Dáil Éireann díospóireacht -
Thursday, 15 Feb 1968

Vol. 232 No. 8

Road Traffic Bill, 1966: Committee Stage (Resumed).

Debate resumed on the following amendment:

In page 19, to delete subsection (3) and substitute the following:—"(3) Failure by an arrested person (other than a person who has provided a specimen of his urine in accordance with the prescribed procedure) following a requisition under this section to permit a designated medical practitioner to take from the arrested person a specimen of his blood shall beprima facie evidence that the arrested person is guilty of an offence under section 49 (1) of the Principal Act.”

—(Deputy T.J.Fitzpatrick(Cavan).

Major de Valera

I want to draw attention to some of the things said on Second Reading, with reference to the amendment and the remarks made about the problems of enforcement for the Garda and also remarks made about the integrity of the individual. They merit attention and with that in mind, Deputy Fitzpatrick's amendment, as I said last night, complicates the matter further. I suggest, as I have already suggested to the Minister, that section 29 might be amended in the sense that a firm stand is taken on the breathaliser test. There are good arguments for that and I mentioned some of them last night. In other words, paragraph (a) of section 29 (1) is made to stand without having to fall back, which would be the effect really, on paragraph (b) and then provide that it is optional to the accused, or the potential accused, if you like to call him that if he has not yet been charged, to avail himself of either of the two tests, voluntarily. If that were so, subsection (3) of the section could be amended if necessary in order to stand on the breathaliser test itself.

On an analysis, that suggestion will be found to be reasonable and to avoid a lot of the objections and arguments made in connection with the section. As I also said last night, paragraph (b) really has been introduced in an effort to be fair to the accused rather than otherwise. If a person has taken any drink, and we have section 28 there, and in principle, we are all more or less agreed on that, there is no substantial injustice to anybody, if having taken alcohol and taken the risk of driving a car he is asked to stand on the breathaliser test, especially if you provide the optional aspect, and leave the rest to the courts. I do not know what possible objection there could be to that course. I should like to urge it on the Minister. If that is so, the amendment before the House only complicates the matter further.

I suggest to Deputy Fitzpatrick that he withdraw the amendment and that we make representations to the Minister on the lines I am suggesting and which I suggested on Second Reading. By introducing the words prima facie in that amendment, you go a very large way towards defeating in practice what the Bill wants to achieve. There is no use being two-sided about this. As the Deputy knows, I would be all with the Deputy to prevent cases of palpable injustice. That is why last night I asked certain questions in regard to the case made about a person who had taken drink after he had ceased to drive. On the other hand, we have to be realistic and realise that we have section 28, and then, if this is the thing to do, then let us do it effectively. To my mind, “effective” very often means in these cases a certain definite simplicity. I think I am as competent as anybody else in this House to judge on one angle at least and I believe that the breathaliser test will be amply sufficient, even with its tolerances, for the purposes for which it is required in this Bill.

It is not a scientific measurement; it is not a question of having absolute scientific accuracy. Section 28 and the tests prescribed are merely a measure of something else and a person being in the position in which a person who has taken drink is, cannot complain about the tolerances that may be in the breathaliser test. He certainly could not complain if you give him the opportunity of undertaking the other two tests which some people will claim are more accurate and more reliable. That affords him a good defence. In practice, you will probably find that he will not opt because, having regard to the fairly high level of the alcohol content and the likely condition of anyone who is going to be dealt with by the guards in the ordinary way, in practice, there would be no conflict.

I will not delay the House with further details but for these reasons, I would strongly urge on the Minister the simple amendment that paragraph (b) of subsection (1) of section 29 be made optional to the accused and let the court draw its own conclusion if the accused does or does not avail of that option. I would even go so far with the Minister as to say that if the accused does avail of the option then the result must be put in evidence. I am thinking of the case where the accused availed of the option and then found that the result did not suit him. But, it might be optional and then, of course, you would have to consider a consequential amendment of subsection (3) of the same section. That could be done to stand on paragraph (a) of subsection (1).

Mr. T.J. Fitzpatrick

(Cavan): In putting down my amendment to section 29, I was primarily concerned to relieve a citizen from the indignity of having to submit to a urine test in a Garda station and from having to suffer a blood test in a Garda station. I was particularly concerned that a citizen who, rather than suffer a violation of his personal rights in this way, refused to submit to either test, should be deemed guilty of a serious criminal offence under the section which carries penalties of £100 fine, six months imprisonment and suspension of his driver's licence for at least 12 months.

I was against the creation of the new offence by section 28 which makes it an absolute offence to have the concentration of 125 milligrammes to 100 millilitres of blood but that section is now in the Bill, despite anything I could do to keep it out of it and, that section being in the Bill, I suppose we have to try to prescribe a method of measuring the alcohol concentration in a person's blood.

I and most Deputies are against the compulsory blood test, the compulsory urine test and, certainly, against making failure to submit to these tests an offence carrying with it the penalties I have mentioned.

Deputy de Valera has suggested a way out. He has suggested that paragraph (a) of section 29 (1) stand— that is the section which prescribes the breathaliser test. He suggests that the concentration of alcohol in a person's blood should be measured in that way and that, as a safeguard, the individual who might claim that the breathaliser is not infallible or absolutely accurate, the potential accused—as he described him—should have the option of saying: "I want to submit to a urine test" or "I want to submit to a blood test". Deputy de Valera goes on to suggest that the Minister should accept that and that I should withdraw my amendment. I want to say that that proposition is acceptable to me. It is a reasonable effort to meet the objectionable provisions of this section. If the Minister can see his way to accept Deputy de Valera's suggestion or even to give it serious consideration between now and Report Stage and to communicate with myself and Deputy de Valera when he has made up his mind in sufficient time to give us an opportunity to put down an amendment on Report Stage if we are not satisfied with his proposal, I am prepared to accept Deputy de Valera's suggestion.

Minister for Local Government (Mr. Boland)

It is reasonable that the community should provide that people who propose to operate motor vehicles on the roads should obey certain rules, that they should undertake not to take the risk of raising the alcoholic content of their blood to what is scientifically determined the dangerous level, in other words, that the community should prescribe that such people will be prepared to allow a test to be carried out to establish whether or not they are in that dangerous condition. It appears to me that Deputy Fitzpatrick is arguing that that is contrary to the Constitution. There is one thing on which we are all agreed, that is, the competence of the members of the commission who produced this report.

Mr. T.J. Fitzpatrick

(Cavan): You accept it in toto; I accept it in toto.

Mr. Boland

I think we discussed that on the last section. As Deputy Fitzpatrick said, in May, 1963, they expressed their opinion—purely a matter of opinion—that the public had not been sufficiently educated to accept this as a conclusive test of efficiency to operate a mechanically propelled vehicle on the road. That could only be an expression of opinion. They may or may not at that time have been as well qualified to assess public opinion in regard to this matter as public representatives are or as the Minister for Local Government is but that was their opinion as expressed in May, 1963.

When we were discussing this matter on the last section I expressed my opinion that with the hundreds of deaths and the thousands of injuries that have taken place since then, I believed that public opinion was not only ready to accept this now but was demanding it as a matter of urgency. However, Deputy Fitzpatrick places great reliance on that expression of opinion made five years ago by the commission. What surprises me is that in this matter of constitutionality he places no reliance at all on the opinion of the eminent people whose names he read out yesterday.

Since Deputy Fitzpatrick on this occasion has chosen not to refer to the recommendations of the Commission, I should like to bring the attention of the House to what the Commission had to say on this question of the Constitution and the requiring of people to give samples of their blood or urine in order to determine whether or not they were in a fit condition to drive a motor vehicle on the road. Paragraph 59, page 48 reads:

...the Constitution (Article 40, par. 3) declares that the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen; and that it shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life and person of every citizen. We believe that our recommendations are in consonance with the letter and the spirit of this Article. Every citizen who makes use of the streets and roads of this country is entitled to expect that the State shall by its laws make adequate provision to ensure that his life and person shall not be endangered by some other person driving a vehicle while he is unfit to do so.

We do not recommend the forcible taking of a blood sample where a suspect refuses to give one voluntarily; but if we had done so, we would see nothing unconstitutional in legislation which gave effect to such a recommendation...

The Commission go on to cite other examples of where people are required to do certain things, such as to submit their children to examination, to submit themselves and their children to measures such as inoculation and so on. What is being done here was recommended by this Commission.

Again, paragraph 61 (4) (b), page 52, of the Commission's report says:

(i) It should be made an offence, punishable in the same way as the offence for which he was arrested, for the suspect to refuse to permit samples of his blood or urine to be taken when so required, except where reasonable grounds exist for such refusal. The onus of establishing the existence of such grounds should rest upon the suspect if and when he is eventually prosecuted for the offence.

That is exactly what it is proposed to do in this Bill, what is recommended by the Commission. In section 35 we provide for this question of whether reasonable grounds exist for refusal. This section provides for the use of a breathaliser to establish the blood-alcohol content, and Deputy de Valera asks that this be taken as the principal evidence of the blood-alcohol content being raised to that level. I do not think that that would be fair to the individual, because breathalisers at their present stage of development are not a reliable test. We intend for the present only to make use of the breathaliser as an indication to the Garda as to whether or not they should require the more accurate scientific test to be carried out. However, it is provided here in this section as a method of establishing this in the expectation that breathalisers will be developed further and that eventually a breathaliser will be produced which it will be reasonable to use as conclusive evidence. We do not think it is at present, and the Commission also refers to this matter in paragraph 58 on page 48:

... The technique of breath analysis will, we believe, be constantly improving; and we consider that it would be well worthwhile for the Gardaí to be equipped with some instruments of the more precise type for use experimentally in cities. Legal provision should be made for their use in conjunction with blood and urine analysis if such analysis is to be sanctioned. If the improvement of instruments and technique continued to a sufficient degree it should be feasible in time to replace blood analysis by breath analysis.

It is because we hope that it will be feasible in time to replace blood analysis by breath analysis that subparagraph (a) is included in section 29 (1). Of course, if and when that situation was arrived at, we would indicate that the breathaliser test would become the normal one and that the use of blood and urine tests would fall into disuse. To depend solely on the breathaliser test in the present state of development of breathalisers would be unjust to the person suspected of having committed this offence.

Mr. T.J. Fitzpatrick

(Cavan): Obviously the Minister was thinking about something else when Deputy de Valera was making his case.

Mr. Boland

It would be unjust to the suspect, and it would not establish scientifically, to a degree of accuracy that we could stand over, that this level had been reached.

Mr. T.J. Fitzpatrick

(Cavan): Is that the only objection the Minister has to the suggestion?

Mr. Boland

That is the only objection, and the reason it is provided for here is in the hope that these instruments will be developed to such a degree of accuracy in the future that it will be possible to do what Deputy de Valera suggests, that is, to use them as the only test. It would be preferable if all a person had to do was to breathe into one of these instruments, and that is the situation we hope to arrive at.

Mr. James Tully

When speaking against the previous section, I stated my reasons for objecting to it, that I thought it was wrong—and I still believe it is wrong—that somebody should be tested in his home three hours after somebody saw him passing by and thought he was driving erratically. But this is a different kettle of fish, and I agree entirely with the Minister. If this is taken out of the Bill, he might as well throw the whole Bill out of the House. I heard the arguments from Deputy Fitzpatrick and from Deputy de Valera, and I cannot agree at all with Deputy Fitzpatrick on this. As far as Deputy de Valera is concerned, I cannot see what difference it would make if somebody is given the option of saying: "OK; I am prepared to accept what the breathaliser proves," in view of the fact that, as the Minister says, the breathaliser at present is not perfect, and the only effect it might have is that in court, the case that the breathaliser is not perfect would, until such time as it was made perfect, enable it to be used as a defence against charges of drunken driving. For that reason I feel there must be some way of producing conclusive proof.

Deputy Fitzpatrick did not use the argument which was used last summer, particularly by Deputy N. Lemass, about the indignity to the individual, about the poor old lady trundling home threequarters drunk and being stopped and asked to give a urine test because she would faint if she were asked to take a blood test. Either we are in favour of doing something to stop drunken drivers from continuing to kill and maim others on the roads or we are anxious to let them go ahead. We support this section and if it is put to a vote, we will support the Government on it.

Major de Valera

I do not think it can be controverted that the public have a right in this matter, but I am afraid the Minister may not have understood me clearly or perhaps he may have an answer which I did not understand. While there may be a certain element of injustice, if you like, to the accused in the first instance, the person who takes the risk of driving, having taken alcohol, puts himself in a very unprivileged position, so to speak, with regard to the rest of the community and cannot complain if the community requires this test. I hasten to add that while agreeing with Deputy Tully that if there was no way out, this section must be made to stand, if there was no way out, blood test or urine test would be 100 per cent necessary.

I am not for one moment advocating that there should not be a test and if there were no alternative, I would stand wholeheartedly over it, but there is no injustice to the accused in saying that the breathaliser test is final so far as we are concerned unless he himself chooses to produce rebutting evidence with a blood or urine test. There is no injustice in that. There would be merits in it. There would be simplification of the procedure in the courts. The breathaliser test might be uncertain. It might read too low.

Mr. Boland

Or too high.

Major de Valera

If it came out too high, the accused has a remedy, but if it came out too low, that might be a different kettle of fish. The reason I am pursuing this is that if you leave the section as it is, the inevitable result will be that the courts will disregard the breathaliser test unless it is backed up by the other two tests. If a person is indicted or summoned under the section, and if a blood or urine test is not carried out, those of us who have experience of the courts know that it will be hard to get a conviction. It will work out something like this. The breathaliser evidence will be given and then the other two tests will be asked for, and the defence will then make the case that the tests should have been made and there will be an acquittal. I think most people who have experience with the courts will agree with that.

I agree with Deputy Tully that there must be some reality but I think that the breathaliser test might frequently read too low and that there would be too many chances for a person to escape. So far as the rights and privileges of the accused are concerned, I agree with everything the Minister has said, including the quotation from the report. I do not see why we should not take the simple course and stand on the breathaliser test alone.

Mr. T.J. Fitzpatrick

(Cavan): The section as drafted by the Minister and submitted to the House makes a blood and urine test compulsory and provides that failure to submit shall be an offence carrying with it the penalties I have mentioned, a fine of £100, six months imprisonment, and disqualification. My amendment suggests that failure to submit to a blood and urine test would be prima facie evidence that the person was unable to drive within section 49, and would shift the onus on to him of proving beyond yea or nay that he was, in fact, competent and capable of driving and not impaired at the material time. I am convinced that would be adequate protection for the public. Deputy de Valera comes along with a counter-suggestion or amendment which I am prepared to accept as an improvement on the section as it stands, and as something that is necessary in view of the fact that the Minister by his majority in the House has created a new statutory offence in section 28. The Minister has today, as compared with yesterday, suddenly got great confidence in the report of the Commission.

Mr. Boland

Oh, no. I had it all the time. I quoted the report, which is something the Deputy did not do.

Mr. T.J. Fitzpatrick

(Cavan): I am not going to have a long discussion with the Minister on the constitutionality of this Bill because I am not a constitutional lawyer, and neither is the Minister, but I would have much more confidence in the Commission's report where is it dealing with general matters rather than strictly legal matters because, of 12 members sitting on the Commission, three were lawyers and the remainder were doctors, police officers and civil servants. When they speak on matters of general policy, they are, I think, much more competent to do so, particularly when they come to a majority decision, than when they speak on strictly constitutional matters. I will leave it at that. There is a danger in discussing this section that we think in terms of the guilty people, in terms of the drunken driver, in terms of the lady in the fur coat, described by Deputy Tully, coming home threequarters socially drunk. That sort of thing is an exaggeration.

Mr. Boland

Deputy Tully was quoting Deputy Dillon.

Mr. T.J. Fitzpatrick

(Cavan): He was quoting Deputy Lemass.

Mr. Boland

If the Deputy goes back on the Official Report, I think he will find he was quoting Deputy Dillon.

Mr. T.J. Fitzpatrick

(Cavan): I do not care how far the Minister goes back. I am quoting Deputy Lemass. Now, every time an Opposition Deputy puts the case against the Bill, he must emphasise that he is not representing the drunken driver. He is representing the sober driver, the law-abiding citizen. If we consider this Bill as involving only the drunken driver, the irresponsible driver, the driver who has no consideration for his fellow citizens, or his social or legal obligations, we are walking into a dangerous trap and we are liable to enact an undesirable measure.

The Minister has referred quite frequently to the operation of the Act in Great Britain. According to the best information I can get, of 3,106 people who were submitted to a breathaliser test and subsequently to a blood or urine test, only 795 reacted unfavourably and were found to have an offensive concentration of alcohol in their blood. Approximately three out of four were found to be law-abiding citizens, perfectly competent to drive, and committing no offence. These three out of four people were brought to a police station, were submitted to a blood test, had a hypodermic syringe inserted in their veins and blood taken out of them or were told to provide a specimen of urine. These are the people I am arguing for here, the 2,411 who, having submitted to test, were found not to have committed any breach of the law. That is why I want to warn the House that they should approach this measure not from the point of view of the drunken, irresponsible driver, who should be put off the road, but from the point of view of the hundreds of thousands of law-abiding citizens who will be affected by this measure. We should do nothing that might take away the reasonable rights of law-abiding citizens. We should go to any lengths to find an alternative to invading the rights of law-abiding citizens while, at the same time, protecting the public from the drunken and irresponsible driver.

The only difference between the Minister and myself is that the Minister, in his anxiety to put the drunken driver off the road, has no hesitation in invading the rights of law-abiding citizens. I am anxious to give the Minister sufficient power to wipe the drunken driver off the road while, at the same time, protecting the rights of law-abiding citizens. That is the difference between the Minister and myself.

Deputy de Valera has come in here with an amendment proposing that we should rely on the breathaliser test under section 29 (1) (a). The Minister said that would not be fair because it would not be completely accurate. I asked the Minister if that were the only objection he had and he said it was. Deputy de Valera, of course, went on to say that any citizen who was breathalised and had no confidence in the instrument was at liberty to say there and then: "I am prepared to submit to a urine test or a blood test." He could have the alternative at his own option and, therefore, it could not be said that there would be any injustice imposed because the individual had the right to make a choice. He would be given the option, under Deputy de Valera's suggestion, of accepting the result of the breathaliser test or requesting what is considered by the Minister and by many other people to be the more accurate test, namely the blood test or the urine test.

It is very easy to make the case the Minister makes when one is dealing with death or serious injury on the road. It is very easy to ask: "Do you want to put death off the road? Do you want to protect innocent people from injury? Or do you want to allow people to drink as much as they like and drive when they like?" My answer to that is that I am just as anxious as the Minister to put the drunken driver off the road and to make the road safe for my children and his children, for me and for every other Deputy. Of course I am, but we can do that while at the same time protecting the right of the many thousands of people who use the roads. I have given the example of the 3,106 people who were breathalised in Britain, of whom 2,411 unnecessarily were subjected to the indignity of submitting to urine tests or the pain and suffering of submitting to blood tests.

That is a reasonable proposition to put forward. I shall conclude at this point by saying I am satisfied that the amendment I have proposed would strengthen considerably the Minister's hand, would make it much more difficult for the guilty person to escape than under the present law. If that is not acceptable to the Minister, I will be prepared to yield in favour of Deputy de Valera's suggested amendment which would go even further than mine and which, at the same time, would preserve what many people consider to be their fundamental human rights.

Mr. Boland

Deputy de Valera suggested there would be no injustice to the accused in going into court and depending on the result of the breathaliser test. The offence the person would be charged with is that of driving or attempting to drive a motor vehicle while his blood-alcohol content was at the level of 125 milligrammes per 100 millilitres of blood, or more. Deputy Fitzpatrick quoted figures—I am not in a position to say if they are accurate: I assume he got them from a reliable source—and stated that according to those figures, three out of four people who had been breathaliser tested in England——

Mr. T.J. Fitzpatrick

(Cavan): I did not say that.

Mr. Boland

——whose blood-alcohol content in the breathaliser tests was found to be more than 80 milligrammes were subsequently found, on the basis of a more scientific test, to be less than that figure. What I cannot understand is that both Deputy de Valera and Deputy Fitzpatrick are prepared to accept as conclusive evidence the result of a test which Deputy Fitzpatrick said is no more than 25 per cent reliable.

Mr. T.J. Fitzpatrick

(Cavan): I shall have to explain that when the Minister finishes.

Mr. Boland

Explain it, then. I have explained that the reason why it is not proposed at present to accept the result of a breathaliser test as conclusive evidence is that the State could not in conscience go into court and allege against an individual on the basis of that breathaliser test that the accused person had committed the specific offence of raising his blood-alcohol level to 125 milligrammes per 100 millilitres and had then proceeded to drive a mechanically-propelled vehicle. However, it is hoped that with future development a reliable breathaliser instrument will be produced and when that stage has been reached, it is intended to rely on the result of a breathaliser test.

At present, nobody on behalf of the State could go into court and say that because the breathaliser indicated that a person's blood-alcohol content was more than a certain level that person was being accused of this offence. The State just could not stand over it. It would be unfair to the accused. Deputy de Valera suggested that it is only when the breathaliser gives a low reading that we should not rely on it. Both things come in, too low and too high, and in either case the breathaliser is not acceptable in its present stage of development.

Deputy de Valera also said that he could foresee the position being that the evidence of a breathaliser test would be ignored and that the court would go on to consider the blood and urine tests. This will not arise. It is intended only to use a breathaliser at present as an indication of whether the person should be required to give the sample which would enable a scientific test to be carried out to see if the offence had been committed, and the evidence of the breathaliser test will not be produced.

I may say that it is not necessarily correct for Deputy Fitzpatrick to say that the fact that a person was found, as a result of scientific examination, not to have this blood-alcohol level definitely proves a person was competent to drive a motor vehicle. It does not. It proves only that he had not raised his blood-alcohol content to this level, but it is possible there will be many people not fit to drive a car at a lower blood-alcohol content than the one we are proposing. The fact that they have adopted a much lower standard in England is perhaps an indication that we are setting our level too high. It will still be open to the Garda to try to establish the offence of driving while unfit in cases such as that.

I have pointed out what my objection is to accepting this as prima facie evidence, even though the onus would be on the accused to show he was competent to drive. This is a new offence of driving while the blood-alcohol content has been raised to this level. This can only be established by the evidence of a scientific test having been carried out. It is not possible to establish this, or to counteract it, by means of the ordinary clinical evidence. If Deputy Fitzpatrick's amendment were accepted, what would happen is that these cases would be decided in the same way as the present offence is decided, that is, by clinical evidence of a person's competence to drive a mechanically-propelled vehicle. What I have asked the House to accept is that it is established scientifically that probably everybody's driving efficiency would be impaired seriously at this alcohol level—certainly practically everybody, but probably everybody.

Therefore, it is justifiable to require people who take on themselves the responsibility of driving vehicles not to raise their blood-alcohol content to this level. Their efficiency would be impaired, whether they are able to carry out these clinical tests satisfactorily or not. I am not therefore prepared to accept that the results of these tests should be accepted as prima facie evidence only, but I hope that we shall arrive at a stage of development when it will be possible to rely on the more simple breathaliser test instead of blood and urine tests. We have not yet reached that stage and until such time as it is reached, it is necessary to require people who propose to drive motor vehicles to be prepared to justify their competence to do this, to have it scientifically established if there is reason to believe that they are not in a fit condition to drive.

Mr. T.J. Fitzpatrick

(Cavan): The Minister has suggested that the figures given by me in relation to tests carried out in England prove conclusively that the breathaliser test is not reliable. I was under the impression that the breathaliser is being operated in England at the moment simply as a rough-and-ready screening process to decide whether or not there is some alcohol in a person's blood and if it reacts in a rough-and-ready way to show that the person has alcohol taken, that person is then submitted to the blood and urine test. If I am right in that it does not prove that the breathaliser test is totally inaccurate. But, at any rate, the figures I have read out— the figures for one month in England— show that of 3,106 people who were compelled in order not to break the law to submit to a blood or urine test, 2,311 proved negative and were discharged, and were proved to be law-abiding citizens.

I say that certainly that is tremendous evidence in favour of my amendment on which in view of the Minister's attitude to Deputy de Valera's proposal, I intend to stand. It is tremendous evidence that people should not be compelled to submit to a blood or urine test and that their refusal should only amount to prima facie evidence, putting them on proof that they were competent to drive a car at the time of the offence.

We could go on arguing this indefinitely and I am convinced that the Minister has come into this House with his mind made up, that he has come into this House with this draft Bill determined to steamroll it through the House, and that as far as the democratic process of Committee Stage is concerned, it just might as well not exist. Irrespective of what has been said or who says it or from what part of the House it comes, the Minister has decided in his office in the Custom House that this is the proper medicine to cure the disease of drunken driving.

He will not listen to me or to Deputy de Valera or to anybody else in the House. Of course he has a majority in the House and he is entitled to do that as long as the majority of his Deputies, irrespective of how they think, are prepared to support him in the division lobbies.

Notwithstanding that it is the duty of the Opposition in this House to examine carefully and give public ventilation to any deficiencies or unnecessary provisions found in these Bills, and that is what I am doing, I am convinced now that it is a pretty futile operation but from time to time we have Ministers who come in here with Bills which cannot be regarded as of a political nature, and who are prepared to listen and prepared to think, and who are prepared even to think about suggestions that are made here between Second Reading and Committee Stage or between Committee and Report Stage, or between this House and the Seanad. I doubt very much if we will get any such reaction from the Minister for Local Government in relation to this Bill.

An Leas-Cheann Comhairle

I do not want to interrupt the Deputy but a generalised statement on the amendment is not in order.

Mr. T.J. Fitzpatrick

(Cavan): If what I have been saying, and I bow to the ruling of the Leas-Cheann Comhairle, is of a general nature, it becomes more important that the Minister should listen to all sides of the House and should not come in here with a predetermined view when we are dealing with sections such as sections 28 and 29 of this Bill which so vitally affect the public.

Here we are in section 29 imposing for the first time, as far as I know, outside the Offences Against the State Act or emergency legislation, an obligation on an accused person to provide evidence against himself without any alternative whatever. Whether that is constitutional or whether it is not constitutional, I will not argue because I do not consider myself a constitutional lawyer, but whether it is constitutional or not constitutional, it, in my opinion, is highly undesirable unless it is absolutely necessary to protect a large section of the community.

I think I have demonstrated that it is not necessary for the protection of the community and I have relied on the report of the Commission set up by the Minister, which he accepts in some respects but does not accept in others, and perhaps he could say the same about me. I say we have gone too far and too quickly. A strong and substantial improvement could be brought about by accepting my amendment and if, as a result of experience, it transpires that there was still a social or legal problem to be dealt with which the amendments suggested by me do not adequately deal with, the Minister could come back here with a further Act which he would then be in a better position to justify than he is in at the present time.

Mr. Booth

I should like to take up Deputy Fitzpatrick on the statement he made just now to the effect that this is the only instance, other than the Offences Against the State Act, where an accused person may be forced to give evidence which may incriminate him. Nothing could be further from the truth. If Deputy Fitzpatrick will look at the principal Road Traffic Act, he will see in it that there is an obligation on the owner of a motor vehicle to inform the Garda as to who was driving his car on a certain occasion. That is very important. There was no objection to that. Further, in any investigation being carried out by the Garda, a man arrested on reasonable suspicion of being involved in something may have his fingerprints taken and he gives his fingerprints either to incriminate himself or to clear himself.

I am afraid that what Deputy Fitzpatrick is really worried about is that the rights of certain respectable high-class people may be restricted in some way, even though I have never heard him object to forcing a man with no visible means of support to have his fingerprints taken. There is a certain element of class distinction here. There is also a misconception in the Deputy's mind as to the main purpose of these sections. Certainly, to my mind, this is not a measure to get rid of the drunken driver. The drunken driver is fairly easily covered under existing legislation. What we are trying to do here is tackle the much more serious problem of the driver whose ability is impaired and who, because he is not really drunk, has got himself into the awkward state of being on top of the world and able to do anything. That is one of the extreme dangers of drinking, that a person with a few drinks taken is usually vastly overconfident and he may be a thorough menance on the road even though he can walk a straight line and say "British Constitution" or anything else. He takes risks he would not otherwise take: he is not able to judge the distance between himself and a fixed object and not able quickly to calculate the decreasing distance between himself and another vehicle approaching him.

Let us get away from the question of the drunken driver. We are dealing with a much more insidious problem. I am absolutely opposed to Deputy Fitzpatrick's plea on the rights of individuals. These rights are already restricted in many ways and very properly so in the interests of the community. What is wrong about a urine test? It is a normal bodily function which we perform often enough during the day. All we are required to do is give a sample of urine. There may be cases where it cannot be produced. The Deputy moans and groans about the indignity, the pain and everything else of a blood test. I am astonished that people should adopt this attitude particularly when nobody will be asked to undergo either test unless there is some indication that he or she has drink taken. I am not satisfied that the breathaliser is a conclusive test as to the amount of impairment of driving skill but I think nobody has suggested that the bag will turn blue—I cannot remember what colour it does turn—or become discoloured if you have been drinking milk or bovril. The crystals will become discoloured only if there is some element of alcohol in the blood. If we assume that, it means that the driver who is brought to the Garda station had some drink taken; he is already on the slippery slope. He has not taken it by mistake; he or she does it deliberately and has put himself or herself in that position.

If a urine test is not possible or convenient, you have the question of a blood test. Nobody will be drained of gallons of blood and in this instance the amount of blood taken for a test is very small. There are very few of us who have not had injections. Granted, there are some people who are very nervous about them but if you are worried about having an injection or a blood test, the remedy is in your own hands: all you have to do is lay off drink before you drive and then the situation does not arise. But if you must take a blood test it is a very minor thing. I am not speaking without some knowledge of this because I am a blood donor and I have given 69 pints so far without any great discomfort. I am only one of many. There are men, women, young men and girls who go regularly to the Blood Transfusion Centre and give one pint at a time. They walk away happily afterwards with no ill effects. It is no more painful or uncomfortable than any ordinary injection, and that is giving one pint. The amount you will have to give for the test will be very much less. Perhaps the Minister could tell us?

Mr. Boland

Two teaspoonfuls.

Mr. Booth

You would get that out of your finger if you cut it opening a tin. Do not let us moan and groan about old maiden ladies being put to great inconvenience, pain and suffering. Old maiden ladies should not put themselves in that position. If they do, they can very well afford to lose two teaspoonfuls of blood without invoking the Constitution as a result.

These are very minor matters of personal inconvenience. I cannot tolerate for a moment any argument that puts a person's inconvenience above the lives and limbs of his fellow citizens. We are dealing with a frightfully dangerous problem. I do not like having to push people around; I do not like penal legislation but when you are dealing with a problem of this kind there is no alternative. I do not agree with Deputy Fitzpatrick that from the figures he has given, if they are accurate, it is shown that a high proportion of people were found to be ordinary good, law-abiding citizens. What it proves is that a fairly high proportion of people who failed the breathaliser test did not quite exceed the maximum alcohol content level but I am sure they were very, very near it. I would agree with the Minister there: the fact that they did not reach the alcohol content level in the blood test is no guarantee that their driving ability had not been impaired.

I would much prefer that all members of the community would combine voluntarily to observe total abstinence before driving but that is impossible. Where people will not co-operate in spite of the dangers which are being pointed out to them every day of the week, we must have penal legislation. We must not shirk the fact that anyone who does drive while his ability is impaired is committing a crime. I do not care how respectable they may appear to be, whether they have fur coats or whether they are professional people. They are criminals and they are far worse criminals than people who break into shops at night. They are really on the same level as people who snatch bags or beat up old women on the streets. That is the sort of moral level at which these people are properly put. They are in danger of mowing people down on the street and even if this legislation appears to be unduly severe, it is time people got a really good shock.

My experience of speaking to people in England is that the breathaliser and blood tests have produced precisely that result. I heard one complaint from an English lady who said that it was bad enough in the old days when she had to bring her children to school and collect them again, but now she had to stay up late at night in order to go out and collect her husband after he had been to a dinner. That was inconvenient but it was the right result. That man was going out to have a few drinks and he was not taking the risk of driving home with drink on him. The wife had to stay up and not have any drink and then collect him. I have heard of people telephoning relatives to say that they have taken some drink and asking them to come to the local public house to take them home. We have got to be brutal about this. There is no point in an amendment like this one which tends to provide a way out. Nor do I subscribe for a moment to the contention that this is in any way an unreasonable restriction of personal liberty or anything else. It is a restriction on liberty, it may be a great inconvenience, but put that against the life of even one person and to my mind, the scales come down right away in favour of this Bill. If we could only save one life, I still say it would be worth it. It is my firm conviction that by going as far as we are we will save very many more.

Mr. T.J. Fitzpatrick

(Cavan): Having listened to Deputy Booth, the first question that suggests itself to me to ask is: how oily, how slimy can one get?

Mr. Booth

I will leave that to the Deputy.

Mr. T.J. Fitzpatrick

(Cavan): The trend of Deputy Booth's contribution is to suggest that I have been defending a certain class. The first mention of class this morning, as far as I know, has come from Deputy Booth.

Mr. Booth

The Deputy mentioned fur coats.

Mr. T.J. Fitzpatrick

(Cavan): I mentioned that one of your potential brass, Deputy Lemass, had spoken about a lady in a fur coat. That was the only reference to it. The purpose of this amendment is not to protect any particular class. The day when only people of a particular class drove about in motor cars is gone and it is a good job. The day has come when the ordinary working man, the ordinary five-eighths, uses a motor car and I put down this amendment in an attempt to protect a fair cross-section of the people, to protect their rights while at the same time conferring on the Minister the necessary power to put the drunken driver off the road. I would say that of the 3,106——

Mr. Booth

It is not the drunken driver.

Mr. T.J. Fitzpatrick

(Cavan): The impaired driver.

Mr. Booth

It is a very different thing.

Mr. Boland

The Deputy persists in referring to the drunken driver.

Mr. T.J. Fitzpatrick

(Cavan): Let us not quibble; in a broad sense when we talk about the drunken driver we are talking about the person who is not able to drive a car because of the consumption of alcoholic liquor.

Mr. Booth

The drunken driver is perfectly well looked after under existing legislation.

Mr. T.J. Fitzpatrick

(Cavan): Within the context of the 1961 Act and the measure we are now dealing with, when anyone is talking about a drunken driver, he means the impaired driver, the driver who should not be on the road. It is a difficult enough measure to deal with — because it relates to death on the roads and to people being maimed, and therefore, people can lose a sense of proportion and approach it from a sentimental or worse angle—without endeavouring to introduce, as Deputy Booth is, class distinction. Of the 3,106 people who were subjected to a blood test in England, 2,311 were found to be not guilty of any offence. It is fair to suggest that probably a percentage of them were lorry drivers, a percentage of them were tradesmen, and that they represented all classes and all walks of life. The people about whom Deputy Booth is talking, if they are going out, can afford to have a taxi sent for them, or to have their wives drive them down in the other car and bring them home. That is the type of person Deputy Booth was talking to in England. The people I am talking about are the ordinary people with only one car. The ordinary people if they go out take their cars with them and they cannot afford taxis to bring them home. This is the position I want to clarify.

Deputy Booth's attitude this morning is contemptible. I listened to Deputy Booth the other day speaking on the Finance Bill, on the appointment of Special Commissioners of Income Tax; I listened to him last night speaking on the Planning Bill and in my opinion he was selling out every principle in which he believed because he sold out hand and foot to the Fianna Fáil Party. He believes he must come in and support a Minister no matter what he——

Mr. Booth

I do not think the Deputy likes me. Am I misinterpreting him?

Mr. T.J. Fitzpatrick

(Cavan): If the Deputy really wants an answer, I do not think I should like to invite him on holidays with me.

An Leas-Cheann Comhairle

This is hardly relevant at this stage.

Mr. T.J. Fitzpatrick

(Cavan): Certainly I take a poor view of introducing emotionalism and sentiment into a matter which is highly emotional, like drunken driving, which is what Deputy Booth came in here this morning to do. I want to put it on record that it is not the wealthier classes or the upper classes that need protection from this section, because, as I have repeated, if they are going out they will find ways; they will bring a hired driver and let him stay outside all night until they are ready to go home, no matter what they drink. The people who cannot afford to do that are the people I am thinking about. These are the people who will be hit by this measure and whose rights are being taken away by this section.

Mr. Boland

The position at this stage is that we have created this new offence. We have decided that it will be an offence in future for a person to consume alcohol to such an extent that he raises the alcohol content of his blood to the level of 125 milligrammes to 100 millilitres. The Fine Gael Party, apparently, are not in agreement that this offence should be created but we have passed the section that creates that offence and Deputy Fitzpatrick is now advocating that, having made it an offence to do that, a person who is suspected of having committed the offence should be at liberty to refuse to allow the State to produce the only possible evidence that can be produced that the offence has been committed.

If the public are to be given the protection which we propose to give them, then the refusal to allow this evidence to be produced must carry the same penalty as the offence itself. Otherwise, it will be to the suspect's advantage not to allow the evidence to be produced.

Deputy Fitzpatrick's amendment would effectively remove this protection we are proposing to give to the public. It is a fact, as Deputy Booth has said, that Deputy Fitzpatrick throughout this debate has persisted in referring to the drunken driver. Any time that he has been challenged on this he has mended his hand and said that he intends this to cover the driver whose efficiency is impaired as well. The fact of the matter is that it is the driver whose efficiency is impaired by the consumption of alcohol that we are dealing with here and we want to do something more, something completely different, in this Bill, than deal with the drunken driver as that term was understood up to now.

Deputy Fitzpatrick states that whether this Bill is constitutional or not—and I do not think there is any doubt about it; I accept the Commission's opinion with regard to that —it is definitely highly undesirable. My answer to that is that the driving of a motor vehicle on the public road that other people have to use is a matter of very great importance, very great responsibility, and that it is reasonable to provide that certain rules must be accepted by people who propose to do that. I am proposing that it should be a rule in future that any driver who insists on drinking before undertaking this enormous responsibility of driving a vehicle on the public road should, by his possession of a driving licence, undertake to enable the duly authorised representative of the rest of the community to establish whether or not his action in drinking before he drove rendered him unfit to drive, whether he succeeded in drinking just sufficient to keep his blood-alcohol content below this level or exceeded it.

I think it is reasonable to require anybody who wants to drive a car on the road to permit the representative of the rest of the community to establish whether or not he is in a fit condition to drive and it is reasonable to say that anybody who is not prepared to do this should depend on public transport, just as many other people have to do.

I have pointed out before that section 35, which we will be coming to—I was going to say soon—eventually, whether it is this session or next session, this year or next year—provides a defence against this. If a person has an adequate and substantial reason for not providing the sample, section 35 allows that to be produced as a defence.

Deputy Fitzpatrick persists in maintaining that public opinion is not in favour of this new offence being established. That, of course, is a matter of opinion. I think public opinion demands it but I do know that there are very strong pressure groups who are endeavouring to convince Members of the Opposition that this is not required. I know also that those people who like to drink and drive are not in favour of it but I do not think that either these pressure groups or the drinking drivers are in the majority in the community. Even if they were, the other members of the community are entitled to demand that they be protected from people who persist in driving when they are not in a fit condition to do so. It is not correct to equate the propaganda to which we have all been subjected with public opinion in this matter.

I do not think there is anything more I need say on this amendment. I have already said that to accept Deputy Fitzpatrick's amendment would be to remove from the public the protection which I am proposing to give them in this Bill.

Amendment, by leave, withdrawn.

Amendments Nos. 13b and 14a not moved.

Section 29 agreed to.

Section 30 agreed to.

SECTION 31.

Amendments Nos. 15a and 15b not moved.

Section 31 agreed to.

SECTION 32.

Amendments Nos. 17, 17a and 18 not moved.

Question proposed: "That section 32 stand part of the Bill".

Mr. P. O'Donnell

I think this is a very bad section. While it is not for us to go into the constitutionality of it, it is ultra vires the Constitution. It requires the arrested person:

...to provide in the prescribed manner a specimen of his breath by exhaling into an apparatus designed for showing the concentration of alcohol in the breath or blood or into a receptable designed for preserving the specimen for subsequent analysis...

Here we are compelling an individual to breathe into a breathaliser, urinate into a vessel or give portion of his blood as a test. We have passed the section dealing with the breathaliser, but, in my opinion, the breathaliser is merely a subterfuge for bringing a person to the station for the purpose of taking a urine or blood test.

As I said last night, I have some experience of the breathaliser. I am possibly the only person in the House who has experience of it. I happened to be in England on the first night the breathaliser was introduced there. I was at a legal conference in Scarborough where there was a number of legal luminaries from the British Isles and this country, and through the courtesy of the police, we were given a dozen of these breathalisers for the purpose of experimenting with them. I can tell the House that the majority of those guinea pigs there—I was one —consumed more drink than I would certainly consume were I driving a car, and the reaction of all of us was negative, with one exception, a very high dignitary of the Courts of Justice of Britain who gave a positive reaction and consumed much less drink than other persons taking part in the test. I came to the conclusion that the whole thing was completely useless as a test. We also came to the conclusion that this test could be and would be used for the purpose of bringing people into a barracks to procure a blood or urine sample.

One can imagine being asked on the side of a country road on a dark night to exhale into a breathaliser, and one can imagine the civic guard, with his flash lamp or the head lamps of his car, examining the crystals in the breathaliser, In such circumstances it is almost impossible to distinguish the colouring of it, but if the garda has doubts or imagines he has doubts, he may, there and then, bring the driver of the vehicle to the Garda barracks and carry out these tests. In legislating in this House we should bear in mind the Constitution. Under the Constitution we are all innocent until proved guilty, but here we are asking the citizens of this State to do something which may eventually succeed in convicting them.

Mr. Booth

Would the Deputy like to comment on fingerprints?

Mr. P. O'Donnell

Yes. There is a lot of doubt as to whether an innocent person should be compelled to give fingerprints. Judges have varied in their opinions as to whether fingerprints should be compulsorily taken from innocent persons. I agree that certain persons must give their fingerprints to judges, but they disagree as to whether this should apply to innocent persons.

Mr. Booth

Everybody is innocent before he gives his fingerprints.

Mr. P. O'Donnell

Not exactly.

Mr. Booth

In the eyes of the law.

Mr. P. O'Donnell

There is nothing to compel you or any other citizen of this State to give his fingerprints, just as there is nothing to compel you or any other person in the State to take part in a formal identification parade. One must do it voluntarily; there is no method of compelling one to do it, and I would think, rightly so under the Constitution. I want to be fair to the Minister. This is not the first time under the legislation of this House— and I am including other Governments as well as this Government— that a man has had to prove his innocence instead of the State or the prosecutor proving his guilt. I am referring particularly to the Fisheries Act. For instance, a man found in possession of a salmon has got to prove that it has been legally caught instead of the prosecution having to prove that it has been illegally caught. Here is a case where a man who has been suspected of drunken driving has to prove himself innocent instead of the State having to prove him guilty. That is a very bad thing.

Even under the law as it stands, under the last Road Traffic Act of 1961, a garda can give evidence of what he thinks is the condition of an individual by merely superficially examining him: his eyes were blurred; his speech was thick; and various other symptoms. A doctor can rebut the evidence of a garda, and rightly so, because the doctor is a professional man trained in the examination of people alleged to have consumed more intoxicating liquor than they should consume if they wish to do certain acts. In the British Army, some of the top medical men have carried out different types of research, using soldiers as guinea pigs, as to whether their judgement has been impaired by the consumption of alcohol.

In using these arguments, do not think for one second that I am trying to justify any person driving a car who drinks to an extent which impairs his judgment. I am not, although it is part of my duty to defend such persons. I am not trying to justify it in any way. What I am trying to guard against is that an innocent man should be dragged through the courts to prove his innocence. That is the snag.

I pointed out last night that a garda who suspects a person of careless driving may demand from that man, after he has ceased driving in the night the name of the driver at a particular hour. Under section 107 of the 1961 Act, he can demand that and must get it, and if the driver refuses to give it to him, he will be prosecuted. That man may have consumed a considerable quantity of drink after he has got home from his day's work and after he has put the car in the garage. However, if it is within three hours, the garda has the right to say: "You have consumed more drink than you should have." The driver may say: "Yes, but I consumed it after I had stopped driving." The Garda can say: "You can tell that to the justice", and he is dragged through the courts.

You can imagine in the case of a candidate for any position of trust, a candidate for Dáil Éireann how the whispers would get out: "That is a chap who was prosecuted for drunken driving." That man may be quite innocent, and the courts may find him quite innocent, but the mere fact that there is a prosecution for such an offence casts a slur upon him, a slur which is most difficult to get rid of no matter how he tries. Malicious individuals can go around and say: "Yes, that is the man you are asking to represent you. He was prosecuted. He got off all right, but there is no smoke without fire. He must have had drink taken." That is irrespective of whether the drink was taken after he had ceased driving or otherwise. These are the things we should try to guard against.

It was said last night that it was lawyers mostly who had taken part in this debate. Why should it not be lawyers? Lawyers are the buffers between the prosecutor and the judge. They must try to bring to the notice of the court all the relevant facts. Unfortunately, human nature being what it is, there is an inclination on the part of the prosecutor not to bring into court witnesses who cannot assist the prosecution and who might be able to assist the defence. Let me give an example. Last week I was defending a man charged with drunken driving. I admit he was convicted, and rightly so, but there were five witnesses. Two of them stated positively that the man was drunk, and the other three did not know whether he was drunk or sober. They were not called by the prosecution. As I say, human nature being what it is, it is most difficult for the prosecutor to bring in witnesses who may prove advantageous to the defence, thus nullifying their case, or at least creating some doubt in the mind of the justice.

That is one reason why lawyers are essential. They have to interpret the Act and they are there on questions of fact to act as a buffer between the prosecutor and the justice. After all, it is lawyers who have to endeavour to interpret these Acts when they come before the courts. For that reason I object to section 32 which makes it obligatory to provide or permit the taking of specimens at a Garda station. I know the Minister is in a very difficult position and I appreciate his difficulty. I had the experience of drafting a similar Bill and I know how difficult it is.

In drafting legislation, unfortunately, all Ministers of State are biased towards the prosecution more than the defence. I am not saying this of this particular Minister but I think all Ministers have a prosecution bias as distinct from a defence bias. We very seldom see mentioned in legislation what may be a good defence. Sometimes we find a subsection which says it will be a good defence to prove so-and-so, but that is very seldom indeed. Usually it is the reverse: this is what will be taken into account in proving beyond yea or nay what the condition of the individual is or what the individual has done. I would not be surprised if some day some person in this State challenges the constitutionality of these sections. In my own presence I heard a circuit judge saying: "I am compelled by the Legislature to find so-and-so", but some day some person will challenge the constitutionality of the section to which he was referring. As I said before, all Governments in this country have permitted themselves to go too far in casting the onus on the defence which should be on the prosecution.

Mr. N. Lemass

Unfortunately I am what is known as a part-time politician. I have other responsibilities and because I missed about 90 minutes in the House this morning, I find that my amendments have fallen because I was not here to move them. I understand the procedure now is that I cannot re-enter those amendments on Report Stage.

Mr. James Tully

Unless the Minister agrees to re-commit them for that purpose on Report Stage.

Mr. N. Lemass

It is most unlikely that the Minister will do that.

Mr. James Tully

If you talk to him you never know what he might do.

Mr. N. Lemass

On the section, if a person opts for one reason or another— and I can think of many good reasons why he should—for a urine specimen rather than a blood specimen and fails to provide a urine specimen, the garda can require him to give a sample of blood. I do not think that applies in the equivalent English legislation. I think there you have the opportunity of electing for one or the other without being required to give a blood specimen, if for some physical reason you are unable to provide a specimen of urine.

The Bill also says there must be a registered medical practitioner but it does not give the accused person the chance of selecting the doctor. To my mind, those are weaknesses in the Bill which the Minister might have a look at between now and Report Stage. I had an amendment down about the three hours, which is the point Deputy O'Donnell was making. This is open to abuse in the way Deputy O'Donnell suggested but I think it can also be interpreted this way: the police may arrest a person and hold him without charge for three hours. He can be held in a police station for up to three hours without being charged with anything. I think that period is too long.

Mr. P. O'Donnell

I think the other one is much worse. They can examine you within three hours even though you have gone home after your day's work and had a couple of good balls of malt, as you are entitled to.

Mr. N. Lemass

In spite of the Minister's assurances, I think that danger is there, but there is also the reverse danger.

Mr. P. O'Donnell

I agree.

Mr. N. Lemass

I was not going to press this amendment to a vote but I wanted to have some discussion on it. If I cannot move the amendment, I will deal with it briefly on the section. The Minister asked yesterday what was the use in repeating arguments we had several months ago if we are divided on the issue. I do not know what means are open to a back bench Deputy who finds himself not in complete agreement with the Minister and wants to make his disagreement known not only to the Government but to the public at large. What method has he of trying to persuade the Minister to change his views? To my mind, the only way is by having a prolonged debate and going over the same arguments in different ways.

Mr. James Tully

The Deputy could challenge a vote, of course.

Mr. N. Lemass

I may do that on a later section, or I may abstain from voting on one section if a vote is challenged. The penalties mentioned are a fine of £20 or one month's imprisonment for a first offence, and a man's licence can be taken away for committing what is called a new offence. All these provisions, to my mind, are the reverse of what has been standard practice over the years. The onus of proof should be on the State and not on the individual arrested. Apparently my amendments are gone for all time and cannot be raised again. I appeal to the Minister to consider them again and, perhaps, make some modifications in the provisions of the Bill between now and Report Stage.

Question put and agreed to.

Section 33 agreed to.

SECTION 34.

Question proposed: "That section 34 stand part of the Bill".

Mr. N. Lemass

Is this not the section relating to the problem raised by Deputy P. O'Donnell?

Where, on the hearing of a charge for an offence under section 49 or 50 of the Principal Act, evidence is adduced by or on behalf of the defendant that, after the time when the offence is alleged to have been committed...

There is ground here for grave concern and doubt. Suppose a policeman observes someone driving in a careless manner, or committing some breach of traffic regulations, and that man goes to a place of public resort, a public house or a lounge bar, and there consumes drink, and suppose he is eventually approached by a garda and asked if he were driving the particular car an hour, two hours, or three hours earlier. He must say that he was. He is in a place of public resort and he has consumed drink following a minor traffic offence. It will be very difficult for him to establish that the drink was consumed after the time the garda had reason to investigate. This is what we were talking about all day yesterday and, indeed, since the Bill started. So far the Minister is not prepared to make any amendments whatsoever. Whereas some amendments may have been seeking a great deal, I believe the Minister should show goodwill and amend to some small degree some of the more severe provisions in the Bill.

Mr. Ryan

I would be interested in hearing from the Minister how a defendant may satisfy the court that the consumption of alcohol which drove up the concentration of alcohol in his blood took place after the alleged offence. Deputy O'Donnell said earlier that it may well be that the Minister's attitude is that it is not for the State to establish this; it is a matter which will have to be dealt with by the defendant under the law. It will be the defendant, or someone on his behalf, who will have to satisfy the court that it was the subsequent consumption of alcohol which increased the concentration of alcohol in his blood. I should like to know whether or not there are any tests available in this country, or elsewhere, which would enable a defendant to prove subsequent consumption. One can understand the anxiety not to facilitate people to find an easy way out of conviction and, quite clearly, an easy way out would be the deliberate consumption of alcohol after a certain time but prior to examination. Section 34 goes too far:

A person shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his breath, blood or urine) with the intention of frustrating a prosecution under section 49 or 50 of the Principal Act.

That is to put in jeopardy anyone who takes a drink three hours after driving a car. This is an extremely serious situation and the effect can only be to discourage people from drinking for three hours after driving. The Minister will say that the price of the greater protection of the public justifies this, but I think this is going further than is necessary. No one can be certain he has not come under police notice, even without having consumed alcohol, and everyone will put himself in peril if he consumes drink within three hours after driving a car.

Mr. Boland

It is possible, of course, for Deputies to produce all these fanciful situations in relation to gardaí following people to their homes and testing them, just because they do not like them. Deputies should be reasonable and realise that this type of thing may not happen. It is provided in the Bill that the gardaí must be of the opinion that the man has an excessive blood-alcohol level at the time of the offence and the gardaí must have reasonable grounds for that opinion; they cannot just act arbitrarily. We will have to depend on that. Unless a garda has reason to believe that a person's driving is affected by the consumption of alcohol, he will not go chasing after him, requiring him to submit to these tests. It is not reasonable to expect us to make it feasible for an individual, who knows he has committed an offence, to dash off to the nearest pub and, in Deputy O'Donnell's descriptive phraseology, knock back a few balls of malt for the purpose of being able to say that he consumed this alcohol after the alleged offence. It is not reasonable to expect us to make that type of thing possible.

With regard to the question of evidence, the defendant can produce evidence to the effect that he had no drink, or relatively little, before the offence was committed. I have already explained that the gardaí may not enter a person's home or premises without having a warrant to do so. It is a question of seeing a driver driving erratically. All this will take time; the breath analysis will take time. The taking of specimens will take time. All this will have to be done within the three hours and the only reason for having this period of three hours is that it will naturally take some time to collect specimens, and three hours is considered a reasonable period. The longer the period from the commission of the offence to the actual taking of the specimens, the better chance the individual will have of his blood-alcohol content going down. The type of situation Deputy N. Lemass has suggested may never happen. In my opinion, it is most unlikely that it will happen. It is a purely fanciful suggestion.

Question put and agreed to.

Section 35 agreed to.

SECTION 36.

Question proposed: "That section 36 stand part of the Bill."

Mr. N. Lemass

The Parliamentary Secretary, in January, set up a body to do certain research work on road accidents. Is this the body envisaged in this section?

Mr. Boland

No, that is An Foras Forbartha. This is a special Bureau.

Question put and agreed to.

Section 37 agreed to.

SECTION 38.

Mr. Ryan

I move amendment No. 19:

In page 22, between lines 40 and 41, to insert the following new subsection:

"() The Director shall hold the necessary medical and scientific qualifications to enable him to discharge the duties of his office."

The Bureau will be quite an important body. In the immediately preceding section, the functions and duties of the Bureau are very clearly set out. They include arrangements in connection with the receipt and analysis of specimens of blood and urine forwarded to them, the determination, in respect of such specimens of the concentration of alcohol in the blood, the physical and mental fitness of drivers, the medical aspects of road safety and many other technical duties assigned to them.

We do not specify in section 38 the qualifications which ought to be held by the Director of the Bureau. Having regard to the very high medical, scientific and research aspects of the Bureau's work, they ought to be directed by a person who has scientific and medical qualifications, and the purpose of the amendment is to impose this on the Minister as a matter of statutory obligation. As things stand, there is nothing to prevent the Minister appointing some person who has not got medical or scientific qualifications. If the Minister appoints some person of standing and worth who will be generally accepted by the community at large, such person might not be the best person because of the high degree of medical and scientific work the Bureau will have to conduct. The section provides that the Director may give directions to people, that he may delegate certain functions to other people, but it is very important that the medical and scientific work should be directed by a person with the best medical and scientific qualifications.

From time to time in various Acts of the Oireachtas, we provide that persons holding certain public offices must have particular qualifications. The Director of this Bureau will become one of the most important persons in our society and we as legislators have a public duty to ensure that only a person with medical and scientific qualifications will be considered. It may be fair to comment that Deputy Fitzpatrick, I and other members of the legal profession, might consider that a person with legal qualifications should be considered, but in all modesty on this occasion we consider that this work will be best carried out by a medical man. On that account I urge the Minister to accept this directive. The Minister may say that the type of person we have in mind is the type he or any reasonable Minister would appoint. That may be so, but if limitations are imposed on other Ministers, if the classes of people to be appointed to public posts are specified in other Acts of the Oireachtas, we consider such practice should be followed in this instance.

Mr. Boland

As Deputy Ryan has said, it is quite obvious that if the Director of the Bureau is to be able to carry out his functions, he must be a person of some standing in the medical and scientific field and that he must have had some experience in the analysis of specimens and the determination of blood-alcohol concentrations. However, I do not think this amendment is of any advantage. It asks us to specify that the Director shall hold the necessary medical and scientific qualifications to enable him to discharge his duties. It is not possible to say now with exactitude what these necessary qualifications would be and I do not think that a vague statement to the effect that these qualifications should be there would be of any value. Too detailed a statement, on the other hand, would also be inappropriate.

It is not usual to have this type of directive written into a Bill of this sort. In the case of other technical institutions, such as An Foras Talúntais and the Institute of Industrial Research and Standards, where it was obvious the directors would require to have certain qualifications, it was not considered necessary to prescribe it in the legislation. The Dáil assumed that in appointing those directors these things would be taken into consideration. The same thing is true here and I do not think this amendment is of any particular advantage. At the same time, the principle embodied in it is one that would naturally be taken into account. I do not think it will be a disimprovement or will in any way hamstring the Minister if the amendment is insisted on, but to my mind, it is unnecessary.

Mr. Ryan

Has the Minister in mind to have a medical person appointed as Director?

Mr. Boland

Yes, a person with suitable medical and scientific qualifications, obviously. I can give that undertaking.

Mr. Ryan

In view of the undertaking, I withdraw the amendment.

Amendment, by leave, withdrawn.

Section 38 agreed to.

Sections 39 and 40 agreed to.

SECTION 41.

Question proposed: "That section 41 stand part of the Bill."

Mr. N. Lemass

This section sets the Bureau above the law—no legal action can be taken against them. Is this necessary? It seems stupid to write this into a Bill. Is the Minister afraid that members of the Bureau will do things for which they should be prosecuted and that it might be embarrassing for them to have to defend themselves; or does he, on the other hand, want to give them an absolutely free hand to do what they like, completely above the law?

Mr. Ryan

I agree with Deputy Lemass. If an action can properly lie against the Bureau for some reason such as neglect or default, we in the Fine Gael Party feel it is wrong that the law could prevent such an action lying. Quite clearly the court will not permit claims against the Bureau and they will not encourage proceedings against the Bureau for slight reasons where the rights of individuals are not involved. Quite clearly there could be cases where it could come to the notice of a party whose blood specimen had been taken that there had been confusion, that there had been a mistake, and it would appear proper that such a party would have the right to take injunction proceedings against the Bureau. One does not visualise that many cases of action against the Bureau might lie but if they can lie, it is wrong that we should have a section such as this in the Act.

It may well be that the Minister and others generally want to discourage the taking of actions against the Bureau, but processes of the law are there to prevent unnecessary actions being taken. If they are taken, the courts have a way of dealing with that situation, and we should leave it to them. If the Minister thinks there is something which puts the Bureau at a disadvantage, I should be glad of the benefit of his advice.

Mr. Boland

I have not in fact any particular possibility in mind. As Deputy Ryan has pointed out, it is not intended to bring in any prohibition on legal proceedings arising out of neglect or default on the part of the Bureau.

Mr. Ryan

Wilful neglect; it could be accidental.

Mr. Boland

I do not think that wilful applies to default as well as to neglect. It was felt desirable to protect the Bureau against actions arising out of the performance of its functions. There is a similar provision in the legislation dealing with the setting up of the Industrial Research and Standards Bureau. I am not terribly insistent on it. It seems to be desirable, though it may not be necessary.

Mr. Dillon

It is most necessary. I have certain sympathy with the thought for this protection. I can understand the desire of the Minister putting in protection against an action. I think it is a mistake to protect the Bureau as such. I think there is a case on record in England in which there was grave carelessness in that the analysis of the blood of one person was introduced into proceedings directed against another person. I think the thing was put right on appeal or some such circumstance as that, but there was a period of great embarrassment and distress to the person concerned.

We have to bear in mind that when the Minister deems to set up the kind of Bureau which he seems to desire to set up, he has to try to get the best personnel available and I can understand him saying: "I want a distinguished person to take direction of this Bureau." He will say: "Will I be involved in a great series of law suits if miscarriages take place." I would like to say that no personal action should lie but if the Bureau were guilty of great negligence, proceedings would lie against the Bureau and I suggest that the Minister should have another look at this and while protecting the person generally, he might leave the Bureau open to the law.

Mr. Boland

Might I undertake to look at this to see if it is possible and proper to take legal proceedings against the Bureau as such but to protect the Director and other members as well?

Mr. Ryan

Or to indemnify them.

Question put and agreed to.

SECTION 42.

Question proposed: "That section 42 stand part of the Bill".

Mr. Ryan

Might I inquire whether there is any provision for giving portion of the sample of the blood taken to the accused person? I do not think there is. I think we should consider the desirability of giving such a portion to the accused person if he wants it. I appreciate that quite a number of people might not want to handle samples of their own blood but if a person wished to have that sample and wished to have it independently tested, I think it is the least facility that should be afforded to an accused person. The principle of allowing a person under suspicion to have a sample of what the State takes to test is I think to be established. We certainly have it in relation to laws affecting alcoholic beverages. We have it in relation to food and beverage testing and I think in every other walk of life in which inspectors as such may take samples of goods being sold by persons. Samples are taken; they are divided; one half is taken by the inspector and the other half is retained by the person whose goods are examined. If we do it in such cases we should do it in relation to blood which is infinitely more important.

Mr. Boland

Section 45 provides that a person shall:

(a) be given an opportunity of having an additional specimen of blood taken by a registered medical practitioner of his own choice or of giving an additional specimen of urine to that practitioner, or

(b) if the person so requests, be supplied by the designated registered medical practitioner with an additional specimen of blood taken from that person in accordance with the prescribed procedure immediately after the taking of the specimen in pursuance of the requisition or, where a specimen of urine has been provided, with portion of that specimen.

That is what Deputy Ryan is asking for, in section 45.

Mr. Ryan

It would appear to be.

Mr. Dillon

Might I ask in this connection is the taking of blood in this case the procedure of a pin prick or does an appreciable quantity have to be taken?

Mr. Boland

I understand it is the equivalent of two teaspoonfuls.

Mr. Dillon

It is an intravenous procedure?

Mr. Boland

Yes. Of course there is the alternative of the urine.

Mr. Ryan

Is there any quantity limit there?

Mr. Boland

I do not know.

Question put and agreed to.

Sections 43 and 44 agreed to.

SECTION 45.

Question proposed: "That section 45 stand part of the Bill."

Mr. Dillon

I do not despair of the House coming to its senses in respect of this matter. It is a distressing matter to have to discuss. Nevertheless, we should face it. This is the section under which a person from whom a blood or urine sample has been taken can exercise the right to have a further sample taken. I think we have not clarified our minds sufficiently on what we are doing. We are thinking of the average young fellow or mature man going into a Garda station and going through these, in my judgment, extremely improper procedures. Take a woman who is apprehended and brought to a Garda station and who says: "I cannot have a blood sample taken. If you take blood, I will faint and you will have to send for an ambulance and remove me to hospital." The gardaí say: "Then perhaps you would have recourse to the other device." Perhaps there will be a Ban-Gharda present who will say: "There is another procedure." Under protest, the woman submits to the other procedure.

I am perfectly serious about this. Meantime the woman's husband and family have been informed and they arrive with the family solicitor at the Garda station and make angry remonstrance and the Ban-Gharda says: "It is not for us to comment on this procedure. We are carrying out our instructions. We are trying to do our duty with the least possible embarrassment." The woman is in a state of collapse and general distress at this stage and the Ban-Gharda says: "It is all over now and you can go home." But the family solicitor says: "No, we want an independent test." Then the woman is asked to provide a second sample, something she is completely unable to do. What happens then?

I think we are drifting into an arena of personal indignity and personal distress which I do not believe anybody in the House wants to inflict on people, because we are not thinking of the contingencies that are likely to arise. All this happens in a Garda station near the woman's home or alternatively and equally distressingly, a woman who has never been in a Garda station in her life and never dreamed of being in one, living in Ballyfermot or Crumlin, a respectable woman, finds herself in a Garda station at Kilmainham and is in great distress at the allegation that there is even a suspicion that she is under the influence of drink.

If this situation arises, what happens? I do not know whether under the provisions of the Act as it stands the Garda can devise a way of providing a sample from the sample furnished. That would give rise to all sorts of undesirable implications. It may raise the question that the vessel into which the original sample was put was contaminated by some previous alcoholic content that had not been adequately removed or sterilised. Picture the scene of this woman then appearing in the Dublin District Court and the argument and discussion going on: "Did she pass urine at the station? Was the Ban-Gharda present when she did it? Was she asked to do it again? Did she say she could not? Was she genuine in saying that she could not on the second occasion? Or was it a device for the purpose of frustrating the tests provided for in this Bill?"

To me, this is all utterly revolting and unthinkable. I am not thinking at present of a sophisticated woman who would more or less laugh at this kind of thing and say: "These are the daft things the Dáil does." I am thinking of a decent respectable woman with the ordinary modesty of an Irish woman, town or country. The affront, the outrage to all the standards that we were reared in, seems to me to be indescribable. All I can say is that, while I recognise the desire in section 45 to meet the point raised by Deputy Ryan that there should be a check, I deplore the highly monstrous nature of these proposals and I want to renew the expression of my grave apprehension that we are allowing ourselves to be manoeuvred into a position in which none of us wishes to be.

I suggest that what happened is that the Minister asked his administrative advisers: "How am I to make this test inescapably accurate?" and they said: "If that is your objective, this is the way to do it." I think that where the Minister has gone wrong is in not saying: "This is leading me from one step to another. I cannot suggest to the Legislature that this monstrous series of indignities should be inflicted on ordinary decent people and if that is the only way we can get an absolutely effective test of this kind, then we will try to get along without it."

Even at this late stage I would urge the Minister to reconsider. Again I am prepared to say that with suitable consideration nobody who elects to drive a car can, in our circumstances, reasonably refuse to breathe into a breathaliser. I am prepared to say that I will make available to anybody against whom the breathaliser appears to provide an adverse verdict, other procedures, but if I do, I must ask that the Garda be left free to say in court—I think the breathaliser turns green if the alcohol content is deemed to be excessive within the meaning of the Bill—(1) "On taking the breathaliser test, the breathaliser turned green" and (2) "The defendant was informed that if he was unsatisfied by the evidence provided by the breathaliser test, it was right to require these other tests, blood and urine tests, and on being so informed, he declined to have either. We are satisfied he was in violation of the Act and it is for him to prove otherwise, if he is able to do so, bearing in mind that there was offered to him an opportunity of rebutting the breathaliser test by recourse to the blood and urine tests if he chose to do so."

That is going an immense distance but it leaves the defendant in a position to say: "I did challenge the breathaliser test, but I was not prepared to face the other procedure. I can only try to explain to the court why I declined. I assert my sobriety and I assert I consumed no alcohol on that day. There must be some misunderstanding." It is left to the court to determine whether the person was in fact in charge of a motor vehicle in violation of the criteria laid down in this Bill. If we do not mend our hand on this at some stage, we are going to find ourselves insisting on people submitting to indignities which, in my judgment, are unthinkable and which, in the special circumstances of the second sample here, may be impracticable.

Mr. Boland

This again is a highly fanciful type of situation that Deputy Dillon has suggested. There are two alternative types of test provided for. If for one reason or another a sample for one of the tests cannot be provided, there is the alternative. It is highly unlikely to be impossible to provide either. In any case section 35 provides for defence in the case of failure to submit the specimen.

With regard to the question of a sample of urine, if the sample is taken by the registered medical practitioner, the sample can be returned to the suspect for independent analysis or part of the sample taken for analysis can be retained for further analysis by the suspect. That is a reasonable safeguard. It deals adequately with the type of situation, unlikely to arise, to which Deputy Dillon has referred.

I have already explained why it is not possible at present to put forward the result of a breathaliser test as evidence that a person has prior to driving raised his blood-alcohol content to the level we have specified in the Bill. It is simply because the breathalisers in their present stage of development are not sufficiently reliable for the State to go into court and say: "On the basis of this test, we are accusing this person of having committed this offence." The State could not represent in court that this breathaliser test has established that the person did that. I do not think it would be reasonable to ask the court to accept the evidence of breathalisers in their present stage of development. But it is hoped in the future a reliable breathaliser instrument will be developed and that is why we have provided for the giving of the results of breathaliser tests as evidence, in the hope that at some time it will be possible to rely solely on the more simple and acceptable breathaliser test.

Mr. Dillon

I hope we are not trying in this Bill to do anything more than to prevent drunken driving.

Mr. Boland

We are.

Mr. Dillon

No, no. What we are trying to do is to prevent people affected by their blood-alcohol content from driving a car. We are not trying to do more than that. We are not trying to catch people out. I agree that at the present stage of the scientific development of the breathaliser, it cannot be invoked in court as conclusive evidence that an offence is being committed under section 35, or whatever the definition section of statutory incapacity is. There are all the attendant circumstances as well as the breathaliser test. If the breathaliser test is affirmative and the garda go on to testify that the man or woman was smelling of alcohol and that there were other attendant circumstances strongly supporting the powerful evidence of the breathaliser, albeit all will agree that the breathaliser evidence is not conclusive, we have there I believe the material substantially to control the evil we seek to control.

What we are trying to do is to get a form of evidence that will be virtually irrebuttable in court. That is where we are making our mistake. The ideal purpose to be served by this Bill would be to create a situation in which we would never have a prosecution—a situation in which everybody would be very conscious of the fact that new procedures were here available to the Garda for detecting incapacity to drive and that nobody who would take a drink would drive. That is the ideal at which we should be aiming. If we created the impression abroad that generally, if you are going to drive a car, remember you will be asked to blow into a breathaliser and, if you get from the breathaliser an affirmative diagnosis, nobody is going to say it is irrebuttable evidence but you are going to stand a mighty poor chance in any district court in Ireland of getting a favourable decision. That is the real deterrent—that in this Bill we have relieved the Garda of the obligation of proving that the person was drunk. All he has to prove to the satisfaction of the district justice is that the person had a certain blood-alcohol level at the time he was confronted by the garda. To that end the gardaí present the breathaliser test, saying: "That is not absolutely irrebuttable but we have substantial supporting evidence. The breathaliser not only turned green, but he was in a pretty aromatic condition."

If everybody knows that, then we have achieved our purpose without going to the detestable extremes which I think may mean the whole Bill going down the sink, because it will flounder on the Constitution, and I think it certainly should, whereas I do not believe the breathaliser procedure will place it within the ambit of the Constitution, and this seems to me to be so manifest. If we include a provision in the Bill that, having been brought to the Garda station as a result of a breathaliser test, the Garda are authorised to say to the person: "Now you have two further tests which you can take if you want to. We are prepared to send for the police doctor and you are entitled to have your doctor. If you are challenging the breathaliser, you are entitled to ask either for a blood or urine test to be done in the presence of a police doctor and your own doctor if you want to have him. If you do not accept either of these tests, we are warning you that when the garda in charge of this case goes into the box, he will set out the facts as he knows them and he will add: "we invited the gentleman or the lady to have the other tests, which are pretty generally accepted to be virtually conclusive, made and he or she emphatically refused."

Surely if that situation were presented to the court the garda had as watertight a case as can possibly be made against a person who deliberately infringes the provisions of this statutory definition of alcoholic incapacity to manage a car? And is that not what we want? If we have that, the Garda, instead of being the persecutors of the public have their role substantially reversed because now they say: "Now, ma'm you have blown into the breathaliser and the thing has turned green. If you want to go further in this business, you can get the tests. You know the breathaliser has turned green and we could smell you a mile away". Is that not the sensible thing to say? They could say: "Send for your family solicitor to come down and be said by him". Of course any solicitor who came down in that situation would say to the lady in question: "Now, look, the less we say about this the better, and we will get some hoary old practitioner to come in and represent you and say the thing was a regrettable mistake, but for the love of God, if you are going to drive a car again, do not take cocktails or drink before going into the car because if you do you will get into trouble." Is that not what we want to achieve?

I want to put to the Minister very strongly again that if he could concede this, I think he would carry with him the virtual unanimous support of the whole House and in the enforcement of this kind of law, I think that is of inestimable value not only to the Minister but to the enforcing authority, which is the Garda Síochána. I think it is a terrible mistake for the want of courage to try to throw that away and to create the problems for the Garda and for the administration generally which this utterly rigid and superficially, at least, unsympathetic approach to the public will create.

Mr. Boland

What it is necessary to prove to establish that a person has committed this new offence is not that the accused person had drink taken but that his blood alcoholic content exceeds 125 milligrammes per 100 millilitres and it is only possible to establish that fact by producing scientific evidence that it has been established that his blood-alcohol content is greater than 125 milligrammes per 100 millilitres. There is no way to establish that except by producing the results of a scientific test and unfortunately the results of a breathaliser test are not sufficiently reliable and the State simply could not go into court and suggest that they are. They are only considered to be sufficiently reliable to indicate that it would be advisable to get a person whose breath reacts to the breathliser test to provide a further sample which will enable it to be scientifically established whether or not this offence has been committed. There is no other way of doing it at present.

As I said, it is hoped that breathalisers will be developed further and that it will be possible eventually to depend on them, but I can see no other way of doing it, and if this is not included in the Bill, there is no point whatever in establishing this new offence because we will be back to the same type of argument as it is necessary to use to establish the present offence of being unfit to drive due to the consumption of alcohol.

Question put and agreed to.

SECTION 46.

Question proposed: "That section 46 stand part of the Bill."

Mr. Ryan

There appears to be no provision for the making of regulations in relation to section 45 and I think it might be as well if the Minister were to take the power to make such regulations as it may be necessary to provide for something under section 45.

Mr. Boland

It says "sections 26 to 45". Does the Deputy think we should put "inclusive" in? I take it that section is inclusive.

Mr. Ryan

Yes, that is right. It is in the first paragraph but strangely enough, it does not appear to be spelled out under any of the subparagraphs.

Mr. Boland

It says we may make regulations under sections 26 to 45.

Mr. Ryan

I agree that is comprehensive enough but why is it spelled out for other sections and not for that?

Mr. Boland

This subsection (2) is not comprehensive.

Mr. Ryan

But it would not appear to be necessary. It always raises a doubt if you do something in one case and do not do it in another.

Mr. Boland

I shall consider between now and Report Stage whether it is necessary to put in some reference to section 45.

Mr. Ryan

Thank you. I take it that presumably if a person is to give a sample under section 45, the Gardaí would have to give the container for the sample in question? It just occurs to me that that seems the kind of thing you might want to do under regulations.

Mr. Boland

I shall look into that between now and Report Stage.

Question put and agreed to.

Sections 47 and 48 agreed to.

SECTION 49.

Question proposed: "That section 49 stand part of the Bill."

Mr. Ryan

It would appear under section 49 that it is proposed to have a more severe test of driving in future because the phrase "driving without due care and attention" has up to now not appeared in road traffic legislation. Perhaps the Minister would care to comment about the reason for making this apparently more severe?

Mr. Boland

I covered that, I believe, in my Second Reading Speech. This section provides that a person shall not drive a vehicle in a public place without due care and attention. In the existing section 52, the offence is based on the use of any vehicle, not just a mechanically-propelled one, in a public place, whether by right or admission there by fee or free of charge. I think all that is intended to do here is to extend it to any mechanically-propelled vehicle. I will have to accept what Deputy Ryan said about our introducing this for the first time. I am not aware of that.

Mr. Ryan

I am not pressing the point but it is one which Deputy Fitzpatrick mentioned to me. I am subbing for him.

Mr. Boland

I must say that I do not see what the significance of introducing "care and attention" is.

Mr. Ryan

It is superfluous.

Mr. Boland

The existing offence of "driving without due care and attention or without reasonable consideration" is amended by the offence of "driving without due care and attention."

Mr. Dillon

Of a mechanically-propelled vehicle. Are you bringing in horses and carts?

Mr. Boland

Yes.

Mr. Dillon

I think that here we are again moving into a country where we do not intend to go. We are living in a country which is largely a rural community. There are plenty of horses and carts and donkeys and carts going home from every small town in the country. The donkey knows his way home. You will see people sitting in the cart talking together while the donkey makes his way along the road. There is very little prospect of the donkey taking it into his head to rear into a motor car. This is so very far from reality that it is fantastic. Do we now mean to say that everybody driving a donkey and cart or a horse and cart in rural Ireland must be like a coachman or a footman sitting erect with the reins in his hand driving with a diligence and circumspection that would be suitable if he were driving a brougham and pair with elderly ladies in it?

This is as remote from my experience of living in rural Ireland as it is conceivable to think. I should say that the vast majority of the asses and carts on the roads of Ireland take much more care than the driver will in his large car. The donkey knows every step of the way home and it would be extremely difficult to persuade him to go anywhere else but home. That is his customary route. Do we seriously intend to create it a statutory offence or not to drive a donkey and cart without due care and attention?

Mr. Boland

This is section 47 and we are now on section 49.

Mr. Dillon

I think section 49 covers the same thing, except that here we are providing for careless driving and in the previous one, we were providing for driving without reasonable consideration. Frankly, I have not got the original Act before me. Deputy Ryan has it. Those are complicated Acts and all those sections are amending sections in the Principal Act. I understand the Minister to say that the purpose of this section was to bring in non-motored vehicles within the definition of vehicles which were to be driven with due care and attention. I suggest to him that he is going some what further than he means to go, having regard to the ordinary conditions prevailing in rural Ireland.

Mr. Boland

We are doing that in section 47.

Mr. Ryan

As I started this debate labouring under a misapprehension from a note in the margin of Deputy Fitzpatrick's copy of the Bill, I would like to put the situation right. Section 49 of this Bill seeks to amend section 52 of the 1961 Road Traffic Act. Section 52, subsection (1), of the 1961 Act, which we are now seeking to amend, reads:

A person shall not drive a vehicle in a public place without due care and attention, or without reasonable consideration for other persons using the place.

I think all we are doing in subparagraph (1) of section 49 is omitting the words "without reasonable consideration for other persons using the place". The Principal Act provides in subsection (2) that:

A person who contravenes subsection (1) of this section shall be guilty of an offence.

It does not specify the penalty which will flow from that.

Mr. Boland

We have split it into two. Section 48 deals with driving without reasonable consideration and section 49 deals with driving without due care and attention.

Mr. Ryan

In fact, those are not doing anything which the horse drawn vehicle is prohibited from doing in section 47. With all respect to my esteemed colleague, Deputy Dillon, I want to say that we are not dealing with a donkey and cart age. If we were, there would be no reason for this Road Traffic Bill at all. The reason for specifying those particular modes of conduct is that unfortunately we have people driving around our cities and towns as though they were sitting in carts which were pulled by donkeys. It is because such people are still in our midst who are driving without due care and attention when they have under their control a lethal weapon that we have to impose these restrictions on them.

Mr. Dillon

I appreciate what Deputy Ryan says, provided I can be assured that we are not going to set the same standards of driving when a person comes into a town in his ass and cart and goes home sure in the knowledge that the donkey knows his way home and could not be persuaded to go anywhere else but home and by his customary route. Surely we are not imposing the same kind of penalty on such a person as we would on a person who has just purchased a Bentley and who is trying to persuade the lady of his choice that he is master not only of her but of the Bentley?

Mr. Boland

He is still not entitled to cut the corners. He might go home by the shortest route.

Mr. Dillon

I invite the Minister to turn to his Parliamentary Secretary who will tell him more about the habits of rural donkeys than he has ever yet learned. They are very circumspect animals.

Question put and agreed to.

Section 50 agreed to.

SECTION 51.

Mr. T.J. Fitzpatrick

(Cavan): I move amendment No. 20:

To delete paragraph (b).

Paragraph (b) reads:

(b) the insertion after subsection (3) of the following subsection:

"(4) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant."

Now, this section is really a section which deals with parking a vehicle in a public place.

A person shall not park a vehicle in a public place if, when so parked, the vehicle would be likely to cause danger to other persons using that place.

I fail to see the necessity for providing, as is provided in paragraph (b), that a person guilty of this relatively minor offence can be arrested there and then without warrant. I would consider it quite sufficient to serve a summons on that person, to bring him to court and to deal with him in the ordinary way.

Section 55 (1) of the Principal Act reads:

A person shall not park in a public place a vehicle in such a position or in such a condition or in such circumstances as to be likely to cause danger to other persons using the place.

I could understand it if some provision were put into this measure that the Garda could remove the vehicle and take it away in order to abate danger to the public. I cannot see the point in inserting a provision that the owner of the vehicle may be arrested there and then. I repeat that I think it would be adequate to serve him with a summons and to bring him to court and to deal with him there, as he will eventually be dealt with in court, because the only point in arresting him is to charge him and to bring him before the court, presumably the next sitting of the local district court. He could be brought before it on a summons, just as well. If the Minister's point is that if the vehicle is parked in such a manner that it could be a danger to the public then I could understand the provision going into the section authorising or empowering the Garda to remove the vehicle. The Minister may have some views on this that will explain the matter to me and I shall be glad to hear them.

Mr. Boland

I fully agree that this question of extending the powers of arrest without warrant is a matter for consideration. I want to assure Deputies that there is no intention of using this in the normal way. It is intended purely and simply to deal with people who at present can more or less ignore these types of regulations— people of no fixed abode, people who reside outside the jurisdiction of the State or people who can ignore even the most important traffic regulations at the present time. It is intended to use this very sparingly, if at all. It is anticipated that mere knowledge of the existence of this power will go some way towards modifying the attitude of those people who at present feel they can afford to pay little or no attention to our road regulations. When this is taken in conjunction with the provisions of the Criminal Procedure Act, 1965, it appears to be the only way open to us of dealing with such cases. In section 50 of the Bill, we extended this power of arrest to dangerous driving cases.

Mr. Ryan

I think the power sought here is irrelevant to the remedy the Minister could very simply apply in the case of danger or risk arising not out of the conduct of a person who has already parked a car but rather because of the presence of a car in a dangerous position. What is needed here is to give to the Garda effective and drastic powers to deal with the actual danger; in other words, give them powers similar to those they already have in respect of the removal of cars from clearways.

Mr. Boland

Does Deputy Ryan agree with section 50 which extended this power of arrest to cases of dangerous driving or is it merely in respect of parking that the Deputy objects to it?

Mr. Ryan

The deletion which Deputy Fitzpatrick wants to make is that which provides that where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section he may arrest the person without warrant. I concede a certain virtue in entitling gardaí to arrest a person without warrant if, after due warning, he persists in parking the car in a dangerous position. I concede a certain virtue in entitling gardaí to arrest a person without warrant on giving notice to such person that he or she will be arrested if he or she persists in that line of conduct. It could be argued, therefore, that the garda should have power to arrest if people persist in committing this extremely dangerous and, I think, unforgivable offence of parking a car in a position in which it is likely to cause injury to a person or damage to property.

I cannot see any virtue in giving gardaí power to arrest a person without warrant in respect of a car parked in a dangerous position. The gardaí would be entitled to remove the car from a dangerous position. Here, I think they should not require to await the arrival of a crane truck to remove it from a dangerous position. It is quite ludicrous to see gardaí gingerly trying to pick the locks of cars with hairpins and other instruments of that nature in order to release the handbrakes so as to enable the cars to be put up on a crane truck. The gardaí should be allowed to smash the window of a car to enable them, with speed, to effect entry to the car, to start the engine and to remove it. Some people might consider that a bit drastic but certainly it is the kind of thing the Minister should seek power to do so that the real danger—the location of the car in a dangerous position— could be removed. I do not think we shall do it by enabling gardaí to arrest the person who has already committed the offence unless awareness of this power would lead people to prefer to remove a car rather than to be arrested.

The Minister said that this is intended to deal with the types of people who may have no fixed abode or who may come from outside the jurisdiction of the State. How does the Minister think that people outside the jurisdiction are going to be aware of a provision in the Act entitling a garda to arrest them without warrant for parking a car in a dangerous position? They will not be aware of that. It came to my notice recently that an English visitor in this city parked his car in a prohibited position and at that time received what is mistakenly called an on-the-spot fine notice on the windscreen. This person returned to England and wrote to the Garda asking them what action he should take in relation to the notice. The officer in question wrote back to the person in England apologising for affixing the notice and saying that had he known the car had been hired by a visitor, no notice would have been fixed to it.

The moral to be learned there, and I am quoting almost verbatim, for any visitor is not to be worried if he receives such a notice on his windscreen for illegal parking. That came from one of the stations in this city, from an officer of the law, indicating that apparently visitors are to be exempt from the obligations of our traffic laws. I think Members of Dáil Éireann would be unwilling to accept this. We are always willing to extend the courtesy of friendship to visitors but we cannot do it when danger to life and limb is involved.

The remedy which the Minister ought to seek is one removing the danger and that can best be done by taking effective power to shift the car which is in a dangerous position. As I said earlier, there may be merit in entitling a garda to arrest a person who persists in continuing the offence after it has been brought to that person's notice, the merit being to prevent the person from committing the offence, but there is no merit in the provision which entitles a garda to arrest a person who has already done it. That is not going to remedy the situation.

Mr. Boland

Deputy Ryan is obviously thinking in terms of people parking cars in the city, I am thinking more of the type of case which Deputy Dillon emphasised so much at an earlier stage of our consideration of this Bill, the type of situation that he maintained it was more important to deal with than the question of people driving when their judgment was affected, that is, the parking of huge lorries possibly with trailers as well, which are unlit or not properly lit, and in dangerous situations on the road. That type of thing is extremely dangerous and very serious accidents can result from it. It is essential that it should be possible to bring the culprit in cases like that to justice, whether he resides in the State or comes from the Six Counties. The position is that a driver from the Six Counties who is involved in this type of breach of the regulations can in fact escape scot-free. It is highly desirable that in cases like that this power should be available to the Garda to arrest such a person without warrant so that he cannot escape the consequences of his action merely by going home.

Mr. Dillon

May I put a view to the Minister in regard to the problem to which he has referred? Am I getting odd or am I insane in thinking that in trying to deal with current problems we are living in an age when people tend to overlook Magna Carta?

Mr. Ryan

The Deputy is perfectly right.

Mr. Dillon

Is this not Magna Carta? I find myself listening to what young students are saying, and saying to them: “Look, you have never understood what it is to live in a country that is not free. Be immensely vigilant to preserve free society whatever the cost and however difficult it is to do it.” I have often said to them: “You can say what you like; you can say anything critical of the Taoiseach, Deputy Lynch, anything critical of Deputy Cosgrave, or anything critical of Deputy Corish, and when you walk out, you need not look to the right or left because nobody is there to put a hand on your shoulder and arrest you and to take you away. If anyone tried to do so, no matter what hour of the day or night it is, a friend can go to the house of any High Court judge and if he is in bed, he will get out of bed and issue a writ of habeus corpus to whoever detains you, with a direction to produce your body before him forthwith and justify your detention.”

How did it all first come about that gardaí or policemen in this country were required to get warrants before they detained a person in custody? It was because we take the view that law-abiding citizens have the right to go about their lawful occasions without interference by the executive Government, no matter how strong that Government may be, and that gardaí are the servants of the public and not their masters. But if a person violates a regulation which the Oireachtas has made for the protection of society at large, there is a remedy by which the Garda can call that person before the courts in an orderly way to answer for his violation of the regulation and pay the penalty if the court determines he has deliberately and with full knowledge committed that breach of the regulation.

Mr. Boland

It depends on where he lives.

Mr. Dillon

Now, with the improved methods of communication, this problem arises more and more in every country in the world, of people passing through, which did not arise in the last century. You simply cannot pass through any country, possibly with the exception of Andorra, in the course of a single day, but you read in the newspapers horrifying stories about ladies prancing down the beach in their bikinis on the Costa Brava in Spain, and being, not rebuked but arrested and taken off to jail. Everyone is inclined to say: "Franco, the villain; he is a Fascist beast," and there are people dancing outside Trinity College shouting: "Down with the Fascist beast who arrests liberal tourists for appearing in unsuitable bathing costumes." Some other person goes to Portugal and is arrested peremptorily for committing an offence against the local regulations and they are all hopping up and down outside Trinity shouting: "Fascist beast." If somebody goes to Yugoslavia or Czechoslovakia and gets arrested in exactly the same circumstances, there is not a whisper about it but it is true of all of us that we feel a little shocked at the idea of people being arrested and violent hands being laid upon them and being removed to a police station and sometimes being retained for a reasonably protracted period. Under our law I think I am right in saying —Deputy Fitzpatrick will correct me if I am wrong—they have a right to bring you before a peace commissioner within 24 hours.

Mr. T.J. Fitzpatrick

(Cavan): Twenty-four to 48—within a limited time.

Mr. Dillon

Even so, to spend a night in a police station at the option of a young garda is a serious matter. What flaw is there in Deputy Ryan's proposal, as a substitute, that if a traffic offence of this character is committed, you can either remove the vehicle to a pound provided for that purpose or, if the vehicle is of a character that it is impossible to move, like a vast lorry or pantechnicon, take out the carburettor, pin a notice on the vehicle that the vehicle has been labelled by the Garda for dangerous parking and that the driver, on communicating with the Garda station will be facilitated to shift it?

What additional advantage accrues to us by making us all subject to arrest without warrant for parking when our real purpose is to control the activities of people coming in and going out and who may escape from the jurisdiction before they can be made amenable by the ordinary procedures to the process of the law? Surely it is much more inconvenient and upsetting for a person who without any regard to decency parks his car or lorry or trailer in a dangerous way to have the vehicle immobilised? He is put to a lot of inconvenience but his person is in no sense violated, and if he goes home from Ireland to Great Britain, Spain, Germany or France and tells his story that he parked his car, lorry, truck or caravan at a corner of a road in such a way as to obscure the vision of other drivers and to create a public hazard and the police came and took the carburettor out and would not give it back to him until he moved the car to a safe place, he will get very little sympathy. Most rational people will say: "Are not they very reasonable people in that country? If you were in Spain, Italy or Germany, you would probably be locked up for the night."

What we want to do is to prevent this practice. Can you imagine the situation in an Irish country town where the parking regulations are extremely vague and you park your car where you have been parking it for years? I am just thinking of a particular town that I know. All the guards in that town have been there for the past 25 years and more and suddenly they all reach retiring age. When I meet the sergeant now, it causes me consternation that they put three stripes on lads like that. When I meet the gardaí, they look like children out of school. I do not know any of them. They are all young fellows. Can you imagine a respectable citizen who has parked his car in a particular place for years suddenly being informed in the middle of the town by a young overzealous garda that he has committed a breach of a section of the Act, that he is now going to arrest him and remove him and bring him before a Peace Commissioner?

I agree entirely that the Minister has no such intention and cannot conceive of that happening but, remember, the Minister was telling us only yesterday: "I am not responsible for enforcing these provisions; I am only responsible for making them". The Minister's colleague, the Minister for Justice, may send for the Commissioner and say: "This power which we have given here ought not to be exercised against anybody but somebody who is liable to leave the jurisdiction". The superintendent of the Garda is quite entitled to say to the Minister for Local Government: "Now, Minister, you have your sphere; I have mine. You make the law. I administer it. You have made the parking of a car in a dangerous position an offence which entitles the garda to arrest without warrant. That is the law I am going to enforce and how I enfore it is a matter for my discretion. There will be due enforcement of the law." You get an earnest young garda who arrests somebody quite unnecessarily instead of proceeding against him by way of summons and the Commissioner, fair enough, will say: "That young fellow got his instructions. An experienced man would not have done that. He would have recognised that the only person who ought to have been arrested in these circumstances was a person who obviously was on his way out of the jurisdiction but the young fellow did his job and what about it?" I do not think we ought to create a position in which that situation can arise.

May I urge on the Minister that instead of invoking this section, he would, rather, depend on the right of the garda to immobilise the vehicle after pushing it or getting it removed out of the immediate dangerous spot in which it was parked and then he would have the right to immobilise it until such time as the person responsible for the offence was summoned and brought before the appropriate justice, whoever he might be.

Mr. T.J. Fitzpatrick

(Cavan): When I first read this section, I got the impression that we were conferring on the Garda Síochána the right to arrest without a warrant a person who parked his car in a dangerous position. I thought that I did not clearly understand the section and that there must be something more in it than I saw. I decided to put down an amendment to delete subsection (4) which, I thought, gave the Garda Síochána the right to arrest without a warrant in such circumstances, but I still hoped that my interpretation of the section was incorrect and, indeed, when I moved my amendment today, I still hoped that there was something more in the section than I had been able to take out of it and that the Minister would have some explanation which would be satisfactory. But, having moved my amendment and having heard the Minister, the position is now clear that what we are doing is to confer on a member of the Garda Síochána the right to arrest without warrant a person who parks his car in a dangerous manner, whether that person be a lorry driver, a small farmer, a professional man, a poor man or a rich man. I think this is totally unnecessary and a trend in the wrong direction, conferring on the Garda Síochána and on the State more power than is necessary. The object of conferring on the Garda Síochána the right to arrest a person without a warrant might fall under some of these categories: to prevent a person who was engaged in some dangerous or highly unlawful act from continuing to do so, such as a person who was breaking into a house or a person who is driving a vehicle while under the influence of drink and who, if he is not arrested, will continue to do it. No such question arises here. Apparently the car is to be left parked in the dangerous position and the offender is to be brought off to prison.

The Minister quite fairly and quite reasonably concedes that this is a serious matter, to confer the right of arrest without warrant, and that there should be some considerable justification for it. But what does the Minister give as a reason for inserting this rather drastic section? He says that the person might have no fixed abode or that the person might be resident outside the jurisdiction. If that is what the Minister has in mind, what is the objection to writing that into the section and to saying: "Where a member of the Garda Síochána is of opinion that a person who has no fixed abode or is ordinarily resident outside the jurisdiction is committing or has committed an offence under this section he may arrest such person without warrant." If that is what the Minister has in mind and he thinks it is necessary—which I do not—what is the objection to writing it into the section? This is a classical example of taking too much power. It is a classical example of taking a sledgehammer to kill a fly, and what we in this House must bear in mind is that we are here giving power to the Garda to arrest any person, whether or not he has a fixed place of abode, whether or not he has parked outside his fixed place of abode, or whether or not he is within the jurisdiction. This is a dangerous trend. It is something to which the Minister and the House should not subscribe.

The Minister asked Deputy Ryan whether he agreed with this in some other section that, perhaps, we passed over without noticing it. My answer to that is that I object to the principle of this thing, and if it appears in some other place in the Bill, whether I have noticed it or not, I also object to it. I object strongly and strenuously to conferring on any police force the right to arrest without warrant where the service of a simple summons to appear before the local court is sufficient, because the only point in arresting a person is to bring that person before the next available district court, and that can be done equally well with a summons as an arrest. I am really alarmed, and I think that if the other Members of this House fully understood what we were doing, they would be equally alarmed.

Mr. Dillon

And the Deputy thinks I am not odd?

Mr. T.J. Fitzpatrick

(Cavan): I think the Deputy is far from odd, and I believe that if the people of this country knew what we were doing, they would be horrified. Deputy Dillon has made reference to some continental countries. I have not very much experience of travelling on the Continent, but from one short experience I had in a continental country, I got the impression that the police there drew their batons or their truncheons, used them well and very effectively first and asked questions afterwards. I do not think we should adopt that principle here. I honestly believe that if we are going to confer on a police force the wholesale right to arrest without warrant, we are taking the first step into a police state.

Mr. Boland

Deputy Dillon knows very well that it is not intended to do anything of the kind he has suggested would be likely to happen. Deputy Dillon should realise that he just cannot have it both ways. He cannot, on the one hand, attack me for doing nothing in regard to these huge pantechnicons parked, as he says, on rural roads or on arterial roads in an unlit condition and in a dangerous position; and on the other hand, refuse to give the necessary powers to deal with offenders. It is not true for Deputy Fitzpatrick to say that the problem of visitors from the Six Counties, in particular, breaking our driving regulations is not a serious one. It is. I have complaints every day of the breaking of speed limits on the Belfast road, and these people can do this with impunity, because there is no way of dealing with it.

Mr. T.J. Fitzpatrick

(Cavan): Deal with them in the section, but leave our own people alone.

Mr. Boland

It is not possible to serve simple summonses on these people, as Deputy Fitzpatrick suggests, and in the same way in regard to the parking of these lorries in dangerous positions. There is provision in section 62 of this Bill for the removal of the vehicles, but it is not always such a simple thing to remove one of these vehicles from a dangerous position. Furthermore, there is always the possibility that the danger may become a reality before it is discovered and the accident may have taken place, and it is essential that people who do these things should be brought to justice. As I said, there is no intention to use this except in the type of case I have spoken about.

Mr. T.J. Fitzpatrick

(Cavan): Why confine it to that?

Mr. Boland

I am advised it would be difficult, if not impossible, to draft the provision Deputy Fitzpatrick has in mind. However, I shall undertake to have it examined between now and Report Stage to see if it is possible to do so. This power is not required for our own people. It is required for people who, at present, can afford to ignore the driving regulations we make to protect the public.

Mr. Dillon

If the Minister says that, the Minister is saying what is reasonable, and if he confines it to people who are threatening to escape the jurisdiction, that is also reasonable.

Mr. James Tully

I was going to say that I agreed with Deputy Fitzpatrick's amendment. I appreciate, perhaps more than anybody else except the Minister, the position here, because I travel up and down the Belfast road twice a day, and I know that what he says in regard to a number of Northern Ireland people is quite correct. I still do not agree the solution is the one he suggests in the Bill. I do not think that arresting somebody will solve the problem, because it is open to such abuse. Most of us, from time to time, have some experience of members of the Garda Síochána who, for reasons of their own or for no reason, decide to arrest somebody, and who when they carry out such an arrest, cause embarrassment to certain decent people and to themselves ultimately. I agree with the Minister that something must be done to ensure that the law is more respected, particularly by people who drive big lorries and park them in a dangerous position. The Minister says that perhaps the accident has occurred. If it has, the person can be arrested. It is now left wide open and people can park their cars anywhere, particularly in the city where it is almost impossible to park a car.

Mr. Boland

It must be a dangerous place.

Mr. James Tully

Whether it is dangerous or not is decided by the garda on the scene. If a garda sees me or the Minister parking a car in a dangerous place—we may not think it a dangerous place—he is entitled under this section to arrest either of us. I do not think he should have that right. However, the Minister has said he will have a look at it and I will not take up any more time of the House.

Mr. T.J. Fitzpatrick

(Cavan): On the Minister's assurance that he will look into the matter, I will withdraw the amendment and put it down again.

Mr. Dillon

I would urge the Minister when he is looking at it again to devise some plan for the immobilisation by the garda of the vehicle rather than the apprehension of the individual. It is necessary to bring this under control, but the other side of the picture is that we want tourists to come here and we do not want them to get the impression that if they come here for a day or a weekend, and commit a parking offence, they are likely to end up in Mountjoy Jail. It would be much better if the person committing a gross parking offence were liable to have his vehicle immobilised until such time as he gave satisfactory sureties to appear before the appropriate tribunal. Would it not be a simple matter to let the air out of the six, eight or ten tyres on a lorry and to say: "Before you can blow them up again, you must provide sureties that you will appear to answer such summons as is served upon you"? I would ask the Minister to consider bearing down on the vehicle rather than on the person.

Mr. Boland

Section 62 provides for that. I should have told the House that there is under consideration at present an international convention which will make it possible for persons committing traffic offences in different countries to be prosecuted, but it will probably be many years before it becomes a final document. In the meantime we have to take some steps. As I said, I am prepared to look at it.

Mr. Dillon

Short of suspending Magna Carta.

Amendment, by leave, withdrawn.

Section 51 agreed to.

SECTION 52.

Question proposed: "That section 52 stand part of the Bill."

Mr. Dillon

I do not believe anyone in the House knows the meaning of section 52. Does this relate to firms engaging in motor insurance?

Mr. T.J. Fitzpatrick

(Cavan): It relates to guarantee deposits in lieu of insurance. I read it 12 months ago and that is the impression I got. I did not think it necessary to query it.

Mr. Boland

In this country there is no body empowered now to operate as a vehicle guarantor and it appears that insurance companies do not issue guarantees. Therefore it appears that the guarantee provisions have outlived their usefulness. The person covered by guarantee is in a different position from an insured person in an insurance policy who is indemnified against claims arising on the policy. Under a guarantee a vehicle guarantor or a vehicle insurer merely guarantees payment of claims by the person guaranteed. If the latter fails to pay, the guarantor must step in and pay but he is in a position to recover, or attempt to recover, in the ordinary way the sum paid out under guarantee. For the ordinary individual whose assets are limited, a guarantee, while affording the necessary cover under the 1961 Act, and protecting a third party injured by him, leaves himself open to lose everything in the event of a substantial claim arising against him. The system might suit large business organisations who prefer to carry their own risks but for one reason or another would prefer not to become exempted persons, by enabling them to cover themselves under the Act for a nominal sum but in practice it has not been availed of even by such concerns for many years.

Mr. Dillon

CIE apparently operate under this guarantee system.

Mr. T.J. Fitzpatrick

(Cavan): They deposit a certain sum and are exempt.

Mr. Boland

That is right.

Mr. T.J. Fitzpatrick

(Cavan): How much do they have to deposit?

Mr. Boland

£15,000, I think.

Mr. T.J. Fitzpatrick

(Cavan): Deposits are not dealt with in these guarantees.

Mr. James Tully

If a bus turns over and there are serious injuries, £15,000 would be very small.

Mr. T.J. Fitzpatrick

(Cavan): Quite inadequate.

Mr. Boland

Section 53 deals with that.

Question put and agreed to.

SECTION 53.

Question proposed: "That section 53 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): Does this give power to the Minister to vary the deposits?

Mr. Boland

There is only one exemption at present, that is, CIE. As matters stand, any person or body could become an exempted person, that is, one who is not obliged to have his vehicles covered either by an approved policy of insurance or an approved guarantee, by merely depositing the sum of £15,000 with the Accountant of the Courts of Justice. An exempted person could, therefore, act as such even if his total assets did not exceed £15,000.

Mr. James Tully

Would the Minister say how long £15,000 has been the figure?

Mr. T.J. Fitzpatrick

(Cavan): We can deal with that on section 54.

Mr. Boland

Since 1937.

Mr. James Tully

£15,000 in 1937 is different from £15,000 now.

Mr. Dillon

Is there anything about the £15,000 being increased?

Mr. T.J. Fitzpatrick

(Cavan): Section 54 gives the Minister power to fix the amount of the deposit. I propose to deal with that.

Mr. Dillon

The white Paper says that the deposit for a vehicle insurer is now £100,000.

Mr. T.J. Fitzpatrick

(Cavan): That is for the insurance companies. The collapse of the Equitable Insurance Company had something to do with it.

Question put and agreed to.

SECTION 54.

Question proposed:"That section 54 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): On this section I should like to deal with a point that has been raised. Apparently, the sum of money required to be deposited in the High Courts by an exempted person is £15,000. It is obvious to everyone, layman or otherwise, who reads the newspapers that £15,000 is a totally inadequate deposit because judgements have been given to individuals who were badly maimed in motor accidents as high as £75,000 and, indeed £20,000 is commonplace as damages for one individual who has been injured. What about a busload of passengers? If it turned over, the damages involved could easily amount to well over £100,000 for the 30 or 40 people who were badly injured if the bus went on fire and there were several fatal injury claims. Am I correct in thinking that? Section 54 reads:

The Minister may from time to time require the deposit with the Accountant of the Courts of Justice by a person desiring to become an exempted person of such sum as the Minister shall specify in such requirement.

That is a section with which I thoroughly agree, but I think the Minister is shouldering a very heavy responsibility if he allows the present figure to remain at £15,000; and the fact that it so happens that CIE is the only interested party is not sufficient.

Progress reported; Committee to sit again.