Road Traffic Bill 2006: Committee Stage.
The purpose of this meeting is to consider the Road Traffic Bill 2006 which was referred to the Select Committee by the Dáil on 21 June 2006. I welcome the Minister for Transport, Deputy Cullen, and his officials to the committee. Before we proceed with the main business, I propose that the sitting should continue until consideration of the Bill has concluded. Is that agreed? Agreed.
Members should note that amendments Nos. 79 and 84 tabled by Deputies Shortall and Olivia Mitchell, have been disallowed. Amendments Nos. 81 and 94 have also been disallowed as they involve a charge. Amendment No. 83, tabled by Deputy Olivia Mitchell, has also been disallowed on this ground. Amendment No. 89, also in Deputy Olivia Mitchell's name, has been disallowed as the provisions it seeks to enact on the consolidation of the Road Traffic Acts are a matter for the Dáil.
I object to the Chair's ruling on amendment No. 79 to the effect that it is outside the scope of the Bill. The Bill contains miscellaneous provisions on a disparate number of items. Parking is an important and pressing traffic management issue on which I have received representations from parliamentary colleagues across the country. There are questions to be answered on how to deal with parking locally. Different arrangements are required in different areas depending on conditions. Currently, local authorities do not have the scope to introduce different types of parking schemes. I ask that we amend the Bill to allow local authorities to introduce parking schemes by statutory instrument.
My more specific amendment No. 84 on the same issue has also been disallowed. Parking is a practical problem for local authorities with which they cannot deal. Local authorities and the Department have accepted that it will require specific legislation to resolve the matter. If one cannot include provisions on the management of parking in a Road Traffic Bill, where in the name of God is one to put them instead? It seems sensible and timely to introduce these amendments. No charge is involved and it seems unreasonable to refuse to allow discussion at least. I would be quite happy for the Minister to introduce his own amendment on Report Stage to accomplish the same end. It is from a purely practical perspective that I wish to deal with the matter. It would be great if the Minister could deal with it.
I do not know whether he can, but the advice I have been given is that the amendments are outside the scope of the Bill.
There is no scope to the Bill.
I am merely relaying the advice I have been given.
It is from the secretariat.
I contest the decision. It is not acceptable.
The Bills Office dealt with the matter under Standing Orders.
The Bills Office has been making an increasing number of mistakes recently which various people have challenged successfully. I do not accept this decision. Can we note that the ruling is not accepted? Can we seek further advice and revert to the matter later?
If the Deputy so wishes, I will seek written advice on the matter. That is all we can do at this point.
I do not have a position on the ruling. On the principle of the issue, Deputies may be aware that this impacts on places such as Croke Park, etc. I have met the groups concerned and have accepted that there are issues to be resolved. As already stated, however, I cannot address this on one ground only; I must take account of the overall picture.
We should try to identify a process that will assist us in finding a resolution. I am not immune to the issues involved and the groups have accepted this. I am aware that similar issues arise in regard to Thurles, etc. We must be careful when seeking to address this problem that we do so on a national basis. I am not sure how this will be framed or what it will contain. In that regard, we must engage in a process. I am proposing that we try to deal with this issue between now and the end of the year, at which time I intend to introduce another road traffic Bill. We must try to put in place a formula to deal with this issue. It is not easy——
What matters will be dealt with in the proposed new road traffic Bill?
I stated on Second Stage that other issues, some of which were raised by members of the Opposition, remain to be tied down further and that this would require the introduction of a further road traffic Bill. It is not possible to resolve some of them now and in light of the pressure to deal with the three main issues in this legislation, I do not wish to delay it. We can deal with the other issues later in the year by way of another road traffic Bill. I agree with Deputies on many of the issues they raised. However, dealing with some of the other issues would have required putting in place a drafting process and this would have delayed the passage of the Bill.
I am happy to agree with the Minister provided we get a firm undertaking that the other issues will be dealt with later in the year.
I do not know what will be the outcome but I am interested in finding a resolution.
SECTION 1.
Amendments Nos. 1 and 71 to 75, inclusive, are related and will be taken together by agreement.
I move amendment No. 1:
In page 3, between lines 10 and 11, to insert the following:
""Act of 1975" means Local Authorities (Traffic Wardens) Act 1975;".
These are a series of technical amendments. The Bill contains multiple references to the Local Authorities (Traffic Wardens) Act 1975. It is standard practice to use an abbreviated reference such as "Act of 1975" and to give a definition of the Title in the definition section. Amendment No. 1 gives effect to this and is reflected in section 15 of the Bill. The other amendments are similar.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill".
I have not tabled any amendments to this section but I have received a number of queries in respect of it. They arise out of the Supreme Court judgment in 2003 in Browne v. the Attorney General and the Minister and the 2005 judgment in Kennedy v. the Attorney General, which held that ministerial regulations transposing EU directives must be made under provision of Irish primary legislation. I am not certain but I think this is potentially serious. Perhaps the Minister will clarify the position. In my opinion, questions arise regarding the implications of penalties derived from EU legislation and imposed under the Road Traffic Acts before now. I refer here to penalties imposed on people for failure to comply with NCT requirements. Are these valid now?
I do not know if the Minister has obtained legal advice on the matter but perhaps he will reply to some questions. Does our failure to introduce the provisions of this section before now have implications for regulations already in force? I have the details of the two judgments concerned and they appear to indicate that there are implications in that regard. Will the provisions of this section apply retrospectively in light of the two Supreme Court judgments?
My advice is that they will not apply retrospectively.
What is the position regarding those who received penalty points up to now?
I understand that judgments passed and fines applied will stand. There will be no interference with what happened heretofore. I will read the ruling for the Deputy.
The section seeks to address the issues that arose, as the Deputy correctly points out, from the Supreme Court judgments in the Browne and Kennedy cases last year, which held that a provision of domestic legislation cannot be used to transpose EU directives or EU policy unless it is clear that such delegated legislation is authorised by the principles and policies of the primary legislation. In the absence of this new provision, all regulations of domestic law to give effect to EU policies must be made under section 3 of the European Communities Act 1972. The section will enable EU directives and other EU instruments to be implemented by means of regulations made under the Road Traffic Acts. Use of the latter, as opposed to the European Communities Act, as a basis for making regulations to transpose EU directives into national law will provide greater flexibility in respect of the scope of implementing regulations and the application of sanctions for non-compliance with such regulations. This provision will apply from now on rather than retrospectively. I am informed that fines, etc., applied prior to the introduction of this section will stand.
Did the Minister obtain that advice from the Attorney General's office?
Opinion on this appears to be divided.
Question put and agreed to.
SECTION 3.
Amendments Nos 2 to 4, inclusive, 11 to 13, inclusive, and 17 and 18 are related and will be taken together by agreement.
I move amendment No. 2:
In page 3, subsection (1), line 24, after "driving" to insert "or attempting to drive".
Amendments Nos. 2 to 4, inclusive, are——
The groupings list was only made available to us at the beginning of the meeting. It is impossible to keep track of what is happening.
Part of the problem relates to the fact that some of the amendments were only received late yesterday afternoon and I felt it only right to allow them.
Some of the amendments under consideration were tabled by the Minister.
My amendments relate to definitions. Amendment No. 2 seeks to insert the phrase "or attempting to drive" after the word "driving". This may relate to when one is stopped at traffic lights with the engine running and one is neither parked nor driving.
Similarly, in terms of the use of mobile telephones, the intention is to clarify matters and ensure that there are no potential loopholes in the legislation. Amendment No. 3 seeks to replace the phrase "hold a mobile phone" with "hold, use or attempt to hold or use a mobile phone".
Amendment No. 4 deals with parking. The Minister stated earlier that what I am seeking is covered in the original Act. However, I think it is reasonable to include in the Bill, as set out in the amendment, what is meant by "driving".
Amendment No. 18 is dependent on acceptance of amendment No. 12 and it provides a definition of the word "parked".
This arises out of the Second Stage debate and is an attempt to bring even more clarity to what is envisaged in this section. That is the reason I tabled amendments Nos. 11, 13 and 17. It has long been signalled that the use of hand-held mobile phones while driving would be prohibited but that hands-free mobile phones would not come within the scope of the ban. The purpose of section 3(1) is to put an end to the practice of holding a phone to one's ear by hand, by cradling it between the neck and shoulder or by some contrived method of supporting the phone using the body.
To avoid any possible doubt concerning the extent of the prohibition provided for in section 3(1) in respect of the ban on holding a mobile phone while driving a motor vehicle, I have brought forward a number of amendments. Amendment No. 17 clarifies the definition of a mobile phone for the purpose of the prohibition of the holding of a mobile phone under section 3(1) so as to definitively remove hands-free mobile phones from the prohibition. A hands-free device is defined in amendment No. 11 as a device designed so that when in use in conjunction with a mobile phone there is no need for the user to hold the phone by hand. These amendments put technologies and devices which obviate the need to hold a mobile phone by hand, such as bluetooth, firmly outside the scope of the prohibition under the section. Amendment No. 13, relating to the definition of the word "hold", is designed to strengthen the prohibition concerning supporting a mobile phone between the neck and the shoulder.
Amendments Nos. 2, 12 and 18 were presumably tabled on the erroneous assumption that driving is not defined for the purpose of the road traffic law. I appreciate the motivation behind these amendments but they are unnecessary if the word "driving" is already defined. Section 3 of the Road Traffic Act 1961 provides that driving includes managing and controlling a vehicle. This definition will apply in regard to this section. Section 23 provides that the Bill, if enacted, will be construed with other Road Traffic Acts and read together. This long-standing definition has passed the test of time in terms of the implementation and enforcement of road traffic law and I have no reason to believe that it will be found wanting in this Bill. This definition has stood up and I do not want to tinker with it in any way and open up another avenue in the courts, particularly as it has firmly held its position since 1961. I appreciate what the Deputy is trying to do but I received strong legal advice that it would be foolish to open up an avenue by changing the definition. That definition is very much set in stone and covers everything in the Deputy's amendment.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 3, between lines 25 and 26, to insert the following subsection:
"(2) A person shall not while supervising or attempting to supervise a holder of a learner permit in a public place hold, use or attempt to hold or use a mobile phone.".
I did not realise that this amendment was included in the group. It is slightly different because it does not involve a definition. In the legislation, passengers are allowed the use a hand-held mobile phones. I wanted to extend the prohibition to people who are supervising learner drivers. It is reasonable that the person who may be obliged to take control of the car should also be prohibited from using a hand-held mobile phone. I am not sure why this amendment was grouped with the others.
In regard to amendment No. 4, which proposes that a person accompanying a learner driver be subject to a prohibition on holding or using a mobile phone, I am not convinced of the need to make such a person subject to a prohibition. However, under section 3(4) and 3(5) and as proposed in the amendment No. 7, I propose to take powers to make regulations that will apply to particular persons. I did not have in mind the point the Deputy makes but it is one we might consider as we progress.
Amendment, by leave, withdrawn.
Amendments Nos. 5, 6, 7, 14, 19 and 20 are related and may be discussed together.
I move amendment No. 5:
In page 4, subsection (4), line 3, after "to" to insert "promote driving with due care and attention or to".
The purpose of amendment No. 5 is to provide for the positive promotion of driving with due care and attention rather than using vague language relating to interference with driving capacity or capability. The Minister should take a positive approach to this matter and he should spell out what is required.
In regard to amendment No. 6, technology is moving at such a fast rate that one does not know what type of equipment may be designed to overcome the ban. The Minister should, therefore, be allowed more flexibility to outlaw new equipment that may become available.
The need to have a flexible legislative framework to regulate in-vehicle communications technology that poses particular road safety risks in a speedy manner and without being obliged to resort to primary legislation on each occasion was recognised by the House on Second Stage. Given the pace and scale of innovation in respect of in-vehicle technologies, many Deputies referred to the challenge of devising legislation that is sufficiently broad and flexible to enable appropriate regulatory responses to be made as we move forward in regard to driver distraction risks associated with these technologies.
In light of the Second Stage debate, I reviewed section 3(4) and 3(5), which provide the means to regulate these technologies, and section 3(9), which defines the technologies that may be regulated, with a view to ensuring that these provisions are sufficiently robust and comprehensive to cater for future regulatory needs. I am satisfied that section 3(4), as drafted, provides a sufficiently broad base so as to capture the ever increasing array of in-vehicle technologies and equipment such as mobile phones, other communications systems, navigational aids and entertainment equipment that are daily coming onto the market. As the stated purpose of any regulations to be made under section 3(4) must be to avoid impairment or interference with the driving capacity of the driver of the vehicle, I do not consider it appropriate to provide for the promotion of driving with due care and attention as an additional purpose for the making of regulations as proposed in amendment No. 5.
In regard to amendment No. 6, irrespective of the use of any equipment or any activity undertaken in a motor vehicle, a person is obliged to drive with due care and attention and failing to do so would leave that person open to prosecution for careless or dangerous driving depending on the seriousness of the circumstances.
I welcome these provisions, particularly that which relates to entertainment equipment. Young drivers, in particular, often drive around to the accompaniment of what sounds like a mobile disco. If we can hear the music outside, what must it be like inside the vehicle. We all like to listen to the radio but I do not how they can concentrate on driving.
Regarding the making of regulations, has consideration been given to making a regulation that motor manufacturers should build in systems for mobile phone use, just as we have had regulations that all new cars must be fitted with air bags and so on? I accept that there might be practical difficulties in light of the variety of mobile phones. However, people would be obliged to take that into consideration when buying mobile phones.
There are myriad systems. Much of what is required as standard in a vehicle is set down in EU regulations. There is no compulsion to have a mobile phone system in a car. Given that there are so many different systems, I could not specify one over another. Some vehicle manufacturers include a hands-free systems in their vehicles. If that is to be seen as a technical feature of a car which has to be delivered, it will be decided at European level where a standard can be established. The same is true of a range of other matters, as we will see as we progress.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 4, subsection (5), line 15, after "equipment" to insert "or different classes of persons".
Amendment agreed to.
Amendments Nos. 8 to 10, inclusive, are related and may be discussed together.
I move amendment No. 8:
In page 4, subsection (7), line 22, to delete "in using it".
I do not understand why in section 3(7)(a) we are allowing people to make telephone calls to the Garda which are not of an emergency nature. It would be sufficient to provide that those involved should be acting in response to a genuine emergency. I could ring the Garda about having my passport application signed or to make a casual inquiry and it would certainly not be an emergency. The provision could, however, be used as a way of avoiding penalty points or a conviction. If one has a pay-as-you-go mobile phone, one’s telephone calls will not be recorded. A definition of “call” would be useful as some may assert that they were trying to ring the Garda, suggesting they had seen something which was an emergency. My aim is to tighten the legislation. If the Minister was to remove section 3(7)(a), the provisions would be tighter but still cover those circumstances in which people face genuine emergencies.
I will accept the Deputy's amendment. I will table an amendment to subsection (7) on Report Stage to provide, at line 21, for the insertion, after "to" where it first appears, of the words "the use of". We will delete the words "in using it".
What about specifying emergencies?
While I take the Deputy's point, we must have a certain base from which to work. On foot of the recent Supreme Court judgment on the statutory rape legislation, the Houses must provide for a reasonable defence in legislation setting out offences.
Do not the provisions of paragraph (b) establish a reasonable defence?
They do not. The effect of the provisions is to make it clear that a person facing an emergency can make a telephone call. A garda can easily check the number of the telephone used to make the call. While some may attempt to abuse the law, there will be genuine emergencies. We hope people will not abuse the provisions.
The Minister will find that a great many telephone calls will be made to the Garda. The legislation is being left wide open.
All telephone calls are recorded and it will be very easy to carry out checks.
An attempt to make a telephone call is not recorded.
Amendment agreed to.
I move amendment No. 9:
In page 4, subsection (7), lines 23 to 25, to delete paragraph (a).
Amendment put and declared lost.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 4, subsection (9), between lines 29 and 30, to insert the following:
""hands-free device" means a device designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand;".
Amendment agreed to.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 4, subsection (9), line 31, after "supporting" to insert "or cradling".
Amendment agreed to.
I move amendment No. 14:
In page 4, subsection (9), line 38, to delete "vehicle" and substitute the following:
"mechanically propelled vehicle or which may be used in or on such a vehicle".
Amendment agreed to.
Amendments Nos. 15 and 16 are related and may be discussed together.
I move amendment No. 15:
In page 4, subsection (9), line 40, to delete "any other" and substitute "an".
Amendments Nos. 15 and 16 are technical drafting amendments to substitute the word "an" for the words "any other". The word "an" is the correct reference on both occasions.
Amendment agreed to.
I move amendment No. 16:
In page 5, subsection (9), line 3, to delete "any other" and substitute "an".
Amendment agreed to.
I move amendment No. 17:
In page 5, subsection (9), line 4, after "function" to insert the following:
", but for the purposes of subsection (1) does not include a hands-free device".
Amendment agreed to.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 5, subsection (9), line 8, to delete "attached to a vehicle".
Amendment agreed to.
I move amendment No. 20:
In page 5, subsection (9), line 10, to delete "in the vehicle".
Amendment agreed to.
Section 3, as amended, agreed to.
NEW SECTION.
I move amendment No. 21:
In page 5, before section 4, to insert the following new section:
"4.—(1) As and from the commencement of section 3, a person who drives or attempts to drive a mechanically propelled vehicle in a public place where any of the windscreens or windows to the front or either side of the driver’s seat are non-transparent is guilty of an offence.
(2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of €5000.”.
I spoke about this issue on Second Stage. There is full support for the Minister's ban on the use of mobile phones, for which we have been waiting a very long time. I thank Deputy Mitchell for prompting the ban with her own proposals earlier in the year. However, it occurred to me some time ago that where people drove cars with tinted windows, the ban would be unworkable. While many are enthusiastic about their cars and like to make modifications, what argument is there for allowing tinted windows? It will certainly be the case that they will make the law on mobile phones unenforceable, on which ground they should not be permitted. It is also the case that tinted windows make it impossible to tell who is driving a car. It might be a 12 year old minor but where the windows are tinted, it will not be possible to tell if the law is being broken. It seems fundamental that where a person drives a mechanically propelled vehicle, gardaí should be able to see who it is. I do not know if other jurisdictions allow their use, but the legislation before us brings the matter to a head. I hope the Minister will take a positive approach to my amendment.
I can see the point the Deputy makes and do not disagree with her. Clearly, we do not have a standard and should develop one. EU specifications on vehicles set out gradings for windows. On an ordinary day I find it very difficult to see through any windscreen owing to the reflection of the sun. People tell me they wave at me but I ignore them. However, I do not know who is in the car. Based on the Deputy's submission, it is clear that we must develop a standard. While she has a valid point, I cannot legislate for it in this Bill as to do so would cause problems in the absence of a specific standard. We will have to obtain approval and agreement at EU level if a standard is to be established. The principle the Deputy sets out is correct and we will have to consider how we should deal with the matter. It is not open to me to address it immediately, as there are EU-wide general specifications in place which I cannot unilaterally dismiss. Standards for cars are agreed at EU level.
The Deputy's point is that we must lead a debate or consultative process and secure agreement to do so. We can do it alone if our EU partners do not object, but it would be better, owing to the EU-wide specifications set down, that we should do it together. The Deputy's point is valid.
We know for a fact that there is no EU standard in respect of capacity.
There is an EU standard for type approval in vehicles and glazing which allows all that. The Deputy questioned whether that should be the case. I accept that it is very broad. Ultimately, it is whatever one wishes, and that does not meet the requirements, so a standard specification will have to be agreed for various safety reasons.
I would be happier if the Minister undertook to examine it with the intention of including it.
I am saying to the Deputy now that I will do so. I am also aware of the issues, although I do not want to read everything out to members. There is a PricewaterhouseCoopers report on the mid-term review of the NCTS and the establishment of a technical standards forum, which represents one option. The Deputy's point is well made.
I support Deputy Shortall. Perhaps there might be some way of stating in the legislation that the Minister may make regulations. I know that we often criticise such formulations, but it would allow the Minister, pending whatever comes from the EU, to make regulations at a future date. That might allow us to respond quickly to standards coming from the EU. If the EU were not moving in that direction, we could initiate change ourselves.
That power is available under another of the Acts. We could formulate a view here and, if none of our EU partners objected, proceed. When dealing with a large market such as that relating to motor cars, it is clear that one would not want to prescribe specifications in such detail as to ensure that a raft of vehicles would cease to be available in this country. We must, however, accept the position in which we find ourselves.
Amendment, by leave, withdrawn.
SECTION 4.
Amendments Nos. 22 and 23 are related and may be taken together.
I move amendment No. 22:
In page 5, subsection (3)(a), line 23, to delete “and”.
This amendment concerns the authorisation to set up roadblocks. I mentioned on Second Stage that several lawyers had informed to me that the provision is too open ended. The Minister who responded felt that it was quite acceptable. I consulted further and the advice I received is that it is too open ended to offer the kind of protection for civil liberties that we had been anxious to have in this measure.
As previously stated, a chief inspector can authorise a roadblock outside Mooney's public house at 6 p.m. every day for the next week. However, there must be a limit. The time must be finite, so one cannot say that it will continue for a month or a year. There must be some limit to the authorisation. Otherwise it will not be a protection, which is what we said would be needed if one introduced what we regard as fairly draconian legislation.
Section 4 outlines the scheme for roadside alcohol testing known as mandatory alcohol testing and the legal basis for the establishment and operation of Garda checkpoints. Mandatory alcohol tests can be pursued only on the specific authorisation of an officer of the Garda not below the rank of inspector. That authorisation must be in writing and must clearly establish the place, date and any times between which it may be operated. An authorisation may straddle two separate dates. However, the hours during which the checkpoint may be established must be clearly set out in the authorisation.
The amendment proposed seems to envisage that an authorisation may extend for a period of up to eight days. That could not be the case, based on the provisions presented in the text of the section. Authorisations will have to be very specific and I stated in the introduction to the Second Stage debate that it is envisaged that the Garda Commissioner will prepare detailed guidelines for the operation of the checkpoints that will address the issue.
When setting up a checkpoint, there is a need for absolute transparency in procedures. The wording in this section was carefully drafted with that in mind following a significant consultation process with the Garda Commissioner and the Attorney General in order to achieve the correct balance and proportionality, an issue we discussed at length.
The matter is not as the Deputy interpreted it. I know that she tabled the amendment because she feels that we are approaching the issue in a different way, but it will be date-specific. That is very important, based on the advice received and what has been agreed.
I accept what the Minister is saying. If, however, lawyers pointed out to me that a loophole exists, they will point it out to their clients in time. Perhaps the Minister might reconsider the position and return with an amendment to insert an element of finality regarding authorisations on Report Stage.
I asked the Minister on Second Stage to explain how he overcame the constitutional difficulties that he experienced last year. When he briefed us, he spoke of proportionality and the right to bodily integrity. I cannot understand how a senior garda's authorisation can override those two constitutional considerations, if they existed in the first instance. Perhaps the Minister might explain the thinking in the Department of Transport or the Office of the Attorney General regarding the position last year, the kinds of problems foreseen and how they have been overcome.
The answer is clear. A range of different models involving countries with random breath-testing were considered. Examining the legal basis in those countries was also important because there were similarities to our legal system. We then tried to frame an approach to mandatory alcohol testing based on the best legal advice available, not only from the Attorney General's perspective but drawing on external expertise. We attempted to design a system.
When I saw earlier discussions and drafts in this regard, it seemed that one could include and prescribe everything, even the kitchen sink. That is one approach. However, one would get oneself tied up in legal difficulties and procedures. We tried to overcome this issue, which was quite genuine. My officials can confirm that they were frustrated in some respects trying to meet the best criteria. There was an enormous focus on this in both external and internal legal advice, including that offered by the Office of the Attorney General.
I take Deputy Olivia Mitchell's point that when considering legislation, one will always find some legal person to stress a different perspective. We produced this scheme, thinking that coupling the authorisation of a senior Garda officer not below the rank of inspector with guidelines to be approved by the Garda Commissioner to ensure that everyone did the same thing would show a clear attempt at proportionality. It would recognise individual rights as opposed to the greater needs of society.
Many views were expressed regarding what approach one might take because procedures vary between countries. Eventually, we reached the point where, on all the issues, the best advice and belief was that we had the most robust system for which we could legislate. We believe that it will stand up in the courts on foot of the way in which it was framed by the legal people to give effect to a policy that we all wish to see implemented. I accept the Deputy's contention that other legal people may hold different views.
I am sorry to dwell on this, but it is probably the Bill's most important aspect. There was a view that if the Government had moved to deal with this issue sooner, many accidents could have been avoided. When we pursued this last year, comments were made about perceived stumbling blocks. I cannot understand how a Garda inspector signing an authorisation can circumvent those perceived constitutional difficulties. We are owed an explanation, particularly as it suddenly seems that there is no problem. I just cannot figure out what happened.
I will try to be helpful. The original view was that the existing law and the way in which it was implemented was extremely robust. That view was confirmed when clarity was brought by the Attorney General. We have mandatory breath tests, so some wondered what was the issue. The view was that the law, if implemented in a specific way, would be robust enough and as good as exists in many other countries. The other view was that the position was not strong. Lawyers argued this and people were trying to put together the different views and methodologies to arrive at a solution that advanced what we desired. I took the view that we needed to advance the law beyond where it was and that the introduction of mandatory alcohol testing — without forming an opinion or without there being an accident — was a step that we needed to take. There was a view that we could never do that under the Constitution. Some people still hold that view.
That is a matter for the Office of the Attorney General.
The Attorney General never said that a constitutional problem existed. It is true that there are constitutional issues involved. It came down to issues such as proportionality. An example would be how to manage a situation where one garda in a particular area was being vindictive. One must be able to go before the courts and clearly demonstrate that proportionality was used when the checkpoints were established. An argument was put forward that it would not be acceptable to merely set this down in legislation, without putting in place a provision to the effect that a garda from the rank of inspector up would be obliged to stand over a decision to set up a random breath test checkpoint on the side of a road. These arguments are continually churned around and we will never reach the point where everybody is in agreement. The Attorney General devoted an enormous amount of time to get the framework in place to do this.
We had a discussion on the practical application of these issues. We wanted to ensure that breath testing could be carried out at the side of the road. The Garda Síochána was involved in that discussion and we wanted to be sure that gardaí were happy with the framing of the legislation. We do not want them back in the courts. We wanted to keep the legislation as robust and as straightforward as possible. Eventually, we obtained a framework that we believe is robust. The Garda Commissioner will be obliged to set out the guidelines so that a uniform approach will be achieved.
Is there advice from the Attorney General on those guidelines? The Minister seems to be suggesting that the process of authorisation circumvents the proportionality issue.
Will the Commissioner will be advising that these checkpoints should only occur at certain times?
No. The Garda Commissioner will develop a set of guidelines for the operation of the system. That will have to be legally examined to make sure nothing causes a particular problem. Once those guidelines are set out, a uniform approach will be developed throughout the country. There cannot be any disparity between checkpoints in different areas. There was some discussion on whether this should be set out in legislation. My view is that it is not the right approach. Our way is much stronger, with a straightforward legislative base and the Garda Commissioner's input in respect of putting the guidelines in place.
Are targets being set in respect of authorisations? How would the Minister deal with a Garda division where the inspector does not sign any authorisation?
That is clearly an operational matter. I have no doubt that members will raise that with the Garda Commissioner when he comes before the committee. I hope people will be made aware that a large number of mandatory alcohol testing points are to be set up on a random basis. It is important to alert the public that the likelihood of being caught is increasing all the time.
That is why targets must be set.
I do not disagree with the Deputy. However, that is an operational matter.
I presume that the reference to the date in the authorisation means a single day.
There might be a crossover. The checkpoint could be set up from 11 p.m. to 2 a.m., which would be two days.
I do not have a problem with that but the reference is to the singular "date", so that might create a problem.
How can the word "date" include the plural?
That is the interpretation of it.
Amendment put and declared lost.
I move amendment No. 23:
In page 5, subsection (3)(b), line 24, after “operated” to insert the following:
", and
(c) the date and time at which the expiration of the authorisation shall occur, such date and time being not more that 8 days after the date referred to in paragraph (a)”.
Amendment put and declared lost.
Amendments Nos. 24 and 25 not moved.
I move amendment No. 26:
In page 6, lines 21 to 26, to delete subsection (8) and substitute the following:
"(8) In a prosecution for an offence under—
(a) this section,
(b) section 49 or section 50 of the Principal Act, or
(c) Part III of the Act of 1994,
it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath pursuant to this section is an apparatus for indicating the presence of alcohol in the breath.".
This amendment is designed to provide clarity in respect of the text of the subsection to which it refers. The subsection in question is gobbledegook. If the Minister wants to tidy it up, he can do so.
I asked the Parliamentary Counsel about this and I was told that this is the way it is done.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 6, between lines 34 and 35, to insert the following subsection:
"(11) Section 14 of the Act of 1994 is amended by the substitution of the following for subsection (1):
"(1) Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place is under the influence of alcohol, or a drug or drugs, to such an extent as to be incapable of having proper control of the vehicle, he may require—
(a) the person to accompany him to a Garda Síochána station, or
(b) that the person be accompanied to a Garda Síochána station by a third party authorised for such purpose under section 21(7)(a) of the Act of 2002 as inserted by section 17(c) of this Act.”.”.
This amendment is intended to ease implementation of the Bill. This issue, which I also raised on Second Stage, relates to mandatory roadside breath testing. It envisages a successful roadblock at which one might detect five, six, or 16 people with heightened alcohol levels. Although I imagine that the Garda presence at such roadblocks will be substantial, it will not amount to 16 gardaí. While the use of a van to carry out the evidential testing will be all well and good, such a measure will not be available throughout the country.
As the Minister is aware, it will, therefore, be necessary to bring the offenders to a station within three hours. In the context of organising the system to transfer such offenders, the amendment proposes that a garda would not be obliged to bring them to a station. This is a function that could be outsourced, for want of a better term. Perhaps, after its establishment, members of the new Garda reserve could be responsible for so doing, possibly under the supervision of full-time gardaí. Certainly however, gardaí should not be obliged to escort each individual because this would mean that roadblocks would have to be abandoned. If the operation of such roadblocks will be limited to a number of hours, Garda time should not be wasted by the need for officers to accompany individuals to Garda stations in respect of evidential breath tests. The amendment is designed to allow the Minister to get someone else to so do, if necessary.
While I have a note on this issue to hand, the essential premise is that it is not possible to go outside the Garda in this regard. Put simply, it cannot be done. If one considers——
Is this related to the chain of evidence?
Does this relate to the chain of evidence or a similar matter?
There is a legal basis to this. I do not disagree with——
Perhaps this could be done in such a way that if ten people were to be brought to a station, only one garda would be obliged to accompany them. Obviously, unless someone else was present at the roadblock with the garda, the other nine would run away. Perhaps the Minister will consider the proposal before the Report Stage debate.
The presence of a garda is required.
This amendment might, therefore, be acceptable.
Provision is made in respect of this matter.
Is there provision whereby gardaí can be accompanied by someone else?
Gardaí must accompany those being brought to stations.
If one garda accompanies ten offenders, nine of them will escape unless there is someone present to provide support to the officer in question.
I see the Deputy's point. However, that is an operational matter for the Garda.
My point is that a legislative basis for so doing may be required.
What about the high level Cabinet sub-committee on safety?
I understand the Deputy's point and will respond to it on Report Stage.
Amendment, by leave, withdrawn.
Section 4 agreed to.
NEW SECTIONS.
I move amendment No. 28:
In page 6, before section 5, to insert the following new section:
"5.—Section 49 of the Principal Act is amended—
(a) in subsection (2) by the substitution of “50” for “80”,
(b) in subsection (3) by the substitution of “67” for “107”,
(c) in subsection (4) by the substitution of “22” for “35”,
(d) by the insertion of the following subsection after subsection (4):
"(4A) Subsections (2) to (4) shall apply to a person who is the holder of a learner permit as if the references therein to 50, 67 and 22 were references to 20, 27 and 9 respectively.".".
This amendment relates to setting lower blood alcohol limits. It is beyond dispute that Ireland has a serious problem in respect of drink driving. Moreover, in recent years various reports have demonstrated the existence of a general cultural problem with drinking. It seems, therefore, to make no sense for Irish drink driving laws to be more liberal than those of most other EU countries. Only two other EU 15 states also allow blood alcohol limits of 80 millilitres.
I presume it is the intention of the Minister and all members that this long-promised legislation will send out a clear message and that the driving public should view it as the establishment of a new regime. The alignment of Irish drink driving laws and limits with the EU standard would send out a clear and unambiguous message. Hence, I suggest the limit should be reduced from 80 millilitres to 50 millilitres.
Last year, a number of Deputies, including Deputy Olivia Mitchell, raised an issue to which the Minister also referred on a number of occasions, namely, the requirement to send a stronger message to those learning to drive to the effect that inexperienced drivers cannot afford to drink at all. This would bring Ireland into line with practices in most of the rest of Europe, whereby the consumption of any alcohol by learner drivers is not allowed. It should also be noted that other countries, as well as not permitting them to drink, do not allow them to drive unaccompanied either.
I suggest that the limit should be reduced to a minimal level. Such a limit would be required to allow for prescribed medication and so on. However, it is time for the House to take a stand in this regard. A strong message should be sent to the public to the effect that the old ways must end, that a new regime is in place and that the stricter laws in respect of drink driving will be enforced. While one can have as many weekend Garda campaigns as one pleases, the incidence of a significant number of fatalities at weekends will continue in the absence of a serious effort to tackle this problem. Although passing legislation is one matter, the Minister must take a clear stand and members should be unambiguous in that regard.
There is no reason for Ireland to be out of kilter with the rest of Europe. As Ireland has a bigger problem with alcohol than most other countries, it should at least have a similar legal and enforcement regime as those which obtain in the rest of Europe. The case against lowering the limit is, therefore, inarguable.
I have some sympathy with the Deputy's point. This issue, and others to which I have already referred in respect of young drivers, must be examined. Undoubtedly, international practice has begun to demonstrate that such measures have an effect. I note that there is good public acceptance of the forthcoming newer, tougher and stronger legislation and changes. In general, there is a strong consensus on many of the issues we are attempting to resolve and it is important that this should be the case.
As the Deputy is aware, the current road strategy will end at the close of this year. Although the Deputy's proposed measure was not part of it, that is not to say that it is not a good thing to do. The road safety authority and its board are examining a range of issues, including that under discussion. I have asked it to come forward with its preferred strategy for the next few years. However, public awareness must be built up in order to achieve consensus in this regard. As all members are aware, this is a difficult issue. It is my view that if one has any drink taken, one should not drive. Everyone should operate on a zero-alcohol basis. I do not——
The Minister must send out that message.
I have continually done so. Moreover, I replied to this question in public or in response to the Deputy in the Dáil Chamber — I cannot recall which. When asked, I replied that proposals to change the limit were not included in this legislation and that I wished to concentrate on the public acceptance that had been secured in respect of some other fundamental issues. I also stated that, in the coming years and with regard to the implementation of the new road safety strategy from January, this issue will undoubtedly form part of the views to be expressed and the policy to be agreed upon.
If the Minister were to introduce this measure as part of a new regime for young drivers that included graduated licences and similar measures, would a legislative basis be required?
Would it not make sense to include it, at least for the young drivers?
I would first like to ascertain exactly what we will do. Different systems are in place elsewhere. If we opt, as we undoubtedly will, for a graduated learner driver permit system, I want to know what we will do. It would be pre-emptive to jump in and adopt this measure without being familiar with the policy framework and intended objectives. While I am aware that the principles are known, further detail is required. I must, therefore, marry the legislative base to the detail as to what will be done. This issue had been articulated by Deputies Olivia Mitchell and Shortall and me. However, given the Bill's importance, I deliberately decided — correctly or otherwise — not to try to incorporate this matter into the legislation for the reasons I expressed earlier. However, further legislation will be required to so do.
That is not good enough. The Minister has been talking about road safety for the past two years. Moreover, his predecessor did so for several years before that. There is no denying that the outcome of the road safety strategy has been abysmal. We must make a dramatic change in the culture of road use. Last year and early this year, issues highlighted by Deputies were placed on the long finger and were intended to dealt with in the Road Traffic Bill 2006. However, when Deputies highlighted the gaps in the Bill, they were told that the issues must be discussed further and will be dealt with in a later road traffic Bill. There is always a reason for procrastinating. Surely road safety should be the priority of the Minister for Transport. Clearly, it is not being given priority because many areas remain to be considered fully. It does not require much thought to decrease the blood alcohol limit to zero in respect of learner drivers.
Deputy Olivia Mitchell referred to graduated licences — I tabled an amendment on this matter — and the need for a 12-month period of restricted driving for those who pass the driving test. However, my point is that there is no defence for allowing those with provisional licences to drive under the influence of alcohol. During the course of the year, the Minister has made this point publicly and his comments have been welcomed. However, he has fallen at the first fence in terms of taking action on it in legislation. One cannot continue to place on the long finger road safety measures that are urgently required. Deputies have tabled constructive amendments to tighten up the position. We accept that votes will be lost but the Minister must act in the greater public interest. I cannot understand why he is not prepared to bite the bullet.
Amendment put.
The Committee divided: Tá, 5; Níl, 7.
Tá
- Healy, Seamus,
- Mitchell, Olivia,
- O’Dowd, Fergus,
- Ó Snodaigh, Aengus,
- Shortall, Roisín.
Níl
- Brady, Martin,
- Cullen, Martin,
- Curran, John,
- Ellis, John,
- Fleming, Seán
- Glennon, Jim,
- Wilkinson, Ollie.
Amendment declared lost.
I move amendment No. 29:
In page 6, before section 5, to insert the following new section:
"5.—Where a person applies to renew a learner permit but has not taken the driving test since the previous occasion on which the person was granted a permit, the licensing authority shall refuse the application if it is satisfied that the person has failed to take reasonable steps to obtain and fulfil an appointment to take the driving test.".
This amendment relates to learner drivers. Currently, a person who wishes to renew his or her provisional licence must apply for and produce evidence that he or she has applied for a driving test before the licence can be renewed. It is clear this system is being abused by learner drivers. The result is that people can continue to drive for ten, 15 or 20 years without ever undergoing a driving test. That is completely unacceptable. People are availing of this loophole. We know that last year 23,000 driving tests were cancelled. Given that less than 150,000 tests are being undertaken in a year, 23,000 is a small number. However, this is very costly to the taxpayer and a complete and utter waste of resources and time. The unused slots could be better used by those who are serious about learning to drive.
The amendment seeks to bring to an end the practice whereby people can continue to renew their provisional driving licence ad infinitum. Members will be aware from replies to parliamentary questions that thousands of people continue to drive on provisional licences for in excess of five or ten years. This should not be allowed. If we are serious about dealing with the issue of learner drivers and getting value for money from the outsourcing proposals and productivity bonus schemes for the number of testers available, we should ensure slots are used wisely. We must bring to an end this practice as the system is being abused by many. Acceptance of the amendment would close the loophole and ensure people would be obliged to undergo a driving test.
Were the Minister to seek to immediately stop the practice whereby people can drive unaccompanied which is unprecedented in the rest of Europe, there would be general support for such a move. He should not be overly concerned about losing votes on this issue, given that there is widespread support for tighter road safety measures, including for learner drivers. Were he to bite the bullet, it would at least ensure that those driving on the road would be obliged to undergo a driving test within a two year period. That is the very least we should expect.
The Deputy will be aware of my views on this issue which I will deal with by way of regulations rather than in the Bill. What the Deputy said is correct but I do not wish, for obvious reasons, to mislead her by saying I will deal with the matter immediately. I want to ensure what is introduced is practically applicable. I have the power to address the matter by way of regulations and that is what I intend to do.
In 2003 the Minister's predecessor announced that he would clamp down on this issue and caused a rush in that regard. The Minister is now saying he will close off the loophole as soon as waiting lists are brought under control. It is a chicken and egg situation. When will the lists be brought under control? The additional 45,000 tests are only a drop in the ocean and will not impact on the lists to a great degree.
The different elements of the combined effort, namely, increased productivity, the bonus scheme, late evening and weekend working, extra contract staff, as well as staff from the Department of Agriculture and Food, will deliver approximately 120,000 tests. This will have an enormous impact on waiting lists. The Deputy is correct in saying this issue has been discussed at length. However, we now have in place a process to tackle the backlog. She might at least give me credit for trying to address this fundamental problem.
Any progress is to be welcomed. However, what is being done is not adequate to deal with the backlog. The backlog and the underlying demand of 175,000 applications each year require something more radical than what is being done. This is an obvious loophole that needs to be closed.
It will be dealt with by way of regulations. I do not need to legislate.
When will the issue be dealt with?
As soon as we have in place a provision which cannot be discredited. There is no point introducing a law which could be discredited. It is not practical to address the issue for the reasons outlined. I have no problem in allowing the blame to fall where it belongs. I intend to pursue this issue. In that regard I have raised it with the road safety authority which was only recently established but which has already held more than five board meetings. It is heavily engaged on a range of issues, including this one. I have asked people to give of their time to serve on the board which is functioning very well and to come back to me with suggestions on the way forward on these policy issues. I must allow them time to do this; otherwise they will be back asking what it was I asked them to do in the first instance.
It is not rocket science. We have known for years what needs to be done.
I agree. To allay the Deputy's concern, I confirm that I will address the issue by way of regulations. I do not need to address it by way of primary legislation.
Is the Minister certain it can be adequately addressed by way of regulations?
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 6, before section 5, to insert the following new section:
"5.—Where a person who holds a full driver's licence is convicted by a court of an offence under section 49 or 50 of the Principal Act or an offence of driving without due care and attention or careless or dangerous driving or dangerous driving causing death, the person shall (upon the expiry of such, if any, period of disqualification as the court may impose) be required to surrender his or her driving licence to a licensing authority and shall if otherwise eligible and be entitled to apply for a learner permit, and notwithstanding any other provision of the Road Traffic Acts 1961 to 2006, the person may drive unaccompanied only during the first year in which he or she holds such a learner permit, unless by the expiry of that year he or she has taken or re-taken as the case may be such driving test and passed such test.”.
This amendment also relates to the status of drivers. It deals with an issue about which the Minister has spoken on a number of occasions and on which he has obtained much publicity. He has also received much support from the Opposition and would have the support of the public were he to provide that, where drivers commit serious driving offences, they, as part of the penalty imposed, should be required to retake the driving test. He has already promoted this idea, on which we have supported him. I am now seeking to ensure we enshrine it in legislation.
The amendment appears to relate to the holder of a driving licence who has been disqualified for committing certain offences and proposes that such a person, having served a period of disqualification, should automatically forfeit his or her driving licence; that when he or she applies for a provisional licence, he or she would be entitled to drive unaccompanied for a period of one year only, unless by the end of that year he or she passes a driving test. Section 26 of the Road Traffic Act 2002 provides the court with the power to require a person who has been disqualified under a consequential order to obtain a certificate of competency by successfully undergoing the driving test as a prerequisite to having his or her driving licence restored. As regards driving unaccompanied on a provisional licence, the road traffic (licensing of drivers) regulations 1999 to 2004 provide, inter alia, for the circumstances in which a provisional licence holder has to be accompanied by and under the supervision of a qualified driver. The power to make regulations concerning when a learner permit has effect is being restated at section 10 (2) (k) of the Bill which amends section 42 of the Act. In view of this, I ask that Deputy Shortall withdraw the amendment.
There may be provision for judges to impose that.
There is. We are back to the issue we were discussing.
Has it ever been done? Has anybody ever been obliged to retake a test?
Yes. I agree with the Deputy that this needs to be more definitively in place. If a person is disqualified for drink driving he or she should have to resit the test. It is something I am very keen to see implemented. I expect to see it in a package of upcoming proposals. We will do it at a time when there is public belief in it. It must have credibility. A proposal that could result in one's livelihood or family being damaged because one cannot get a test for a year is not sustainable and would not stand up in any court. There must be a regime in place in which one can have reasonably quick access to a driving test.
This goes back to the failure to take adequate and appropriate action in this area. The Minister has been saying this for the past two years. At the rate at which the Minister proposes to deal with the backlog, it will be ten years before the waiting time is down to four to six weeks. Will the Minister be still saying the same thing in ten years' time?
I will not. The Deputy knows as well as I that not long after taking office I dealt with the issue and put in place a proposal. It was not I who delayed this. It was delayed for more than a year by people who, legitimately, brought issues to the Labour Relations Commission, to arbitration and so on, when it was eventually found that my proposal was the best way forward. There are procedures in place that I must observe. It took two years and that was a source of severe frustration from my point of view. I could see no other alternative. Eventually I was found to be correct.
That is not the full story. That was on the net point of outsourcing. The staff complement within the driver testing section is not adequate to deal with the demand, given the increase in population, the increase in car driving and so on. It is a completely outdated service. It does not have a proper IT system. It has no way of dealing with cancellations. More than 40% of its income is derived from travel and subsistence allowances. It is easy to bash the driver testers and say we need changes in work practices. However, the Minister is responsible for the system that allows people to be paid for driving around the country instead of for carrying out driving tests. There are many issues which are presented in the Farrell Grant Sparks report, which contains the wider view of the action the Minister needs to take as opposed to the ideological battles he takes on.
I am not taking on any ideological battles. I set up the road safety authority to fundamentally change the entire approach to driver testing.
Amendment, by leave, withdrawn.
I move amendment No. 31:
In page 6, before section 5, to insert the following new section:
"5.—Where a person has been convicted of an offence under section 49 or 50 of the Principal Act, the court sentencing that person may direct that following the expiry of the period of disqualification imposed on the person, the person may not drive or attempt to drive a mechanically propelled vehicle for such further period, not exceeding 5 years, as may be specified, unless the vehicle is fitted with an alcohol ignition interlock which measures alcohol concentration in the breath prior to ignition.".
We have previously discussed "alcolocks". They are being mentioned more and more in the media. An alcolock is a device which prevents the driver from starting the engine until he or she blows into the device which registers the concentration of blood alcohol. It is the in early stages of use in other countries. It is an option in some Australian states. Members of the committee who visited Australia might be aware of the device. The offender is required to use this device in lieu of a recorded penalty. Sweden and Finland are seeking permission from the European Commission to introduce the device in respect of certain categories of driver. The UK includes a provision for its use in its latest road traffic legislation. It is hoped the technology will become widely available. This amendment is an enabling amendment to allow the Minister to include the use of this device as part of the overall armoury in tackling road traffic offences. It would be a good idea to have included in this legislation in the event of the success of the technology in other countries when we could implement its use by commencing the section.
This system is under test in a number of countries. No conclusions have yet been drawn. It clearly would be premature to legislate before we know what it is we are legislating for and what needs to be in place. I have no issue with the principle of this. However, if motor manufacturers are to be required to install such equipment in cars, it will be an EU-wide issue that will have to be dealt with under the EU type-approval system for motor vehicles. We are closely monitoring the testing being carried on at present and discussing the regimes that are in place. There is a range of issues including the relationship with the courts, the Garda Síochána, who will monitor, who will maintain, who will provide the information, who will police the system. All of this will have to be thought through. It is another issue that is being articulated in the mix of a range of issues that have been discussed recently. I will await the outcome of those discussions and developments. There would be no point in introducing legislation because it is likely I would have to amend it. I do not know what I would be legislating on at the moment given the range of interaction systems that would be required to make it work.
This is about sending out messages and getting serious about this. It is also about demonstrating that the country is at the cutting edge in terms of what technology is available. The UK has had considerable success in recent years in respect of road safety. In its legislation it has made provision for "alcolocks". Why is Ireland always behind everyone else?
That is part of the contradiction. The UK, like Ireland, has a very high limit on the amount of alcohol one is allowed to have in one's system while driving but has one of the best road safety records in the world.
It is down to enforcement.
It may well be. That is the reason we are introducing this Bill.
When the Minister is asked about enforcement, he says that is a matter for another Minister.
This Bill sets out a regime in law under which it is my responsibility in terms of the policy and the legislation to allow for much stronger enforcement in a range of areas. I do not discount what the Deputy has said on the issue. I know where she is going with this politically. I do not blame her. However, the reality is that I have articulated a number of points. I have set up the road safety authority. I have given it a mandate to look into this. I spoke to its members individually before they took on their role. I explained to them what I wanted them to do. They are geared up to do it. There is no point in asking these people to do that on a very short timeframe because there will have to be a replacement for the road safety strategy that ends this year. All these issues are being considered in the context of a new road safety strategy. That is how I propose to deal with a range of these issues. I have set up the road safety authority, I have introduced this Bill and I have put in place a method for dealing with the backlog.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 6, before section 5, to insert the following new section:
"5.—(1) A member of the Garda Síochána, present at the scene of a road traffic accident, shall require any person who was in charge of vehicle that was involved in the road traffic accident to—
(a) (i) provide (by exhaling into an apparatus for indicating the presence of alcohol in the breath) a specimen of his or her breath, or
(ii) accompany him or her or another member of the Garda Síochána to a place (including a vehicle) at or in the vicinity of the checkpoint and there to provide, by exhaling into such an apparatus, a specimen of his or her breath, or
(b) (i) leave the vehicle at the place where it has been stopped, or
(ii) move it to a safe place in the vicinity of the road traffic accident, and keep or leave it there until the person has complied with a requirement made of him or her under paragraph (a).
(2) A member of the Garda Síochána, for the purposes of making a requirement of a person under subsection (1) may indicate the manner in which the person must comply with the requirement.
(3) A person who—
(a) refuses or fails to comply forthwith with a requirement under subsection (1)(a) or
(b) (i) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (2), or (b) without reasonable excuse, refuses or fails to comply immediately with a requirement under subsection (1)(b)(ii) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (5), is guilty of an offence and is liable on summary conviction—
(i) to a fine not exceeding €5,000,
(ii) to imprisonment for a term not exceeding 6 months,
(iii) to disqualification from driving for a period not exceeding 2 years, or
(iv) to any combination of subparagraphs (i), (ii) and (iii) of this subsection.
(4) A member of the Garda Síochána may arrest, without warrant, a person who commits, is committing or has committed an offence under this section.
(5) In a prosecution for an offence under——
(a) this section,
(b) section 49 or section 50 of the Principal Act, or
(c) Part III of the Act of 1994, it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath pursuant to this section is an apparatus for indicating the presence of alcohol in the breath.
(6) Nothing in this section shall be used to delay in any way, the provision of any medical assistance to a person injured in a road traffic accident.
(7) A person who does not comply with a requirement under subsection (1) by availing of protection under subsection (6), shall continue to be obliged to comply with such requirement as soon as may be medically practicable.".
The purpose of this amendment is to require people involved in traffic accidents to undergo breath tests. The provision is not a threat to those involved in traffic accidents but rather an attempt to establish a clear picture regarding the causes of crashes. On our trip to Australia, we discovered that every action on road safety in the jurisdiction was informed by rigorous research based on well-documented road-use experience. To provide an example of how we are failing, I recently tabled a parliamentary question on the information sought by the Garda on the form people involved in accidents must complete. On discovering that one of the items of information sought is whether a driver possesses a provisional licence, I submitted a question asking how many of those involved in accidents were provisional licenceholders. No one could provide an answer. While the information is collected, it is not collated or made accessible. Perhaps provisional licenceholders do not have more accidents than their fully licensed counterparts but the information in question is necessary.
We should allow people to be tested for alcohol if they are involved in traffic accidents, even where there is no roadblock in place or reason to suspect they have been drinking. Testing should simply be one of the methods of collecting information at the scene of an accident. I seek also to create an offence of failing to agree to undergo testing, although subsection (6) excludes circumstances in which a person has been seriously injured and is not in a fit state to agree or disagree. Subsection (7) does not remove the obligation to comply with the regulation as soon as possible or medically practicable. It is a reasonable provision to make. While it might be subject to the same difficulties as random breath testing, I am interested to hear the Minister's view.
A person may be unconscious or about to faint, in which case it will not be possible to test them. If a person is unconscious or faints and a garda believes alcohol or drugs have been consumed, a blood or urine sample can be obtained under medical supervision when the person has been transferred to hospital. We should not forget that provisions in that regard are in place.
Can such a sample be taken without permission?
No. A doctor's agreement is required. It is a useful fall-back position that has an impact. If a mandatory provision were made, in circumstances where two people were involved in an accident and one was unconscious, a sample would be taken only from one. A challenge would be mounted in court on the basis of differing treatment and the provisions would not stand.
Amendment, by leave, withdrawn.
The meeting is likely to continue for some time but some of us came straight from the Dáil and have not had lunch. I suggest a 20-minute break to allow people to obtain sandwiches.
We will conclude our deliberations on the section and then take a break.
I move amendment No. 33:
In page 6, before section 5, to insert the following new section:
"5.—The Act of 1994 is amended in section 14 by the substitution of the following for subsection (1):
"(1) Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place is under the influence of a drug or drugs to such an extent as to be incapable of having—
(a) proper control of the vehicle, or
(b) has been involved in a road traffic accident,
he may require the person to accompany him to a Garda Síochána station.".".
Amendment No. 33 is similar to amendment No. 32. It seeks to extend the provisions I sought to introduce through the latter to provide that people involved in traffic accidents will be automatically tested for drugs. I do not know if it is vulnerable to the same objections as amendment No. 32.
I have attended a number of meetings at EU level, where a significant debate is taking place. Each country wants to establish a methodology to allow roadside testing. I suspect that member states will move collectively to agree an EU-wide system to deal with this issue. Unfortunately, it cannot be done at present.
It is problematic to deal with drink and drug driving under the same sections. It is not possible to obtain separate statistics from the Courts Service on drug driving.
The chief executive of the road safety authority is engaged in discussions with the HSA and other responsible bodies. There is a great need to define the causes of accidents and we will have to find a way to allow us to determine where tests are taken whether alcohol, drugs or a combination of both were involved. We must also establish if the drugs involved were illegal or prescribed. The chief executive is engaging with the various bodies to establish whether this information can be obtained. We must be able to break down the information if we are to have a statistical basis on which to determine and address the causes of accidents on our roads.
There is an administrative problem in that the Courts Service does not keep separate figures. It would be very helpful to have them.
The medical bureau deals with this matter and holds a great deal of data. We must collate the specific data and break it down at the level the Deputy suggests.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 6, before section 5, to insert the following new section:
"5.—(1) The Minister may, by order, introduce mandatory testing for any intoxicant that he or she deems appropriate.
(2) In making an order under subsection (1), the Minister shall have regard to Part III of the Act of 1994 and any regulations made under it.
(3) Any testing under regulations under this section shall be carried out in the same manner as is prescribed in section 4.".
The same issue arises in respect of this amendment, which seeks to empower the Minister of the day to introduce the provisions I seek. I realise that there are questions as to how testing can be carried out and in respect of what one can test. I presume that the issue will be clarified at some point.
For the information of Deputies, nine different systems were recently tested in other jurisdictions recently and all of them failed.
Amendment, by leave, withdrawn.
SECTION 5.
I move amendment No. 35:
In page 7, lines 17 and 18, to delete subsection (4) and substitute the following:
"(4) The fixed charge is €300 and such fixed charge shall be index-linked to the inflation rate as set by the European Central Bank and automatically updated on the 1st of January each year after the coming into force of this section.".
This amendment seeks to index link fines for drink driving. It is a technical amendment to save us the trouble of reverting to the matter at regular intervals. Fines become irrelevant very quickly.
I can change the level of fines by regulation. The matter was dealt with in the Seanad, although I was not in attendance.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 7, subsection (7)(c), line 40, after “notice” to insert the following:
", but the person shall continue to be liable to prosecution in the same manner as if such fixed charge notice had not been served".
This amendment seeks to deal with the case of someone accidentally given the option of penalty points rather than going to court. I understand that this has happened on several occasions and that people, by accepting penalty points, sometimes get away with more serious offences. I am trying to ensure that, even if they pay, they will still be liable to be prosecuted. The amendment attempts to close a legal loophole that has emerged in several cases. People are accidentally given the option of paying a fine and receiving penalty points rather than going to court, despite the offence being one that should attract a court visit in addition to points on one's licence.
The Deputy is correct in respect of her final point. It is a disqualification provision separate to the penalty points.
There have been such cases.
I am not aware of any and it certainly should not happen under this legislation, given the way it has been drafted.
Perhaps the Minister might examine the position.
Amendment, by leave, withdrawn.
Amendments Nos. 37 to 42, inclusive, are related and may be discussed together.
I move amendment No. 37:
In page 8, subsection (8), line 8, to delete "a" and substitute "the".
Amendment agreed to.
I move amendment No. 38:
In page 8, subsection (8), line 10, to delete "the" where it firstly occurs and substitute "to".
Amendment agreed to.
I move amendment No. 39:
In page 8, subsection (9)(a), line 13, to delete “a” and substitute “the”.
Amendment agreed to.
I move amendment No. 40:
In page 8, subsection (9)(b), line 16, to delete “a” and substitute “the”.
Amendment agreed to.
I move amendment No. 41:
In page 8, subsection (9)(b), line 19, to delete “for” where it firstly occurs and substitute “of”.
Amendment agreed to.
I move amendment No. 42:
In page 8, subsection (9)(c), line 23, to delete “a” and substitute “the”.
Amendment agreed to.
I move amendment No. 43:
In page 8, between lines 40 and 41, to insert the following subsections:
"(14) A person who, subsequent to the receipt by that person of a notice under subsection (11), drives or attempts to drive a mechanically propelled vehicle in a public place, shall be guilty of an offence.
(15) A person who is guilty of an offence under subsection (13) shall be liable on summary conviction—
(a) to a fine not exceeding €5,000,
(b) to a further and consecutive disqualification of a period of not more than 2 years, or
(c) to both.”.
This amendment seeks to create an offence of driving after disqualification. There is an offence of not surrendering one's licence. This is a problematic area with which I attempted to deal in the proceedings on the Road Safety Authority Act 2004. If one does not surrender one's licence, or even if one does so and subsequently drives after disqualification, that must be a fairly serious offence that should attract a fine and a further disqualification. This would ensure that one does not receive one's licence back for a further period.
My response to this proposal is to refer to the fact that when a person drives a vehicle while disqualified, he or she commits an offence under section 38 of the Road Traffic Act 1961. The penalty for that offence is being increased under section 12 to a maximum €5,000 fine or six months in prison. In addition, section 6(2) provides that a conviction for that offence will also attract a consequential disqualification of at least one year. The offence under section 5(13) relates to the failure of the person being disqualified to surrender his or her licence to the licensing authority. Accepting the amendment as proposed would not be proportionate. The penalty provided in the Bill in respect of this offence is adequate. It is a serious offence and the punishment is severe.
Where is provision made for the offence?
In the original Act. As I said, the penalty for the offence will, under section 12, be increased to a maximum €5,000 fine or six months in prison, or both. In addition, section 6(2) provides that a conviction for that offence will also attract a consequential disqualification of at least one year. That is a fairly substantial penalty.
I seek a further and consecutive disqualification.
That is what it is, namely, an additional year.
Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
Sitting suspended at 2.55 p.m and resumed at 3.15 p.m.
SECTION 6.
Amendments Nos. 44 and 45 are related and may be discussed together.
I move amendment No. 44:
In page 9, line 41, to delete "4" and substitute "5".
I am not sure why the maximum period is limited to four years.
Penalties, or fines, are set as a maximum, but sentences are set as a minimum.
I just wondered why it was set that low.
It is not the same in both cases.
I am suggesting we set the maximum sentence at not less than five years, given the serious nature of the offence.
As we are extending the periods, it will be open to the courts to apply longer periods. We felt that doubling the length of the sentence was the right course of action and would be upheld by the courts, to which it will be open to apply a longer period. We have introduced a maximum fine and a minimum sentence.
Amendment, by leave, withdrawn.
Amendment No. 45 not moved.
Section 6 agreed to.
SECTION 7.
I move amendment No. 46:
In page 11, line 23, to delete "for" and substitute "from".
This amendment seeks to correct a typographical error.
The amendment is contrary to the terminology used in Road Traffic Acts since 1961 in which a person is referred to as being disqualified for holding a licence or disqualified for applying for a licence. This has stood the test of time and I am advised that it is the correct legal terminology.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 11, line 29, after "disqualification" to insert the following:
", provided that there are extraordinary and exceptional circumstances to justify such an application".
We often hear of people who are disqualified for two years but can reapply to the courts after one year to get their licence back. It almost seems to be an automatic right but I am of the view that it should only be applied in exceptional circumstances such as hardship. When we disqualify someone for two years, we should mean it.
The amendment seeks to limit the circumstances in which a person who is halfway through a period of disqualification may apply to the court to have the disqualification removed. Section 7(3) provides that the court, in considering an application for removal, may have regard to the character of the applicant, his or her conduct after the conviction and the nature of the offence. In these circumstances, I do not propose to restrict applications for removal being made to the court. Including in the Bill definitions of extraordinary and exceptional circumstances to justify such an application could be cumbersome. It is a matter for the courts to decide. We have toughened the process involved in getting one's licence back and the period of disqualification that must be served. However, it is a matter for the courts to decide what is exceptional.
Are they required to consider the circumstances involved?
They can do so under subsection (3).
I know that they can but are they required to do so?
We should not leave it up to the courts. It has almost become an automatic right to have one's sentence of disqualification annulled after a certain period.
I know one must go to court.
The legal advice is that it is a matter for the courts. I have sympathy for the Deputy's point but I think her amendment would go too far.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 11, line 40, after "qualification" to insert "or at least 2 years whichever is greater".
This amendment is linked to the removal of disqualification. There is an anomaly in the section, as drafted. There is a minimum period of two years before one can apply to have the order lifted but there is no minimum period to serve in respect of a disqualification. Someone who is disqualified for two years cannot apply to have the disqualification lifted but someone who is disqualified for two years and one day can apply to have it lifted after serving two thirds of the period of disqualification. A person subject to disqualification for a longer period can be back on the road before someone subject to a shorter period. This is anomalous.
Technically, the Deputy is right. The problem is that we must have some threshold to bring forward a minimum period. It is good because one must serve two thirds of a sentence. No matter what way I set the threshold, the same point can be made. We decided that, on balance, that this was probably the right level.
Does the amendment not deal with that issue? Its purpose is to ensure there would be no anomaly.
It does not deal with it.
In section 29(1) the minimum period is set at two years. It would not be appropriate to set a similar minimum period in section 29(4), as a person must serve at least two thirds of the period specified in the original order of disqualification.
Two thirds or two years, whichever is the greater.
I suppose the point being made is true. This applies to a first offence for which it is highly unlikely one will receive a sentence of two years or more. I will look at the matter before Report Stage and take the point being made by the Deputy.
Amendment, by leave, withdrawn.
Amendments Nos. 49 and 50 are related and may be discussed together.
I move amendment No. 49:
In page 11, between lines 40 and 41, to insert the following:
"(5) Where an application is made under subsection (2), the court shall notify, or cause to be notified—
(a) any person who was a party to the original proceedings where the applicant was disqualified,
(b) any person who was injured or affected by the actions of the applicant which led to his or her disqualification,
(c) the family of any person who died as a result of the actions of the applicant which led to his or her disqualification, and
(d) any person who, in the court’s opinion, should be made aware of the application.
(6) Any person notified under subsection (5) shall be given an opportunity to make a submission to the court on an application under subsection (2).".
These amendments pertain to a frequently discussed scenario. I refer to cases in which a family member has been injured or even killed and a disqualification is subsequently annulled by the courts without any notification to the affected family. This amendment seeks to ensure that when an application is made to the courts to have a licence returned, the people so affected would be informed and entitled to make a submission. The third part of the amendment proposes that they would be so informed, regardless of whether they had made a submission. In the case of drivers who, for whatever reason, were involved in a traffic accident which resulted in a fatality, it seems to be extremely hurtful to the loved ones of the deceased to see such drivers back on the road. Frequently, this appears to happen very quickly thereafter, or so it seems to those affected. They should at least be informed that this will happen.
I take some of the Deputy's points. While some of them have been provided for in the general section, she is correct to state some are not. In those cases in which a person who has served one half of the period of disqualification may apply to the court to have the disqualification removed, the amendment seeks to have notifications made by the court to third parties. Moreover, it proposes that third parties may make a submission to the court on the application for removal. Section 7(3) provides that the court, without prejudice to its power to have regard to all of the matters that appear to it to be relevant, may, in particular, have regard, inter alia, to the nature of the offence.
I appreciate the Deputy's intentions. She has raised a point, to which I must return. While it should be capable of being dealt with within the courts system, I will return to it. Although I will probably not return to it on Report Stage, I will probably do so in the forthcoming Bill later in the year but I must first ascertain how this will work. However, the Deputy's point has validity.
To clarify, to what did the Minister refer when he stated he wished to see how it would work?
I referred to how the section, as applied, would be interpreted.
Amendment, by leave, withdrawn.
Amendment No. 50 not moved.
Section 7 agreed to.
NEW SECTIONS.
I move amendment No. 51:
In page 12, before section 8, to insert the following new section:
"8.—The speed limit on any non-national road in respect of which a local authority has not specified any alternative limit, whether before or after the commencement of this section, is 60 kilometres per hour.".
This amendment relates to the default speed limit. It is an issue which arose at the time of the changeover to metric measurements. The default speed limit on non-national roads is 80 km/h. Members are aware that such a limit is completely inappropriate for particular stretches of road which have been photographed by the media. They also know, given accident history, that a non-national road is the most likely place for people to have a serious accident. I, therefore, propose that the default speed limit be reduced to 60 km/h. While stretches of non-national road deemed by a local authority to be safe for faster speeds could be so designated, the default speed limit would be 60 km/h.
As the Deputy is aware, the Road Traffic Act 2004 which was introduced only 18 months ago provides for a default speed limit of 80 km/h. She may recall that beforehand the national limit had been 60 mph. On moving to metric measurements, this was reduced to 80 km/h which constituted a reduction of 10 mph in the speed limit. The Deputy proposes to reduce the limit to 60 km/h or approximately 37 mph. I am unsure whether this is practicable. However, I took some measures in the Act to take account of this. Many regional roads are now of high quality, particularly given the roll-out of construction programmes. Even some dual carriageways are classed——
Such roads are outnumbered by the extremely poor ones.
I agree. I do not dispute that point.
The signs cannot be displayed everywhere.
It is very frustrating to see some of the roads on which local authorities have placed limits of 80 km/h or even 100 km/h. I cannot understand it. However, it would be wrong for the central authority to try to manage all regional and local roads. Hence, I permitted local authorities to reduce or increase speed limits on all such roads. Consequently, there is no indication that the limit of 80 km/h, particularly after 18 months, is fundamentally flawed. Although I do not single out anyone for blame, there are issues in respect of a number of regional or non-national roads on which the relevant local authorities should exercise their power. This is not peculiar to any region and is a feature of the locality in which I live. There is huge frustration regarding a recently opened non-national road that is effectively a motorway. The applicable speed limit of 80 km/h could be raised significantly. In fact, the speed limit is 60 km/h and there is uproar over it. However, this is a matter for the local authority to decide.
Deputy Shortall has raised a significant issue which requires attention. Regardless of the frustration experienced in being obliged to drive more slowly than one would wish, the dangers in driving faster than one should are extreme. One frequently comes across examples where one leaves a national route on entering a town on which the speed limit is 50 km/h. However, one then turns into a laneway, on which the speed limit is 80 km/h.
Admittedly, the speed limit was reduced when metric measurements were adopted. However, the old default signs did not suggest drivers should travel at a particular speed as they simply informed them that they had left restricted areas. As the old signs did not display a number, drivers felt they should drive in a manner appropriate to the condition of the road. However, the erection of an 80 km/h speed limit sign encourages people to drive at that speed. I am unsure whether this amendment would be an appropriate way to deal with the issue. However, a review of speed limits should be mandatory by now. How long has it been since metric measurements were adopted?
It has only been a year and a half.
The local authorities must get their act together. The Minister indicated that there would be a speed limit review. If this is the result of such a review, it should begin again. However, there is a genuine problem.
I accept that there is a problem. Interestingly, few people approach me to seek a reduction in speed limits. I receive more complaints about speed limits which are too low. Perhaps all members have similar experiences.
This is a new and important power for local authorities which has a fundamental impact on the entire community. I have told all councillors, including those in my party — this is not a party political issue — that they need to resolve this issue. I recently contacted county managers again to try to raise the matter as a major issue and have it resolved in each local authority area. It is not right for Members of the Oireachtas to try to define the speed limit for every road in the country. However, there is a gap between the power which has been granted and its utilisation by local authorities. Perhaps recent court issues have shaken the tree somewhat in this respect. They may have induced local authorities to consider their actions.
This issue has arisen in the context of penalty points and the ability to enforce them in court. I refer to ridiculous speed limits or an unclear speed limit.
There was confusion in that regard. The Act provided that where existing by-laws were in place, there was an automatic transmission, provided that they had been properly passed in the first instance. However, all new limits were obliged to be placed before the relevant council. I agree this is unsatisfactory and a source of frustration for Deputies and Senators on all sides of the Houses but I have done my best to articulate this matter publically and communicate it to local authorities. I did so again recently for the second or third time.
While I agree with many of the points made by the Minister and Deputy Mitchell, they do not relate to my amendment. There is a significant problem pertaining to inappropriate speed limits, many of which are too low for the stretches of road concerned. However, the amendment relates to the other side of the coin, where speed limits are too high. We have an extensive network of county roads and it is impossible to erect appropriate speed limit signs everywhere. However, as matters stand, narrow country lanes that do not have a speed limit sign have a default speed limit of 80 km/h, which is ridiculous. The Minister's points relate to a different issue. My point is that, overall, the assumed speed limit for non-national roads should be 60 km/h. Only a minority of roads are of a higher standard. We are talking about the majority of roads, country lanes, boreens in every county. The default speed limit on those roads is 80 km/h, which is completely inapppropriate.
I take the point the Deputy is making, but I am not going to change everything throughout the entire country after a year and a half. We need a review. Much of the evidence is anecdotal and I am not sure the majority of roads are poor. No matter what way I strike this, there will always be a different view which is subjective. One of the factors of success in other countries is that there is public buy-in to the road traffic law. People accept that the system is operating fairly and everybody understands the regime. I would not add to public buy-in if I were to instruct every local authority to change the signs. We need a bedding-in period. We need an analysis on the number of roads deemed to be good, by modern standards, and to identify poor roads. At the same time we have to get the local authorities exercised in identifying the roads where specific speed limits need to be imposed. We need some time for that. I thought it would have happened, but it has not.
When I said the majority of roads are poor, that was not a criticism of the Minister. It was a factual statement.
There are thousands of kilometres of boreens. We are not going to put signs on all of them.
I cannot legislate on that basis. We put in place quite an expensive regime which would be discredited if it were to be changed now. I would have to go back through the whole local authority system and re-engage with them all. I would rather that they would concentrate on the roads in their area and take on the powers to do it. That would be far more effective than starting again from scratch.
In the absence of a lower default limit, we would have a proliferation of signs or else completely inappropriate and dangerous limits. This needs to be dealt with at central level.
Amendment put and declared lost.
I move amendment No. 52:
In page 12, before section 8, to insert the following new section:
"8.—(1) where road works are being carried out by any person including a local authority, the person shall erect and maintain such signs as comply with requirements prescribed by the Minister for Transport, and such further or other road work signs if any as are required to obviate any danger to the public.
(2) A person (including a director, member, officer or employee of a body corporate whose default contributes to the non-compliance) who fails to comply with subsection (1) shall be guilty of an offencce and on summary conviction shall be liable to imprisonment for 12 months or to a fine not exceeding €5,000 or both.”.
This is an issue of which I have become aware over the past couple of years as a result of particular accidents which have taken place — the Minister will be familiar with some of them — where the road surface was undoubtedly a contributory factor. The committee has had correspondence about one such case. When looking into it in more detail, I discovered that when it comes to standards in respect of road surfaces and signs for roadworks and so on, guidelines are set down by the National Roads Authority, failure to comply with which attracts penalties where a contract is in place. If a contractor has to resurface a stretch of road, that is covered, but where a local authority is carrying out the work there are not such guidelines.
There was an accident in Mayo and there are also questions about the bus crash in Meath. In both those situations, the same kind of temporary road surface was in place, with no indication for drivers. In the Mayo case, the cones and signs had all been removed and it was left as if it were a proper road surface on which drivers could travel at 80 km/h. Serious difficulties arise when drivers see what appears to be a normal road. Private contractors are obliged to put up signs indicating a reduction in the speed limit and various markings indicating a temporary surface. This is an issue throughout the country when so many roadworks are going on. It is a very serious gap in the regulations that a local authority is not obliged to ensure proper safety standards. I am proposing that there should be a legal obligation on local authorities to adhere to the guidelines set down and that failure to do so should result in penalties.
I will cut to the chase on this. The traffic signs manual is actually under review. I acknowledge the points the Deputy has made. There are serious questions there. That review will be finalised later this year and I will take an approach, if necessary, in the new legislation. That process is well under way and I hope to have it concluded in the second half of this year. I do not want different systems in place as between private and public contractors. This is the first issue being dealt with. I do not want to prejudice any cases but clear issues arise to be dealt with in the review.
Can the Minister guarantee it will be dealt with?
Absolutely. The review is under way and as a consequential fall-out of that review we will decide what changes are needed in legislation.
Will the review process be completed in time for the promised new Bill?
It will be finalised later this year. I would like to include it and it is my intention to do so.
On that basis, I will withdraw my amendment.
Amendment, by leave, withdrawn.
Sections 8 and 9 agreed to.
SECTION 10.
Amendment No. 53 is in the name of Deputy Shortall. Amendments Nos. 62 and 92 are related and the three amendments may be discussed together.
I move amendment No. 53:
In page 12, between lines 33 and 34, to insert the following:
"(a) the regulation of driving schools and instructors;”.
We spoke last year about the need to regulate driving schools as well as driving instructors. There is a real difficulty in respect of definitions. The Minister was probably at one with my thinking. We should avail of this opportunity to amend the legislation by making it more wide ranging.
Section 10 deals with the power to make regulations relating to driving licences, learner permits and certificates of competency and fitness. The proposed provision does not relate to this, as the Deputy probably knows. Rather it relates to the regulation of driving schools and instructors. Section 18 of the Road Traffic Act 1968, as amended by section 19 of the 2002 Act, deals with the regulation of driving instruction. The amendment is outside the terms of the section and may not be included where proposed. In those circumstances, notwithstanding the validity and veracity of what the Deputy is saying, I have to ask her to withdraw the amendment.
Amendment No. 62 in my name is very similar.
The Minister has spoken about this in public but we must provide in legislation if we want things to happen. We have to create an offence, which this amendment seeks to do, once there is a system in place to regulate both driving instruction and driving schools, when people who are not on the register take money for driving instruction. Much has been said about this and there is a consultation process, but it must be put into legislation.
I am happy to say that the response from the driving instructors has been hugely positive. They have publicly commended the Oireachtas on doing this. We are talking to them about the other issue.
Is the Minister saying that the references are wrong?
Yes. I will give a technical response. I am told the amendment is outside the terms of the section and may not be included where proposed. I have broadened out.
It is the case that section 19 of the 2002 Act needs to be amended.
I understand the 1968 Act allows us to do that. Both Deputies are concerned about the driving schools rather than individual driving instructors. This is one of the issues we are discussing, having put in place arrangements regarding the training and competency of drivers. The question both Deputies have raised is now under discussion. I have given a technical reply but I would rather wait and reach agreement, as I expect we will.
EC Directive 59/2003 imposes many requirements on the driver testing system in respect of HGV and bus drivers and the role of the Department in assessing the material used, instructor manuals, centre facilities and so on. Surely that needs to be underpinned by legislation. That is another objective of this amendment.
The directive would be underpinned by legislation.
The directive does not come into force until next year.
It will have to be underpinned.
It will. I can do it by regulation. If I need to do it by primary legislation, I will do so in the Bill later this year.
This gets back to the first point we made about transposing the directive in primary legislation. Would including that one-line amendment not facilitate the transposing of the directive? Will the Minister look at it for Report Stage?
Amendment, by leave, withdrawn.
I move amendment No. 54:
In page 13, between lines 13 and 14, to insert the following:
"(l) an obligation for the holder of a learner permit to undergo a specified number of driving lessons or a specified number of hours of driving instruction, or to obtain a certificate of competency from a driving instructor, before he or she shall be permitted to apply for a driving test;”.
This is an attempt to give a clear legal basis to what the Minister is saying he intends to do in requiring learner drivers to undergo a certain number of lessons, take a certain number of hours of instruction or get a certificate of competency before they apply for a test. The legislation refers only to the passage of time and is an assumption that some sort of experience is achieved during this time. I want to provide a legal basis for compulsory training of drivers.
I understand what the Deputy is trying to do and we are ad idem regarding the result we want to achieve. I consider it preferable for the setting of requirements to be met in this regard to be done in regulation which would be more convenient to amend and update rather than having the detailed requirements set out in the Act. We will do it by regulation.
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 13, to delete line 26 and substitute the following:
"(p) the fees to be paid to a licensing authority in respect”.
This is a technical amendment correcting an error.
Amendment agreed to.
Amendment No. 56 is in the name of Deputy Shortall. Amendment No. 61 is related and they may be discussed together.
I move amendment No. 56:
In page 13, between lines 28 and 29, to insert the following:
"(r) restrictions to be imposed on holders of driving licences during the first year in which they hold such a licence.”.
I referred to this earlier. It relates to a matter about which the Minister has been talking for some time and which other people have raised on an ongoing basis. It is the need for a graduated approach to learning to drive, so that it is not just a matter of passing the test and then doing whatever one likes. Most other countries have a graduated system. Statistical evidence indicates that the 12-month period immediately after passing the test is the high risk period. Most countries apply additional restrictions during that period. My understanding is that this would need legislation, but I am open to correction. This amendment would facilitate this without being prescriptive.
We cannot walk down the street without somebody giving us their ideas about road safety, some real and others less so. I have asked the road safety authority to come back with an entire framework in this area. We need to be fair and to identify the full framework needed. It is seriously engaged on that. I understand it has recently had five board meetings, which is a very substantive number in a short period. This issue is exercising the chairman and the board.
There are different models in different countries. My guess is that there probably is not a model which could be exactly replicated here. Climatic conditions are a factor in the issuing of licences in some countries. I have asked them to look at all the ideas and suggestions and to come back with a full framework. That is the fairest approach.
Throughout last year we were being fobbed off with the reply that the Minister was looking at and considering this issue. Now we are told that he has asked the road safety authority to examine this, that and the other and come up with something. Time is ticking by and unfortunately lives are being lost because of failure to act in this area. It is not good enough that we have to go through another nine or 12 months without action being taken. If the road safety authority comes up with proposals, let us at least be ready from a legislative standpoint so that we do not have to waste another nine or 12 months saying we have to provide for this in the next road traffic Bill. This two-line amendment would allow the Minister to impose restrictions during that critical period in a person's driving career. The detail can be worked out.
: Section 10 allows me to do so by regulation. The amendment proposes "by order". I can do all this by regulation.
Will this apply in the period after a person passes the driving test?
I will come back to the Deputy on that point. I probably will not be able to do it all by way of regulations.
The Minister would be able to do so if he were to accept my amendment.
I understand the point the Deputy is making. However, I do not want to make up the provisions as we go through the Bill as I would be castigated for doing so. Members have brought forward a great many ideas and they would expect me, as Minister, to come back with a framework for discussion. I do not have such a framework and cannot use magic to bring it into existence. I have asked the appropriate body to look at this and other issues.
The likelihood is that the Minister will produce a long list of measures to be considered in drafting the legislation towards the end of the year but that we will not see a Bill this side of the general election. We have tabled straightforward enabling amendments on driver testing and driving standards which would in no way be prescriptive. They would not set down the detail but increase the powers of the Minister to effect change.
The Deputy states in her amendment that restrictions should be imposed on the holders of provisional driving licences during the first year in which they hold a licence. I might be advised that the restriction should be applied for six months but equally it could be for 18 months. In some countries there are restrictions for six months but in others the period is longer. There is no point in defining the period because I do not know what I would be defining. I am not knocking the spirit or principle behind the amendment but it would not, as the Deputy suggests, clear the way for me to act. Until we agree on what should be set out, I will have to come back to Deputies. Let us wait until we have such a framework. I will be disappointed if I do not do this before the general election as it is my intention to finish it.
Amendment put and declared lost.
Section 10, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 57:
In page 14, before section 11, to insert the following new section:
"11.—As soon as is practicable after the commencement of this section, the Minister shall move to introduce regulations under section 42(2) (b) of the Principal Act (as inserted by section 10(1) of this Act), to provide for a physical driving licence format that is—
(a) practicable,
(b) that is more easily portable,
(c) that is in line with international best practice, and
(d) which retains driver information electronically.".
This amendment is self-explanatory and would oblige the Minister, as soon as is practicable, to introduce the smart card driving licence which is fundamental to the administration of the legislation, for example, the operation of the penalty points system. I do not expect him to accept my amendment but wish he would.
I am aware of the smart card driving licence as the issue is being discussed in the European Union. A directive is being drafted and new criteria must be set. I have indicated publicly to my European colleagues that we will take action immediately. Some of the larger countries are not in favour of this proposal and I have alluded to their reasons. I had to make a judgement call on whether we should go ahead immediately with the card or wait for the directive to be drafted. As soon as we have it, we will go ahead with the card.
Will we see the directive in months or years?
There are some technical specifications to be worked out. I hope we are talking about months rather than years.
Did the Minister not say there were significant problems with this issue at European level?
There were significant problems but now we have agreement. Some of the larger countries see an enormous logistical problem because they issue licences for life. In one country it would involve the recall of between 70 million and 80 million licences and that country did not want to be tied to a timeframe that would cause it to act immediately. That issue has not yet been decided but we have stated we will move to the new system immediately. At the last Council meeting I urged the Commission to finalise this issue in order that we could proceed with drafting the technical specification.
What is the anticipated timescale?
I did not receive a definitive response but the matter is being worked on. Now that we have agreement in principle, I take it that it will happen within the year.
Following agreement on the format at European Union level, will legislation be required in Ireland?
We will implement the directive. I suppose it will depend on what we will have to do——
and the information to be recorded.
Amendment, by leave, withdrawn.
Amendments Nos. 58 and 59 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 58:
In page 14, before section 11, to insert the following new section:
"11.—The Act of 2002 is amended by—
(a) deleting section 2(2) and substituting the following:
"(2) Where a person is convicted of a penalty point offence, the number of penalty points specified in column (5) of the First Schedule opposite the mention of the offence in column (2) of that Schedule shall, subject to and in accordance with the provisions of this Act—
(a) be endorsed on the entry relating to the person in respect of the offence,
(b) be entered into the record of the Garda PULSE system, and
(c)be endorsed upon that person’s driving licence by the Garda Síochána.”,
(b) inserting the following new subsection after subsection (5):
"(6) (a) Upon receipt of a notice under section 5 of this Act, a person shall, within 14 days, surrender his or her licence to a member of the Garda Síochána at any Garda station, so that the penalty points under this section may be endorsed upon it.
(b) A person who fails to surrender his or her licence under this subsection shall be guilty of an offence, which shall be punishable by a fine not exceeding €80 for each offence until the said licence has been endorsed in accordance with subsection (a) of this section.”,
(c) deleting section 5 and substituting the following:
"5.—(1) When penalty points are endorsed on the entry of a person, the Minister shall, as soon as may be thereafter, cause a notice to be given or sent, by ordinary post or otherwise, to the person—
(a) to the effect that the number of penalty points specified in the notice has been endorsed on the entry relating to the person following:
(i) the making by the person of a payment referred to in section 2(1); or
(ii) the conviction of the person of a penalty point offence;
and that, subject to section 3(2), they will remain on the entry for a period of 3 years beginning on the appropriate date, and
(b) specifying the total number of penalty points that, following the endorsement aforesaid, stand so endorsed and, if that number equals or exceeds 12, specifying that the person will be disqualified under section 3 for holding a licence for a period of 6 months, beginning on the appropriate date, and directing him or her to submit the licence held by him or her to the licensing authority that granted the licence not later than 14 days from that date.
(2) When a notice is given or sent to a person under subsection (1), the Minister shall cause—
(a) particulars of the notice, including its date, to be entered on the entry relating to the person,
(b) a copy of that notice to be sent to the Garda Síochána, and
(c) particulars of the notice, including its date, to be entered on the Garda PULSE system.
(3) A person who does not comply with a direction under paragraph (b) of subsection (1) in a notice under that subsection shall be guilty of an offence.
(4) The Garda Síochána shall—
(a) have jurisdiction to seek the surrender of a licence in the name of person to whom a notice has been given or sent under subsection (1), in the same manner as if a court order had been issued for the forfeiture of that licence, or
(b) seek a court order for the forfeiture of that licence under this Act.”.”.
This amendment may look familiar as I tabled a similar one to the Road Safety Authority Bill 2004. It would set out a clear procedure in respect of penalty points. Up until relatively recently there was no clear process. As the Minister acknowledged, there was a genuine problem about what happened when a person committed an offence for which penalty points were imposed. This gave rise to a number of issues, including who was responsible for ensuring penalty points were recorded, who had to be told and what happened when a person accumulated 12 points. In the amendment I am setting out a clear procedure. Subsections (3) and (4) would close a gap in the law, whereby the Garda Síochána would have jurisdiction to seek the surrender of a licence and would not need a court order to do so. If one pays the relevant fine, the Garda does not have a legal basis for seizing a licence.
Amendment No. 59 deals with penalty points applied for speeding offences in areas where speed limits had been incorrectly applied. When one has penalty points applied by the courts, there is no mechanism for having them removed without having to return to court. It does not seem appropriate that people should be forced to go to court again with all the expense and stress that go with it when it was a mistake that caused them to be there in the first place. The onus should be on the authorities rather than the victim. Can the Minister tell me I am wrong?
Penalty points are endorsed on the entry in the licence record of the person concerned — this is the official record. Penalty points are not recorded on the actual driving licence. The Department of the Environment, Heritage and Local Government, on receipt of notification from the Garda or the Courts Service that a fixed charge has been paid or the person has been convicted of a penalty point offence, endorses the licence record in the national driver file with the appropriate number of penalty points and issues a notification to the person concerned. They also forward a copy to the Garda Síochána. Requiring the Garda to make further records on the driving licence would lead to excessive administration. For example, penalty points expiring after three years would have to be removed from the driving licence. This could happen at intervals if the licence was endorsed with points on a number of different dates. I would not be inclined to have an additional recording of penalty points as proposed and I therefore ask the Deputy to withdraw her amendment.
Failure by persons to hand up their licences is an issue and we have introduced penalties. We are trying to find a method of pursuing such people and to be seen to be doing it. We need to alert the public to the responsibility on them to hand up their licences.
They get away with not doing it.
The consequences of not doing so are very severe.
The Garda should be entitled to pursue it. They need a legal basis for doing so. That is the problem I am attempting to overcome. People are not surrendering their licences and they may not know that it is a serious offence. The Garda should be empowered to pursue them, even in cases where it is not on foot of a court order.
It must be clear to people that the onus is on them to hand up the licence and they must be made aware of the serious consequences of failure to do so.
The smart card licence would overcome many of these problems in the administration of the system.
There is no doubt that the smart card would change things dramatically.
What about amendment No. 59 relating to incorrectly applied penalty points and how to have them removed?
A protocol for amending penalty points has been put in place with the agreement of the Office of the Attorney General. This stipulates that any request for amendment must be certified by a Garda chief superintendent or by the director of the District and Circuit Courts and can be countersigned by an official of my Department of at least assistant principal rank.
The judges are reported as saying that penalty points awarded by the courts can only be removed by a court decision.
This is agreed now with the Office of the Attorney General. That is the procedure we are putting in place.
Is that within the past week or two?
No. There are cases which have come through from the courts and they have been processed under this system.
On a long-term basis. I know the case the Deputy is referring to.
Is this provided for in legislation or is it a protocol?
The protocol was put in place to amend the penalty points record, with the agreement of the Attorney General's office.
It is not legal. I do not think the Attorney General can do that. If the courts make a decision——
The fundamental question is whether a person has to be dragged back into court for something they should not have been in court for in the first place, in order to get the matter corrected. I am saying that is not necessary and that it is possible through this method to deal with it. That system has been in place for a while. That approach was available over a year ago but I do not know if people were exercising it.
I do not know if it is legal.
Amendment, by leave, withdrawn.
Amendment No. 59 not moved.
Section 11 agreed to.
NEW SECTIONS.
Amendment No. 60 is in the name of Deputy Mitchell. Amendment No. 93 is related and they may be discussed together.
I move amendment No. 60:
In page 16, before section 12, to insert the following new section:
"12.—(1) The Minister shall, as soon as may be practicable after the commencement of this Act, by order—
(a) put such structures in place as he or she deems necessary to ensure that the standard of driving in Ireland is maintained and improved,
(b) put such pre-conditions in place as he or she deems necessary, for candidates who wish to take the driving test, and such pre-conditions may include, inter alia, a requirement that candidates undergo a prescribed number of driving lessons before being allowed to sit the driving test,
(c) review and update the driving test and driver theory test so that—
(i) each examination conforms to international best practice,
(ii) the driver testing process reflects safe driving practices,
(iii) each examination has regard to persons who—
(I) are hearing impaired,
(II) do not speak Irish or English as defined by the Official Languages Act 2003,
(III) have literacy difficulties, or, in the case of the driver theory test, difficulty operating a computer, or
(IV) have a physical disability,
and
(d) a detailed report of the results of test, including all of the following:
(i) whether the candidate passed or failed the test;
(ii) where he or she made errors;
(iii) what areas the candidate could improve;
(iv) in the case of a candidate who has passed, what further actions he or she must take to obtain a licence; and
(v) in the case of a candidate who has failed, how he or she can reapply for the test,
is made available to each candidate.
(2) On a regular basis, the Minister shall cause a drivers' training manual, to be produced and updated, and such manual shall contain—
(a) the Rules of the Road,
(b) advice on safe driving, and
(c) such other information as he or she deems necessary and appropriate.”.
This is an attempt to put into the legislation provisions we have talked about and at which the Road Safety Authority is looking. These include driver testing standards, preconditions for tests, facilities for disabled people and the requirement to update regularly the driver training manual.
I appreciate what Deputies Mitchell and Shortall are trying to do. However, it would be foolish to proceed on these lines until the entire framework covering all these matters is agreed. That is my responsibility. I said previously that I would do certain things and I have done so. Some may have taken longer than I would have hoped. I certainly want all these provisions in place. I am anxious to move on it and my sense is that the board of the Road Safety Authority wants to see action on them. If we are all of the same view, I expect to be coming back to put all these things on a new legislative base. I do not want to pre-empt that process because there will be different definitions.
Amendment, by leave, withdrawn.
Amendments Nos. 61 and 62 not moved.
SECTION 12.
: I move amendment No. 63:
In page 16, to delete lines 10 to 22 and substitute the following:
""(a) a person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction where at the time of the commission of the offence—
(i) he or she had been the holder of a driving licence (other than a learner permit) which had expired beyond its period of validity for a period of not more than 12 months before the commission of the offence, to a fine not exceeding €1,000, or
(ii) he or she had been the holder of a driving licence (other than a learner permit) which had expired beyond its period of validity for a period in excess of 12 months before the commission of the offence, to a fine not exceeding €2,000,
provided that he or she has received adequate warning from the licensing authority that the driving licence (other than a learner permit) has expired beyond its period of validity.";".
I feel strongly about this. The Minister is increasing quite significantly the fine for driving for up to two years on an out-of-date licence and somewhat less significantly for a person doing so for up to 12 months. I am requesting, not unreasonably, that people should be informed when their licence is out of date, as we are when the road tax is payable. This is all the more necessary because a much bigger fine is being introduced, and also because people might have to re-sit the driving test — which is the last thing we want. People get a licence for ten years and may not be aware when it is due to be renewed. Since the national driver file is now computerised, it should be very simple to notify people that their licence is about to expire. They could not then go to court with the defence that they were not told.
That is part of the problem. I appreciate what the Deputy is trying to achieve. Arrangements are being made with the Department of the Environment, Heritage and Local Government to hold and administer the national driver file and to have renewal notices issued to licence holders. It should be noted that a significant number of licence holders will have changed address in a ten-year period and will not receive the notice. If an amendment on the lines proposed were inserted, any person who let their licence lapse could plead that they had not received a renewal notice. This would weaken the provision very considerably. It is the responsibility of the individual to ensure that they have a current licence and to weaken that provision would be foolish. We are putting in place the most modern system to notify everybody when their licence is about to expire, but a huge number of people will have changed address.
Is it intended to do what I am seeking?
Yes, but the consequential effect of the Deputy's proposal would weaken the provision.
It is not a defence in respect of road tax to say that one did not receive a renewal notice. There is still an obligation.
The onus is still on the individual to make sure their car is taxed. The same applies here. We will notify everybody but we cannot allow people to use the excuse that they did not receive notice.
It is very difficult to remember when the ten-year period expires. I take the point about people changing address. Do the data systems allow the sending of a reminder with the motor tax reminder? Could that be done?
I do not know. There will be an updated system to notify people when their licence expires. That is as far as we can go.
There are very substantial penalties. Some high profile people have been in the news because of their licences lapsing.
He only needs it if he is driving.
I know. He is the exception.
In those circumstances, will people be fined and then have to do the test again or is the large fine substituting for the requirement to resit the test?
It depends on the time period. It may be a fine only, but if the licence has lapsed for a long time — I think it is ten years — they have to resit the test. Everybody must now carry their driving licence. I keep mine in my wallet and I would not dare go out without it in case I needed to get behind the wheel of a car.
The Minister is lucky to have a wallet that fits it.
It is quite a small document.
I would prefer a smart card. The Minister has a big wallet, probably for other reasons.
I agree that a smart card is as easy to carry as a credit card.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Section 13 agreed to.
SECTION 14.
Amendment No. 64 is in the name of the Minister. Amendments Nos. 65 to 67, inclusive, are related. Amendments Nos. 64 to 67, inclusive, may be discussed together.
I move amendment No. 64:
In page 17, line 31, to delete "prosecuted" and substitute "tried".
The Bill provides that the Minister for Transport may declare offences under the transport Acts, those which may not be tried on indictment to be fixed charges. The use of the term "tried on indictment" is more correct in this context than the term "prosecuted on indictment". It is a technical amendment recommended by the Office of the Parliamentary Counsel.
Amendment agreed to.
I move amendment No. 65:
In page 17, line 32, to delete "by the Minister".
Amendment agreed to.
I move amendment No. 66:
In page 18, line 15, before "to" to insert "(other than paragraph (b))”.
Amendment agreed to.
I move amendment No. 67:
In page 18, line 34, to delete "shall" and substitute "may".
Amendment agreed to.
I move amendment No. 68:
In page 18, paragraph (g), line 44, after “€1,000” to insert the following:
"or, in the case of a person whose failure to comply with subsection (4) consists of giving or sending information to a member of the Garda Síochána regarding the person alleged to have been driving the vehicle in question which is false or misleading, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a period not exceeding 12 months or to both".
This was in the news last week in respect of speeding fines and penalty points. I am proposing a stiffer penalty for people who knowingly give false information about who was actually driving the car when the offence was committed. There is a loophole and I do not know if it is possible to close it. The threat of a severe fine or a prison sentence might prevent a person claiming that he was not driving that car, that it was being driven by a friend from London or an uncle from America, or even a colleague from Lithuania. The fact that nothing can be done has been publicised recently and obviously there will be an increase in the number of people who try to pull that stunt.
I would have thought it was adequate, but I will come back to it on Report Stage.
We could be talking about somebody who has eight penalty points.
And the loss of the licence for some time, and perhaps the loss of a job.
A fine of €1,000 is nothing to somebody in those circumstances.
It is feature of penalty points systems everywhere. The Deputy is right in the point she makes but we have to call it somewhere.
Where there is a loophole people will exploit it. Will the Minister look at it for Report Stage?
Amendment, by leave, withdrawn.
Amendment No. 69 is in the name of the Minister. Amendment No. 70 is related and they may be discussed together.
I move amendment No. 69:
In page 18, paragraph (g), line 44, to delete “and”.
The deletion of the word "and" in paragraph (g) is a drafting amendment consequential to the amendment to insert a new paragraph (h) as proposed in amendment No. 70. The new paragraph (h) restates for clarity the provisions in subsection (21) of section 103. This subsection was inserted by the Road Traffic Act 2002 and provides that regulations prescribing the amount of a fixed charge may prescribe different amounts in respect of different fixed charge offences involving different classes of vehicles or fixed charge offence committed in different areas. This amendment of restatement in section 14 is mirrored in an amendment proposed to section 15 of the Bill to provide a corresponding provision for operation of the fixed charge system under the Local Authorities (Traffic Wardens) Act. It is technical in nature.
Amendment agreed to.
I move amendment No. 70:
In page 18, between lines 44 and 45, to insert the following:
"(h) by substituting for subsection (21) the following:
"(21) Regulations prescribing the amount of a fixed charge may prescribe different amounts in relation to—
(a) different fixed charge offences,
(b) fixed charge ofences involving diferent classes of vehicles, or
(c) fixed charge offences committed in different areas.”,
and".
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.
I move amendment No. 71:
In page 19, to delete lines 1 and 2 and substitute the following:
"15.—(1) Section 1 of the Act of 1975 is amended by substituting for the definition of "the Minister" the following:
""Minister" means Minister for Transport;".
(2) Section 2 (as amended by section 12(2) of the Act of 2002) is amended by substituting for subsection (2) (as amended by section 12(a) of the Dublin Transport Authority (Dissolution) Act 1987) the following:
"(2) The functions referred to in subsection (1) are—
(a) functions in respect of offences referred to in section 3(1), and
(b) such other functions as may be prescribed after consultation with the Minister for Justice, Equality and Law Reform, and different functions may be so prescribed in relation to the functional areas of different local authorities.”.
(3) Section 3 (inserted by section 12 of the Act of 2002) of the Act of 1975 is amended—".
Amendment agreed to.
I move amendment No. 72:
In page 19, between lines 14 and 15, to insert the following:
"(c) in subsection (7), by substituting for paragraph (h) (inserted by section 23 (c) of the Act of 2004) the following:
"(h) subject to paragraph (f), failure to comply with subsection (3) is an offence upon conviction of which the registered owner is liable to a fine not exceeding €1,000.”,
(d) in subsection (8)(b), to delete “in any circumstances”,”.
Amendment agreed to.
I move amendment No. 73:
In page 19, paragraph (d), line 18, to delete “and”.
Amendment agreed to.
I move amendment No. 74:
In page 19, between lines 18 and 19, to insert the following:
"(e) in subsection (16), by substituting “is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000” for “shall be guilty of an offence”,
(f) by inserting after subsection (17) the following:
"(17A) Regulations prescribing the amount of a fixed charge may prescribe different amounts in relation to—
(a) different fixed charge offences,
(b) fixed charge offences involving different classes of vehicles, or
(c) fixed charge offences committed in different areas.”,
Amendment agreed to.
I move amendment No. 75:
In page 19, between lines 20 and 21, to insert the following subsections:
"(2) Section 4 of the Act of 1975 is amended—
(a) in subsections (1) and (3), by substituting “€1,000” for “£150” (inserted by section 12(c) of the Dublin Transport Authority (Dissolution) Act 1987), and
(b) in subsection (2), by substituting “an offence under section 3(12)” for “an offence under section 3(5) of this Act”.
(3) The following section is substituted for section 5 of the Act of 1975 (inserted by section 15(6) of the Dublin Transport Authority Act 1986 and amended by section 12(3) of the Act of 2002):
"5.—Proceedings for an offence to which section 3 applies or an offence under section 3(12) or 4 may be brought and prosecuted summarily by the local authority in whose functional area the offence is alleged to have been committed or where the local authority concerned has entered into an agreement with another local authority under section 7 by that other authority.".".
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
Amendments Nos. 76 and 77 in the name of Deputy Mitchell are related and may be discussed together.
I move amendment No. 76:
In page 22, column (4), line 47, to insert "2".
These amendments relate to the imposition of five penalty points for failure to have a national car test carried out. A person must also go to court. This seems draconian when a speeding offence attracts two penalty points. I am suggesting two penalty points where someone pays a fine and four penalty points if the matter goes to court. I have not submitted this as an amendment but possibly it could be graduated in order that if people persisted in their refusal to have the NCT carried out the matter could be brought before the courts and higher penalty points applied. This is not proportionate in terms of the fines and penalty points attracted by other offences.
The purpose of the inclusion of Part 8 in the First Schedule to the Road Traffic Acts is to make the offence of not having a valid certificate of roadworthiness for a commercial vehicle a penalty point offence. Part 8 will remove the anomaly. The equivalent offence in respect of a car has been listed since 2002. The penalty point regime to apply under Part 8 is identical to that already in place for the NCT certificate offence. Failure to have an NCT certificate or a certificate of roadworthiness as the case may be for a liable vehicle is a serious offence. A person convicted for not having an NCT certificate on two occasions within a period of three years, in addition to the normal penalty, a fine up to €1,500 increasing to €2,000 under this legislation or a prison term of up to three months or both, will be disqualified from driving for a period of six months, increasing to 12 months under this legislation. Given that a disqualification from driving could arise as a direct consequence of being convicted for a failure to have an NCT certificate, the fixed charge payment arrangement does not apply in regard to this offence. As the penalty points regime is a consequential driving disqualification measure that applies to cars which do not display an NCT certificate, it is being extended under the Bill to goods vehicles and buses. It would not be appropriate for the reasons mentioned to apply the fixed charge payment arrangement to this new category of penalty points offence as proposed in the amendment.
Amendment No. 77, which proposes that the number of penalty points on conviction for not having a valid certificate of roadworthiness for a vehicle should be four rather than five, as provided for in the Bill, would introduce an inconsistency between cars and other vehicles for penalty points purposes for what are essentially identical offences.
I do not accept that they are identical offences. A failure to have one's domestic vehicle undergo a national car test for, say, six months and a failure to have a bus which carries passengers or a heavy goods vehicle which has the potential to cause enormous damage to undergo a test are not similar offences. Is there any period of grace before such an offence attracts five penalty points?
The 2002 legislation provides for the imposition of five penalty points for a failure to have a vehicle undergo a national car test.
While I appreciate that, it is excessive.
Is the Deputy suggesting, apart altogether from the fact that I am introducing penalty points for buses and cars which fail to undergo the NCT, I should reduce the number of penalty points attracted by the offence of not having one's domestic car tested?
Yes. Offences such as speeding which are more serious attract fines and fewer penalty points. It comes down to a matter of opinion. This is not as serious as many other offences. I could understand graduating the level of penalty points attracted for persisting to refuse to have one's car tested.
The position has been taken in all Road Traffic Acts that this offence is a serious one. It is at the top of the list. It may not receive the same airing as other offences but it is not a problem to which we have suddenly been alerted. It was deemed, during consideration of the penalty points system, that the imposition of five points was proportionate to the offence in terms of where it was ranked on the list of road traffic offences. There was no objection at the time; everybody accepted this. I agree with the Deputy on the fundamental point that a failure to have a bus or lorry tested is a far more serious offence but I do not know whether it should attract higher penalty points. We should not drop the issue——
Who is held responsible when a person is not notified of a national car test?
Does the NCT centre notify a person when a certificate is out of date?
No, it is the responsibility of the driver to ensure he or she has a valid certificate. The State cannot mind us in every circumstance. There is individual responsibility.
Amendment, by leave, withdrawn.
Amendment No. 77 not moved.
Section 16 agreed to.
SECTION 17.
I move amendment No. 78:
In page 23, after line 47, to insert the following:
"(d) At all material times, evidence gathered under this section shall be subject to scrutiny and supervision by a member of the Garda Síochána.”.
I raised this matter during the Second Stage debate. I am seeking to make the legislation less liable to challenge in the outsourcing the operation of speed cameras. I am not against outsourcing; it is a good idea which will release gardaí to deal with other issues. The operation is technical and others may be better qualified than members of the Garda Síochána to operate speed cameras. Nevertheless, given that their operation is part of the criminal justice system, it should be subject at all times to scrutiny and supervision by a member of the Garda Síochána. We all know clever lawyers are already looking at ways to challenge the law in this regard.
Amendment No. 83 has been ruled out of order. One only has to make a calculation of the likely number of photographs taken to estimate the likely number of cases that will come before the courts. It is possible 500,000 or more cases a year will be brought before the District Court. This will completely clog up the courts system, unless a special court is established to deal with these cases. I am aware the Minister does not wish to discuss this matter today but it is one he will have to discuss with the Minister for Justice, Equality and Law Reform.
I am interested to know if he has given any consideration to it. However, if cases which are brought before the courts are to stand up, the operation of speed cameras must be subject to overall supervision by the Garda Síochána. This is not to suggest the Garda must be involved in all operational matters but it must be empowered to supervise operations should it so wish.
The operational parameters and organisational structures for the operation of speed cameras, the performance of any functions relating to the establishment of prima facie proof of an offence and the functions referred to in section 21(7) of the Bill are all factors that shall be provided for in the contractual agreement between the Minister for Justice, Equality and Law Reform and the private sector operator. Interestingly — this is purely a coincidence — I heard a presentation yesterday by a company which is the main operator of speed cameras in Australia and I had my eyes opened. What one believes might make this work may be very far from the reality of how the system works. Much depends on the structures built around the system in terms of the perception of what is being done. The company concerned has vast experience in this area and has operations worldwide. It has honed many of the systems operated and fed into public policy with the police and even the courts system in the various countries concerned. This is a matter for the Minister for Justice, Equality and Law Reform to decide but I was happy to meet the representatives of the company in question to hear what they had to say. The company also had interesting views on the issue of fixed and mobile cameras.
I do not want to move away from the principal point the Deputy is making but the Garda Síochána must set the parameters. I got the impression yesterday that there was a robust role for the private sector to play in this area subject to proper rules, regulations and agreement with the Garda Síochána. We in Ireland are great at reinventing the wheel — we want to do it our way. I will not blame the Civil Service structure. Where there are very good systems, I hope we will buy into that to make it work. As systems have developed, the private sector is able to do an enormous amount on the administative side because they have the technology and the back-up. I was fascinated by it. It became a different issue from my simplistic view of just getting the speed cameras.
Challenges will inevitably come. Is this measure——
Evidence has to be presented by the Garda.
The Garda might produce evidence over which it has had no oversight.
That will have to be set out in the contractual arrangements between the Minister for Justice, Equality and Law Reform and the company which wins the contract. All of that has to be catered for.
It would not be in legislation; it is simply a matter that goes into the contract.
Exactly. We have set out the parameters in legislation.
The Minister said a special division of the courts would be set up but we have not heard anything about it. We know how many cases will end up in the courts.
No, I did not. I do not recall saying that.
I think the Minister for the Environment, Heritage and Local Government has been pronouncing recently on some issues about special courts.
I stand to be corrected but I certainly do not recall saying it.
I think I know what the Deputy is referring to. I did say quite a lot about the unfortunate difference between our country and other countries. The courts here are dwelling on process rather than the crime committed. In the UK, which has a similar court system to ours ——
Maybe I dreamt it. The Minister should be saying it because there will be thousands of cases in the courts.
I think we would all agree with that point. Somebody may be over the limit but if the i's are not dotted, that is another matter. Has the Minister looked at how he might deal with that huge problem?
I agree that it is a huge problem. Whether I was right or wrong to pronounce on it, I think it was a reasonable thing for me to say publicly. I appreciate that the Deputy would agree. It is quite clear that the approach of the courts in other countries has little to do with process and judges will not tolerate that debate. I think that contributes to the fact that the UK is in the top rank in terms of law enforcement on road safety. People know they will not be able to go to court to argue the niceties of technical points and get off. They do not get off. A person who was over the limit will be found guilty. I have said to the Minister for Justice, Equality and Law Reform — and I think he agrees — that this is the way we must get the courts thinking and operating. It is an extraordinarily powerful message to send into the public domain and people will begin to understand that there is no longer the prospect of long cases being fought through the courts on technical issues and people getting off.
There is a philosophical issue in terms of how the courts operate. We could get a lot sharper. Interesting research is being carried out which indicates that there is a public buy into this in very high numbers. I hope the courts are listening to that message.
What is the timescale for the tendering and awarding of contracts?
The process has already started. The working group met yesterday to consider the tender. It had been working in advance in preparing the tender document. There will have to be an Act before it can trigger it. Other than the normal statutory process, much work has been done already.
Do they know what they are looking for?
It is for the Department of Justice, Equality and Law Reform to organise this, not for me. However, I am not a neutral bystander. I am very interested in it. Talking to the huge company in Australia that operates these systems was extraordinarily interesting. I presume the Deputy met the company. The latest digital technology is amazing.
Perhaps we should send the judges to Australia.
The clarity and added value it can bring are important. I do not know what system will be chosen but I would urge whoever is involved to choose proven technology with a capacity for added value.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Section 18 agreed to.
SECTION 19.
Amendment No. 79 in the name of Deputy Shortall is out of order.
Did the Chairman get further advice?
I am challenging the ruling of the Chair.
The Deputy cannot do so once it has been ruled upon. The ruling of the Chair is final. I am sorry about that.
I will pursue it on Report Stage.
Amendment No. 79 not moved.
I move amendment No. 80:
In page 26, line 34, to delete "of the European Communities".
This is a technical drafting amendment. It is unnecessary to include in legislation "of the European Communities" after "member states", given that the Interpretation Act 2005 defines the term "member state" as a member state of the European Communities.
Amendment agreed to.
Section 19, as amended, agreed to.
Amendment No. 81 in the name of Deputy Mitchell is out of order.
Amendment No. 81 not moved.
NEW SECTION.
I move amendment No. 82:
In page 26, before section 20, to insert the following new section:
"20.—(1) The Principal Act is amended in section 53 by the insertion of the following after subsection (2):
"(3) any prosecution brought under subsection 2(a) of this section shall be on indictment only and shall not be brought in a court of lower jurisdiction than the Circuit Criminal Court.”.”.
The amendment would have the effect of moving to a higher court the offence of dangerous driving causing death. It is a serious offence which should not be dealt with in the District Court.
Section 63 of the 1961 Road Traffic Act states that where the offence of dangerous driving causes death or serious injury, the person involved will be tried on indictment. By definition, trial by indictment means that this case will be heard in a court which is higher than the District Court.
Amendment, by leave, withdrawn.
Amendments Nos. 83 and 84 in the name of Deputy Mitchell are out of order.
Amendments Nos. 83 and 84 not moved.
Section 20 agreed to.
SECTION 21.
I move amendment No. 85:
In page 27, lines 24 to 26, to delete paragraph (a).
This relates to a proposed amendment to the Taxi Regulation Act 2003. My reading of the paragraph is that it removes the mandatory requirement for a pension fund to be established and makes it discretionary. I cannot understand why the Minister should seek to do that.
The purpose of paragraph (a) of this section is to make a minor amendment to section 24 of the Taxi Regulation Act 2003 by the substitution of “may” for “shall”. The purpose of the proposed amendment is to remove the obligation on the Commission for Taxi Regulation to establish a fund administered by trustees from which superannuation benefits would be payable in respect of the commission staff.
The amendment arises from the Department of Finance's advice on the matter and the fact that the original wording is unsatisfactory as it obliges the commission to set up a fund administered by trustees, which would be expensive, time consuming and unnecessary in a body like the commission, which does not have a large number of employees. The Department of Finance has indicated that it would be unlikely that the level of contribution from the small commission staff complement, currently ten staff and one commissioner, would be sufficient to meet the costs of running the fund. It is also unlikely that the fund would be able to meet the requirements laid down by the Pensions Board. In addition, they advise that the presence of a fund would require that the accounts of the commission should meet the requirements of accounting standards FRS 17, which are onerous and very costly.
Amendment, by leave, withdrawn.
I move amendment No. 86:
In page 28, to delete lines 17 to 20 and substitute the following:
"(ii) in subsection (3A) (inserted by section 36(e) of the Act of 2004) by substituting “is not or has not been imposed” for “is or has not been imposed”.”.
This is a minor amendment to clarify the text of the subsection.
Amendment agreed to.
Section 21, as amended, agreed to.
NEW SECTION.
: Amendment No. 87 is in the name of the Minister. Amendment No. 91 is related and they may be discussed together.
I move amendment No. 87:
In page 28, before section 22, to insert the following new section:
"22.—The following are repealed:
(a) subsection (6) of the Principal Act,
(b) section 16 of the Road Transport Act 1999, and
(c) section 56 of the Taxi Regulation Act 2003.".
Section 22 provides for the repeal of three provisions, the first of which is subsection (6) of section 69 of the Road Traffic Act 1961. Section 69 of the 1961 Act gives power to a garda to demand the production of an insurance certificate in respect of the use of a vehicle, but the application of powers under section 69 is exempted from subsection (6) in respect of a vehicle that is not normally based in the State. The amendment proposed in section 19 of this Bill would allow the Garda to query the insurance status in relation to the driving of vehicles registered outside the State and to impound any vehicles which do not have insurance in place. The repeal of subsection (6) arises as a consequence.
Amendment No. 88 reads: "In page 28, line 21, after "(6)" to insert "(inserted by S.I. No. 463 of 2001)". It seeks to clarify where subsection (6) came from.
I have been advised by the Office of the Parliamentary Counsel that the convention is that there is no necessity for such signposting to be included in repeal provisions. Therefore, I cannot accept the amendment.
Amendment agreed to.
Amendment No. 88 not moved.
Section 22 deleted.
SECTION 23.
Amendment No. 89 in the name of Deputy Mitchell is out of order.
Amendment No. 89 not moved.
I move amendment No. 90:
In page 28, subsection (2), line 27, after "provisions" to insert the following:
", but all sections shall be commenced within 12 months of the Act coming into law".
The amendment is self-explanatory.
I appreciate that the Deputy is eager that all provisions of the Bill should come into effect. I reassure her that they will come into effect fairly speedily. I propose to commence the important policy initiatives set out in the Bill without delay to tackle the level of road deaths and injuries. I do not think it is necessary or appropriate to make provision that all sections be commenced within 12 months of the Act coming into law. I intend to move immediately.
I will hound the Minister.
I have no doubt that I will be hounded by both Deputies.
Is it the Minister's intention to bring forward a consolidation Bill at the end of the year?
It would be disingenuous to say that I will be in a position do so. Given the scale of the legislation I and other Ministers are trying to get through the Office of the Parliamentary Counsel, the chances of producing a consolidation Bill are very marginal. That is not to say it should not be done. When I was the Minister of State at the Department of Finance, I was involved in the effort to consolidate the Tax Acts and I know the amount of time involved.
There is some effort, but there is no point in giving a misleading response.
Amendment, by leave, withdrawn.
Section 23 agreed to.
TITLE.
I move amendment No. 91:
In page 3, line 8, after "2003" to insert the following:
"AND TO REPEAL SECTION 16 OF THE ROAD TRANSPORT ACT 19992.
Amendment agreed to.
Amendments Nos. 92 and 93 not moved.
Amendment No. 94 in the name of Deputy Mitchell is out of order.
Amendment No. 94 not moved.
Title, as amended, agreed to.
The committee has completed its consideration of the Bill. I thank the Minister and his officials and spokespersons.
I thank the Chairman and the committee for facilitating the Bill. I appreciate the efforts that have been made by colleagues and the spirit in which the debate has been conducted.
I thank the Minister and his officials. I think it was hunger that pushed us to an end.
I join the thanks to all the officials involved and the committee secretariat.
