deal with the mode of making these tests, how they will be certified and all the other things which we legislators do not know about.
Once a certificate is issued to the officer in charge of the Garda station where the person was arrested, if the person is found to have had a quantity of alcohol in his blood in excess of 125 milligrammes per 100 millilitres, the District Court has to do no more than say: six or three months imprisonment, automatic disqualification for one year, and so on. That will be the effect of the oath and that certificate and the regulations under which this certificate is issued and everything concerning this is of an order of importance that transcends anything made in the 1961 Act.
This is one thing the Houses of the Oireachtas are entitled to be assured of in advance of the regulations being made. We all know of cases where blood samples have got mixed up in well run hospitals. We know of cases even where the wrong leg has been amputated. We know of errors happening. We would all like to know of the kind of regulation that will be made to ensure that these kind of things will not happen. It all boils down to the human act, to the human fallibility or infallibility. It is rather a matter of considerable importance and of this moment Members of the Oireachtas know very little about the whole procedure that will be adopted in relation to blood tests and urine tests.
It is a clear case for having these orders and regulations laid before the Houses in draft. Also equally important is it that these very regulations which will establish this Bureau should be the subject of some debate to enable some further education of the public to be achieved in the process.
Notice of intention to make the regulations will, of course, in accordance with the normal practice which is followed in regard to the road traffic regulations be published in advance for the information of the public and to obtain the views of all parties concerned; that is, before the regulations are actually made. When made they will, of course, be laid before both Houses of the Oireachtas and either House may move to annual them within a specified time. I do not see that it is either necessary or desirable to insist that there must be a debate on these regulations whether or not there is any reason seen to amend them. The intention is that they will, in effect, have public consideration before they are made, and if the regulations which are finally made are then considered to be undesirable the procedure is there to have them annulled.
There are various safeguards built into the Bill regarding the certificate as, for example, provision giving power to call for a second analysis in section 45 which we will be coming to soon. What I want to make clear is that there are safeguards built into the Bill which can be discussed here at this stage. I think it is completely unnecessary to provide that there will be a separate debate on these regulations whether or not there is any desire to amend them in any respect. They will be published in draft for comment before they are actually made.
There is no provision for that in the Bill. Is that a ministerial undertaking?
This is the normal practice in regard to making regulations under the Road Traffic Act and the same procedure will be followed.
I have never seen any notice to that effect.
That is what is done.
I should like to ask the Minister will the Bureau be a body that will be entitled or will be asked to advise the Minister and the Ministers thereafter and publish the findings thereafter in relation to the kinds of situation in which people are more or less inclined to suffer from the effects of intoxicating liquor. We know that there are people with particular kinds of diseases or that kind of thing who may be more easily affected by small quantities of liquor than other people. Many people get into trouble simply because they do not know what is good for them or what they are doing in taking particular drugs in conjunction with alcohol, whether that will make them more quickly intoxicated or not. Whenever I am prescribed drugs, of the milder character I hope, by doctors, I always ask: "Can I have my drink?" So that if one wants to know if this is going to affect one this is an area of ignorance among members of the public which I should like to see lighted up, and I wonder if the Bureau will be asked to deal with things of that kind.
They can, in fact, be asked to carry out research into different things such as that. I certainly agree that in regard to particular conditions that might make people more subject to being influenced by the effect of the consumption of alcohol, it should be part of the Bureau's function to inform the Minister on such circumstances. I can visualise, the same as Senator O'Quigley, that the Bureau could accumulate valuable information in that respect.
I move amendment No. 19:
In page 26 to delete subsection (3).
This is an amendment which I move in tribute to the Minister for Local Government. Senators should not look so surprised. I think that the person who is Minister for Local Government at any time, including the present Minister, is a person who is well qualified to handle public funds to the best advantage and not to use them in a way that would call for adverse comment, and would be economical and sparing in the use of public funds. The Minister for Local Government is provided with large grants which he administers through the various local authorities; he himself is constantly in a position of receiving submissions from local authorities and approving of different schemes and different costings and approving of large expenditure by local authorities.
In his capacity as Minister for Local Government he has to approve salaries and so on for officials of various authorities. In some cases he has to get in touch with the Minister for Finance in relation to his approval, but certainly once large sums of money are provided for housing grants or roads and so on, I rather think that he is the person who has the final approval and disposal of the particular sum. All the expenses of running this Bureau are not to be at the expense of the general taxpayer. They are going to be paid, if I understand the provisions of the Bill, out of the Road Fund.
I should be quite happy to see the Minister for Local Government fixing salaries of members of the Bureau and authorising the expenditure of whatever moneys are necessary out of the rate fund. He is quite competent to deal with these matters. I am quite content to leave it to the Minister for Local Government to do this, and not to have this complete waste of time up and down to the Minister for Finance, where somebody in the Department of Finance in order to main his superiority or that of the Minister for Finance over that of the Minister for Local Government, writes down messages and memoranda and goes pin-pricking about an expenditure of £10 or £5 here and there, and wanting to bring certain salaries into line with other salaries in the State service and so on.
One can immediately see that when they start to fix the salary in order to get it in order, if the Minister for Local Government begins to fix a salary for the Director of the Bureau the Minister for Finance—and, of course. I am always referring to his subordinates who do these things—will then write to the Minister for Local Government and say: "That is much higher than we are giving to the State Analyst". It may not be possible to get the kind of man the Minister wants to be the director at the salary now paid to the State Analyst—I do not know what the salary of the State Analyst is or what it is likely to be for the director. This gives rise to a complete waste of public time. I am satisfied to leave it to the Minister for Local Government to determine these matters in the same way as he has determined and sanctioned the expenditure of large sums of money every week. For that reason I move to delete subsection (3) which requires that the Minister will have to go round to the Minister for Finance and seek his approval to do things that he is quite competent to do and on which he has knowledge which no Minister for Finance can have.
What Senator O'Quigley says may sound very attractive at first sight to other Ministers, but the fact of the matter is that we all know in our hearts and souls that there is need for somebody to take an overall view on this matter of wages and salaries, and there has been considerable criticism about the processes of leap-frogging that result from the independent fixing of salaries and wages and their increase by, for instance, different State-sponsored bodies. I think that it must be obvious that somebody should take an overall view of this matter of salaries and wages in the public sector generally. The Minister for Finance is the obvious person to do that. If individual Ministers are to fix salaries without any reference to the levels obtaining in other comparable employment, chaos may result, and I think there should be somebody to compare like with like in this respect.
Of course, if a situation such as Senator O'Quigley has suggested arises where a person cannot be got, then obviously there will be consultations between the Minister for Local Government and the Minister for Finance with regard to the fixing of a more realistic rate for the particular job in question. But attractive though it might seem to me as Minister for Local Government to be able to decide on my own, I as a member of the Government must appreciate that it is, in fact, highly desirable that there should be this overall responsibility vested in the Minister for Finance. I might occasionally feel impatient about it myself, but, on the other hand, I can see that it would not be desirable if every Minister acted completely independently in this respect.
It would be very hard to control expenditure unless there was this overriding responsibility vested in the Minister for Finance. I do not think that what Senator O'Quigley has suggested is feasible in these circumstances. There is no question of superiority at all. It is just a question of somebody having an overall view of the whole situation.
The British are constantly having a look at their Civil Service and its procedure and the latest to have come out is a report on the Civil Service, the Fulton Report. No doubt we shall have something analogous to that from the Devlin Committee but it will be a pale reflection, no doubt, of the Fulton Report. What I am concerned with is the avoidance of waste of time and I am not at all convinced by what the Minister has said because there is not any necessity to have the Department of Finance or the Minister for Finance poking a finger into every State or semi-State body. There is the example of the block grants given to the ESB, Bord Fáilte and others. They fix their salaries without reference to anybody. CIE, subsidised to the tune of £2 million annually, fix their salaries.
The boards of these companies are expected to act responsibly. We can trust the Minister for Local Government to fix the salaries of members of the Bureau. The Minister spoke about the leap-frogging that took place in the public service, and, of course, the real cause was the Department and the Minister for Finance because it was the Department of Finance the first day who erected this important principle of maintain the differentials. Differentials had to be maintained between clerical officers and executive officers, then between clerical officers and national teachers. Other people got increases and others said: "We must maintain the differentials." That is how the leap-frogging began and that is the kind of cod that goes on in our public administration. I thought the time had been reached when the Minister for Finance in charge of the administration of the public service would be prepared to delegate authority. In a case of this kind, involving a body of this sort, the authority should be delegated to the Minister for Local Government. However, the Minister for Local Government is a more humble man than I thought he was or a more loyal man than he need be.
I am very glad the Minister has resisted the blandishments of Senator O'Quigley. I served 17 years on the Committee of Public Accounts and I know that nothing gives more trouble than block grants, grants-in-aid, which have diminished responsibility in Government. Nobody can answer for how the money was spent. Now, this is the one bit of the Bill which gives me great pleasure to see the Minister coming in with. I am basing that statement on experience of the Committee of Public Accounts, but to compare it with what is happening in England, in that enormous democracy, is quite a mistake. Comparatively, this country is small enough still to keep a firm finger on the expenditure of the taxpayers' money and I am glad it is being continued here.
I am surprised to hear Senator O'Quigley stating that it was the Minister for Finance who established this principle of the maintaining of differentials between different grades. I am not saying the Senator is wrong but I am surprised to hear it. I would have thought staff associations played quite a big part in this. I know that people watch the progress of salaries and wages in comparable employment in other bodies. The whole thing has been the cause of some worry to the Minister for Finance rather than that he should himself be trying to maintain this position. It is a fact that bodies such as the ESB and CIE have dealt with salaries and wage claims without consideration of their effect on wage structures generally, but even in respect of those bodies it would be more in the national interest if these things could be dealt with on an overall basis rather than individually by each of the State-sponsored bodies. Because of what has happened—this experience of leap-frogging action being taken by one State-sponsored body affecting wage rates in other bodies and the determination of staff associations to maintain their parity with similar types of employment— there is an obvious reason why there should be somebody to take an overall view of the whole matter.
Certainly, in so far as the State services are concerned, the Minister for Finance is the obvious person to do that, and though this may involve a certain amount of delay and frustration for individual Ministers, I think it is a good and very desirable principle.
I move amendment No. 20:
In line 36, to delete "wilful".
This is to delete the word "wilful" from the phrase "wilful neglect". What is being provided for in the section is that no action or other legal proceedings shall be taken against the director except in cases of wilful neglect or default. I understand what "neglect" means and I understand what "negligence" is but I am sometimes at a loss to know what "wilful negligence" is. One is either negligent or not. One is negligent if one does not take care and if one does not take care it is because one positively refused to take care or omitted to do something. I do not wish either to protect the director from actions by leaving the word in or to make him more liable by taking it out and for that reason I think we should take it out as an unnecessary word in the Bill.
If this amendment were accepted it would mean that all negligence arising from the analysis of samples could be a cause for proceedings. This would not be fair to the staff of the Bureau who would be required to carry on the work with the threat of a court action for the least error. It is normal practice in the case of such bodies to provide the maximum protection against legal action for the officers of the body concerned. There is, of course, nothing to stop any person taking action for any negligence against the Bureau itself as distinct from the individual officers of the Bureau.
In fact section 42 was already amended in the Dáil. I moved an amendment in deference to points expressed by Deputy Dillon and Deputy Fitzpatrick. Up to then the section conferred protection on the Bureau as a body as well as its members and officers. The amendment I moved in the Dáil removed the protection from the Bureau as a body but retained protection for the members. I think that is desirable and it was accepted in the Dáil. It was accepted as desirable that the members should only be liable for wilful neglect and that any neglect can be a cause of action against the Bureau as such. Therefore, I think the public have sufficient means of redress in the case of neglect of any kind. It is surely desirable that the actual staff of the Bureau should not be working in conditions of having a threat of court action hanging over them in the case of making any simple and human mistake.
Surely there is a case in what Senator O'Quigley has said? I would suggest abolishing the words in brackets altogether. I think it an extraordinary thing to put a public servant in a position such as this where somebody comes round to the laboratory making inquiries about such and such a sample and asking who did it because he wants to take an action against him. I feel that the only action should be against the Bureau itself.
The original position was that the Bureau itself was protected from action but I introduced an amendment in the Dáil to allow an action against the Bureau. I would imagine that there would very seldom be a case where action would be taken against the Director or an individual officer or member of his staff because it would be only in a case where it would be possible to show wilful neglect that this could be done. It is not easy to imagine a case in which that would be necessary and I would say that in the normal course, any action that would be taken for negligence would be taken against the Bureau rather than against an individual. I must say I do not see an awful lot of reason for having it in myself.
Whether it is wilful neglect or neglect, the only evidence that a donor of a sample can get surely must be from another member of the staff of the Bureau? He must find out who dealt with the sample and did he neglect it in a wilful way. It would be wrong that another person in the Bureau should be asked to give that evidence.
I am glad to hear that there is provision in the Bill to sue the Bureau in case of negligence because there can be, and I rather think there will be, cases in which samples will get mixed up or a certificate with the wrong name will be sent to the member of the Garda Síochána in charge of the station and somebody may be sent to jail or lose his licence as a result of a mistake made in the Bureau. The Minister will pardon me and I am sure the House will be indulgent with me if I say I did not know the Bureau was liable to be sued because in all of these statutes where one of these bodies is constituted, the characteristics of the new body are set out. One of the things is that they can hold land. I do not know if we have it here. Another is to say that they can sue and be sued in their corporate name. Once there is somebody amenable to a member of the public who may be injured as result of the negligence of some member of the Bureau I am quite happy. Accordingly, I withdraw the amendment.
As far as I remember, the original section was that no action shall lie against the Bureau and instead of that, we have put in "against the Director or any member, officer or servant of the Bureau", but the fact that it is not provided that the Bureau cannot be sued means that the Bureau can be sued under the common law.
Will the Minister ensure that in the establishment order he provides the Bureau can sue and be sued?
Yes, if necessary.
That is in section 37 (2).
Yes, it is specified there.
That is fair enough.
On the section, and this is what is bothering Senator Cole, if somebody has been wrongly convicted because in fact he did not have 125 milligrammes, that would probably arise in the kind of case where if somebody had got another sample and had it analysed by another independent scientist. That may not happen always. It may turn out in some other court case that the certificate issued in respect of a person of perhaps the same name is well below the 125 milligrammes, whereas in the other case it was probably 130 or 145. In that case the person who had been convicted and who believed he should not have been would be put on notice and begin to make inquiries. That is the kind of situation one could envisage.
One knows that in the Land Registry not infrequently names on folios get mixed up and one has to apply to the court to have the folios rectified. What is important, and I wonder if the Minister can give any indication, is supposing somebody genuinely believes that he was not drunk but nonetheless a certificate has been issued by the Bureau stating that he was above the prescribed quantity. If he has good reason to believe that he was not drunk, will he be given any kind of access to the documents for a particular period? If somebody should then take an action against the Bureau and if there should be an order made for the discovery of documents, will the Bureau in that case be entitled to plead privilege and say: "No, we will not produce these documents"? I rather think that under the Bill as it stands they should not be entitled to plead privilege but I can well see them attempting to gain privilege, and of course that will entirely frustrate in a particular case the person who believes he has been injured.
Section 45 reads:
Where a portion of a specimen is analysed and a determination in respect thereof made under section 43 (2), the person to whom the specimen relates may, within the prescribed period and in the prescribed manner and subject to the payment to the Bureau of the prescribed fee, require the Bureau to have analysed, in accordance with the prescribed procedure, portion of the remainder of that specimen and to have determined, in accordance with the prescribed procedure, the concentration of alcohol therein, and the Bureau shall, in accordance to this Act and any appropriate regulations thereunder, comply with the requisition.
If he so requests, he or any person nominated by him may be present while the analysis and determination are being made, and if a certificate issued following the second analysis and determination specify a lower level of alcohol than that specified in the original certificate, the original certificate will be read as if the lower concentration of alcohol were specified in it. Therefore, there is a provision that a person can have a new analysis carried out with any person nominated by him present while it is being done.
That goes some way to answering the difficulty. In order to avoid duplication at a later stage, may I ask the Minister what would be the procedure in relation to the accused person getting a copy of the certificate? It is quite clear that it will be sent on to the member of the Garda Síochána in charge of the station to which the specimen was forwarded. At what stage does the person to be charged get the certificate?
He will get a copy of it immediately. Section 43 (3) deals with that and the regulations will also deal with it. Section 43 subsection (2) prescribes that part of the specimen received by the Bureau must be kept for further analysis if required. It says:
Upon receipt by the Bureau of a specimen forwarded thereto under subsection (1), a part of the specimen shall, in accordance with the prescribed procedure, be analysed and the concentration of alcohol therein be determined, and the remainder of the specimen shall be served in accordance with the prescribed procedure.
That means that there will be part of the specimen available for further analysis if required.
Can the Minister indicate how much blood will be taken from an individual? Will it be half a teaspoonful or a teaspoonful?
It will be the equivalent of two teaspoonfuls.
The only thing I want to ask the Minister is with regard to where the section says:
A certificate expressed to be issued under section 43 (1) shall, without proof of the signature of the person purporting to sign the certificate or that that person was the proper person so to sign, be sufficient evidence in any legal proceedings of the matters certified in the certificate.
Can the Minister ensure that when certificates are signed the signature will be legible? When it comes to the signature on some certificates it is just a bit of a mark and one sees from this that it is not the name of any person. I can see this matter being raised in court as a last line of defence if it is not clear to anybody looking at it that the signature is that of a certain person.
You mean that the signature should be identified as the normal signature of some particular person. I know that a lot of people deliberately cultivate a signature which cannot be read but anybody who knows the person concerned knows it to be his signature. Some signatures that I see seem to have been deliberately developed so as to not be legible.
The Minister should indicate that people should write legibly on a certificate of this kind.
If a person deliberately seeks to sign his name illegibly it would not be his normal signature.
I am anticipating a line of defence.
I understand it is expected that it is likely that, as a rule, all the certificates will be signed by the one person.
By the director?
By the director or his deputy.
I move amendment No. 21:
To add to the section a new subsection as follows:—
"( ) Where the defendant gives evidence to establish that the provisions of this section have not been complied with, unless he wishes to do so, he shall not be asked and shall not be required to give evidence about any other matter."
In section 46 the defendant is going to be entitled to show that certain sections of the Bill were not complied with. It is provided for in subsection (2) that in any prosecution for an offence under section 49 or 50 of the principal Act or under section 30 (3) or 33 (3) of this Act, it shall be presumed until the defendant shows otherwise that the requirements of this section have been complied with. What the section is doing is taking as done according to law all the various things in relation to the giving of a caution and the taking of samples. In a particular case the defendant may say that the law was not complied with and may give evidence of that fact.
What I want to ensure in the amendment is that if the defendant wants to go into evidence that he was not given a proper caution or that the doctor taking the sample gave up because the man withdrew his hand once or twice although he did not, in fact, refuse to give the sample, and if he wants to give evidence of that fact he is entitled under section 46 to go into the witness box and so give evidence, but I am trying to provide that if he goes into the witness box and gives evidence of that fact he shall not be cross-examined in relation to any other aspect of the case. Under the Criminal Justice (Amendment) Act of 1924 when an accused person goes into the witness box he is open to cross-examination on every aspect affecting the charge. Sometimes it can be unfair to subject a prisoner to that for the reason that the onus of providing his guilt lies upon the State.
If a person wants to disprove a preliminary matter he should not be subject to cross-examination as to where he was, whom he met and what he did. I think it is in accordance with our admirable code of criminal law that he should not be open to cross-examination on any matter outside the particular aspect which he is trying to disprove in evidence. In prosecutions under the Road Traffic Act 1961, in order to convict a person of dangerous driving a notice of intention to prosecute must be served on the accused person within a specified period or he must have been given an oral warning at the time of the act of dangerous driving with which he is charged. It is assumed under the Road Traffic Act, 1961, that such a notice was obtained or such a warning given until the defendant proves the contrary.
In a particular case if it can be established that such a notice was not served or a warning given the charge will be dismissed. It is an absolute prerequisite that the notice should have been given. If in a particular case the accused person says: "No, I was never served with a notice to prosecute" or "I was not given any warning", as the case may be, if he wants to go in and establish that he should not be cross-examined about where he was, what he said to somebody at the time or anything else like that. As the law stands, he is open to cross-examination on many other matters and thereby may convict himself out of his own mouth when, in fact, he should be entitled to establish that the State has failed to comply with the prerequisite essential of conviction. Consequently, I want to maintain the system of fairness to accused persons, that such a characteristic of our system of criminal law exists and in the amendment I want to provide that he should not be cross-examined on any matters outside those matters which he challenges and is entitled to do so under section 46.
The legal advice I have obtained in regard to this is that there is no need for the amendment, that the court would not allow cross-examination such as is envisaged by Senator O'Quigley. If it would, its decision could be quashed by a higher court so acceptance of this amendment would imply if it were not for this provision being inserted here that he could, in fact, be so cross-examined. That being so, and for that reason only, it is considered undesirable to accept this amendment. I certainly agree that the position should be as Senator O'Quigley says and I am advised that that is the position without this amendment. If Senator O'Quigley insists, I suppose there is no great objection to incorporating this provision in the Bill but I understand if so it would require to be re-drafted from what is there now. If Senator O'Quigley still thinks it should be, I would be prepared to have it re-drafted before Report Stage.
I am glad the Minister is sympathetic with the view I put forward. I can only tell the Minister that I had the misfortune of having a person I was defending given notice of intention to prosecute and the judge ruled contrary to my submission that he should not be cross-examined. The judge ruled that he was liable to cross-examination on each matter in relation to the charge. I had that experience. I did not have in court on that particular occasion the particular Act to which the judge referred. I checked later and found it must have been one of the Criminal Justice Acts of the 1950s. There is no doubt when a person gives evidence on his own behalf that he should not be cross-examined. I thought it was the Criminal Justice Act of 1924 which I have but it must have been the Act of 1951. I checked up afterwards and I found that unfortunate accused was exposed to cross-examination on every matter to which the charge was related.
My advice is that is not the position, that this type of cross-examination would not be allowed and if a court did allow it it would be quashed by a higher court. As I said, to insert a provision in this Bill stating that this cannot be done would seem to imply if the provision was not there that it could be done. That is the only objection I have to inserting it in the Bill. I am prepared to accept it but I cannot accept it in its present form. I will have to have it re-drafted and we can get that done straight away.
I thank the Minister.
At the time I put down this amendment I think I was not aware that in the Interpretation Act it is provided that where there is a reference to a section it is a reference to a section of the Act. Therefore, I think the amendment is not necessary.
This amendment has already been discussed with amendment No. 18.
I move amendment No. 24:
To delete lines 34 and 35 and in line 36 to delete "51A".
The purpose of this amendment is really to provide for simplicity in the administration of the Act. Here what is being said is that this new section be inserted in the 1961 Act. What I think ought to be said is that this is going to be section 49 of this Act and that an offence will be an offence under section 49 of the Road Traffic Act, 1968, rather than an offence under section 51A of the Road Traffic Act, 1961. This is to avoid the cumbersome reference required in all indictments in regard to charges made by members of the Garda and so on. It is much clearer to say that this is an offence under section 49 of the Road Traffic Act, 1968.
I understand that this reference under section 49 is a normal drafting practice and will, in fact, make resulting law easier to read for both lawyers and lay people. It will set out the three offences relating to driving behaviour in numerical sequence, sections 51A, 52 and 53 in one Act — the 1961 Act.
Could I put in not by section 49 of the 1968 Act but section 51 of the 1961 Act?
Sections 51A, 52 and 53 of the 1961 Act.
Sections 52 and 53?
I think that no matter what the Minister says, this is of course normal drafting procedure but it is the normal drafting procedure to which we normally object most vigorously and everybody criticises it. Lawyers criticise it; judges criticise it; legislators criticise it. Nobody agrees with this except people in certain quarters, and I think the time has come when we ought to face up to this squarely and say we will not have this kind of thing any longer. My sentiments, I am glad to think, are shared by Members on the other side of the House.
If Senator O'Quigley were to be consistent, he would object in the same way to the drafting of section 50 of this Bill. Sections 49 and 50 of the Bill, together with the existing section 53 of the Principal Act, will deal respectively with the three offences associated in the manner in which a vehicle is driven. Section 49 deals with driving without consideration for others, section 50 deals with careless driving; and section 53 of the 1961 Act which has also been amended by this Bill deals with dangerous driving. Both sections 49 and 50 do their job, therefore, by inserting their respective provisions into the Principal Act as sections of it. This is reasonable because they merely break up the existing section 52 of the Principal Act into two separate offences. That is what sections 49 and 50 of this Bill do. They break up the existing section 52 into two separate offences and we are proposing that this one should be known as section 51 (a) and that section 50 substitutes a new section for the existing section 52, so that the three driving offences will be sections 51 (a), 52 and 53. Section 50 acts in the same way as section 49, and Senator O'Quigley has not objected to that.
The Minister has accused me of not being consistent, but to quote the Minister for Finance "consistency is the hobgoblin of little minds". Let me say I was consistent and I am quite certain that my amendment of section 50 has got lost somewhere along the line. That has happened. I can advance a better reason and say I wanted to test the Minister's reaction out on section 49. I think by doing that he accused me of lack of consistency. Then if he takes section 49, I could go along cheerfully on Report Stage and I would have no difficulty at all. On section 50 I considered the amendment and I have no doubt this got lost on the way or I felt this would not be the time in the Bill to deal with it.
I cannot impress on the Minister too strongly how much he will be criticised and how much all of us will be criticised when this Bill comes to be administered by members of the Garda Síochána, judges and members of the legal profession. There is no doubt whatever that the small efforts I have made to try to amalgamate the amendments with the sections of the old Act would be of some value because these are the sections which will be in use every day in one hundred different places by hundreds of different people. It will be a shocking waste of public time and money referring to section 51 (a) of the Road Traffic Act, 1961, as inserted by section 49 of the Road Traffic Act, 1968, and section 52 as amended by section 50 of the Road Traffic Act, 1968, on top of the offences we are dealing with in section 29, the section related to drunken driving, where we will be referring to section 49 of the Road Traffic Act, 1961, and section 29 of the Road Traffic Act, 1968. There is no sense or meaning, logic or justification, or anything else, for that kind of drafting. I do not blame the Minister personally for this kind of product but I do think he ought to try to see the point of view of those who will administer this.
It will be physically a waste of time in every Garda station, typing out a charge under section 49 of the Road Traffic Act, 1961, and section 29 of the Road Traffic Act, 1968, instead of referring to it as a new charge of drunken driving referred to as an offence against section 49 of the Road Traffic Act, 1968, and everybody will know that section 49 of the Road Traffic Act, 1968, is drunken driving.
It is section 29.
I beg your pardon —section 29 of the Road Traffic Act, 1968, will be the drunken driving section. In future people will have to refer to two different sections of two Acts. There will be a waste of time every day in Garda stations, and in District Courts, with clerks having to find out and convince some district justices on section 29 of the Road Traffic Act, 1961, and section 49 of the Road Traffic Act, 1968. There will be a shocking waste of time and drudgery on the part of all those concerned with its administration. It is for that reason I would suggest to the Minister that he should accept an amendment on Report Stage which will amalgamate the more important and more commonly used sections of the road traffic code, which must be brought into this Bill. I will have two such amendments on Report Stage. I want, after all, information to know sections 51 (a) and 52, or 49 and 50 of the Road Traffic Act, 1968. The Minister should realise that there is a real need for this, and that this will cause a lot of unnecessary work.
That is what sections 49 and 50 are doing, in fact replacing section 52 of the 1961 Act. Is it not advantageous that the three driving offences should be consecutively numbered, in order of their seriousness, in order of importance — sections 51 (a), 52 and 53, meaning, respectively, driving without consideration for others, careless driving and dangerous driving. When section 52 of the 1961 Act is being removed, it is desirable to substitute a new provision for that section and not for sections 49 and 52.
May I ask the Minister if a person is in charge of and driving a vehicle in a public place without due care and attention — that is careless driving — what provision will be offered against? Will it be an offence against section 52 of the Road Traffic Act, 1961,simpliciter? Will it be an offence against section 50 of the Road Traffic Act, 1968 or will it be an offence against section 52 of the Road Traffic Act, 1961 as amended by section 50 of the Road Traffic Act, 1968?
The proposal is to substitute what is in section 50 of this Bill for what is in the existing section 52 of the Road Traffic Act, 1961.
Against which section is it an offence? Take the case of an offence against? Take the case of attention. Is it an offence against——
It will be against section 52 of the 1961 Act; the old text of that section now disappears and is substituted by the new text.
To my mind, this is a terrible waste of time and a very cumbersome way of going about it.
Is the amendment withdrawn?
I will withdraw it if the Minister will agree to give it some consideration before Report Stage.
I will consider the matter between now and Report Stage.
How is an offence under subsection (2) punished? There is no penalty.
That is under the 1961 Act.
Section 102 of the 1961 Act.
I would like, if this is the appropriate point on the section dealing with driving without reasonable consideration, to ask a question of the Minister on the law relating to stop signs, which are being increasingly ignored by motorists. I have in mind a particular crossroads in Mount Merrion which I have passed daily for years. I stop my car in accordance with the sign but the drivers of the following cars just hoot me out of the way, pull out and go around the corner on the double. They consider that the stop sign is out of date. I recollect a district justice making a statement to the effect that the stop sign means "stop" and not just "go slow" and he imposed a fine on the offender. I also recollect, however, another district justice ruling that one need not stop at a stop sign but just merely be extremely cautious. This has caused a lot of confusion. I have reported this situation to the Garda authorities with particular reference to this Mount Merrion crossroads. I even suggested there is a good harvest of "on the spot" fines awaiting collection there. The position, however, has remained unchanged for years. I noticed a few days ago that the roadway was strewn with broken glass. This may result in an improvement in the position.
I would also like to say that I do not think that there is any value at all in the "yield right of way" signs as they are just ignored. I feel, however, that if the Minister would make a clear statement on the matter of the stop signs, it might prevent serious and even fatal accidents.
Under section 89 of the 1961 Act, a person is required to stop and I take it that what Senator Miss Davidson is complaining about is that this is not being enforced——
——by the garda at this particular point.
There are lots of points but this one is notorious.
That is the law in the matter. A person is required to stop at a stop sign under section 89 of the 1961 Act. I will convey the Senator's remarks to the proper quarters, that is, in the form of a complaint that the law is not being enforced.
I move amendment No. 25:
25. Before section 54, to insert a new section as follows:
"The wording of an approved policy of insurance shall be such as to be reasonably clear to an insured person what risks are, or are not, covered by the policy. The Minister shall, where necessary, request a person carrying on a vehicle insurance business to revise its form of policy so that its scope and effect shall be clear to the insured person."
I suppose that on this Bill it would be a bit unfair to attack the draftsmen of insurance policies for the way in which they word their policies, because all they would have to do is to refer to this Bill and to say that it is not a good example of clarity, but I do not think we should say this or that anybody would try to make that case. I do not know that power the Minister for Local Government has over insurance companies, but there is such a thing as an approved policy of insurance. I do not know to what extent the Minister has anything to do with determining the form of that, but I want to say that even the most expert and learned people, and people who are well qualified in the English language, will find the greatest difficulty in knowing what is included and what is not included in the insurance policies we get. They start off and set out the vehicle insured and then they go on to deal with exclusions and then put down endorsements. There are endorsements attached to policies, and the end result of all the inclusions and exclusions, and exclusions unless, and provided always however that, and so on, is that most people reading the policy could not say for a certainty what is insured and what is not insured. We find that every other day. We know that the reason for this adhering to an outmoded form of insurance policy, and what to many people would appear to be an outmoded method of expression, is that a lot of the expressions contained in the policies have been subject to judicial determination in the courts from time to time. But having said that it seems to me that somebody should have some courage and try to get together a form of policy and wording which would be intelligible to the average motorist and motor-owner. I do not know whether the Minister would be prepared to accept the responsibility for ensuring that the policy will be reasonably clear to the insured person as to what risks are insured and what are not. I think he should take power at any rate and try, in consultation with the insurance companies, to work out a form of motor insurance policy which would be quite clear as to whether a person is covered for particular risks.
I am thinking, for instance, of a young lad of 17 or 18 who has a motor bicycle and who wants to find out whether a pillion passenger whom he proposes to carry somewhere is insured. He would certainly not be able to find out from reading his insurance policy whether he is insured or not, and will not be in a position to know without resorting to what the insurance agent told him. I know that pillion passengers are not required to be insured, but if one thought that one was or should be insured, one would find great difficulty in finding out from some of the policies whether a person is insured.
I do not know the attitude of the Minister towards this or whether he has any power under the Bill which he can effectively use over the insurance companies, but I would hope that he would make some kind of plea to them through the Motor Insurers' Bureau to word their policies in such a fashion that they would be reasonably clear to the average motorist.
This amendment is not appropriate for consideration under the Road Traffic Act. It is appropriate for consideration in the Insurance Bill or in a consumer protection measure such as that envisaged by the Minister for Industry and Commerce. In so far as the Road Traffic Act is concerned, provisions in relation to motor insurance are designed for the protection of third parties, and the interests of persons taking out insurance are dealt with and fall to be dealt with in the Insurance Acts, for which the Minister for Industry and Commerce is responsible. Provisions of road traffic law are designed to ensure that there is sufficient in a policy that the interests of third parties are properly protected and that is the only function of the Road Traffic Act in this respect. What Senator O'Quigley requires would have to be dealt with under the Insurance Acts.
I am afraid I am somewhat ahead of my time in matters of consumer protection.
I understand the Minister for Industry and Commerce dealt with it in the Seanad recently.
On another aspect of the question of vehicles.
This matter would be appropriate there.
On that occasion, the Minister for Industry and Commerce was dealing with vehicles which we buy and in which we invest so much money — the quality of these vehicles and the determination of standards, were matters for a consumer protection Bill. Now I find this matter to be appropriate to that kind of Bill or to an insurance Bill. Probably I should have put in the words "of an approved policy of insurance relating to motor vehicles" and that might have made it relevant. Their absence has made the amendment irrelevant.
No, it is just that the Road Traffic Act provides for compulsory insurance to cover third parties and is not designed to cover the interests of the actual owner of the vehicle.
I see the Minister's point and I hope the Minister will take it up at some stage with his colleague in Industry and Commerce who might in turn take it up with the insurance companies.
I will draw the Minister's attention to it.
I move amendment No. 26:
Before section 54, to insert a new section as follows:
"(1) Sub-article 2 of article 6 of the Road Traffic (Compulsory Insurance) Regulations, 1962, is hereby repealed.
(2) It shall be an offence under section 56 of the Principal Act to carry a passenger, or to ride as a passenger, on a mechanically propelled vehicle unless injury to such passenger is covered by an approved policy of insurance."
This I consider to be a very important amendment. Its purpose in effect is to protect the third parties the Minister has just spoken about — pillion passengers on motorcycles. Under the Road Traffic Act, 1961, power is given to the Minister for Local Government to make regulations exempting certain persons from the necessity to have insurance in respect of particular risks or exempting them altogether from the necessity to have insurance because they are able to carry their own risks— bodies such as CIE, the ESB — but in regulations which the Minister made in 1962 — they are the regulations referred to in the amendment: the Road Traffic (Compulsory Insurance) Regulations— the Minister for Local Government has exempted from insurance a passenger being conveyed by a motor cycle, whether in a sidecar or simply riding pillion.
The reason this has been done is that insurance companies will not insure pillion passengers or persons driving in sidecars because the risk of accident is so high and the experience has been such that they say: "The premiums would be so high that people would not pay them." Consequently the regulation is in respect of the owner of the cycle who can ride on that cycle and be covered for running into somebody, the damage to the person run into being covered by the insurance policy of the cycle-owner. In effect, the regulation says to him: "If you run into somebody, the damage done by you will be covered by your insurance policy, but if through your negligent driving, you cause the same injury to the pillion passenger, we do not require you to be insured."
That is the height of absurdity at a time when we are trying to protect third parties and to emphasise the need for road safety — to protect people's lives and skulls and limbs. It is wrong to see legislation in this country allowing a motor cyclist to carry somebody on his pillion when that somebody is not covered by insurance of any kind. If one is driving a motor car and one runs into somebody on the road, the consequences to the person injured are not so great, even though there is no insurances' because under the Motor Insurers' Bureau Agreement made between the Minister for Local Government and the motor insurance companies, there is provision that when the risk was required to be covered by law the Bureau would pay the damages. This happens every other week, but in the case of pillion passengers who are injured on motor cycles which do not have insurance, they can get nothing from the owner of the bicycle, from the driver or from the Motor Insurers' Bureau.
Consequently, this amendment should be accepted because it provides for the repeal of this article in the regulations which allows the driver of a motorcycle to drive it without having insurance cover for pillion passengers. I want the regulation that allows that to be repealed and to provide that people are not to be allowed to ride motorcycles unless they are covered by insurance. This is in the interest of the section of the community which most requires protection in that respect — younger people who are most inclined to ride motorcycles and who are inclined to hare away at speed. I want to provide for people whose youth does not make them as wise as they might be and I urge the Minister to ask the House to accept the amendment.
I accept the principle of what Senator O'Quigley has been saying — the desirability of having pillion passengers covered or else making it illegal to carry pillion passengers. However, as I explained in the Dáil, it is not necessary to amend the legislation to do this. If it is decided to do it, it can be done by regulations. In fact, this is under active consideration at present and I am hopeful it will prove possible to amend the regulations in this respect. As soon as a decision has been reached, I will make public my intention to do it. In the meantime, I ask Senator O'Quigley to withdraw the amendment because if it is possible to do this, it can be done by regulations. The Senator's amendment would also make it an offence for a person to ride as a pillion passenger unless he was insured. It would be impossible for the passenger to ascertain whether there was a policy in existence to cover him or her. I also understand that this amendment, in addition to extending cover to pillion passengers, would make it compulsory for the driver of every motor vehicle to insure himself. This is not the position anywhere. I do not think that is what Senator O'Quigley intended.
The extension of compulsory cover to pillion passengers can be dealt with by regulations. I am at present investigating the possibility of doing that. I appreciate the problem, I think, just as much as Senator O'Quigley. I definitely think it very undesirable that pillion passengers should be carried unless they are insured but, in present circumstances, they cannot be insured because no insurance company will insure pillion passengers except at a prohibitive price. It is a problem that has to be overcome either by making it illegal to carry pillion passengers or else by arriving at some arrangement whereby it will be possible to insure them. I am hoping to introduce an amendment of the regulations in that regard.
Before asking leave of the House to withdraw this amendment, I should like to say I am glad to think that, in the eyes of the Minister for Local Government, I am not always wrong. It can be encouraging, at times, to find that. What I should like to say is that, if the Minister is making this particular regulation, I gather from what he said earlier today that there is some kind of procedure whereby he gives notice of the making of such regulations and invites comment on them. Perhaps it is my fault or that of the advertisers but I have never seen——
I shall send the Senator a copy of this.
I should be glad. It would be useful. I read most of the regulations that are made but I have not seen these particular ones and I should be glad to see them.
If the Minister cannot arrange with the insurance companies for some form of insurance for them, then, in the interests of the pillion passengers themselves, we must make it an offence for them and we must put the onus on them to ask the person if there is a valid insurance. People might think that that is unreasonable but it is not because, if I am going to drive somebody else's car, I have to find out if that person is insured. It should equally be the law that those who ride on a motorcycle — which has a very high accident risk for pillion passengers — be required to find out the position for their own safety. We are concerned with the safety of people. I would go the distance of making it an offence for them to ride if the cycle is not covered against risks in relation to pillion passengers. I do not think the Minister can make that an offence by regulation.
I would say, generally, on the Bill, that if I were in the Minister's position as Minister for Local Government, then, whenever I would find three or four important matters calling for amendment of the road traffic code I should not delay in bringing in short Bills dealing with important matters. Far from the Minister being blamed for that, I think everybody would commend the attitude that where the law, as drafted, does not meet a situation in an important way the matter should be attended to by legislation. In the case of any legislation of that kind, the Minister may be assured of cooperation on all sides of the House.
The tendency has developed in recent years that members of the Garda Síochána do not report upon accidents unless there has been serious injury to the persons involved. Oftentimes, the damage can be quite substantial. In the absence of Garda reports and Garda evidence, it seems to me that insurance companies find themselves in great difficulty in deciding where right lies. I urge upon the Minister to consult with his colleague, the Minister for Justice, with a view to having these reports made available by members of the Garda Síochána.
To insurance companies?
To all members of the public. I mention insurance companies because the section deals with insurance companies.
I shall pass on the point.
This section transfers the power of regulating traffic from the Commissioner of the Garda Síochána to the Minister. This may well be a good thing to do. I certainly have an open mind on the issue and should be glad to hear the Minister on the thinking that lies behind this section. There are aspects of the present traffic control situation that are unsatisfactory. I notice that several new powers are taken here, including, in subsection (2) (b), power to specify rules for the parking of vehicles in public places. This is a matter of very general concern. I do not propose to go into it at length at the moment.
I should like to urge on the Minister the desirability of re-thinking in approach and attitude to parking traffic control. Any consultations and discussions I have had with the traffic authorities or, indeed, with other public officials concerned with traffic suggest that the attitude adopted is not that of how to secure that there is no obstruction so that the traffic flows smoothly but, rather, that of protecting existing interests from disturbance.
There is a philosophy behind the whole approach to the control of traffic and it has very strangely been expressed in the way the present regulations are administered which favour, even at the expense of the law as it is laid down, the delivery of goods, for example, contrary to Departmental regulations. It is impossible to get a policeman to move any vehicle, no matter how big it may be and no matter how much it may obstruct the traffic — even if, in fact, there are two such vehicles on opposite sides of the thoroughfare thus reducing two or three traffic lanes to one lane — because there is the philosophy that trade comes first.
The Minister might take power to ensure that, in narrow streets which are major traffic arteries — Grafton Street, Dublin, is an example — deliveries during the daytime, in defiance of existing traffic regulations and which obstruct the flow of traffic, completely eliminating one or two lanes of traffic, will be prohibited and that deliveries will require to be undertaken, as in major cities of other countries, outside the hours of very heavy traffic flow or, at any rate, if deliveries are permitted during the daytime, that they will be permitted in accordance with the law and that exemption will not be given in these cases.
The criterion in regard to strictness in traffic control should be the degree of obstruction caused. The whole emphasis at present seems to be to penalise people who park for longer than the allotted time because of the philosophy of getting a ranson on parked cars rather than that of penalising people who obstruct traffic, no matter how badly they may obstruct it. The efforts of law enforcement are directed more towards the matter of how long you have been parked than whether you are obstructing traffic. In many places indeed, the regulations preclude parking where there is not any great flow of traffic. The emphasis seems to be against parking, to prevent people from parking rather than to facilitate them, to insist that they shall not park for any length of time but not to deal with the problem of obstruction.
For instance, at the bottom of Leeson Street, you frequently find delivery trucks and cars parked on both sides of the street and obstructing two lanes of traffic but I have never seen any garda move these vehicles on. All they are doing is checking up on whether you have been parked for an hour and a half or two hours where you should only have been parked for one hour. I hope the Minister will adopt a more realistic philosophy and do something about obstruction. I should like to hear also the reasons for this transfer to the Minister and whether he hopes that this will lead to a different approach to traffic control.
What Senator FitzGerald has been talking about is again largely a question of the enforcement of the law by the Garda. No exemption is provided for vehicles that are delivering goods and this of course seems to be purely a question of enforcement. I agree that the main object of traffic bye-laws is to facilitate the movement of traffic and that where people have businesses in narrow streets that are main traffic arteries they should be required to arrange their deliveries so as not to interfere with the flow of traffic. What the Senator is speaking about must be purely and simply the manner in which the bye-laws are enforced.
In regard to the reason for the proposed transfer of functions in relation to the control of traffic to the Minister for Local Government; in recent years, with the development of motor traffic, the emergence of the science of traffic, engineering, the growth of international traffic, involving harmonisation of the law in European countries, the formulation of rules of the road must be regarded as a matter of high policy. Some of the issues involved, for instance the question of a change to right hand driving, have even been made the subject of special statutes abroad and in all countries, so far as can be traced the rules of the road are the responsibility of the Minister and Parliament. In these circumstances, and also in view of the fact that the bye-laws made by the Commissioner may, under an amendment accepted by the Minister when the 1961 Road Traffic Bill was going through, be debated in either House, it is wrong in principle that the bye-laws should be made by the Commissioner, The present division of functions has led to some difficulty because inevitably there is some overlapping between the bye-laws and the regulations made by the Minister and this gives rise to various drafting difficulties.
The regulations, for instance, require vehicles to be fitted with directional indicators and stop lights and include provision against their misuse but it is the bye-laws which decide whether signals from these lamps are acceptable in lieu of hand signals. Certain vehicles, too, are required to carry advance warning devices but it is the bye-laws which regulate the placing of these on the road. This had led to a certain amount of embarrassment, especially where, as has happened, the regulations are made before the bye-laws.
Another difficulty is that in the case of bye-laws made by the Commissioner, consultation with interested bodies and the public generally on the lines followed where regulations are made by the Minister is not possible. The Minister could, of course, invite public comment before consenting to the bye-laws but this would put the Commissioner in an invidious position. Again, although the Minister has power to alter bye-laws submitted to him by the Commissioner, to do so openly in a statutory instrument would indicate disagreement and would give rise to debate. The Minister consented to bye-laws made by the Commissioner under section 88, although there may have been some point in those with which he may not have been fully in agreement.
It is obvious that the bye-laws should in fact be made by the Minister although he would consult with the Commissioner in regard to what he intended to do. There is an obvious case for having all these matters dealt with by one authority, the Minister for Local Government in this case. In regard to the question of the parking of vehicles, in certain places there is an obvious need to confine parking to certain periods but there is no point in doing that if it is not enforced. However, I do not see that this matter in any way clashes with the intention to ensure that the free flow of traffic is not disturbed. I would say that the two things need not in any way be contradictory. The bye-laws dealing with obstruction are, I would agree, more important from the point of view of enforcement. I have no reason to believe that they are not being enforced as well as possible. There may be, I agree, some occasions when there is something amounting to a closing of the eyes when deliveries are being made but this should not be if it is purely a question of enforcing bye-laws, and I agree that people who have businesses in places such as that should be required to arrange deliveries at a time when they will not obstruct the free flow of traffic.
This is not solely a question of non-enforcement. Non-enforcement is certainly a large part of the problem and I hope that the transfer of this authority from the Commissioner of the Gardaí and the vesting of it in the Minister will not weaken the enforcing of laws but will strengthen it. I would urge the Minister to take some steps to ensure that regulations he makes will be enforced and that this kind of leniency in regard to obstruction will not continue. It seems to me that we need two different levels of punishment, on the one hand for people who park too long——
I think the Senator is going rather far into the question of enforcement on this particular section.
I do not propose to deal with this at length. Enforcement would seem to be relevant as the Minister points out that the problem lies in non-enforcement. We should have two levels of punishment, one at a lower level for parking too long and then a penal punishment for anyone who obstructs the free flow of traffic. By penal punishments, I mean fines of £10 instead of £1 and different parking signs saying that parking is absolutely forbidden here and anybody parking in contravention of the sign would have to take what is coming to him. That is worth considering and the Minister has, under these provisions here, power to make regulations of this kind. I urge him to do so.
On the question of vehicles delivering goods, the problem is — this is something the Garda will tell you quite frankly — that it is morally impossible, if there is not a law forbidding delivery during certain hours of the day, to prevent anyone delivering goods since the individual garda will not take action because it appears unreasonable to stop goods being delivered when there is no regulation saying that deliveries must take place within specific hours. Unless the Minister regulates deliveries, he will not get around the problem. There is also the problem of delivery vehicles being so very large. The obstruction caused by two delivery vans parked parallel on opposite sides of Grafton Street is quite different from the obstruction caused by two cars parked in the same position. I urge the Minister to consider these particular aspects. They are matters we could, perhaps, discuss in more detail on some other occasion.
There are just one or two brief points I should like to make. The Minister should give early consideration to restricting different vehicles to different speeds. It seems absurd that a mini-car should be permitted to travel at 80 or 90 miles per hour; that speed may be all right for the bigger type of car which has greater protection in the event of an accident. It is absurd to argue that there should not be different speeds for different types of car.
Secondly, with regard to traffic signals, some of the signals given by the Garda since the introduction of the baton are not too clear. Sometimes it is impossible to interpret the signal.
Amendments Nos. 27 and 28 may be discussed together.
The aim of the first amendment is to detail some of the requirements which an authorised person may make when carrying out an investigation under subsection (1), including the summoning of persons to give information and requiring the production of books, papers, etc., relevant to the investigation. The next amendment is consequential.
Initially, the intention was to give the authorised officer power, subject to regulations, to make any requirement and do all the things which appeared to him to be reasonably necessary for the purpose of an investigation. It was thought better to put it beyond doubt that the authorised officer carrying out an investigation had the necessary powers set out in subparagraph (d) (i) and (ii) of amendment No. 27 and this is being achieved by writing them specifically into the Bill rather than having them spelt out in regulations. The powers are obviously necessary if the authorised officer is to conduct an effective investigation.
This amendment is designed to meet a point raised by Deputy Fitzpatrick during the Report Stage in the Dáil. He said that any person having an interest in the outcome of an inquiry should have the right to attend or be represented. The proposed amendment here means that all inquiries will be public but the investigation under subsection (1) will, of course, be in private.
The aim of this amendment is to clarify the position regarding the payment of costs and expenses to persons involved in an inquiry and the recovery from any person of costs incurred by the Minister in connection with an inquiry. This implements the undertaking I gave on Report Stage in the Dáil to amend the section, if necessary, to ensure that costs and not merely expenses would be paid to persons taking part in an inquiry.
I move amendment No. 31:
In page 40, to delete the amendment of section 87.
In the Schedule there are many amendments being made to the 1961 Act. I shall have something to say about that later. The particular amendment I am concerned with at the moment is where the cost of a folio, which consists of some 72 words, is being raised from 6d to 1/-. I am sorry; this is to enable the Minister to prescribe whatever fee he thinks appropriate for a folio. Why is it necessary to increase this fee so soon after the 1961 Act? Surely things have not gone up so much that it is now necessary to give the Minister this power? While the Minister has no control over the cost of Garda reports, the cost of these reports has increased astronomically over the past few years. With all the latest devices for copying, one would think that the price should tend to go down rather than up.
In fact, this is not increasing it.
No, but it is giving the Minister power.
Yes. The present charge has been the same since 1933 and it is considered desirable to have this flexibility so that fees may be changed by regulation from time to time in order to take account of the falling value of money and rising administrative costs. There is no definite intention to do anything at the moment but it is considered desirable to have the power to do it by regulation.
There has been a good deal of criticism on all sides of the manner in which this Bill has been drafted and quite a number of amendments are being effected to a variety of sections in the 1961 Act by the Schedule. In some cases, while they were described as being of no great importance by the Minister in his Second Reading speech, the amendments are quite important, as, for instance, the amendment to section 104 in relation to the service of the notice of intention to prosecute under that section. Indeed, if one were debating this at greater length, one would well urge upon the Minister to drop that amendment altogether because I can see great difficulty attending upon the proof that the accused person at all material times knew that he was going to be charged with the particular offence. Very often, statements are got from people on the basis that they are not going to be charged; the Garda officer induces them to make a statement on the basis that: "There might be nothing about this," for the purpose of getting something on his records.
What I should like the Minister to do — I do not know whether he would feel that he can do it but it would be a very profitable exercise — is to take the various sections of the 1961 Act which are amended by this Schedule and incorporate them all in an explanatory memorandum in their amended form. That was done by the Minister for Justice in connection with the rent restrictions amendments in 1967 and, while it has no force in law, that memorandum has been of the greatest advantage to those who have to operate or to administer and interpret the Rent Restrictions Act, 1960 and the amendment of 1967.
If the Minister feels unable to do that because there are so many amendments to so many sections of the Bill contained in this Schedule, the next request I would make to him would be to codify the 1961 Act and his Bill in a consolidation measure at the earliest possible date, especially if he rather thinks that there will not be any amendments to the code of a substantial or numerous character in the foreseeable future.
It is quite clear that the interpretation of the road traffic code, consisting of the Road Traffic Acts, 1961 and 1967, with all the sections that were amended, with the sections that are substituted, with the new sections such as the ones dealing with drunken driving that are contained in this Bill, will be extremely difficult. The only way that an amelioration of the position can be achieved is by doing what I suggest in relation to the Schedule and, in the long term, by bringing in a consolidation measure putting the whole thing into one Act which, as the Minister knows, will not involve the lengthy procedure of Bills going through the Dáil; it can be done quite simply by a consolidation committee.
Obviously, it would be desirable to do what Senator O'Quigley says: at least in regard to the incorporation of all the amendments in an explanatory memorandum and I will consider whether it would be feasible to do that or not. One difficulty that comes to mind is that the provisions of this Bill will be brought in in various sections and stages, at different times, and there may be some difficulty in issuing an explanatory memorandum. It is obviously desirable also that the Road Traffic Act, 1961 and this Bill should be consolidated as soon as possible but it would be presumptuous for me to say that there is not likely to be any amendment within any reasonable space of time. I hope that we have dealt with the matter fairly comprehensively but I should not like to say that with any great degree of assurance. However, I will certainly consider the question of incorporating all these amendments in an explanatory memorandum.
Not necessarily with any comment on them. If the Minister looks at the rent restrictions amendments he will see what I have in mind. Certainly, the memorandum is a great help.
Yes. I agree in principle with the suggestion that the consolidation should proceed as soon as possible.
Could I ask whether the Standard Time Bill is being taken now or immediately after the Recess, or when?
Immediately after the Report Stage of this Bill.
The proposal is for the House to adjourn now, to reassemble at 7.30 to take the Report and Final Stages of this Bill, followed by the Standard Time. Is the House agreeable to that course of action?
Agreed and ordered accordingly.
Business suspended at 6.30 p.m. and resumed at 7.30 p.m.