If the House so agrees, amendment No. 1 might be taken with several other amendments—amendments Nos. 22, 23, 24, 25, 26, and 27—and a separate decision can be taken, if required, on all amendments except amendment No. 23 in the name of Deputy O'Higgins, which cannot be moved if amendment No. 22 is agreed to.
Road Traffic Bill, 1960—Report Stage.
It struck me, in relation to, say, amendments Nos. 22 and 23, that the best way to get a proper debate would be to recommit these amendments. I do not see how they can be properly discussed in one speech, especially if we are to discuss the whole thing in one debate.
Would the Minister agree in principle to recommit in respect of some of these amendments? In addition to what Deputy Sheldon has said, I think it is possible that amendment No. 25 should be recommitted.
Amendments Nos. 22 and 23 both propose to delete a subsection and each has its own version of what should be substituted. I cannot see how a debate on Report Stage could deal with that matter.
It is a matter for the Minister and the House.
The only thing I wish to say is that there were full and exhaustive debates on this whole matter generally, and as a result of certain objections raised by members of the House, I undertook to reconsider certain parts of the section and to amend it, if possible. I have put down amendments which I feel meet the objections raised in the House at the time. The idea of recommitting these matters for further full discussion certainly does not appear to me to be very necessary, in view of the long debates we had.
I appreciate the Minister's point of view and I am sure he will appreciate that a number of amendments which were proposed on Committee Stage were not pressed on the Minister's agreement to reconsider them. I suggest, at any rate, that he should agree to recommit in respect of amendments which were so withdrawn and which it was necessary to repeat on Report Stage in some shape or form because the Minister could not agree to put down Government amendments. He should agree to recommit in respect of those cases in any event.
Perhaps I could give an example. The Minister has dealt adequately in his amendments with the objections raised with regard to companies dealing in self-drive cars. I strongly urged on Committee Stage that the same arguments applied to a private car owner who lent his car. The Minister's amendments deal very adequately with the position of a hire purchase company or a company dealing in self-drive cars, but he has not covered the position of a private individual who lends his car. I have tried to cover that in one of my amendments.
My recollection is that we discussed the aspect which the Deputy is now raising very fully.
The discussion ended on the Minister's undertaking to look into it.
I think it was quite clear then.
Amendment No. 1.
Could we take amendments Nos. 22, 24 and 26 in conjunction with amendment No. 1?
If the House agrees, amendment No. 1 may be debated with amendments Nos. 23 to 27.
I should like an opportunity of looking at these. Is it suggested that amendment No. 25 be taken also?
I think they might all be discussed together.
I move amendment No. 1:
In page 7, to insert, before line 21, the following definition:
"‘hire-drive agreement' means in relation to a mechanically propelled vehicle, an agreement under which the vehicle is hired from its registered owner, other than—
(a) a hire-purchase agreement,
(b) an agreement merely for the carriage of persons or goods, or
(c) an agreement under which the registered owner of the vehicle drives, or provides a driver for, the vehicle."
The object of these amendments, Nos. 1, 22, 24 and 26, is to provide that in the case of hire-drive cars, registered owners will not be liable for parking offences or certain other offences under Section 86 provided they can show that a hire-drive agreement, as defined in amendment No. 1, existed at the material time. The hirer, however, will be liable, unless he can show that the vehicle was being used by another person and that such use was unauthorised. Objections to the provisions of subsection (5) of Section 86 and of subsection (9) of Section 90 were voiced by a number of Deputies during the Committee Stage. I think I promised to consider the matter and I feel that these amendments take care of these objections, and meet them as fully as is possible.
The further amendments put down by Deputy O'Higgins, Nos. 23, 25 and 27, would tend to extend or remove from the jurisdiction certain other categories of drivers—in other words, registered owners of a wider category than those connected with the hire-drive business. As I explained during the Committee Stage, to extend this let-out to any further category would be tantamount to reverting to the position which we are at the moment trying to remedy. That would seem to be the case if we extended the category to the group indicated by Deputy O'Higgins just now, persons who might lend cars to friends. He suggests they should be regarded as a special class and should not be held responsible for anything their so-called friends would have done with the cars. I do not think that is in accord with any attempt to solve the difficulties we have had to deal with in the proposed amendments, Nos. 1, 22, 24 and 26.
Undoubtedly, a much different complexion can be put on the situation where one lends a car to another person. A car is not like a box of matches; it is much more valuable and not every body can borrow somebody else's car. It is only right that, in lending one's car, the owner should have due regard to the type of person to whom it is lent. If he is a person to whom one would lend a car then, any consequences, any penalties, arising from its misuse would not have to be faced by the person who lent the car in the first instance, or, if they had to be met by the owner, the person to whom the car was lent was not, in the first instance, a friend and, in the second, he was not a good choice of person to whom to lend a car.
I think that having the choice of person to whom one may lend a car places an owner in a much different position to that of the owner of a hire-drive car. The hire-drive registered owner would be at a much greater disadvantage in that he would be merely carrying out a commercial transaction. He would not know the bona fides of the customer beyond the fact that he was a person to whom he was hiring the car and that he had a driving licence and had paid his money. In allowing a private car to be driven by a friend, the registered owner, I think, would have regard to the type of person to whom he was giving the car and for any misuse of that car while being driven by the friend, if not fully met by that driver, the registered owner should bear some measure of responsibility in the public interest.
As I said at the outset, to widen any further than is absolutely necessary— as in the case of the hire-drive owners —this let-out would bring about a situation wherein the liability placed on a registered owner in relation to parking offences, which we are imposing in the Bill in a general way, would lose its real significance and would not cure the difficulty that exists in regard to prosecutions for parking offences at the moment. It would not help to close the loophole that undoubtedly exists in the law as at present operated.
I think the Minister's amendment, as I said already, probably deals with the situation quite adequately as far as the proprietor of a self-drive car business is concerned but the Minister has turned his face completely against the pleas made on behalf of the ordinary private car owner. The case which the Minister has made for refusing to accept my amendment is to me, at any rate, extraordinary. He has made it quite clear that he wants this House to legislate in such a way that a person who, in fact, is innocent of any offence is guilty by statute of an offence committed by another person. The Minister's reason for doing that is, quite clearly and blatantly, to assist the Garda authorities in obtaining convictions in prosecutions brought by them. The Minister was not shy about saying it—that he wanted to clear up the law and to assist in solving the difficulty in regard to prosecutions. That is the keynote struck by the Minister in connection with parking offences particularly.
I appreciate the difficulty which exists at the moment where, in order to ensure a conviction on foot of a prosecution, the Garda authorities must have their evidence and have it in order. The Minister is asking the House now to legislate in such a way that the Garda authorities need not have any evidence at all, other than evidence of the ownership of the car. He is asking the House to say that if a parking offence is committed, no matter by whom, the person who is to be made amenable in the courts is the registered owner of the car.
I think that is going too far. It is entirely wrong for the Minister to consider that there should be any difference in principle between the application of the law in this regard to a private car owner, on the one hand, and to a wealthy car hire concern, on the other. The private owner should get at least an equal measure of justice as the wealthy car hire firm. The position the Minister is asking this House to accept is that if the owner of a car happens to be a car hire firm and the car is subject to a self-drive or hire agreement, then if a parking offence or any other offence is involved in connection with that car, the registered owner will not be amenable to the court and will have no responsibility despite the fact that the concern may be a wealthy one or may have extremely valuable cars or a fleet of valuable cars on the road.
On the other hand, when dealing with the private car owner, the Minister tells the House that the owner of a car must remember that he owns a valuable article, that it is not the same thing as a box of matches and that he must have regard to the type of person to whom he lends the car. The car may be a valuable article. It does not gain or lose in value, depending on whether it is owned by a wealthy firm of proprietors of a car hire service. It is equally valuable in their hands as it is in the hands of a private owner. In fact, because they are making their profits out of it, it is probably more valuable in their hands, so that, when the Minister argues on the premises that there is something important in this because of the value of a car, I think his argument is rather weak.
I think the Minister is wrong also when he seeks to divide the population into different types of people; the people to whom a car may be lent and the people to whom a car may not be lent. There is no particular type or category that can be singled out as likely to commit a traffic offence. The Minister, being the person in charge of this Bill and having responsibility for it and for some effort to codify the law in this regard, must know as well as any Deputy that, while you may have a person who has for one reason or another been convicted of traffic offences on a number of occasions, you also have—and very much more frequently—before the courts the person who has never been before the court before in his or her life, the person who comes before the court for the first time. How is the Minister going to define a class, type or category of persons to whom it is proper to lend cars in the knowledge that the vast majority of people who come before the courts for traffic offences are people who have never been to court before in their lives?
It seems to me that ordinary simple justice dictates that the person who should be made amenable in court is the person who commits the offence and not some person who is entirely innocent of any offence whatever, other than what is now being made an offence by the Minister—the offence of owning a car and lending it to another person. That is what the Minister says amounts to. Hereafter, it is to be an offence to own a car and to lend that car to another person if that person uses the car in a way which is a breach of the traffic code, the bye-laws made by the Commissioner of the Garda Síochána or the parking regulations.
Let us be quite clear on this. The Minister's idea quite clearly is to assist the Garda, not in preventing the commission of parking offences or other traffic offences, but in securing a conviction. The important thing in the Minister's mind seems to be to get a conviction because this Bill is not going to assist him one whit in getting a conviction against the person who committed the offence. All it will do is to enable the Garda, without having to pay any proper attention to securing their evidence or presenting their evidence, to get a conviction against the owner of the car.
I think this whole thing is quite unfair. It is quite unprecedented. It seems to me that the Minister could avoid the injustice which undoubtedly will be caused under this Bill by accepting the amendments I have proposed—Amendments Nos. 23 and 25. Amendment No. 23 deals with Section 86, subsection (5). I should say that the section deals with stopping places, stands for omnibuses and regulations made by the Commissioner of the Garda Síochána. It is provided in subsection (5) that:
Where a person uses a mechanically propelled vehicle other than an omnibus in contravention of a bye-law under this section, he and, if he is not the registered owner of the vehicle, such owner shall each be guilty of an offence.
All I am asking the Minister to do, in effect, is to delete in subsection (5) the reference to "the registered owner of the vehicle."
It is right, proper and just that if a person uses a mechanically propelled vehicle in contravention of the bye-laws, he should be guilty of an offence, but is there any justice at all in saying that the registered owner of the vehicle, who is an entirely innocent party, should also be guilty of an offence when, in fact, the only offence which he could, by any stretch of the imagination, be said to be guilty of, even on the Minister's presentation of the case, is an error of judgment in the choice of the person to whom he lent the car? I am suggesting also in amendment No. 25 that subsection (8) of Section 86 should be amended by the addition of the words proposed by me.
Subsection (8) purports to provide a person who finds himself facing a prosecution merely because he is the registered owner of a car in which someone else has committed an offence with a defence when he is hauled into court. The subsection as it stands reads:
Where a person charged with an offence under subsection (5) of this section is the registered owner of the vehicle, it shall be a good defence to the charge for him to show that the vehicle was being used on the occasion in question by another person and that such use was unauthorised.
That is measuring out very poor justice indeed to the type of person I have in mind and to the type of case which will go to court most frequently when this Bill becomes law.
Subsection (8) deals only with the case of a person using another person's car without that person's authority. If my car were used by another person without my authority and the unauthorised driver were guilty of the offence contemplated in Section 5, it would be grossly unfair that in those circumstances I should be said to have any culpability whatever.
It is equally grossly unfair if in the goodness of my heart, possibly in a very needy case or in a case of extreme urgency, I lend my car to another person and am regarded as guilty of an offence if the person to whom I lend my car has been in breach of one of the bye-laws contemplated in this section.
I think the Minister should accept the two amendments I propose. In particular, I press amendment No. 25 that, to subsection (8) of this section, he should add the words "or that such offence was committed without his knowledge or authority." The subsection as it stands provides a defence only to a prosecution brought under subsection (5) in one case and that is the case where the owner is able to show that the car was being used without his authority.
It does not deal at all with the case where the user of the car was authorised, where the car was given on loan. But, where the owner of the car had no knowledge, good, bad or indifferent, that the person using it was going to commit a parking offence or was even the type of person who might be likely to be in breach of a bye-law under subsection (5), I think it would be only ordinary justice that the owner of the car should be cleared of any culpability if he is in a position to show that the offence was committed without his knowledge or without his authority.
I do not think there is anything else I can usefully say on this. I welcome the fact that the Minister has been prepared to accede to the case made here, in part, but I think that, having acceded to the case which was made, he is going off the track when he endeavours to differentiate, as he has done in his amendment, between the large concern on the one hand and the private individual car-owner on the other hand.
I think the Minister has met very fairly the case made in respect of the car hire firms. I do not pretend to be a lawyer or to understand whether the words set out will have the precise effect. To me they appear to do so and, in respect of that case, I think he has met the House very fairly.
My original point of view coincided very nearly with that expressed by Deputy O'Higgins. On further consideration, I cannot find I would go as far at all as Deputy O'Higgins on this. He referred to the Minister giving way in relation to wealthy car hire firms while the poor owners of private cars will not be let off. Surely the distinction has nothing to do with the wealth of the car hire firms? My case was that these firms are a very useful adjunct to the tourist trade. I could not care less about car hire firms as against other car owners but in so far as they are a useful adjunct it is the duty of the House to protect them. They are of great importance to the tourist trade.
I am quite satisfied to see this safeguard inserted. I do not believe it matters a fiddle-de-dee whether the car hire firms are wealthier or not wealthier than any particular private motorist. I have a shrewd suspicion that some private motorists are a good deal wealthier than all the car hire firms in Ireland. I cannot follow the Deputy on the question of the difference between persons to whom one may safely lend a car——
That was the Minister.
I think the view held by Deputy O'Higgins in relation to what the Minister was talking about is mistaken. So far as I understand the position, the Minister is not suggesting that there are certain kinds of persons about whom one should be careful when lending a car in respect of how they use it—if they commit a parking offence, will they admit to it or let the registered owner hold the baby for them? In other words, in lending a car you must be careful not to lend it to someone who will rat on you.
But they are both guilty. That is the whole point. Even if the registered owner does acknowledge who the driver was and gives the information to the Gardaí, nevertheless they are both guilty under the Bill. That is my objection to it.
If that is so, it is a consideration to which I had not adverted. I understood that what the Bill purported to do was that if the actual parking offence was committed by someone who had a loan of somebody else's car and could not be traced by the Gardaí then they would pursue the registered owner.
I think the Deputy made that suggestion as a way out. It was a sensible suggestion but it has not been adopted by the Minister.
The precise legal implications of a good deal of this, as a layman, are beyond me. I understood the intention was to pursue the owner only if the person who actually committed the offence could not be found. The Minister made the point that under the law as it stands at the moment, the person who comes along and claims a wrongly parked car can say: "I did not park it" and get away. To prevent lies being told and someone dodging the column, the registered owner can be pursued and presumably then the friend to whom he has lent the car will acknowledge it was his fault. If that is not so then I hope the matter will be further pursued in another place and be clarified. If necessary, I hope the Minister will seek a clarification of this point. It would be absurd that the registered owner should be pursued if it could be proved that another person actually committed the offence.
With regard to Deputy O'Higgin's remark that the Minister seemed to be trying to find a way to give teeth to the Guards to enable them to stop parking offences, surely that is the purpose of amending legislation, to provide what is lacking. This, I must admit, is the only way I have heard suggested yet to clear up this parking trouble—to give the Guards the power to pursue the matter further. However, if Deputy O'Higgins is right and I am wrong and the intention is to pursue not only the person who committed the offence but the registered owner, regardless of whether the real offender is caught or not, then I would have second thoughts about it.
As I read this, it is a last line of defence on the part of the authorities in relation to the prevention of parking offences. I fully agree with the Minister when he says lending a car is not like lending an inanimate object like a box of matches. I do not think a box of matches is a very happy choice. A box of matches could be a very dangerous thing in the wrong hands. Some other phrase might have been found.
Possibly if you lent them to a pipe smoker, you would not get them back.
You could lend a car to somebody and not get it back and the loss would be greater. People must realise that in this age, with the traffic problem as it is, more care must be exercised by everybody who owns a mechanically propelled vehicle both in respect of his own use of it and the type of person to whom he may lend it.
The owners of vehicles have certain responsibilities. Under this Bill they are liable for insurance and would be liable also for test certificates. I cannot see anything terribly unreasonable in making a registered owner liable in these cases we have been discussing for improper parking, as it is the only way to secure the proper use of our road space. It is not an unduly weighty responsibility. Deputy O'Higgins says we are creating various sections, breaking them up into categories, dealing with one group in one way and another group in another way. When the Bill came to the House, there was no breaking up at all. Everybody was regarded in the same way. All registered owners, no matter what might have been their peculiar circumstances, were being made liable, in conjunction with or in substitution for a user or driver of a car, in relation to a parking offence. At the behest of this House and on reconsideration, with particular reference to the hire-drive groups of cars and to the service which they are rendering and the peculiar circumstances in which their cars are hired out, we did find this way to deal with a situation which, having regard to the Bill when it came before the House, would have been an impossible one for these hire-drive people. We therefore found a way to remove from the general pattern the hire-drive cars.
In doing so, we have got from the hire-drive people who are responsible for approximately 3,000 cars in this country, an assurance of their fullest co-operation with the authorities in trying to trace and catch up with the driver or hirer of a car who has been involved in a parking offence. They have also assured us of their fullest co-operation with the authorities even in removing the cars that may be so wrongly parked in any of our streets. That has come from them voluntarily and, taking all the circumstances into consideration as enumerated here by the various Deputies and the assurances these hire-drive people have given in respect of their 3,000 cars, this is a satisfactory provision.
It must be remembered that it is 3,000 against 3,00,000 other vehicles. The significance of these two figures should not be lost on the House. In relation to the question of the private owner, we are dealing with hundreds of thousands of cars rather than a mere 3,000. Again there is no comparison between the circumstances of a hire-drive firm in its relationship with the hirer of one of its cars and those of a private owner who may lend his car to a friend or acquaintance.
It is true that the owner and user of the car are both made liable under this Bill for parking offences. It should be explained to the House, however, that it has been found really impossible from a drafting point of view to disentangle these two so as to say clearly and categorically that only one of them will be followed. We can say administratively that only one will be followed, but because of the drafting difficulties both are made liable in order that we may make effective the intention of this House as enshrined in these sections of the Bill, that is, to find somebody, whether it be the user or the registered owner, responsible for the misuse of our road space, whether by obstructional parking or dangerous parking.
Under the law at present, as every Deputy knows, there is no way in which improper use of our road space can be properly got after, for the reason that if the person parking the car cannot be got when he is parking it or when he is taking it away, if there is not 100 per cent. proof of the whole operation, there can be no question of anybody proving that he has been guilty of any offence. This provision will remedy that situation. However, this provision is not inserted merely for the purpose of getting convictions or carrying out prosecutions. It is for the purpose of dealing with the very big problem which has arisen because of the increasing number of road users and to enable the best possible use to be made of the road space available to us.
If we were to allow, as has been going on for a considerable number of years, indiscriminate parking without any responsibility resting on anyone with regard to it, then we might as well throw our hats at any effort at making our roads more safe and enabling them to fulfil the purpose for which they are provided, that is, to allow the population to come and go where they will and how they will. I might add, for those who feel there is something in this question of the responsibility for parking ultimately falling on the owner of the vehicle, that fines on the spot will apply in most cases. So long as the fine will have been paid—it does not matter by whom—no prosecution will follow. If I lend my car to a friend who parks it improperly and I ultimately get a demand for a fine on the spot to be paid within so many days and I pay that fine, it would be a very poor friend, who, even if he had left the country, on hearing that his improper parking cost me £1 would not reimburse me that sum.
During the Committee Stage I asked the House for suggestions to deal with this problem. Since that Stage we have received no solutions from anybody. That is so because the solutions are not half as evident as would appear from those who seek to talk on this Stage. It is not easy to find solutions for this problem. I said I was open to consider feasible solutions and I invited Deputies to put them forward. They have not come forward, and I believe the difficulty is that there are simply no great number of solutions to the problem.
Is it not a Garda problem rather than a road traffic problem? Is it not a question of having sufficient Gardaí?
It is a question of not having in the minds of road users any real sense of their responsibility in regard to the use to which they put road space and in regard to consideration for others.
The majority of drivers are responsible people.
The Deputy knows that even if we had a Garda at every lamp post, by leaving the law as it is, we still would have indiscriminate parking by a number of selfish people. They come in to work in the morning and insist in parking in the one place until they go home from the pictures or, perhaps, after a late supper. A Garda at every lamp post would not prevent such people from sneaking in and sneaking off and causing confusion for those who may have to use that street during the day. As the law stands, those people have been getting away with it. If we do not adopt what is proposed here, they will continue to get away with it; and I do not think they should get away with it.
The few practised in this art over the years have had a fair innings. It is about time the remainder of the motoring public, in this city in particular, had some rights defined for them. The few selfish people should not be allowed utilise that space indefinitely and others of the public should be given some consideration. If they are not going to get it—and it appears it will not be given freely to them by the selfish few—the only alternative is to try to bring the selfish few to boot. That is what we are trying to do in this case.
It will make it simpler for us. We will not be able to give our cars on loan to anybody.
That is another matter.
Amendment agreed to.
I move amendment No. 2:
In page 10, to add the following subsection to section 6:
"(7) Every bye-law made under section 86 or section 88 of this Act and approved of under this section shall be laid before each House of the Oireachtas as soon as may be after it is approved of and, if a resolution annulling the bye-law is passed by either such House within the next subsequent twenty-one days on which that House has sat after the bye-law is laid before it, the bye-law shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."
This amendment provides that bye-laws made by the Commissioner and of general application must, after approval by the Minister, be laid before both Houses of the Oireachtas and will be subject to annulment in the same way as regulations. I undertook on Committee Stage to bring in this amendment and I feel this satisfies the commitment given by me at that time.
These bye-laws would be of national application?
Of general application. yes.
Amendment agreed to.
I move amendment No. 3:
In page 12, line 43, to insert "(including any equipment or devices used in connection therewith)" after "loudspeakers".
Again, this amendment is a follow-up to a promise I gave on the Committee Stage. It is to deal with the use of loudspeakers attached to a vehicle. I think the amendment meets the points raised on the Committee Stage and fulfils the promise I gave.
The Minister mentioned "attached to a vehicle". The word "attached" does not appear in the amendment. On Committee Stage I raised the point and asked did "on" cover everything.
It is felt that the description "fitted...or carried on it" covers the point.
Amendment agreed to.
I move amendment No. 4:
In page 12, between lines 44 and 45, to insert the following paragraph:
"(i) the number of vehicles which may be drawn at any one time by a mechanically propelled vehicle or by a mechanically propelled vehicle of a particular class, the overall length and width of a combination of vehicles and the maximum speed at which combinations of vehicles of different kinds may be driven."
This amendment is designed to give the Minister power to make regulations dealing with what I think is fast becoming an abuse of our road systems. I want to be careful in this so that I will not be misunderstood. It deals with the excessive use of large trailers of one type or another. I am not referring now to the ordinary small trailer which one frequently sees used for the purpose of bringing milk cans out to the road or to the dairy or something of that sort, but the large heavy vehicle which draws behind it two, or possibly, even three, equally large vehicles on comparatively narrow roads. That, I think, constitutes a traffic hazard of very serious dimensions. It is not clear under Section 11 of the Bill as it stands that the Minister has power specifically to deal with this particular road hazard or road nuisance, as it very frequently may be.
I am suggesting that the Minister should add to subsection (2) of Section 11 another paragraph to regulate:
"the number of vehicles which may be drawn at any one time by a mechanically propelled vehicle or by a mechanically propelled vehicle of a particular class, the overall length and width of a combination of vehicles and the maximum speed at which combinations of vehicles of different kinds may be driven."
I suggest the Minister should have specific power to make regulations dealing with that problem. It may not be necessary for the Minister to make regulations at the moment. The Minister, on considering the situation, may decide that the type of vehicles and trailers in use at the moment are reasonable and do not require to be curtailed in any way. I should feel more comfortable if the Minister had power to make regulations to deal with a problem which exists at the moment and with a situation which is developing more and more. I refer to the growing use of bigger and bigger trailers on the roads. I passed one of these recently — I think it was a C.I.E. trailer — on the main Dublin-Wicklow road. That is certainly not a road on which to speed. It is certainly not a road on which one can drive comfortably with these large vehicles confronting one. On that road, there were three trailers being pulled by one vehicle—what might be described as a road train was being driven along. The proper place for trains is on railway lines. We should discourage the use of roads, particularly roads in tourist and holiday areas, in a manner akin to that of a railway line.
If the minister has not power already to do what Deputy O'Higgins asks, then he should take the power. I certainly support this amendment. I do not know whether I met the same trailer but I did meet a combination of vehicles such as Deputy O'Higgins described. I met that combination on the Dublin-Wexford road last week. I may have met it in County Wicklow. If my memory serves me correctly, there were only two trailers attached.
I think it was two.
The overall length was in the region of 40 yards. That is too much space for any combination of vehicles to take up on our roads. The Minister should take power to prevent that sort of traffic. There is no need to emphasise the kind of hazard such a combination of vehicles presents on our roads. One thing which concerns me is the type of trailer or attachment that one sees on tractors nowadays. I have no objection to tractors being used to pull different types of farm machinery. There is a hazard, however, inasmuch as a tractor is about three feet wide and it may have attachments which are six and seven feet wide. It is very difficult to guage width. I have a great fear that sometime—I hope it will never happen—I may hit one of these attachments which extend one or two feet beyond the width of the tractor itself.
I know the Minister will have great difficulty in making regulations. I know he will meet with very serious opposition if he tries to provide against that sort of thing. He might, however, introduce a regulation insisting that the extremity of the machine in tow be clearly defined by some sort of special mark in paint, or a flag, or something like that. Trailers have caused accidents before this. I do not want to meet with the sort of accident trailers can cause. I have reasonably good eyesight, but I find it very difficult at times to gauge the width of these attachments to tractors.
Major de Valera
Are there not regulations governing the width of vehicles?
There are, but I do not know whether they are designed to cover a situation such as I have described. With regard to the length, one is obliged to have a red flag, or something like that.
There is a regulation governing the maximum width of any vehicle on the road. I take it Deputy Corish's remarks really relate to a mechanically propelled vehicle which is very much narrower than the load it is pulling. Despite what he said about his eyesight, I think he must be looking through the wrong end of a telescope when he sees tractors three feet wide. There are very few of that size in this country. I have a strong suspicion that the Minister will claim that he has power under paragraphs (c) and (d) of subsection (2) to make regulations such as those envisaged by Deputy O'Higgins.
I support Deputy O'Higgins very strongly. This trailer haulage is becoming an increasing menace on our roads. Now would appear to be the appropriate time to step in rather than allow it to continue in the way in which illegal parking has developed. If that happens, by the time you come to deal with the menace, you find yourself trampling on a great many toes. Whether or not the minister has power under the subsection to deal with this matter, I think it would be very useful if specific attention were drawn to it now by the inclusion of an amendment such as that suggested by Deputy O'Higgins. I urge the Minister to accept the amendment. If he finds some quibble over the wording—the draftsman might take objection to it —I am sure Deputy O'Higgins would be quite satisfied with an undertaking from the Minister that he will bring in an amendment in another place to cover this point. That is without prejudice to what Deputy O'Higgins himself may think.
I would be quite agreeable.
This type of traffic is becoming increasingly dangerous. One meets enormous lorries drawing enormous trailers, and the bigger the lorry, the bigger the trailer. They are absolutely fantastic. I think the regulations might deal too with the distance to be maintained between vehicles. In the case of very heavy vehicles drawing trailers, a firm regulation should be laid down. Bad and all as one vehicle is when you get two in convoy, with about the distance of a Morris Minor between them, then you have had it. In addition, they drive at the most unfortunate speeds, speeds absolutely infuriating to the ordinary motorist who feels that this 10 m.p.h. is slower than the speed at which he can safely drive on that road. If these vehicles went faster and one could stay behind and wait until they disappeared, that might be all right. If they went so slowly that one could reasonably hope to pass them out, that would be all right. They all seem to prefer a speed which is calculated to drive the ordinary motorist to fury.
Major de Valera
On the question of trailers, it is usual to have a notice on the rear indicating that the rear vehicle is a trailer. I have a certain sympathy with what Deputy Sheldon says in regard to passing. I do not know, however, that you can deal with the question of speed. The only long term way of dealing with it is to have suitable roads for such vehicles. There you come into a big matter of policy. On the Continent, for instance, in parts of Germany, where these trailers are very common, there are long straight stretches of roads which are suitable for them.
Germany is a very big country compared with ours.
Major de Valera
Also, they can travel at speeds which are not inconvenient to the remainder of the traffic. Here, there is that difficulty and the only suggestion I could make in regard to it is, in the long term, development of the roads and, in the short term, some traffic control regulation by which such vehicles will be compelled at certain points to give way. Beyond that, I fail to see what can be done because nowadays they are, generally speaking, adequately lighted and there is a notice on the rear.
There is another matter touching regulations which I should like to bring to the Minister's attention. I do not know whether this is the opportune time to do it but I think it should be the subject of a regulation and power should be taken to make it the subject of a regulation. I refer to the compulsory wearing of crash helmets by all personnel riding motorcycles or motor-propelled bicycles of any sort.
The Deputy is passing the traffic now.
Major de Valera
I know I am.
I think Deputy de Valera might like to know that Deputy O'Donnell moved an amendment, which was not accepted by the Minister, to that effect, on Committee Stage.
Major de Valera
This is quite a different thing. This is in connection with the provision of a regulation.
In fairness to the Minister, I think the Minister's view was that it was unnecessary.
Has it any reference to trailers?
Major de Valera
There have been a shocking number of accidents. The wearing of crash helmets is one of the matters in connection with traffic.
It has nothing whatever to do with the amendment before the House.
The Deputy has crashed without a helmet.
Major de Valera
If what I have said highlights the importance of this matter, I will wait until another occasion.
The Deputy is crashing order here.
Major de Valera
A motorcyclist or pillion rider might be thrown into the rear of Deputy Sheldon's trailer. Things like that are of more importance than trying to regulate the actual length of vehicles on the roads.
I agree entirely with the sentiments expressed but I do not agree as to the necessity for the amendment. Section 11, subsection (1) and paragraphs (c) and (d) of subsection (2), adequately and completely takes care of and can take care of any and all of the points raised within the order of the House, as distinct from the point raised outside the rules of order. In relation to maximum speeds outlined in Deputy O'Higgins's amendment, Section 44, again, gives adequate and sufficient power to attain the end which Deputy O'Higgins and the other members of the House desire. The observations as to the type of trains being met on the road at the moment are revealing in that there is no legal right for such trains to be on the roads.
Two trailers?
A truck may have only one trailer. That is a bye-law at the moment.
How many miles did that fellow go with his two trailers?
He had two, anyhow.
He must be very well got. There is something wrong somewhere if in fact there are these road trains.
I said I noted it with C.I.E. I thought it was, but maybe it was not.
I do not think it was.
Certainly, it had two large trailers.
Be that as it may, the fact of the matter is that all these regulations and bye-laws which are possible under the present proposals are under review and whether or not they adequately cover all the various aspects of our road traffic at the moment is a matter which is emerging and will emerge fully only when full consideration and review has been given to the existing position and to the circumstances not covered by existing bye-laws or regulations. All of these matters will be given full consideration and will be covered by adequate regulations to avoid the development of a situation wherein, as Deputy Sheldon said, the use of trailers on the road would grow to such proportions as improper parking has grown over the years.
The House can rest assured that the intention of amendment No. 4 in the name of Deputy O'Higgins is already enshrined in Section 11 and Section 44 and that there is complete and absolute authority for making the various types of regulations which he has indicated as being so desirable, with which I fully agree. We have the powers and, therefore, I do not feel the amendment is at all necessary in these circumstances.
In framing the regulations, would the Minister bear in mind the point I raised with regard to the mechanically propelled vehicle that is considerably narrower than the trailer?
Yes. Even at present there is some cover in regard to that matter. If there is a weakness, we will try to remedy that situation.
Red flags.
Some sort of flags.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 13, line 6, to add at the end of the line:
"or that the breach of the regulation was committed without the knowledge or consent of the owner."
I do not want to take up the time of the House repeating arguments made already. The principle which I suggest in amendment No. 5 has been discussed already in connection with some earlier amendment but it assumes rather greater proportions and greater force in connection with Section 11 than it does even in the case of parking offences which we were discussing earlier. Certainly, any objection which the Minister might have to amendment No. 5 cannot rest on the same grounds as those on which he rested his objections to the other amendments which have been discussed.
The Minister objected to amendments designed to protect the registered owner of a car against being convicted for offences which in fact were committed by another person on the ground that it was necessary to tighten up the law as against what it was at the moment, that at present it was impossible for the Garda to pin the offence on anyone and that it was necessary to make both the owner and the user of the car liable in order to make sure that people will be alive to their responsibility of making only proper use of parking space. All that argument was related to the question of parking and to the difficulties the Garda have in connection with parking offences. But we have Section 11 and the more the Minister speaks of Section 11, the more it becomes apparent to the House that it must contain very wide powers indeed. Section 11 could be described as the key section of this Bill. This entire Bill is propped up with ministerial regulations and Section 11 is the section which gives the Minister power to make these regulations.
Subsection (5), paragraph (b) of Section 11 provides:
Where a person who contravenes subsection (4) of this section is not the owner of the vehicle and the owner is charged with an offence under this section, it shall be a good defence to the charge for such owner to show that the use of the vehicle on the occasion in question was unauthorised.
The owner's defence to a charge under this subsection is to show that the use of the vehicle was unauthorised.
I am suggesting the Minister should add to that "or that the breach of regulations was committed without the knowledge or consent of the owner." Assuming the validity of the Minister's arguments—which I personally do not —in relation to parking offences it must be remembered that those arguments have not the same validity at all in relation to this subsection. This is the subsection which deals generally with regulations and the Minister is asking the House to say that if a breach of these regulations—and remember we do not know what are the precise terms of those regulations because they have not yet been made—is committed by a person, the owner will be equally guilty with the person who actually committed the breach.
As I suggested earlier, that is definitely going too far. I do not want to prolong the discussion but I can imagine the Minister arguing that these regulations are to be related directly to the vehicle and that, therefore, the responsibility obviously will be the responsibility of the owner. I do not think that is a fair argument. Regulations can be made regarding the use or misuse of vehicles and it will be possible for a person who obtains the loan of a car to attach a loudspeaker, for example, to it without the knowledge or consent of the registered owner. In that case while the use of the car would be authorised, the commission of the offence would be something which was completely outside the knowledge or consent of the registered owner.
The Minister has already dealt quite fairly with the hire-drive companies in relation to parking offences. I think I am right in saying that if an offence under section 11 is committed by a person who is using a hire-drive car, the hire-drive company in this case will not have protection. They will be regarded as being equally guilty with the person who committed the offence. I may be wrong in that but I think the Minister's earlier amendments do not let out, so to speak, the hire-drive company in relation to this section.
I should like to support this amendment. I do not know why this sort of subsection was introduced at all. It seems to me that the Minister is trying to prevent a person lending his car or motor-cycle to anybody else. No matter what offence is committed, the owner will be liable if he lends his car to another person, even to a member of his family. This has nothing to do with the regulations the Minister may make. I assume that on the advice of his officials and other people he will make reasonable regulations. On the Second Stage, many of us on this side of the House took exception to the fact that the Minister had power to make so many regulations but, after all that has been said and done, I would say that I am sure the regulations will be pretty reasonable and in many cases, as he suggested about a quarter of an hour ago, we shall have an opportunity to challenge certain of the regulations to be laid before the House.
I do not know whether or not I am over-simplifying the position but these seem to me to be examples of what can happen. I think Deputy O'Higgins mentioned this. In Section 11, subsection (2) (b) the Minister may make regulations prohibiting, say, the use of certain equipment on a vehicle, loudspeakers, flags or streamers or what have you. The situation will be that, if I lend my car to Deputy Vivion de Valera and he puts a flag on it or attaches a loudspeaker, he can get away scot free but I am responsible, which means I am going to think twice before I give my car even to Deputy de Valera.
The Deputy would be dead right, would he not?
I would not say that. We have often swopped things, even words. Then look at paragraph (c) of the subsection which deals with the use and misuse of vehicles and vehicle equipment. A car can be misused in many ways, in ways that would be prohibited by regulations which the Minister could make. Again, if I give my car to one of my friends—and certainly I would be very reluctant to do so if this section is passed as it stands—I am responsible for every contravention of the regulations by him. Under (f) the Minister may make regulations with regard to the equipment of drivers and passengers. Therefore, if I own a motor-cycle and give it to somebody and the Minister makes a regulation that motor-cyclists must wear crash helmets, I may see him equipped with his helmet but if he goes around the corner and takes it off and is accosted by a member of the Garda I am liable——
No, not in that case.
Not in that case?
Only the person using the vehicle. In that case the person whose head is not protected.
Similarly, in regard to these straps?
Yes.
Can the Minister tell me how the regulations in regard to this are different from regulations in respect of other items here?
Only the person using the vehicle in the cases the Deputy mentioned would be liable.
Is that specifically stated in the Bill?
The regulations relating to the vehicle.
Yes.
Major de Valera
Would straps not be part of the vehicle?
I think so.
I am not sure about straps.
Would a crash helmet not be part of the equipment?
That sort of thing may sort itself out but the Minister must see that this is totally unfair to the owner of a car.
I hope to be able to show, before we are finished, that it is not unfair to anybody.
That is all I want to say.
I should say that, as the Bill was originally drafted, the owner's liability arose in all cases where the vehicle did not comply with the regulations. Following the Second Reading debate, having listened to what was then said with regard to this matter, I decided to reduce the scope of the owner's liability. In that regard, on the Committee Stage, an official amendment was moved by me that the owner would be liable only in cases where the regulations prescribed it. That was the first concession, if you like, to the views expressed on Second Stage indicating that we were going a bit too far.
It was also said then that the owner should not be liable when the vehicle was used without his authority. That view was accepted and again, as I say, a concession was given to the views expressed that the owner's liability was probably, or possibly, just a little bit too harsh and far-reaching. In that regard Deputy O'Higgins, who had been batting on that particular wicket fairly strongly on the earlier stages of the Bill, expressed himself while not entirely satisfied, in general terms satisfied that I had gone a fair distance to meet his views. That is what he said in broad general terms. I do not want to start reading what he said but that is a fair enough synopsis of what I understood him to say.
Despite that Deputy O'Higgins is now right back where we were before we made these two fairly substantial amendments which I thought had gone quite a long way to meet his and other points of view on this matter. The fact is that under the section as it stands at the moment two types of offence are possible. One is the contravention of a regulation. If there is a regulation requiring a driver to wear a crash helmet and if there is a contravention of that regulation, the person using the vehicle is liable. If we, by regulation, say that a crash helmet is prescribed, if that regulation is contravened only the user of the vehicle is liable.
The second type of offence in the same section is in relation to a vehicle that does not comply with the regulations, for example, the use of a vehicle with defective steering. There is no reason in the world why the owner should not be liable in that case. After all it is his vehicle, and if it is in a defective condition and he takes it out, or allows someone else to take it out, it is still a dangerous vehicle in a dangerous condition and it is his responsibility.
Would the Minister consider the case where it is not his fault, where someone, for example, tampers with the steering without his knowledge or consent?
Of course, in that case I should imagine that we could not possibly know without it being determined ultimately by a decision of the courts whether the assertion that someone had tampered with the steering was a fact or a falsehood. I am quite sure that if it was shown by the owner in the courts that someone had maliciously or otherwise tampered with the steering, and if it was not within his knowledge or expected to be within his knowledge that the steering was defective the courts would take a different view of the case. If it were obvious that the steering was defective and that the owner should have had regard to the length of time it had been in operation, the manner in which it had been serviced, or had not been serviced, that would be a very different set of circumstances, and I am sure there would be two very different verdicts so far as the courts were concerned.
Would it be right to assume that the regulations will throw a little more light on these matters, and that they will say definitely to whom the particular regulations apply? I am not trying to badger the Minister for information on the duties of drivers, but suppose I am in a lent car and I put out my right hand and turn left, would I be held responsible under the regulation governing the duties of drivers?
The person who put his left hand out and turned right, and vice versa, would come under another section. The fact still remains that the owner is not liable for a simple breach of the regulations, but he is liable for a vehicle which does not comply with the regulations because of a defect. That very briefly is the position. A simple breach is not sought to be, or thought to be, the liability of the owner, but a more serious and major breach of the regulations, such as the use of a defective vehicle, is and is sought to be held to be the liability of the owner. I feel there is nothing whatsoever wrong with that approach.
It is only in keeping with the general feeling of the House that the owners of vehicles who are using our roads daily should come to have, if they have not already got, a proper sense of their responsibility to other road users. Without the development of a proper sense of responsibility in regard to all of our road users, we shall continue to see the sad effects and the sad results we all too often see in accidents and fatalities day in and day out on our roads.
While the sponsoring of these amendments may possibly be useful in order that certain views may be aired in the House, I do not think any undue liability is being placed on the owner of a vehicle under the Bill we are now proposing. I would suggest to the House that we do not go any further than we have already gone in watering down the Bill still further. We have gone, as Deputy O'Higgins admitted at an earlier stage, a fairly considerable way to meet the views of those who felt that too much liability was being placed on the owners under this section.
Amendment, by leave, withdrawn.
Amendments Nos. 6, 7, 8 and 9 might be taken together.
I move amendment No. 6:—
In page 21, to delete "is," in line 51 and substitute "has," and to delete "of opinion" in line 53 and substitute "reasonable grounds for believing".
Amendments Nos. 6, 7, 8 and 9 relate to the same matter. These amendments are designed to meet a point raised by Deputy O'Higgins during the Committee Stage. The effect of the amendments is that, having examined a vehicle, a Garda must not merely be of opinion but must have reasonable grounds for believing that a defect exists before he can instruct the person concerned that it is not to be used until the defect has been remedied, or before he can require a person to submit the vehicle for further tests. I think I have already said that there was not much in this point, one way or another. It is a matter of opinion as to which form of words should be used, but in deference to the case made and persisted in by Deputy O'Higgins, I am now submitting these four amendments to the House accepting the wording which he advocated at that time.
The Minister has met the case I made very fully in these amendments.
Amendment agreed to.
I move amendment No. 7:—
In page 21, to delete "is," in line 61 and substitute "has," and in page 22 to delete "of opinion" in line 1 and substitute "reasonable grounds for believing."
Amendment agreed to.
I move amendment No. 8:—
In page 22, to delete "is," in line 11 and substitute "has," and to delete "of opinion" in line 13 and substitute "reasonable grounds for believing."
Amendment agreed to.
I move amendment No. 9:—
In page 22, to delete "is," in line 33 and substitute "has," and to delete "of opinion" in line 34 and substitute "reasonable grounds for believing."
Amendment agreed to.
I move amendment No. 10:—
In page 24, to add the following subsection to section 20:
"(18) Where a requirement is made under subsection (3), (4), (5) or (8) of this section—
(a) the person required shall have the right to be present at the examination and, if he exercises this right—
(i) he shall be afforded an opportunity of observing the examination,
(ii) he shall have the further right to bring with him to the examination another person selected by him and, if he exercises this right, the person accompanying him shall also be afforded an opportunity of observing the examination.
(b) if he does not exercise his right to be present at the examination, he shall have the right to be represented at it by another person selected by him and, if he exercises this right, the person representing him shall be afforded an opportunity of observing the examination.
In this subsection ‘examination' includes ‘test'."
This amendment also arises out of an undertaking given by me on Committee Stage to consider the proposal that where a Garda requires a vehicle to be submitted for test, and specifies the time and place, the person concerned, and a person chosen by him, are entitled to be present. The amendment really states and writes into the Bill what is already implied in it, that the person concerned and a person chosen by him are entitled to be present without any question whatsoever.
Amendment agreed to.
Amendments Nos. 11, 12 and 13 are cognate and may be discussed together.
I move amendment No. 11:
In page 25, line 15, to insert "or such longer period as may be prescribed" before "beginning".
Amendments Nos. 11, 12 and 13 arise out of an undertaking given by me on the Committee Stage to consider providing for the possible issue of driving licences for two or more years. These three amendments are designed to implement that undertaking. I should add that a complementary provision is being dealt with in the Finance Bill which deals with the excise duty on driving licences.
The Minister did not consider the idea of having licences operated from a standard date in the year as in the case of tax?
I would not say I have not considered it.
The Minister rejected it?
I have not conceded it.
Amendment agreed to.
I move amendment No. 12:
In page 25, line 31, to insert "Subject to the provisions of this Part of this Act and any regulations thereunder," before "A driving licence".
Amendment agreed to.
I move amendment No. 13:
In page 37, to insert the following paragraph before line 41: "(d) the surrender of driving licences;".
Amendment agreed to.
I move amendment No. 14:
In page 41, to delete lines 14 to 19 and substitute "discretion of the court, to a fine not exceeding one hundred pounds or to both such imprisonment and such fine."
This cuts out the mandatory jail sentence?
The House, I am sure, will remember that we had a very detailed and lengthy debate on this matter, more on the principles involved than on the actual details of the section. The principle at stake was mandatory jail sentences for drunken driving on the one hand and for dangerous driving which results in serious bodily harm. I indicated that I felt this should be left as it was but, on reviewing the matter and on the reconsideration of the debates which I promised to give it became pretty obvious that the balance of view was in favour of dropping the mandatory imprisonment for these offences.
Following up that, this amendment proposes to change the situation but I think I should draw attention to the fact that we do not merely drop the mandatory imprisonment but we have more or less reversed the order of the penalties; we have put imprisonment as the first penalty to be mentioned so as to draw the particular attention of the courts to the seriousness with which we view these offences and to give proper prominence to the general view that imprisonment in many of these cases is well merited while at the same time leaving it at the discretion of the courts not to impose imprisonment where they think fit. In that way we shall meet the objections to mandatory imprisonment voiced by several Deputies and at the same time leave in the Bill, when it becomes law, a clear indication that this House takes serious notice of this type of offence, and that our view is that the first thought where these cases are proved, should be imprisonment and that other penalties only come as secondary thoughts.
Another point that possibly made me change my mind to the extent of dropping mandatory imprisonment somewhat against my own judgment, was that I have been, as I may have already indicated, considering setting up a commission to investigate and report on the feasibility of fixing a standard, by reference to the alcoholic content of the blood or by any other tests, as constituting drunkenness for the purpose of the offences of drunk-driving, driving while under the influence of drink or a drug, and to consider legislative measures which might be taken to deal with the offences of driving, attempting to drive, or being drunk in charge of a vehicle in a public place.
The decision to set up that commission has already been taken and that decision made me possibly more ready to change my mind and drop this mandatory prison sentence in regard to these drunk-driving offences because I feel that the commission in its report will be dealing with the entire situation of drunkness and driving while drunk and as a result, amending legislation of some description will ultimately follow from their report. The whole question, even as is is included in this section, may be reviewed at that time by the House. I feel that what we are now doing is unlikely to be of long duration, that something more specific and possibly more effective, will emerge from this commission's deliberations and its report. The House should know that the commission has been set up and that we shall have a second day, as it were, in the not-too-distant future on this question of driving while drunk and all the various related details and offences that we have been discussing generally on this Bill.
I propose this amendment to meet the overall view of the House as expressed on the Committee Stage that mandatory imprisonment for drunken driving offences should be dropped.
Major de Valera
It is refreshing and encouraging for the ordinary Deputy to find the Minister meeting opinions expressed in the House as he has done, not only on this amendment but on others. It should stimulate Deputies to take part in the discussions. I am afraid that, in the past, Deputies have all too frequently felt that they were running their heads against a stone wall in coming along with proposals for the Committee Stage. There was a growing feeling in modern times that once a Bill came into the House, it was cast in final form and, when all was said and done, there was very little use talking about decisions which had already been made. The Minister in this case and, indeed, in all the legislation which he has put before the House, has shown a willingness to consult the House and consider its views, which can not only help the measure concerned but must go a long way towards making Parliamentary democracy work in its present context.
In regard to the amendment, I should like to compliment the Minister on his open-mindedness because in the debate the issues crystallised. We all had our own firm opinions and the Minister had his opinions, no less than the rest of us. That he should be willing to consider the views expressed by Deputies, particularly by the Opposition, to the extent to which he has is a very good thing.
I think that my own view unhesitatingly is that imprisonment should follow the type of offence here contemplated. I have no doubt about the matter at all that, from the public point of view and even from the point of view of the relationship between individuals, a crime, because that is the proper description of the offence involved here, of the description set out in this section can be dealt with by nothing less than adequate sentences of imprisonment and must be regarded by the public conscience as a heinous crime, more heinous, perhaps, than other crimes that bring a strong social stigma. I have absolutely no hesitation in this regard but I do bow, shall I say, to the calmer and more judicial approach put forward by the colleagues of Deputy O'Higgins that the proper procedure, generally speaking, is for this House to legislate for the provision of an adequate penalty but to leave the application of the penalty to the proper judicial tribunal.
I think that is the principle and because what the Minister is doing is in accordance with that principle, I for one, notwithstanding my strong views on the subject, will support him and commend him. If we do our public duty in this House, if we do our our public duty to the extent of providing for the situation and then also do our public duty in refraining from intervening with the other authorities which should do their public duty, it is not out of place to point out to all concerned, whoever they may be, the gravity, the public gravity, of what is involved in this.
I am, perhaps, going a little far in saying this. My only justification for saying it is that when the individual case comes up, it tends to be judged on an individual basis and human sympathy, which must always be kept in its proper place, may sometimes get out of proportion. My reason for saying what I have said is this. It is a matter of large public concern, a matter of great public importance. The interests of the public, the interests of the injured and the innocent parties, all these things must likewise be taken into account and, perhaps, when discussing it here is the time to make that point.
I think I have said enough, for to say more would, perhaps, be misunderstood, but, again, I should like to compliment the Minister. I say this very sincerely. It is not a matter of a Deputy who supports him or who sits behind him. I feel it very sincerely. This Minister is to be complimented on the way he has consulted the House, used the House to give him the proper feelings of the community and invited the co-operation of the House in making legislation the best that can be produced. In this matter, knowing the stand he has taken and the outlook he had on Committee Stage, I think this is a very happy solution, indeed, of this particular problem.
I am glad the Minister has brought in this amendment. In case it should be misunderstood, I think it is necessary to emphasise the fact that the bringing in of this amendment and the removal of the mandatory jail sentence for a conviction of drunken driving should not be taken as in any way diminishing the serious view that Deputies take of that offence. My suggestion on Committee Stage was not necessarily that the mandatory jail sentence should be removed but that so long as a conviction was to be followed by a mandatory jail sentence, an accused person should have the right to be tried by jury, if he so wished, and that it should be made an indictable offence or tried summarily at the option of the accused.
I think the Minister has chosen the wiser course having listened to the Committee discussions in bringing in this amendment. As he pointed out and as Deputy de Valera pointed out, it does not in any way reduce the penalties. It does not reduce in the eyes of the Legislature, and certainly I hope not in the eyes of the Bench, the seriousness of the view taken of this offence.
Amendment agreed to.
I move amendment No. 15:
In page 41, between lines 19 and 20, to insert a new subsection as follows:—
"( ) If, on the hearing of a prosecution for an offence under this section, the Court is satisfied on medical evidence that the defendant is an addict requiring preventive or curative treatment, it shall be open to the Court, in lieu of imposing a sentence of imprisonment, to order the defendant to under go a period of preventive or curative treatment."
This amendment is designed to meet the suggestion which I asked the Minister to consider on Committee Stage. It is an effort to deal with the particular type of case which many members of my profession and, I think, very many members of the medical profession come up against from time to time. It is the case of the person who is an addict either to alcohol or to drugs and who, by reason of his addiction, is not in fact responsible or accountable for his actions in the same way as the person who irresponsibly gets drunk or puts himself in a position, due to the consumption of alcohol, that he cannot drive a car properly.
I am suggesting that, where a case comes before the court and medical evidence is given in court which satisfies the court that the person before it is, in fact, an addict, the court should have power, under this Bill, to indicate preventive or curative treatment for a period. The Minister is probably aware that under the Mental Treatment Act, 1945, power is given to certify such persons as people requiring preventive or curative treatment up to a maximum period of, I think, six months. These cases are often very tragic ones and they are very frequently cases where the relatives, the wife or children, as the case may be, of the addict will be afraid to take the step of certification for the purpose of getting curative treatment because they know, if they take that step, that very frequently it will mean the unfortunate addict will lose his or her job and that things will generally be unpleasant if someone else takes the responsibility of taking a step which will result in the loss of a job. For that and other reasons very frequently the relatives of the addict are extremely slow to take action which, in the long run, on reflection, they might feel should have been taken. That is one of the reasons why people frequently do not take action. The other is the simple fact that they do not know that these powers exist under the Mental Treatment Act.
I feel that when a person such as I am talking about is brought before the court on a charge arising under Section 49 of this Bill, it is generally recognised nowadays that addiction whether to alcohol of drugs is a medical problem, that it is a case of a disease, if you like, which requires medical treatment in order to cure it. It would be wrong that a person in that condition who is brought before the court should be regarded as fully responsible for his actions as compared with the person who is not an addict in the sense I mention.
It would be wrong that a person such as I refer to, an addict in the sense I am talking about, should suffer the stigma of a jail sentence when in fact his condition is a condition recognised by medical authorities as requiring medical treatment for its cure. I do not believe that at the moment the courts have the authority to make an order such as I suggest they might make to deal with these unfortunate cases. If the Minister accepts this amendment he will be dealing with a problem which requires to be dealt with in all sorts of ways in our legislation and in our road traffic code, no less than in other spheres. I would strongly urge the Minister to accept this amendment. If he feels it might be accepted with qualifications or modifications they might be suggested either by himself or by his Department. I would ask him to consider dealing with it when this Bill goes to the Seanad.
I do not think I would be particularly attracted, to say the least of it, to this amendment. Medical men may have their own approach to these things but one is forced to ask oneself what does addiction to drink mean? There is no shame in the word "addiction". You can be addicted, for that matter, to anything.
I humbly suggest that there are so many various degrees of addictions that anybody who takes a drink habitually —and many do and they could not be considered strong drinkers—could be described as an addict to drink; he has an addiction to drink. To allow people off on the plea of being addicts is not quite good enough. If they are addicts to drink in the manner in which I know Deputy O'Higgins has in mind, fully addicted to drink, then they should not driver a car. Are they to be recognised as drink addicts only when they kill somebody or when they have a serious accident?
One certainly has a lot of sympathy with wives and families when they are confronted with a situation where, when such persons have a bad accident, they are described in court as "addicts". The family must have recognised them as being drink addicts and, in some manner other than have a court doing it, they should have been given treatment in some nursing home, some hospital or whereever people go who are very strongly addicted to drink. Frankly, I think it is an easy way out for people described as addicts and for people who are very strongly addicted to drink.
Therefore, you may be doing the fellow a good turn. You may arrive at a situation where the wife will be down on her bended knees every morning hoping he will have an accident and go to court and that the judge will prescribe a course of treatment for him. That will be a simple method to keep him off drink but the damage has been done and got over relatively lightly and because he has an accident he is diagnosed as an addict. Therefore, I do not think that the amendment would be acceptable to me.
One can visualise the innumerable pleas that would be put up in court for every accident where there is a suspicion of drink. Invariably, there will be pleas of addiction to drink or to drugs and there would be no penalty in effect. It may be called a penalty but in fact it is a cure. You will be doing the man a good turn, a desirable one I will admit. Even though he is a drink addict, he should suffer the same penalty as a fellow who boozes once in a while and happens to have an accident. He is much more unfortunate than the addict. He has a row with his wife or his friends and he goes out and takes a good few drinks and then he has an accident and finds himself in jail for six months. What will the fellow who has been acting the blackguard for years, and getting away with it as a drunken driver for years, get when he comes to court? I assume he pays for his medical evidence but he will get a free diagnosis of addiction to drink. Then the court directs that he be sent to some nursing home or institution to cure him of his addiction to drink. It is not good enough. Whether he is convicted of drunken driving as an addict or as a mere drunk I think the two should get the same penalty.
Deputy O'Higgins has advanced the belief that there is not power to suspend sentences at the moment.
No, I did not say that. I said I did not think there was power to order a person to undergo a period of preventive or curative treatment.
That is even better. I had forgotten exactly what the Deputy had said. In his amendment the Deputy seeks to ensure that the court can order a defendant to undergo treatment whether or not he wishes to have it. This would seem to be a matter which would more appropriately be dealt with if we are to have compulsion of this kind to undergo treatment. It would be a case, I think, more for the mental treatment code than to import these provisions into road traffic law.
The provisions are there under the mental treatment code.
If they are, why do we want to put them in here?
Because this deals with a person in that condition who is charged with a road offence.
A major road offence.
Without this amendment, the district justice or the district court may bring about a situation wherein, with the agreement of the defendant, for his own good and that of all concerned, he may be sent in for a period for a cure rather than sent to jail. That is the condition on which his jail sentence has been suspended. Since the court has that power at the moment and has that method whereby they may deal with this type of problem when it arises, it should be left to the discretion of the court so to operate what powers they have in this regard rather than to provide that they may now have the further power of saying to a defendant: "You must go for this treatment and you have no choice about it." Therefore, I do not feel this amendment should be inserted in this measure. As matters stand, there is some flexibility, whereas if we carry through the amendment as proposed, we give a power which recognises no right of the defendant to say whether or not he is agreeable to this treatment rather than go to jail and do his term there.
If the House feels this matter should be dealt with in this compulsory way, then the mental treatment code is the code which should deal with it. If, as Deputy O'Higgins said, the mental treatment code already deals with it, then the remedy is there and it would not be right or proper that we should import into this road traffic legislation a matter which can be taken care of by the courts under the existing laws and the law which will be enacted here through this Bill. If there is anything further that needs to be done in relation to these addicts getting proper treatment, the mental treatment code can and will be invoked in order that they will cease to be a menace to themselves and to the public in general.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 41, line 30, before "in charge" to insert "effectively".
Amendments Nos. 17 and 18 are alternatives and may be discussed with amendment No. 16. Separate decisions may be taken, if required.
This puts me into the unfortunate position of starting off and not being able to reply to anybody else afterwards.
The Deputy may conclude on his amendment.
I was presuming I had that right but on Report Stage in order to prevent putting the Minister in an awkward position, I thought it was normal to allow the Minister to have the last word, as a matter of custom rather than of law. I thank you very much for reminding me of my right to reply.
I do not like the way this section puts the onus of proof on the defendant. It is contrary to the normal procedure whereby everyone is innocent until he is proved guilty. I thought by simply putting in the word "effectively" before "in charge", the onus would be on the authorities to prove that this person had attempted to drive at some stage. This shifting of the onus of proof can be very important to the Minister's amendments. Though they appear to go in the opposite direction to my amendment by saying that a person is presumed to be guilty until he shows he is innocent, I still think they are better than the original section, since at least it is now clear what a defendant may attempt to prove.
As I understand the position, one of the difficulties in these cases is a wide variation in practice in the courts as to what is accepted as an attempt to prevent oneself being in effective charge while under the influence of drink. I do not know a great deal about it beyond cases I have read in the paper or have heard from people, but I take it there has been a wide variation in what the courts will recognise as an adequate precaution taken by someone who finds himself incapable of driving. In view of that, the Guards should be put in a position of proving whether or not the driver was effectively in charge.
Incidentally, in regard to the Minister's amendment, No. 17, if I tried to put an amendment in that form, I would be shot down. I thought we were not allowed to insert words "afterwards"; I thought they had to be inserted before certain words. If you say "after," it might be anywhere between that and the end of the Bill. How the Minister got away with this one, I do not know. However, that is a detail.
The Minister has cleared parking attendants from being charged. As the Bill stood, under subsection (2) of Section 50, a man in charge of a car park who happened to be under the influence of drink could be charged. That question has been cleared up now.
I feel very strongly on this point I have raised in my amendment. That is why I put in the word "effectively". Through the Minister has not shifted the onus of proof, he has changed the wording in such a way that I feel a little more satisfied. I am speaking only for myself, not for Deputy O'Higgins, the frown on whose face might indicate I am giving the game way. I have no intention of doing that. I am not arguing on his behalf. I do think the new wording suggested by the Minister will be an improvement but I am not completely happy. It is a bad principle to leave the defendant in the position of having to prove himself innocent when it is normally accepted that a man is innocent until he is proved guilty. This whole section, even with the Minister's amendment, will still leave the opposite to be true, that a man is guilty until he proves himself innocent.
It is a bad principle in law and while I admit there is a very great difficulty here and one which we ought to try to clear up, I still think it might have been met in some other way. I would hope that even at this stage the Minister would take another look at it. I admit that what Deputy O'Higgins and myself have suggested, putting in the word "effectively" still means that anyone who has the real intention of driving can be caught if he makes any preparation at all to drive, but it also means the Guards will have to prove that. If a man is in a state of inebriation, in which I presume he would have to be to start with in order to leave any basis for a charge under Section 50, he has to prove that "at the material time" the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to do so.
The Minister's amendment No. 18 uses the phrase:
...between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place.
That strikes me as rather curiously worded. What is meant by his "becoming unfit to drive"? Who can prove at what stage he became unfit to drive, if he was not in fact driving when caught by the Guards at the material time? If the intention is that, at some stage earlier that evening, he had been seen in an intoxicated state while standing up or walking about and that the time between then and the time he was caught with the mechanically propelled vehicle should come within this subsection, it is unfair. The person might have been quite fit to drive until he had gone half a mile along the road and the cold air began to affect him. When he realised that, he may have stopped, got into the back seat and thrown the keys on the floor in front of him. But because the Guards could prove he had been in an intoxicated state one and a half hours earlier, he could be found guilty.
That seems to me to go very wide. I do not see why this paragraph is really needed at all, It leaves a man in a position of having to prove he had not driven between becoming unfit to drive and being found. That is something no one could possibly prove. You would not know what the original basis of presumption was. The fact that the Minister has brought in amendments to meet in some measure the case made earlier on this Bill gives me a little hope that he might possibly be prepared to go further. It is a bad principle in law and it would be very much better that the onus of proof should be on the Guards.
I support Deputy Sheldon in asking the Minister to put in the word "effectively" before the words "in charge" in subsection (2) of Section 50. I do not like the Minister's amendments at all. I think he is disimproving the Bill, particularly in his amendment No. 18 where, once again, the position is that the Minister is putting the person charged with an offence into the position of having to prove he is innocent of the offence rather than to continue the normal pattern in this country heretofore, that the onus was on the prosecution to prove the guilt of the defendant.
I should like to support Deputy Sheldon's amendment. I can visualise a driver who arrives in a certain area quite capable of driving but because of the social amenities offered there becoming inebriated and not being in a position to drive. His car is locked up safely but he opens it in order to avail of its accommodation and quietness and to recuperate. In order to open the front door, he has to release the safety catches on the side doors. I am speaking of a 1956 Consul. He may go into the back and, as Deputy Sheldon said, throw the keys down at his feet to indicate his intention.
The Minister's amendment would not give such a man any protection. The fact that he goes near the car leaves him open to conviction unless he can prove he did not intend to drive it; and how one could prove that no one knows. There are people who realise when they have taken too many drinks and who are prepared to sit back and relax in the car—it is probably the only property they have in the area—until the blood in their head comes back to normal level and they are able to see things in proper perspective.
It is no crime to take a drink; the crime is to drive when you are drunk. If you wait until you are sober, there is no crime. We could go back a long way and quote perhaps many distinguished people to prove that drinking is no crime. For instance, there is the person who advised the taking of a little wine for the stomach. Since the Minister is a man who does not take intoxicating drink himself, he should be more tolerant. He should realise there are people who take a drink but still remain conscious of their obligations when on the public roads. There are people who take the necessary precautions in cases of over-indulgence. The Minister should at least give such people the sanctuary of their own cars so that they can take a back seat until they recuperate. I suggest his amendment does not give them that protection, but Deputy Sheldon's does.
In regard to amendment No. 16 in the names of Deputy Sheldon and Deputy O'Higgins, I should say that Section 50 is largely a preventive section. It is designed to deal with the case of a man likely to drive a mechanically-propelled vehicle while under the influence of drink. This section replaces a simple charge that existed under the Licensing Act of 1872 but gives defences to the persons charged. It is based on the current provisions of Section 6 (4) of the British Road Traffic Act, 1960. These provisions have worked out well in Britain. There are a number of examples which disprove the fears expressed by Deputies, particularly by Deputy Kyne.
There is a case, Crichton v. Birrell, 1951, in which the High Court held that a person was not in charge of his vehicle when merely standing with a friend by the open door of the car with the ignition key in his possession and waiting for his employee to come and drive him home. In another case, Winter v. Morrison, it was held again that a person was not in charge of a motor vehicle when he was found in a drunken condition in the front passenger seat of the car with its engine running and his wife, who possessed an expired provisional driving licence, was occupying the driver's seat. There was another case, Dean v. Wishart, where it was again held that an intoxicated person asleep in a mobile vehicle was not in charge of it. There are other cases as well.
They are three typical cases which exemplify what I have said—that the doubts and fears expressed by Deputies are groundless and are proved to be so by virtue of these decisions in the British courts dealing with charges arising out of a law similar to that we propose here. It is doubtful if inserting the word "effectively" would secure any alleviation. I do not think it would achieve the purpose it is desired to achieve. Indeed, it might give rise to considerable doubt and confuse rather than alleviate. Subsections (2) and (4) must be read together. So far as my amendments are concerned, they will make no practical difference to the operation of the section. I have none of the fears held by other speakers here. I have quoted cases in Great Britain.
I can remember one case here in which a man felt himself incapable of driving, pulled in to the side of the road, removed the ignition key, and fell asleep; he got six months.
There was no defence written in at that time. There is now. He need not necessarily get the knock in future.
The Minister is writing out the defence, not writing it in. He is taking out subsection (4) of the Bill and putting in another subsection. Subsection (4) gives a defence; the new subsection does not.
If the House is satisfied with the section as it stands, I am quite happy. My amendments are merely intended to meet the views of the House. I shall be quite happy to keep the section as it is.
And to accept our amendment.
I think it would be the proper thing to do, quite honestly.
Amendment No. 17 could not be accepted because car park attendants who were drunk might be charged under it.
There is a special exemption in the section in relation to car parks.
It will be done by regulation.
They will be looked after anyhow.
There is no reference in the Bill. We are supposed to examine all facets.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 41, line 31, after "public place" to insert "with intent to drive or attempt to drive the vehicle".
Amendment agreed to.
I move amendment No. 18:
In page 41, to delete lines 42 to 50 and to insert the following subsection:—
"(4) In a prosecution for an offence under this section, it shall be presumed, until the defendant shows—
(a) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and
(b) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place,
that he intended to drive or attempt to drive the mechanically propelled vehicle."
Amendment agreed to.
I move amendment No. 19:
In page 42, to delete subsection (2), lines 43 to 55, and substitute:
"( ) A person who contravenes subsection (1) of this section shall be guilty of an offence and—
(a) on conviction on indictment shall be liable to penal servitude for any term not exceeding five years or at the discretion of the Court to a fine not exceeding £500 or to both such penal servitude and such fine;
(b) on summary conviction shall be liable to a fine not exceeding £100 or at the discretion of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment."
Perhaps amendments Nos. 19 and 20 might be taken together. Amendment No. 20 is an alternative to No. 19.
No. The Minister's amendment is designed to meet the case made on the Committee Stage about mandatory imprisonment. My amendment is rather different. I argued on Committee that it is entirely wrong in principle that the penalty should be calculated in accordance with the result of the bad driving rather than with the degree of bad driving. It is for the purpose of meeting that situation that I have put down this amendment. Under Section 53, subsection (2) it is provided:
A person who contravenes subsection (1) of this section shall be guilty of an offence and—
(a) in case the contravention causes death or serious bodily harm to another person, he shall be liable on conviction on indictment to penal servitude for any term not exceeding five years or, at the discretion of the court, to both such penal servitude and a fine not exceeding five hundred pounds, and
(b) in any other case, he shall be liable on summary conviction to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
The position under the section is that even the very smallest degree of dangerous driving which results in death or serious bodily harm is punishable by the heavy penalties in paragraph (a) of the subsection whereas a person who is guilty of grossly bad or dangerous driving but who is lucky enough not to be involved in an accident causing death or serious bodily harm will be liable only to the more lenient penalties set out in paragraph (b).
I have no objection to the Minister bringing in whatever provision he likes to ensure that the penalty will fit the crime. I think it right that we should ensure that a person seriously guilty of dangerous driving should be punished accordingly. I think, however, that it is wrong that the results of his driving should be the sole test governing the penalty to be imposed, as it seems to be under the Bill and as it would remain under the Minister's amendment. I suggest the degree of bad driving should determine the penalty. My amendment preserves a differentiation in penalty as between conviction on indictment and summary conviction. I think the Minister could accept my amendment and, at the same time, operate what he has in mind under the Bill. The amendment I suggest is that a person who is charged on indictment shall be liable to penal servitude for any term not exceeding five years or at the discretion of the court to a fine not exceeding £500 or to both such fine and such imprisonment and that that power should be left to the court to impose those heavy penalties if they convict in the case of a person who is charged on indictment.
I suggest that if the authorities have that power, it will be open to them, in serious cases of dangerous driving, irrespective of whether or not other people were injured or killed as a result of it, to bring an indictment against the driver of the car and it remains open to them to do that in cases where death or serious bodily harm results. On the other hand, in the case where the dangerous driving is less serious, where the Guards feel that it is not necessary to move on indictment, they would still have the opportunity, under my amendment, of charging the driver summarily and on summary conviction, the lesser penalties would apply.
It seems to me we are back where we were on Committee Stage, at which time this matter was somewhat confused in that the question of mandatory imprisonment was the matter of greatest concern. As the House will have seen, amendment No. 20 proposes to drop the provision of mandatory prison sentence for this type of offence. We now get into clear view a further effort which will water down the intention of this House in regard to a matter which is very serious, namely, dangerous driving causing serious bodily harm to some other road user.
How does the Minister suggest it is watered down under my amendment?
If it is not watering it down, what is it doing?
It is simply removing that as the test for the punishment. You can still give the same punishment to the person who causes death or serious bodily harm under my amendment, if the driving warrants it, if you convict on indictment.
That is not quite so.
It is.
I have said that where serious bodily harm results from dangerous driving, to go on the lines suggested by the Deputy in his amendment, in my estimation, would water down the provision that we would hope would become law in regard to this very serious matter. What the Deputy has now said to me does not alter the fact that to cause serious bodily harm by dangerous driving is a most serious offence and one which we should deal with. Now that we have removed mandatory jail sentence from the proposals in the Bill, we should at least deal with it, not in the manner suggested in amendment No. 19, but in the manner suggested in amendment No. 20. I do not at all agree with the Deputy that the result should have no bearing on the actual case. It has a bearing on the case, a very serious bearing in so far as the injured party is concerned.
Yes, but I did not say that it should not have a bearing; I said the result alone should not determine the penalty.
Again, the result alone will not determine the penalty, since no specific penalty is mandatory. The term of imprisonment may be any term not exceeding five years. Since that is so, the result cannot be held to be the sole determining factor. To accept amendment No. 19 would be a retrograde step in so far as our outlook on this offence is concerned and would be giving the public to understand that we in this House do not regard serious injury as a result of dangerous driving with the seriousness that I believe we do regard it. I believe the House takes a very serious view of this offence and that in removing the mandatory jail sentence from the proposals here, we have gone as far as it is desirable or wise to go and that amendment No. 19 should not be carried but that amendment No. 20 which I am moving should be carried instead.
Is amendment No. 19 withdrawn?
I am not withdrawing the amendment. Have I the right to reply to the Minister?
I want to be very brief. The Minister may have misunderstood my remarks. If the Minister examines the amendments, he will see that the only difference between what I am proposing in amendment No. 19 and the Bill as the Minister wants it amended is that the Bill as the Minister wants it will make the test of the punishment whether or not grievous bodily harm or death was caused and in cases where grievous bodily harm or death is caused as a result of the driving, the Minister wants to say that the punishment will be more severe, regardless of whether or not the driving was particularly bad on the occasion, and that in the case where there is even the smallest degree of dangerous driving, the person guilty of that very small degree of dangerous driving will be liable to be sent to jail for five years or to be fined up to £500, simply because that person was involved in an accident and caused serious bodily harm to another person.
It was pointed out already on Committee Stage that serious bodily harm is not and cannot be defined. It might be serious for one person to lose the tip of his finger or the tip of his little toe. That might not be serious for another person. A small degree of careless driving resulting in such an injury could, under the Bill as it stands at the moment, entail imprisonment for any term up to five years or a fine of £500. The test is the injury which was caused, not the degree of dangerous driving.
All I want the Minister to do is, not to waive in any way his abhorrence of dangerous driving causing injury or death, but simply to say that under this Bill a person will be liable to go to jail for five years or to be fined £500 because of the degree of dangerous driving of which he is guilty. It does not prevent the Minister bringing a charge against a person who injures another person in a collision and indicting that person and, if he proves him guilty, making him subject to the higher penalties. I think the Minister's principle is a bad one.
This is replying on amendment No. 20?
The Deputy replied on amendment No. 19.
If that is the case, I have spoken only on amendment No. 19.
That is all— one speech, except in the case of the Deputy moving the amendment.
I thought amendment No. 20 was being taken with amendment No. 19.
We prefer to take No. 19.
The two amendments were discussed together.
I am moving amendment No. 20.
That would be making two speeches.
The Minister will have the right to reply, if he does not move now.
Is amendment No. 19 withdrawn?
No. We want to divide on it. There is no problem.
There is a problem. If it is held that I have not moved amendment No. 20, I can move it later and reply, but the fact remains, and I am not "cribbing" at this, Deputy O'Higgins has moved No. 19; he has discussed No. 20; and he has replied on No. 19. If we regard amendment No. 20 as not yet moved, then he will make a third speech, which no other Deputy is entitled to do.
Far be it from us to take advantage of the Minister——
I am not suggesting that he was taking advantage of me but I was putting the rather anomalous position which arises.
The Minister can move his amendment now and make two speeches.
If amendments Nos. 19 and 20 are being moved and discussed together, can they not be put separately?
They can. They must be moved separately.
Then I think it could be established that there is no objection to discussing Nos. 19 and 20——
We have already done so.
——and let the discussion run on and the amendments be taken separately.
I will put amendment No. 19.
The Minister has amendment No. 20 which would operate to change these words and may I respectfully submit that you put amendment No. 19 in the affirmative form so as to permit the Minister's amendment to be considered thereafter. If we decide to let the words stand, the Minister's amendment is shut out. If it is put in the affirmative, it leaves it open to the Minister to move his amendment.
On a point of order, you cannot put amendment No. 19 without putting it that the words proposed to be deleted stand.
If you put the amendment in the form that the words proposed to be deleted stand, we cannot consider the Minister's amendment.
The Deputy is right to that extent. I am putting the question, in order to save amendment No. 20, that lines 43 to 48 inclusive stand part of the Bill.
Question put.
The Dáil divided: Tá, 47; Níl, 33.
Tá.
- Blaney, Neil T.
- Boland, Gerald.
- Boland, Kevin.
- Booth, Lionel.
- Brady, Philip A.
- Brady, Seán.
- Brennan, Joseph.
- Breslin, Cormac.
- Burke, Patrick.
- Calleary, Phelim A.
- Childers, Erskine.
- Clohessy, Patrick.
- Collins, James J.
- Cotter, Edward.
- Crowley, Honor M.
- Cummins, Patrick J.
- Cunningham, Liam.
- Davern, Mick.
- Donegan, Batt.
- Dooley, Patrick.
- Egan, Kieran P.
- Egan, Nicholas.
- Fanning, John.
- Faulkner, Padraig.
- Gibbons, James.
- Gilbride, Eugene.
- Gogan, Richard P.
- Haughey, Charles.
- Hilliard, Michael.
- Johnston, Henry M.
- Kenneally, William.
- Kennedy, Michael J.
- Killilea, Mark.
- Kitt, Michael F.
- Lemass, Noel T.
- Lemass, Seán.
- Lynch, Celia.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Medlar, Martin.
- Millar, Anthony G.
- Moher, John W.
- Mooney, Patrick.
- O Briain, Donnchadh.
- Ormonde, John.
- Sheldon, William A.W.
- Teehan, Patrick.
Níl.
- Belton, Jack.
- Burke, James.
- Coburn, George.
- Coogan, Fintan.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, John A.
- Desmond, Daniel.
- Dillon, James M.
- Dockrell, Maurice E.
- Esmonde, Sir Anthony.
- Fagan, Charles.
- Flanagan, Oliver J.
- Giles, Patrick.
- Hogan, Bridget.
- Jones, Denis F.
- Kyne, Thomas A.
- Larkin, Denis.
- Lindsay, Patrick.
- Lynch, Thaddeus.
- McLaughlin, Joseph.
- McMenamin, Daniel.
- Manley, Timothy.
- Mulcahy, Richard.
- Norton, William.
- O'Higgins, Michael J.
- O'Reilly, Patrick.
- O'Sullivan, Denis J.
- Palmer, Patrick W.
- Reynolds, Mary.
- Rooney, Eamonn.
- Ryan, Richie.
- Sweetman, Gerard.
Tellers:—Tá: Deputies O Briain and Mrs. Lynch; Níl: Deputies O'Sullivan and Jones.
Question declared carried.
I move amendment No. 20:—
In page 42, to delete lines 49 and 50 and substitute "to a fine not exceeding five hundred pounds or to both such penal servitude and such fine, and".
This amendment is, in fact, put down to meet the wishes of the House in regard to the question——
The Minister will forgive us but we cannot hear a single syllable.
I am not trying to compete.
Order!
As I was saying or endeavouring to say——
Trying to say.
——this amendment has been brought to the House at the behest of the House on Committee Stage and seeks to fulfil and undertaking given by me that mandatory imprisonment in this case would be dropped from the provisions of the Bill. Deputy O'Higgins has indicated that if we are to leave the penalty as it is now proposed in the amendment, we will, in fact, be deciding the penalty on the result of an accident rather than the cause of an accident; in other words, whether death is the result of an accident, or serious bodily harm, will be the determining factor of such penalty that may be imposed rather than the degree of dangerous driving that brought about the accident.
Deputy O'Higgins referred to dangerous driving to a small degree. I do not think it is possible to define dangerous driving to any degree. It is dangerous driving or it is not. Further, he mentioned that there could be a small degree of careless driving. That may have been a slip because if it is regarded as careless driving, it would not come under this section, and would not fall to be dealt with under this section.
I intended to refer to dangerous driving; I may have said "careless" by mistake. If I did it was careless of me.
Slightly careless perhaps. However, I should like to make it clear that careless driving cannot bring about a conviction under this section and, of course, it follows if you cannot have a conviction under the section, the sentences or penalties enumerated here cannot be applied. I want to reiterate what I said on an earlier stage of the Bill. Careless driving does not come within the ambit of the penalties outlined in this section.
I feel that in dropping the mandatory imprisonment clause, we are acquiescing in the views expressed by the majority of the House on Committee stage. At the same time, I think I made it clear — and I was glad to hear Deputy O'Higgins back me up on this, that his view is as is my view — that we still regard a matter such as this with the utmost gravity. It is a serious type of offence, and one of which we take a very grave view, but as to the penalty being dictated by the result of an accident, if it should be death or serious bodily harm, that is not quite so. It does not dictate the actual penalty. It does dictate the maximum penalty that may be imposed and the maximum penalty has no minimum limit, as it were. It will be for the courts to determine whether it is a week in prison, five years in prison or whether there should be imprisonment at all.
I should like to disabuse the minds of Deputies who have expressed the view that the result of dangerous driving is in fact the sole determining factor of what the penalty will be. It is nothing of the kind. At present it comes within the realm of subsection (2) (a) of Section 53. Under that subsection, the penalty shall not exceed imprisonment for a term of five years, or at the discretion of the court, a term not exceeding five years and a fine not exceeding £500. Either one or both may be applied but there is no dictation. The resultant injury or death in itself does not, as has been suggested here, dictate the penalty that will be imposed by the court and the discretion of the court will undoubtedly come into play to determine what it feels to be an appropriate punishment for the offence in question.
I think that amendment No. 20 goes a very long way to meet all the views expressed while at the same time maintaining the overall view of the House that causing death by dangerous driving or causing serious bodily harm is a most serious and grave offence and is so regarded by this House and, I presume, will be so regarded by the courts.
We certainly accept the Minister's view that very serious notice should be taken by the House and by the courts of dangerous driving. I do not know if I am in order in speaking but the Minister asked me to back him up on a specific matter and I have no hesitation in doing so. My only disagreement with him is on the question of whether regard should primarily be had to the result of the dangerous driving rather than to the degree of dangerous driving. The Minister has met the views expressed here to a very great extent in amendment No. 20 and I have no hesitation in re-emphasising his remarks in regard to the gravity of dangerous driving and the desire of the House to wipe out, as far as we can, both dangerous driving and the results of it.
Amendment agreed to.
Amendment 21 not moved.
I move amendment No. 22:
In page 63, to delete lines 21 to 24 and substitute:
"(5) Where a person uses a mechanically propelled vehicle other than an omnibus in contravention of a bye-law under this section, he and—
(a) if he is not the registered owner of the vehicle, such owner, and
(b) if the vehicle is the subject of a hire-drive agreement on the occasion in question and the person using it is not the hirer under the agreement, such hirer, shall be guilty of an offence."
That has been discussed already.
Amendment agreed to.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 63, to delete lines 34 to 38 and substitute:
"(8) (a) Where a person charged with an offence under subsection (5) of this section is the registered owner of the vehicle, it shall be a good defence for him to show that the vehicle was being used on the occasion in question by another person and that—
(i) such use was unauthorised, or
(ii) the vehicle was on that occasion the subject of a hire-drive agreement.
(b) Where a person charged with an offence under subsection (5) of this section is the hirer of the vehicle, it shall be a good defence for him to show that the vehicle was being used on the occasion in question by another person and that such use was unauthorised."
Amendment agreed to.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 70, to delete lines 19 to 27 and substitute:
"(9) Where there is a contravention of a bye-law or rule under this section and a mechanically propelled vehicle is involved—
(a) the person parking the vehicle, and
(b) if the person parking it is not its registered owner, such owner, and
(c) if the vehicle is the subject of a hire-drive agreement on the occasion in question and the person parking it is not the hirer under the agreement, such hirer, shall each be guilty of an offence.
(10) (a) Where a person charged with an offence under subsection (9) of this section is the registered owner of the vehicle, it shall be a good defence for him to show that the vehicle was being used on the occasion in question by another person and that—
(i) such use was unauthorised, or
(ii) the vehicle was on that occasion the subject of a hire-drive agreement.
(b) Where a person charged with an offence under subsection (9) of this section is the hirer of the vehicle, it shall be a good defence for him to show that the vehicle was being used on the occasion in question by another person and that such use was unauthorised."
Has this been discussed?
Amendments up to No. 27 have been discussed.
Amendment agreed to.
Amendments 27 and 28 not moved.
What has become of Deputy Booth? Is he writing letters now?
Amendment No. 29 not moved.
Why is it not moved?
The question is not relevant to me.
Mr. Ryan
The whip has been withdrawn.
I move amendment No. 30.
In page 75, line 26, to delete "section" and substitute "subsection".
This is purely a drafting amendment. The word "section" should read "subsection".
Amendment agreed to.
I move amendment No. 31:
In page 76, to add the following subsection to section 95:
"(20) Where a person is charged with an offence under subsection (11) or subsection (15) of this section, it shall be a good defence to the charge for him to show—
(a) that the traffic sign, sign, device, notice or light to which the charge relates was provided neither by him nor with his consent, and
(b) that as soon as was practicable after its provision came to his notice, he had it removed."
This amendment proposes to give the owner or occupier on which an illegal sign is erected a defence where he can show that the sign was erected without his knowledge and that he had it removed as soon as was practicable. During the Committee Stage debate, I undertook to consider an amendment on these lines.
Amendment agreed to.
I move amendment No. 32:
In page 77, to add the following subsection to section 97:
"(5) When making regulations under this section, the Minister for Justice shall take account of the reasonable cost of removing and storing vehicles."
This is an amendment as a result of an undertaking given to Deputy O'Higgins, I think, who made the point on Committee Stage that reasonable expenses for the storage of vehicles should not include any penalty figure; in other words, that expenses should be whatever is regarded as reasonable to cover the cost of storage and that at no time should they be regarded as constituting part of the penalty.
Amendment agreed to.
Amendment No. 33 not moved.
Why is it not moved? Has the Deputy vanished or what?
I move amendment No. 34:
In page 85, lines 3 and 4, to delete "and one-half".
I presume that we may discuss amendments Nos. 34, 35 and 36 together.
Yes.
Sometime earlier, Deputy de Valera paid tribute to the reasonableness of the Minister and the method by which he had agreed to certain of the amendments tabled by members of the Opposition. I trust he will be as reasonable in his approach to these amendments as he was in the case of others.
These three amendments deal with the hours permissible for one driving a heavy type of vehicle. The Labour Party contention on Committee Stage was that the maximum hours allowed under this section were excessive. In Section 114, the Minister's proposal is such that it will be an offence for a driver to drive for a period exceeding five and a half hours. I do not intend to repeat the arguments in favour of a reduction of the number of hours at this stage. On Committee Stage, we had proposals in amendments by the Labour Party which would reduce the hours to four and a half. The amendment here proposes that the continuous period of driving shall not exceed five hours. I still think that is a little too much but in view of the Minister's attitude and the fact that the House, by a vote, decided against our amendment, our amendment on Report Stage is modified to provide for a period of five hours.
I merely want to stress the fact that it is very unreasonable that a driver might be required to drive a truck, lorry, van or bus for aperiod of five hours. We can only remember our own experience when, on occasions, we have been required to drive for what we consider an excessive period, how difficult it is in the first place and more important still how dangerous it may be because fatigue from driving is one of the greatest fatigues I know of. One is certainly more liable to have an accident after driving for four, four and a half or five hours than for a much shorter period. We think, therefore, that five and a half hours is too long a period during which a driver of a heavy truck may be asked by his employer to drive. We suggest in amendment No. 34 that the period be reduced from five and a half hours to five hours. I do not think the request is unreasonable.
The second amendment is amendment No. 34 which proposes that the aggregate number of hours one may drive in 24 hours be reduced from 11 hours to ten hours. I would also suggest that to ask any man in this or any other country to drive for a period of 11 hours is just not good enough. The Minister or somebody else may say that drivers are not always required to drive for 11 hours. They are, for very long periods at certain times in the year. They are, during the Spring and certainly during the Autumn.
The Minister has travelled the road from Donegal to Dublin as I have travelled the road from Wexford to Dublin and others have travelled from Cork and Waterford and they see the same lorries day after day. In the corn season, these drivers are required to start early in the morning—perhaps 4 o'clock in the morning—and to travel a considerable length for a considerable number of hours. I know that in many cases they are paid overtime but I think we should protect them. We should also protect the public against the risk of accidents. I could quote cases where drivers were required to do two journeys per day of from 80 miles to 100 miles and back. I do not think we should permit that.
I do not believe it is a matter entirely for the trade union movement. Inasmuch as the Minister takes power in the Bill to lay down the maximum number of hours during which a man may drive, he is also responsible for determining a fair number of hours. In my opinion certainly 11 hours is neither just nor fair. Paragraph (b) of subsection (1) of Section 114 says:
Any series of continuous periods of driving amounting in the aggregate to more than eleven hours in any period of twenty-four hours beginning two hours after midnight.
Any period of driving in excess of eleven hours, according to the section, would be regarded as an offence. It will be noted that the driver is allowed to commence—and this is significant— at 2 o'clock in the morning. The concession he gets is that he may not drive at five past twelve, five to one, or even five to two. At 2 o'clock, the section allows him to get into the cabin of his lorry and drive whatever distance one might drive in the next 24 hours during the period of 11 hours.
Again, the proposal, as against our proposal on the Committee Stage, is modified to some extent. On the Committee Stage we proposed that the number of hours during which a man might be allowed to drive in the period of 24 hours would be reduced from eleven hours to nine hours. We have reduced that, so to speak, now to a period of ten hours. I think the Minister ought to be prepared to accept that compromise in any case.
I do not pretend to know the country any better than the Minister does. I want to assure the Minister that these amendments have the approval of the whole trade union movement. I am not saying that merely because the Labour Party is associated with the trade union movement but the trade union movement asked that these amendments be tabled because it is their considered view that the proposals of the Minister in the Bill, as it stands, are not fair proposals. If he does not feel like accepting the amendments from the members of the Labour Party in this House, I think he should in all fairness listen to what I consider and I am sure the House must consider to be a reasonable request from the Irish Congress of Trade Unions which is representative of all the organised workers in the country.
The third amendment deals with the break in driving hours. According to the Bill, there must be an interval of half an hour after a continuous period of five and a half hours driving. I do not think it needs any strong argument from me to convince the House that half an hour's rest after driving five and a half hours is insufficient.
Again, I do not want to give the impression that every single driver in the country drives for a period of five and a half hours or will drive for a period of five and a half hours but he may be required to do it. I know how tired I become travelling for two hours up from Wexford. I know that Deputy Dillon will be pretty tired when he drives from Monaghan or Ballaghaderreen. He would not be content to have half an hour's rest, then get into his car again and drive off a distance of perhaps 80 or 150 miles. I would be able to do it once or twice during the year but I do not think I could do it consistently throughout the whole year.
Some arguments have been put forward that drivers do not want it; that they are on the road; that they want to take their food and go on again. I do not think any of them would be satisfied with half an hour. On Committee Stage we suggested an hour. It was considered excessive by some of the Deputies. We are modifying our demands. The trade union movement is modifying its demands. I ask for a mere three quarters of an hour.
The Minister may say that to some extent this section is a permissive section—permissive to the extent that when one goes over a certain period it is an offence. There are employers in this country who will try to insist— and they will be able to insist—that their drivers shall drive and say that eleven hours within the 24 is within the law. They will try to insist, and they will be successful in many cases, in ensuring that the meal break for many of the drivers will be a mere half-hour.
Again I think that, in the cause of road safety and in the general protection of the public, we should be more conscious of the strain and rigour upon drivers, especially upon the drivers of heavy trucks and lorries, and we should ensure that the men will have a good rest. Legislation is imposed upon all of us in many respects, as to what we must do and what we must not do. Many of us do not agree but we have to comply with the law.
I do not think the Minister should consider these amendments unreasonable. The Minister may have had representations in respect of these three proposals from the trade union movement. I do not believe he has actually had them in writing but when the White Paper on road traffic was produced some 12 months or so ago the trade union movement suggested amendments in respect of other proposals contained in that White Paper.
The question of hours of driving were probably not mentioned in the White Paper. We are acting in this House more or less as the negotiators for the trade union movement. We cannot negotiate to the extent that we can take any action. One might say we are at the mercy of this House but the Minister can lead in that decision. I think he will earn the gratitude of the trade union movement if he accedes to the request in these three amendments and accepts them.
On Committee Stage, in reference to amendments Nos. 107, 108 and 109, we did discuss these various aspects of the matter, I think, pretty fully. There is little indeed I can add now to what I said then nor has much been added by Deputy Corish to what he said then. I should like to reiterate that these hours of work are the maximum hours of work and the periods of rest as laid down are the minimum periods of rest.
Taking the matter in that light, we then have a look around and see just how long have these maximum periods of work as proposed in this Bill and the minimum periods of rest been in operation. We find they are in operation since 1933 and that, apart from the Labour Party members who have raised the issue on this matter in the Bill, during those 27 odd years that have since elapsed no complaints have really been made against those maximum work hours and minimum rest hours as laid down so long ago as 1933.
Furthermore, the recently proposed revision in Section 73 of the 1960 British Road Traffic Act prescribes the same period as we are proposing to continue here. Over and above that, might I say that there is provision for amendment of the periods in subsection (7) of this section if the workers and employers agree. That is a matter which I imagine can be taken up and probably will be taken up by the worker's representatives in due course. Overall, we should have regard to the fact that these hours are the maximum working hours and the minimum rest hours.
Deputy Corish instanced the case of men who are driving in and out of Dublin twice a day and who are doing a double return journey of from 80 to 100 miles. If that is so, it is quite evident to me, unless these trucks are jet-propelled, that the 11 hours' maximum is being far exceeded. To write six or five hours into this Bill obviously will not prevent what is now taking place, of a laden truck doing upwards of 100 miles four times in the day and it has to be loaded and unloaded twice during that period. If this were worked out, the 11 hours must be far exceeded. I feel that other and adequate steps will undoubtedly have to be taken in order that such a situation can be dealt with.
It is possible to do two journeys of that length easily within nine or ten hours.
With a laden truck?
Four hundred miles?
Eighty miles.
Four times—that is 320 miles.
Two double journeys.
That would be 160 each, return.
Yes.
That is 320 miles with a laden truck that has had to be loaded twice and unloaded twice.
Yes. I know particular cases——
I have not come across such cases. If we take the normal average driver of fair ability of a car on the roads at the moment and ask him to drive an average of 40 m.p.h. for 10 hours——
They start at four or five in the morning and finish work at nine or 10 at night.
That is not the point. If a laden truck which has to be loaded twice during the period and unloaded twice during the period can be driven 320 miles by one driver in 10 hours, then that is a new type of truck to me. It is much faster and much more manoeuvrable than anything I know of. That just does not seem feasible or possible to me.
It is.
It seems to me that the hours necessary to do that work are already in excess of the maximum hours of 11 out of the 24, as laid down in the present law and as we have here. I believe that they are being exceeded at the moment. The writing down of this maximum limit by splitting it in half will not cure the situation wherein at the moment the 11 hours are being exceeded.
The employer-worker relationship will surely be admitted by all to have improved vastly over the past 27 years and since these hours were first initiated. Indeed, it is not true to say that the employers of to-day will insist on the maximum hours from their drivers and the minimum periods of rest. If an odd employer springs up occasionally who does insist. I am quite sure that the conditions of to-day take care of him and that he does not long remain such an employer or does not long remain an employer at all
It is because of my firm belief as regards the workers' representatives that the relationship between themselves and their employers is so much more advantageous to the worker to-day than 20, 30, or 40 years ago that I am quite satisfied that any of the abuses that could be resorted to within the hours laid down here, will be taken care of adequately and fully by the workers' representatives in their own way and in their own good time. The main facts still stand out in my mind that, after 27 years of experience of these maximum working hours, and minimum rest hours, as defined in the 1933 Act, until this Bill and these proposals came along there were no complaints from the workers or their representatives. That is a striking fact to me and one which I think is of very great weight in consideration of this matter.
These are the maximum hours of work and the minimum hours of rest. Nobody is saying that this gives a charter that these hours must be worked in that way and that only these minimum periods of rest must be taken. Also, cognisance must be taken of the fact that it need not necessarily follow that the hours of work of a driver are entirely spent driving. The period during which he may help to load or unload his truck is part of the period as laid down and specified here in these 11 hours and that is something of which notice should be taken as well. However, the whole situation is that the hours we are laying down here are maximum working hours and minimum rest hours. There is all the space in between, whereby the workers' representatives and the employers can and do make their own arrangements which are very different in pattern from those which are enumerated here as the absolute maximum and the absolute minimum.
Question put: "That the words proposed to be deleted stand".
The Dáil divided. Tá, 47; Níl, 16.
Tá.
- Blaney, Neil T.
- Boland, Gerald.
- Boland, Kevin.
- Booth, Lionel.
- Brady, Philip A.
- Brady, Seán.
- Breen, Dan.
- Brennan, Joseph.
- Breslin, Cormac.
- Burke, Patrick.
- Calleary, Phelim A.
- Childers, Erskine.
- Clohessy, Patrick.
- Collins, James J.
- Cotter, Edward.
- Crowley, Honor M.
- Cummins, Patrick J.
- Cunningham, Liam.
- Davern, Mick.
- de Valera, Vivion.
- Donegan, Batt.
- Dooley, Patrick.
- Egan, Kieran P.
- Egan, Nicholas.
- Fanning, John.
- Faulkner, Padraig.
- Gibbons, James.
- Gilbride, Eugene.
- Gogan, Richard P.
- Haughey, Charles.
- Hilliard, Michael.
- Johnston, Henry M.
- Kenneally, William.
- Kitt, Michael F.
- Lemass, Noel T.
- Lemass, Seán.
- Lynch, Celia.
- MeEllistrim, Thomas.
- MacEntee, Seán.
- Medlar, Martin.
- Millar, Anthony G.
- Moher, John W.
- Mooney, Patrick.
- O Brian Donnchadh.
- Ormonde, John.
- Teehan, Patrick.
- Traynor, Oscar.
Níl.
- Burke, James.
- Corish, Brendan.
- Crotty, Patrick J.
- Desmond, Daniel.
- Flanagan, Oliver J.
- Hogan, Bridget.
- Kyne, Thomas A.
- Larkin, Denis.
- Lynch, Thaddeus.
- McLaughlin, Joseph.
- Manley, Timothy.
- Norton, William.
- O'Reilly, Patrick.
- O'Sullivan, Denis J.
- Palmer, Patrick W.
- Ryan, Richie.
Tellers:—Tá: Deputies Ó Briain and Mrs. Lynch; Níl: Deputies Desmond and Kyne.
Question declared carried.
I move amendment No. 35:
In page 85, line 6, to delete "eleven" and substitute "ten".
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 47; Níl, 12.
Tá.
- Blaney, Neil T.
- Boland, Gerald.
- Boland, Kevin.
- Booth, Lionel.
- Brady, Philip A.
- Calleary, Phelim A.
- Childers, Erskine.
- Clohessy, Patrick.
- Collins, James J.
- Cotter, Edward.
- Crowley, Honor M.
- Cummins, Patrick J.
- Cunningham, Liam.
- Davern, Mick.
- de Valera, Vivion.
- Donegan, Batt.
- Dooley, Patrick.
- Egan, Kieran P.
- Egan, Nicholas.
- Fanning, John.
- Faulkner, Padraig.
- Gibbons, James.
- Gilbride, Eugene.
- Brady, Seán.
- Breen, Dan.
- Brennan, Joseph.
- Breslin, Cormac.
- Burke, Patrick.
- Haughey, Charles.
- Hilliard, Michael.
- Johnston, Henry M.
- Kenneally, William.
- Kitt, Michael F.
- Lemass, Noel T.
- Lemass, Seán.
- Lynch, Celia.
- MeEllistrim, Thomas.
- MacEntee, Seán.
- Medlar, Martin.
- Millar, Anthony G.
- Moher, John W.
- Mooney, Patrick.
- O Briain Donnchadh.
- Ormonde, John.
- Teehan, Patrick.
- Traynor, Oscar.
Níl.
- Burke, James.
- Corish, Brendan.
- Desmond, Daniel.
- Hogan, Bridget.
- Kyne, Thomas A.
- Larkin, Denis.
- Lynch, Thaddeus.
- McLaughlin, Joseph.
- Norton, William.
- O'Sullivan, Denis J.
- Palmer, Patrick W.
- Ryan, Richie.
Tellers:— Tá: Deputies Ó Briain and Mrs. Lynch; Níl: Deputies Kyne and Larkin.
Question declared carried.
I move amendment No. 36:
In page 85, line 24, to delete "half an hour" and substitute "three quarters of an hour".
Amendment put and declared lost.
I move amendment No. 37:
In page 90, between paragraphs 1 and 2, to insert "(Disqualification under subsection (4) of section (26)".
On the Committee Stage, a protracted debate took place between the Minister, Deputy O'Higgins and others, on the subject of whether the disqualifications envisaged in the Bill should be grouped together and scheduled or put in the appropriate sections. The debate continued for a considerable length until it was obviously a case of the immovable object meeting the irresistible force at which point. I, as the honest broker, came in and suggested, as a way out of the difficulty, that the Minister might consider some notes in the Second Schedule and also in the margin of the Bill opposite the appropriate sections. I waited to see the Ministerial amendment, but no amendment to meet this point appeared. I then set out to draft what appeared to be an appropriate amendment to meet the point to which I understood the Minister had agreed to give earnest consideration, namely that it should be made reasonably clear to anyone just how disqualification would arise and the measure of disqualification in certain cases.
In the Second Schedule, there are 11 specified types of offence for which disqualification may ensue. Two are more serious than the other nine. In respect of an offence under Section 49 and and an offence under Section 53, it is provided in Section 26 that a more serious type of disqualification will be imposed than in the other nine offences listed. I could not put down amendments to provide notes in the margin, for notes in the margin are not officially part of the Bill. I have had recourse, therefore, to giving some indication of the references in the Second Schedule. I do not pretend that my method is the ideal one but it would at least give anyone reading the Second Schedule some idea of where to look. As it is, the only thing that gives any clue is Section 26. That appears in the margin opposite the words "Second Schedule" in rather small print. It is not very easy to decipher. If my recollection is correct, a very good deal of confusion arose on the Committee Stage as to the precise meaning of the Second Schedule. At the time there was a Ministerial amendment. A great many people obviously, and quite excusably, failed to see the rather tiny words "Section 26" in the margin. They are the only clue to what happens.
I suggested that, after each paragraph, there should be a line indicating that the disqualification is under subsection (3) or under subsection (4) or Section 26, as the case may be. I do not say that is the ideal solution but it would at least provide a cross check for anyone involved. I still think that to make it complete some note should appear in the margin opposite Sections 18, 40, 48, 49, 50 and so on, all of which cover offences liable to entail disqualification. I came into the debate in the middle of the Committee Stage and I made the suggestion in an attempt to find some way out of the difficulty in which the Minister and Deputy O'Higgins found themselves. I thought the Minister rather gladly accepted this compromise to end what was a very prolonged discussion and one which did not appear, of itself, to have any end to it at all. I am very disappointed that he did not indicate some way in which people will readily see what disqualifications might ensure.
With regard to the Schedules, may I make a suggestion? On page 90, the numbering of the lines begins, not on the top of the page where one might expect it, but at the words "Second Schedule". This difficulty arises because the First Schedule is a tabular statement which does not readily lend itself to an indication of the number of the line. The normal practice, as I understand it, is that the repeals section of any Bill, being in tabular form, appears last. That is my experience and I understand it is the normal practice. Why that practice is departed from here, I do not know. It would certainly make the numbering of lines very much simpler if any tabular statement appeared at the end. This appears here in this form purely for the convenience of the Parliamentary draftsman.
I have had no indication as to whether or not the Minister is prepared to accept the amendments, even in principle. I suggest that he is more or less committed to some consideration of them in view of what happened on Committee Stage.
Mr. Ryan
I find myself in complete agreement with Deputy Sheldon in this matter. Just as we emphasised this on the Second and Committee Stages, so we say now, while the Minister has gone some of the way in putting marginal notes to the Second Schedule, it is still not a Bill that is easily comprehensible to the ordinary man or woman. I venture to say there is no legal practitioner in this country who on getting this Bill will not write into the margin in his own handwriting before the appropriate sections referred to in the Second Schedule a note saying "See Second Schedule." It should not be necessary to do that. The Bill ought to be produced in such a way that where an offence is specified penalties will be specified at the same place. Instead, the Minister has taken them out into a Second Schedule, in which case a legal practitioner with many years' experience of operating this Bill will still find confusion in tracing them. That is not good enough. If legislation is presented to us in a form which is not easily comprehensible, we should amend it.
On three Stages of this Bill we have pressed the Minister to make the Bill more legible, more understandable. What has been done is a slight improvement but it is not good enough. That is why I think the solution which Deputy Sheldon has put forward is worthy of acceptance by the Minister. It is simple to recite after each paragraph of the Second Schedule the subsection of Section 26 which is relevant to the particular offence. Even then, of course, people will have to refer to three different pages of the Bill in order to discover what penalty applies in relation to a particular charge. That should not be necessary.
It is no answer for the Minister to say, as he said before, that he proposes to publish a separate publication, a guide to the Road Traffic Act. It should not be necessary to have a guide to a Road Traffic Act or to any other kind of Act. Something should be written into the Bill or set out in a particular manner in the Bill so that it will be easily understood.
If the Minister is unable to accept Deputy Sheldon's amendment, and I do not see for one minute why he should refuse to accept it, there is still an opportunity to make the Bill understandable by accepting Deputy Sheldon's other suggestion that the marginal notes before the appropriate section should arrest the attention of people who read the section, that there should be some note such as "a normal disqualification under the Second Schedule" or "See Second Schedule" or some other simple words, so that the person's eye and mind will be drawn to the Schedule, which, the way it lies at the moment, is almost certain to be forgotten.
The Road Traffic Bill will be handled until it is in tatters. This Second Schedule is on the very last page, even after the repeals Section to which Deputy Sheldon has referred. It will be lost by most people who will be regularly handling this Bill. Therefore it is a very bad piece of draftsmanship and I am surprised the Minister has not improved the Bill in this respect. This is merely a drafting matter. It is so simple that there is no excuse and there is no reason why Deputy Sheldon's amendments should not be accepted in toto.
There are two points that I wish to make. First, can we be sure that when the Bill is published as a white Act of the Oireachtas these notes in the margin will survive, because that is not the custom? If you get any complex Bill, copies are treasured if you get them in the form as passed by Dáil Éireann because in that form they retain the marginal notes, whereas, when they appear in the ordinary form of an Act, these marginal notes usually disappear all through the Bill. Manifestly, if these marginal notes to the Second Schedule disappear, the Second Schedule as here set out will be even more incomprehensible than it now is.
The second point I want to make is this: I remain extremely uneasy about the penalties here set out which Deputy Sheldon's amendments are designed to underline. I acknowledge the fact that the Minister has reduced very substantially the number of cases in which suspension of driving licences is mandatory but the fact remains, and it is a fact that I do not think the Dáil has given sufficient attention to, that for a man convicted twice under, say, Section 106, for failure to fulfil his duties on the occurrence of an accident and it may be through oversight, possibly through carelessness, his driving licence is automatically suspended. To a person earning his living as a lorry driver, that is a very substantial additional penalty to whatever penalty has been imposed under the relevant section of the Bill. To a person driving for pleasure, it cannot be more than an added inconvenience.
We all have a tendency here to forget the individual in the process of legislating for the public good and we are all too familiar with the ancient aphorism that hard cases make bad law but we can carry that principle too far. I do not suppose there is a Deputy who has not had the experience of some woman writing to him to say she has a young family and her husband has lost his driving licence and cannot get work, that there is a job available for him but the fact that his driving licence has been suspended disqualifies him from employment and he will either have to go to England or else get his licence back. I always feel a sense of profound reluctance to write to the Minister for Justice to ask him to exercise the prerogative in cases of that kind for I recognise how difficult it must be for him to interfere with decisions of the court, but I never get a case of that kind that it is not borne in on me again what an appalling additional burden of penalty that is to the wage earner as compared with the flighty youth who has lost his licence for six months and to whom it is of no greater inconvenience than that he must ride a bicycle.
Deputy Sheldon's amendments refer, of course, to the insertion of certain notes in the Bill.
These are the penalties. I suppose it is stretching it a bit to refer to the penalties themselves but these penalties are mentioned. This whole Second Schedule deals with mandatory suspension of licences. I an content if I can direct the attention of the House again to the fact that these are heavy additional penalties for a man whose livelihood depends on his right to drive. I am not without hope that the Minister may further relent and restore discretion to the courts to suspend or not to suspend in cases of this kind. I can see no harm in doing that whatever, but I see the possibility of grave injustice arising under this mandatory plan. Perhaps the Minister can say if the notes will survive the Bill?
Yes, the side notes here are equivalent to the side notes in a section and will be contained in the Bill when it becomes an Act.
The Minister will advert to the fact that they do not usually remain?
So I have been given to understand but we put them in specifically as a result of a discussion on an earlier stage. In regard to the amendments proposed by Deputy Sheldon and supported by others, I would not recommend them to the House for the reason that they are really not appropriate. From the point of view of drafting, they are not necessary. Apart from that, if we look at the Second Schedule, we will see in the heading that it is quite clearly stated that this Schedule is in fact the Schedule of offences involving consequential disqualification. On the margin we find, as has already been indicated the note, "Section 26".
By and large, the offences mentioned here as involving consequential disqualification fall under subsections (3) or (4). They fall under subsection (3) so far as a drunken driving charge is concerned and also the case of dangerous driving resulting in a death. As a broad general rule, all others come under subsection (4) of Section 26. One good reason for not indicating subsections (3) and (4) in relation to any of these particular paragraphs of the Schedule is that other subsections of Section 26 can be and are related to the actual offences under either (3) or (4). It would be just impossible to spell out the various circumstances and if such an attempt were made, the resultant Schedule, with these added notes, would become much more difficult to understand rather than clearer. It is for that reason that the request has not been acceded to and why I would suggest we should not accept these amendments.
To clarify it and to put it briefly, all these offences involving consequential disqualifications are dealt with under Section 26. There are two classes which I have already mentioned under subsections (3) and (4); in other words, the two operative subsections in Section 26 which the reader of the Bill will become aware of by seeing it written on the side. There are just the two sections to which he will have recourse in the first instance, and the reason we do not refer to the subsections is that the rest of the section, in varying circumstances, can be, and is, related to those subsections.
There is not any real point in clarifying that position because its clarification would really lead to greater confusion. So far as Deputy Ryan is concerned, I feel he talks with his tongue in his cheek when he says that the second last page of this much worn document is going to be lost because recourse will be had to it so frequently and people will not know where they are. He is in the legal profession himself and if he has to use this page sufficiently often to wear it away, it would reflect no great credit on the legal profession. I do not think it is expecting too much from these people who are expected to know the law, and to operate it as advocates for anybody who may find himself in court, to know into what category a client falls without having to look up the Act.
Deputy Dillon mentioned the two consecutive driving offences which carry with them a mandatory six months disqualification of driving licence. He said that in the case of the wage earner, the driver who earns his living by driving, the punishment far exceeds the punishment for a similar type of dual offence by somebody other than a driver who earns a living by driving. As an aside, does it occur to the Deputy and the House that the person who earns his living by driving is on the roads for practically all of his working day and that his digressions in regard to bad or improper driving, and a proneness to digress in that manner, are far more likely, because of the time he spends on the road, to cause damage than those of the occasional driver, the person who uses his car once a week or a couple of times a week or at weekends? Over and above that, what we have to remember is that these types of offence should not occur twice and if they do, then we have to try to take effective steps to ensure that the person who allows them to happen twice will learn. We hope he will learn not to let them happen a third or fourth time.
It is all very well to say these matters should be left to the discretion of the courts. To a large extent I have bowed to the wishes of the House in more serious and graver matters than this but I feel that the question of disqualification from driving has proved itself to be one of the most effective methods of control and of bringing a proper sense of responsibility to our drivers—far more so than fines. Indeed, in some cases it will have a more salutary effect than a couple of weeks in jail, depending on the type of person who happens to fall into disfavour in this matter.
The leader of the Opposition said that when such matters were brought to his notice, where hardship may arise to the family of the driver, he was inclined to ask the Minister for Justice to exercise his prerogative to remove the disqualification. The fact is that we have taken away that power, that prerogative, from the Minister for Justice and that has been welcomed by this House. I wonder, now that we have taken it away, whether if it were left there, it might not serve in the odd, genuine case of hardship that may arise in the future, even under this Bill.
However, everyone seemed to think there was something wrong about the Minister for Justice having this power to remit disqualification of a driving licence and indeed so much so was that felt that the operation of that power had fallen into disuse over quite a number of years and it was not operated by a number of successive Ministers. I am not too sure that its repeal is indeed the very good job we all said and thought it would be. It might be as well if it had been left there but it is now gone and there we are.
As I say, I do not feel the amendments proposed by Deputy Sheldon would help in the long run to clarify the situation, nor do I believe that clarification is so much needed as would appear at first sight. I feel that if and when any of us may be unfortunate enough to come within the ambit of the offences outlined in the various paragraphs of the Second Schedule, our greatest defence will not be to find out exactly the section or subsection under which we have transgressed, but rather will we be seeking out legal assistance to see what is the easiest way we can get out from under whatever penalty may be hanging over our heads.
I do not think there is any question that these 11 amendments, which are all similar, will help in all those considerations or that it will be to the disadvantage of the defendant that this is not written into the various paragraphs. For those reasons, I would not recommend the acceptance of the amendments.
As I said at the beginning, I got involved in this as an honest broker attempting to suggest a solution to an interminable argument. I still think some form of cross-reference would be desirable and I think the desirable way to have the cross-reference is the way Deputy Ryan referred to, that is, further notes in the margin of the relevant section drawing attention to the Second Schedule. I suggest to the Minister that when he goes to the other House, he might think again on the lines of giving some indication in the relevant section that there is this disqualification under the Second Schedule.
I am glad to know that the marginal notes in the Schedule will remain in the Act. I was afraid a cross-reference to Section 26 might disappear altogether and leave the Second Schedule even more incomprehensible. I am still not quite sure that it would do any great harm to bring a reference to Section 26 into the heading of the Second Schedule: "Offences under this Act involving Consequential Disqualification Orders". It is not customary in any section of a Bill to rely entirely on marginal notes for cross-references. Perhaps the Minister might consider a drafting amendment later on.
Amendment, by leave, withdrawn.
Amendment Nos. 38 to 47, inclusive, not moved.
Bill, as amended received for final consideration and passed.
The Dáil adjourned at 10.20 p.m. until 3 p.m. on Wednesday, 28th June, 1961.