Seanad Éireann debate -
Thursday, 26 Jul 1973

Vol. 75 No. 8

Private Business. - Road Traffic (Amendment) Bill, 1973: Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

Minister for Local Government (Mr. Tully)

In a judgment delivered on 16th July the Supreme Court declared section 44 (2) (a) of the Road Traffic Act, 1968, to be invalid as being repugnant to the Constitution. The provision in question is an extremely important one; without it, Part V of the 1968 Act, which introduced the offences of driving, attempting to drive or being in charge of a vehicle while the blood-alcohol level exceeds a specified limit, cannot be operated effectively. Although proceedings can still be taken for the "traditional" offences of driving, et cetera, while under the influence of drink, it is highly desirable that legislation should be enacted at the earliest possible date to enable the institution of prosecutions for the offences created by the 1968 Act to be resumed. The main purpose of the Road Traffic (Amendment) Bill, 1973, is, therefore, to substitute a new paragraph for the paragraph in section 44 of the 1968 Act which has been declared to be unconstitutional. In addition, the Bill provides for certain necessary amendments of Part V of the 1968 Act.

Section 1 of the Bill, which relates to interpretation, and section 8, which provides for short title and collective citation, do not call for special comment.

Sections 2 to 6, by amending a number of sections of the 1968 Act, will remove the restriction by which a requisition to an arrested person to provide a blood or urine specimen may be made only by the member of the Garda Síochána who is in charge of the Garda station when the person is brought there. Difficulties have arisen in relation to the existing provisions because of changes in Garda organisation and working hours following the implementation of the Conroy report. Moreover, changes in these provisions are desirable to facilitate the introduction of the Special Traffic Corps. I am satisfied that the best course is to make the amendments proposed in sections 2 to 6 and thereby enable any member of the Garda Síochána to carry out the necessary procedures.

Section 7 amends section 44 of the 1968 Act to take account of the Supreme Court decision and to improve the existing provisions relating to evidence. In subsection (2) (a), it will now be provided that a certificate from the Medical Bureau of Road Safety as to a person's blood-alcohol level will be "sufficient evidence until the contrary is shown" rather than "conclusive evidence". It was the use of the word "conclusive" that led the Supreme Court to declare the existing provision invalid. In subsection (2) (b), a minor change in wording is being made, on the advice of the Attorney General's Office, to improve the evidential value of the certificate referred to in the subsection. The new subsection (3) is designed to remove the possibility that the prosecution may be called on to prove in each case, by production of current medical registers et cetera, that the doctor who took the blood or urine specimen is a “registered medical practitioner”.

I am satisfied that the amendments proposed in the Bill are necessary in order that the provisions of Part V of the 1968 Act may serve the purpose for which they were designed. Senators will be aware of the importance of these provisions and of the part they can play in reducing the number of deaths and injuries on our roads. I am sure, therefore, that they will appreciate the necessity to have all Stages of the Bill dealt with as a matter of urgency; indeed I hope that it will be possible to take all Stages of the Bill today. Moreover, because of the need to restore the provisions of the 1968 Act to full effect at the earliest possible date, the Government have decided that the prior concurrence of Seanad Éireann should be sought, pursuant to Article 25.2.2 of the Constitution, in a request to the President to sign the Bill as soon as may be after it is presented to him. Accordingly, an appropriate motion has been put down on the Order Paper of the Seanad.

I might mention that, if the Bill is enacted, some consequential amendments will be necessary in the regulations made under Part V of the 1968 Act. The drafting of the necessary amending regulations is in hands.

Mr. Lenihan

This Bill is welcome and necessary but at the same time it carries some salutary lessons particularly in regard to Government Departments introducing legislation. I was a member of the Government when the 1968 Act was being discussed and at that time the Department of Justice had very strong views vis-á-vis local government on this precise amendment which is now necessary. At that time, as Minister for Justice, we warned the Minister for Local Government and his Department that this was a very hazardous area from the constitutional point of view.

It is important that all Government Departments and the Government generally in bringing in legislation should bear in mind the constitutional position and the realities of the law and not make such a blatant intrusion into the whole system of law and of the Constitution as this particular provision in regard to conclusive evidence now proves to be. It was a blatant intrusion into the ordinary legal system that provides for courts where matters must be proved and at the same time are open to rebuttal. The notion of a certificate being conclusive evidence in regard to blood alcohol level was from the word "go" blatantly unconstitutional, blatantly invalid.

Nobody here questions the validity of the objective involved in bringing in the blood alcohol level test. It is an all-important social need in order to control the evil of drunken driving. But there is no point in pursuing desirable objectives and at the same time steamrolling the law and the Constitution in order to achieve them. As a result of a Supreme Court decision we are now remedying a defect that was so totally obvious at the time of the introduction of the Bill five years ago. As I said the point was made at the time to the Department of Local Government that this type of measure, which one gets from time to time in other Bills from other Departments, is usually because of a fault in administration where it is felt that matters can be bulldozed through without any regard to the law or the Constitution. This can only lead people into trouble, because we have a system of open courts and a Constitution and law.

The other main matter being introduced in the Bill is also highly desirable. An ingenious lawyer first made the point and, as a result, a number of prosecutions have been dismissed throughout the country on the basis that it was a garda other than the garda in charge of the station who organised the blood test. The fact that only the garda in charge of the station could do this meant in effect that the ordinary day-to-day administration of justice in regard to drunken driving offences was frustrated to a very high degree. Only one garda at a station could deal with any number of drunken driving defendants who might be apprehended and brought into the station. In that way the law was frustrated.

Of course, this was not the original intention of the section; but on a close reading of it, as originally drafted, an ingenious lawyer discovered this. It was followed up in a number of cases and there have been wholesale dismissals as a result. The amendment to the section now makes it quite clear that any garda in the station can, once the defendant is brought in, direct the blood test which must be carried out by a medical practitioner.

The fact that up to now only one garda, that is the garda in charge of the station, could arrange the blood test and give evidence in regard to it gave rise to a number of cases being dismissed and put an undue onus on the Garda Síochána. It meant that in any particular station one would have to have for almost 24 hours a garda in charge of the station specifically for these particular cases. This was a futile and frustrating system of police administration and in order to remedy that the opportunity is being taken here to bring in this additional amendment, an amendment welcomed by everyone interested in the practical administration of justice.

Mr. Butler

Who was responsible for the drafting of the legislation in the 1968 Bill? We were castigated just now because of the drafting of a Bill now being debated in the Dáil.

Mr. Yeats

The point which occurs to me in relation to Senator Butler's intervention is that we now have an efficient Opposition, something which apparently did not exist in 1968. We endeavour to find out these flaws in Bills before they are enacted.

On the general question of this Bill, it clearly is a non-political matter and there is no point being contentious about it. One must welcome the Bill. Since we are discussing drafting matters I should like to congratulate the Minister, or his advisers, or both, on the manner in which it is set out. It is a pleasure to see. We have the various sections laid out with section 3 providing for the substitution of one word for another and so on. In 99 times out of 100 that would be that, but in this case we also have the words "...accordingly the said subsection shall have effect as set out in the Table to this section". There is a convenient Table setting out the section as it will now read, and this makes life much easier for all concerned. I wish more of these Bills coming before us were put in this form.

My first reaction on seeing this Bill was to regret that something had not been done about the totally unrealistic level at which the blood alcohol level was fixed in the 1968 Bill. On further consideration I realised that in an urgent Bill of this kind clearly one could not expect such a fundamental matter to be dealt with. However, in this country we have the highest permitted level in these blood alcohol tests of any in the world. I do not think any other country comes anywhere near our level. In all the continental countries of Europe a man is considered to be blind drunk by the time he reaches the level at which we permit people to drive.

I should like to know that some consideration is being given to this matter in the Department of Local Government. I would be interested to know, for example, what their view is about the universally prevailing medical view that at the level stipulated by us a man is simply not fit to drive a car. It is utterly unrealistic to be setting a figure of this kind. Anyone you catch is literally blind drunk and should be put off the road indefinitely. But the point is that people apparently are permitted to drive at levels of 90, 100, 105 and 110 who should not be driving. Once they take the test and come below this mythical figure of 120 are they considered to be good, law-abiding members of the community? I would be interested to know whether the Department have given any consideration to this matter, whether they have medical evidence of their own which conflicts with the universal evidence which seems to be accepted in all countries and whether in some future Bill some more realistic figure may be inserted. In saying that, I am being completely consistent in this matter as I made the same point when the original Bill was going through the Seanad.

Mrs. Robinson

I welcome this Bill because it is evidence of how quickly the Parliament can correct something that has been found to be unconstitutional in the courts. I am glad we are able to do so before the Summer Recess. I should like to ask one question arising out of the Bill. It does not deal at all with the persons who were convicted on the basis of the report found to be unconstitutional because it was regarded as conclusive proof of the condition of the particular accused. I am not quite sure whether this could be dealt with in the text of this Bill, but there is a problem in relation to the people who have had their licences endorsed because of what has now been found to be unconstitutional.

The second point I wish to make— I note Senator Alexis FitzGerald is absent and I am sure he would like to make it—is that we wish to congratulate the draftsman on the fact that the Bill contains these tables setting out what the law is, thereby, making it a great deal easier for anybody working with this Act to know exactly in what way the 1968 Act was amended. This is essential in a Bill of this nature which is introduced in an emergency situation in order to remedy a constitutional defect. It would be very difficult for any legal practitioner if it was in the old style merely by reference to the 1968 Act. It is immensely helpful and clear to have the table setting out exactly what the position now is. I welcome the Bill and I welcome the way in which it has been drafted.

Dr. West

I wish to make two points on the Bill. The first has been referred to by Senator Robinson, that is the question of what is going to happen to those people who have been convicted under the section of the 1968 Act which has now been found to be unconstitutional. It does not affect so much people who have been fined, but it does affect very severely those people who have had their licences removed under this section. What is the Minister going to do about them and what will their position be now that the Act has been found to be unconstitutional because of the word "conclusive"?

In my second point I wish to support Senator Yeats in his assertion that the level at which the test is now fixed is far too high. The alcohol level of the blood permitted in Ireland is the highest of any European country, as Senator Yeats pointed out. We have to face up to the fact that we have two problems in this country. We have a well-known alcoholism problem and we have a well-known drunken driving problem. We, in the Legislature, should support any moves to tackle these problems firmly. The percentage of road accidents in this country which can be traced directly to the driver being drunk is extremely high. It is up to us to put teeth into the legislation and to ensure that we start to get a grip on this very serious problem. I would make a plea that the level at which the test is now fixed should be reduced to something which is closer to the norm accepted in the other countries which have this type of regulation.

Mr. W. O'Brien

I should like to welcome the Bill. I was a bit perturbed when I listened to Senator Lenihan. He pointed out that when the 1968 Act was introduced the Department of Local Government were warned that that section could be declared to be unconstitutional. It is bad enough to make a mistake in ignorance but to be warned beforehand and continue on the same road is worse still. We are now in the position that people who have lost their licences over the last five years could also have lost their jobs because of it.

As Senator West has pointed out, too many people are drinking heavily. As a result, the lives of citizens are in danger. It has been discovered that we have failed to bring in legislation under which people could be properly charged because of a section which is repugnant to the Constitution. That is a serious matter. I welcome this amending Bill and I sincerely hope that the present Department will not make the same mistake as the Department made in 1968.

Mr. Lenihan

I was not making a political point. I do not think the Senator understood what I was talking about.

Mr. E. Ryan

I should like to join with those who expressed appreciation of the way in which the amendment was set out in this Bill. It is going a certain distance in the direction which I have, many times in the past, asked Government draftsmen to proceed in, that is, where possible instead of merely introducing an amendment of a Bill to introduce the original Bill in a consolidated form containing the amendment in question. There are many branches of the law in which the relevant matter goes back through a number of Acts and it might be very difficult for people. This particular Act merely goes back to two former Acts, the Road Traffic Acts of 1961 and 1968. This would have been an ideal case where those two Acts could have been consolidated with the amendments which have been brought in under this Bill. I appreciate there was a certain amount of urgency in this case and the urgency was justified because of the importance of the matter concerned. However, I would, while expressing appreciation for the way in which this Bill was set out, once again ask the Minister, and I direct my views to the Government draftsman, that when possible there should be in the future a practice of introducing consolidated Bills where former Acts and the amendments proposed would be brought out in the consolidated Bill and where everybody having to consult the finished Act would know exactly what the law was on the matter concerned.

Mr. Keegan

While I welcome the amendments before us in this Bill it is a tragedy that at this point of time we have need for such legislation. It is a poor reflection on our motorists and on the drinking habits of the Irish people in general. Drunken driving is a curse of this modern age. More and more people now own cars and therefore the risks that people have to take on the road are much greater. I would ask the Department of Local Government to make an all-out effort by using all means at their disposal, every section of the media, in an effort to encourage people who use our roads today to give up drink. It would be much better if we were regarded as the most sober community in Europe, but unfortunately we are not. I would give the Department all my support in their efforts to induce people who drive cars on our roads today to discontinue drinking. I support the Bill.

Parliamentary Secretary to the Minister for Local Government (Mr. Begley)

I should like to thank the House for the very courteous way in which they received the Bill. I should also like to thank Senator Lenihan because I think that he started it off in the right direction. I fully agree with what Senator Lenihan said and I think the points he made as far as the Garda are concerned are very good. Any garda can now direct the test. Everybody will agree that this is something that should have been tidied up long ago. Senators Yeats and West made the point about the 80 milligrams. That is the figure in the EEC countries. When we agreed on 125 milligrams in this country that figure was recommended by a Commission, and they were supposed to be the experts. However, the Minister said recently in the other House that he would take another look at that.

Senators Robinson and West raised the point about persons convicted. The Department must wait for the Supreme Court judgment on that and, as Senator Robinson knows, that will take some time. Strictly speaking however this is a matter for the Department of Justice and the Attorney General. The action, if any, to be taken has not yet been decided. At this stage therefore all the Minister can say is that the implications of the Supreme Court judgment are being considered. It should be added that no one is in jail because of being convicted of any of the offences in question and that it is open to anyone, if he is aggrieved, to seek a remedy in the courts.

Mr. McGlinchey

They have all done that.

Mr. Begley

We certainly would agree, in principle, with the point made by Senator Eoin Ryan, but I think he will agree that with the amount of time at our disposal we were not able to do that. The point he has made is being seriously considered by the Government.

Question put and agreed to.

Agreed to take the remaining Stages today.

Bill put through Committee, reported without amendment, received for final consideration and passed.