I remind Senators they may only speak once on Report Stage, except the proposer of an amendment who may reply to the discussion. Amendments on Report Stage must be seconded. Amendments Nos. 1, 2 and 3 are related. Amendment No. 6 is consequential on amendments Nos. 1, 2 and 3 and all may be discussed together.
Road Traffic Bill, 1993: Report and Final Stages.
Government amendment No. 1:
In Government amendment No. 4, as agreed in Committee, after "and if the doctor" to insert "states in writing that he".
These amendments arise from the Committee Stage debate when I agreed to consider whether a doctor should give a statement in writing when refusing to take a specimen on medical grounds. Sections 13, 14 and 15 contain identical provisions which state that if a designated doctor, the Garda doctor, is unwilling on medical grounds to take a specimen, the garda can ask for a different specimen. This is likely to arise in a small minority of cases. Having considered the issue since Committee Stage, I agree that where a designated doctor is unwilling to take a specimen he should state that in writing and amendments Nos. 1, 2 and 3 provide accordingly. Amendment No. 6 provides evidential value for such statements. This will avoid the need for doctors to appear in court.
I thank the Minister for making these changes. On Committee Stage I said it was important that designated doctors should state in writing why they could not take the specimen. Over the weekend I discussed this with medical colleagues who found it impossible to think of grounds where it would be unwise, from a medical point of view, to take such a specimen. One consultant surgeon said — he has stated this publicly in writing — that specimens should be taken from unconscious patients and they should be asked about it afterwards. If that was left, a serious loophole could have been created. It also left the doctor in an invidious situation.
In a country area, the designated doctor may be the general practitioner and the patient's doctor. In such cases, it is difficult for the doctor not to appear censorious or lenient. It is important for a doctor to able to say to patients and those with them that it is something which must be in writing and which may come up in court. I thank the Minister for these worthwhile changes in the Bill.
This is a sensible amendment. I am green with envy at Senator Henry's success rate in these matters. It is in stark contrast to my lamentable success rate, although I had a minor victory in the debate on the National Monuments Bill it went to my head and I thought the same thing might happen with this Bill. There is no need to revisit Committee Stage other than in terms of establishing in later proceedings, if that needs to be done, the verification of some of these facts. This is much easier than having to locate somebody who, as Senator Henry said, could be out of the country and outside this jurisdiction.
I also welcome these amendments. They are eminently sensible and obviate a situation which could be difficult, in which a practitioner, particularly in a small community, could be placed under pressure. I am pleased the Minister has in these amendments accepted suggestions made on Committee Stage. This is the function of the House and, like Senator Dardis, I congratulate my colleague, Senator Henry, in having her proposals accepted by the Minister as a result of her persuasive arguments which come from a professional background. This is precisely the way the House ought to operate, where particular expertise is brought to bear on legislation and is accepted by the Government. As a result we have a better Bill.
I welcome the amendments and congratulate Senator Henry. I wish I had only been 5 per cent as successful as she has in having amendments accepted. She argued her case very well and made an impression on the Minister. I recognise his response, which is positive. I look with particular interest at amendment No. 6. It is a sensible approach to take. The line of thinking in the amendment could be applied to many other instances in court proceedings. It is ridiculous to have professional people sitting around a court all day for the purpose of swearing that a signature on a piece of paper is theirs and nobody else's. This streamlining is necessary and desirable and I welcome it.
Amendment agreed to.
Government amendment No. 2:
In Government amendment No. 5, as agreed in Committee, after "and if the doctor" to insert "states in writing that he".
Amendment agreed to.
Government amendment No. 3:
In Government amendment No. 7, as agreed in Committee, after "and if the doctor" to insert "states in writing that he".
Amendment agreed to.
I move amendment No. 4:
In page 13, to delete all words from and including ", on medical grounds," in line 21 down to and including "concerned." in line 22 and substitute the following:
"and so states in writing, on medical grounds, to permit the taking or provision of the specimen concerned. The statement signed by the doctor shall, in any proceedings under the Road Traffics Acts, 1961 to 1993, be sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it.”.
This amendment relates to the situation in the casualty department. The medical profession agrees there should be no sanctuary for people in casualty departments who are guilty of causing injury to others or driving under the influence of drink. They do not only evade giving samples but also waste hospital resources, which is important.
The Bill is not satisfactory with regard to casualty departments. Doctors in casualty departments are most likely to be at senior house officer level; some may be at registrar level. Casualty officers are wary of medico-legal problems. At least 50 per cent of them are not natives of this country. In some health board areas 70 per cent of doctors in charge of patients in casualty departments are non-Irish nationals. Such doctors may not be in the country if there is further questioning in a case. I have consulted with doctors. A senior physician from one medical organisation wrote to me to say that he felt it was essential that doctors in casualty departments should not be seen as being either too lenient or too censorious and at the same time were in a position where they were not putting themselves at medico-legal risk with the patient.
The taking of blood from a patient is a minimal procedure. As a medical practitioner I cannot think of any situation in which it was impossible to take such a sample. If the patient is so ill that there must be emergency surgery one will certainly be taking blood samples. It is a minimal procedure to allow the designated doctor to take another tube for a blood alcohol sample.
I made sure that this amendment was similar in wording to the others dealing with the designated doctor so that the Minister could accept it. I am in no way critical of my junior colleagues or the problems they may have in casualty departments. The situation may now arise that the sanctuary moves from the doors of the casualty department to coming in contact with the doctor. A great deal of pressure can be put on this junior doctor to refuse on medical grounds to allow the sample be taken.
This might cause difficulties in any subsequent questioning of the decision. It will be all right if permission was refused by Joe who is now in Tralee, or even someone who has gone to Saskatchewan but may be coming back. However, if it was someone who did a training course here and has returned to Pakistan we could be in a very serious situation because no one knows the reasons for refusing to give a sample. There does not even seem to be a provision that the doctor has to sign anything to say he was the person who refused. Will there be something on a casualty card?
The police are always anxious about additional bureaucracy. However, this additional bureaucracy will be helpful. The casualty officer would be in a position to tell the patient and those around them who may be pressuring the officer to refuse the taking of blood samples, that he can do nothing about it as there are no medical grounds for refusing and he is obliged to sign a certificate. I can understand why the Minister does not want to specify the medical grounds. However, there should be more formality to this refusal. I have taken into consideration — as has the Minister — the fact that since the doctor may be out of the country, the signature on that certificate will be considered conclusive evidence if the case should come to court.
I am extremely pleased to have got these other changes made to the Bill but unless the Minister has some overwhelming reason for not doing so, I suggest that he accept this amendment because I see the trouble moving sanctuary from the doors of the casualty department to a cubicle within.
I second the amendment. I do not share the medical expertise of Senator Henry but her arguments are very well made. Like many lay people, I am aware of the pressures under which casualty departments in our hospitals operate and I see no reason to add further pressure to this in terms of the type of psychological pressure which might be brought to bear on doctors to refuse to take a sample. I also find the argument that some of these doctors may be out of the country very convincing.
The conclusive argument, of which I had taken a note before Senator Henry spoke, is that this amendment is very close to amendment No. 6. My second note was that any arguments against the wording also operate against the Government's wording of amendment No. 6. Taking that into account, it would seem to be rather difficult for the Minister to manufacture arguments against it. Perhaps this is possible and legitimate but I hope this amendment, which seems very logical and in tune with the Government's amendment No. 6, will be accepted.
Senator Norris will accept that I do not come into this House to waste anybody's time by manufacturing arguments. I hope I base them on something more solid. May I say to Senator Dardis that in the competition league for having amendments accepted, sometimes it is not what we do but the way we do it.
I apologise to the Minister. I did not know I had a personality problem.
Amendment No. 4 proposes a statement in writing where the hospital doctor refuses to allow the taking or provision of a specimen in respect of a patient in the hospital. This is an entirely different situation and I want to keep all options open. Accordingly I cannot accept the amendment.
I am satisfied that placing a statutory obligation on the hospital doctor to give a written statement when refusing to allow the taking of a specimen from a patient is not the best way to proceed. As I said on Committee Stage, officials from my Department have already had consultations with the Irish Medical Organisation and the Irish Hospital Consultants Association. It was the view of the Irish Hospital Consultants Association in particular that the refusal by a hospital doctor to a garda's request for a blood or urine specimen from a patient should be capable of being given orally and without details of the medical grounds on which the request was declined.
For hospital testing to operate successfully I am dependent on the co-operation and goodwill of the medical profession and the hospital authorities. Therefore, I am anxious to devise procedures with which the parties themselves are comfortable. I stress to Senators that, as currently drafted, the section does not exclude a written refusal from the hospital doctors and if the parties who will operate the procedure want to give written statements, that can be arranged.
The bottom line is that when a person is in hospital, the hospital doctor has a right to veto the whole procedure. The hospital doctor will not have to give reasons and the decision will not be challenged by the garda. When the hospital doctor refuses to take the specimen, the procedure will be terminated and the garda will not interview the patient. Therefore, the question of the patient refusing to give a specimen will not arise. No specimens will be taken and, as a result, there can be no prosecution for exceeding the alcohol level or for refusing to give a specimen. The need for certification of refusal or the need to appear in court to give evidence of refusal will not arise.
Government amendments Nos. 1 and 3 provide for a statement in writing when the designated doctor is unwilling to take a specimen. Court proceedings will follow in most of these cases and there is a strong case for a written procedure with evidential value being given to the statement. The position of the hospital doctor is different. The hospital doctor's refusal to allow a specimen to be taken will terminate the procedure. No court proceedings will follow and the need for evidential value does not arise. Whether refusals are to be given orally or in writing will be decided in consultation with the organisation's representing the doctors who will operate the provisions. I made it clear on Committee Stage that the flexibility enshrined in the present proposals allows those consultations to go either way or, in some cases, allows doctors to opt for different solutions.
I, too have been in contact with the Irish Hospital Consultants Association and the IMO. I am sure that what the Minister said they told him is correct but when I talked to them, they did not have any objection to giving the reasons in writing. I will not press this amendment. However, I am anxious that, with regard to the people who will have to interview the patients, we do not move the point of sanctuary from the door further into the casualty department. I assure the Minister that the medical profession do not want this, but he is aware that the situation in our casualty departments is very difficult for young doctors who will be in charge. It is not always possible to get the casualty consultant, a registrar or someone like that because the blood sample must be taken within a certain time. I take the Minister's point that he will have further consultations and may bring in written certification. That signature would be conclusive and would be the end of the evidence so the doctor would not have to appear in court. This Bill is moving the situation into the hospital but not necessarily preventing the evasion which has been such a blight on all those who had to deal with drunken driving accidents. I accept what the Minister said.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 13, line 36, to delete "8" and substitute "6".
In this amendment we are speaking of the detention of a person in a garda station at the opinion of a member of the Garda Síochána for a period of eight hours. While we understand the intentions behind the Minister's proposal for a detention period of eight hours, we should not treat the placing of a statutory requirement of this nature into law too lightly. Detention of a person for this length of time should not be on the sole opinion of the member of the Garda Síochána. I have stated on Second and on Committee Stages that the person should only be detained for eight hours on the opinion of a designated medical practitioner. I would be happy to accept the proposal if it was on the opinion of a medical doctor.
Difficulties can arise where a person is detained for that period of time. In some instances the gardaí drive people home and look after them; in others they telephone the homes of the individuals who were arrested but where no phone may be available, where the person arrested may not have a phone at home, he may have no way of contacting his family and when that person fails to return home overnight, that can cause a lot of concern for their families.
A person arrested for this offence would normally be detained for six hours; this will now be extended to eight hours, and to detain a person for eight hours on the opinion of a garda alone is excessive. If it had been on the opinion of a doctor I would accept it, as I accepted it on the last occasion. I ask the Minister to reduce the period to six hours. That would meet at least some of our concerns. There are instances where a person can be incapable but a six hour period would meet the requirement.
I second the amendment. The Minister will recall that when we discussed this matter on Committee Stage concern was expressed from these benches about an eight hour detention period solely at the opinion of the non-medical garda. If this period of detention was confirmed as being necessary by a qualified medical practitioner, then our attitude would be different.
However, this also highlights another trend that runs through the Bill and which we did not develop on Committee or Second Stage. Coming from a rural part of the country, it is evident to me that the mind that drafted and designed this Bill was attuned to urban conditions and at sea with rural conditions. I say that to re-echo a point Senator Enright made about rural areas. If somebody is detained in a Garda station for a period of eight hours, it is long past their normal time for returning home. Very often young people are involved and there is no telephone at home. They might be living in an isolated rural area with elderly parents, or a wife with a few young children, waiting for news but there are no means of getting a message to them to explain why that member of the family is not returning at their normal hour. In urban areas it is different. There is only a short distance for a squad car to go to the person's home and often there is a telephone close by. This provision highlights the lack of understanding of conditions in rural Ireland and displays the urban mind which is so prominent in the drafting of this legislation.
There is a fair amount of merit in the amendment and the Minister should look at the situation. Eight hours can be too long and may interfere with a person's home life because nobody in the family will know where they are. By and large, the Garda Síochána are supportive and, from what I can gather, are always accommodating in transporting people in such circumstances. There is seldom a complaint from a Garda station where somebody has been brought in in connection with drink driving. The last thing the Garda want is to transfer the trauma back to the home. We should put on record the fact that the Garda are usually very accommodating in arranging for people to get home in such circumstances. I feel, however, that eight hours is possibly excessive. A shorter period might be more accommodating and would put the section in a better light. The amendment has merit.
Given the Minister's earlier remarks in reference to myself I am reluctant to get into this particular area.
You are taking a risk.
Knowing that my personality may prejudice the outcome of this debate I will make some points. I support the amendment because the section gives far too much discretion to the officer in the Garda station to exercise what is a fairly significant infringement of a person's liberty. That might be acceptable in the absence of a medical opinion. However, the designated medical person will be called in any event and will be in a position to make such a judgment on a more objective and professional basis than the garda. That is not to say that the gardaí are not competent to judge that somebody is intoxicated. It is, however, a question of degree and they could make mistakes. There is a safeguard clause in the Bill which states that if the garda "is of opinion that the person is under the influence of an intoxicant to such an extent as to be a threat to the safety of himself or others,". There is capacity in that clause for significant subjectivity in deciding whether somebody should be detained. Given that the person will be detained on the basis of the garda's opinion, it would be prudent to reduce the time limit from eight hours to six hours. Eight hours is a long time. In that context the question arises as to how long it takes somebody to sober up.
I can envisage circumstances where the garda can form this opinion of a person who is marginally over or under the limit and can detain the person for eight hours. That is a significant power to confer on an individual without reference to any other opinion.
I support my colleagues. If the decision to detain a person was based on medical evidence one could accept the provision. However, the discretion under the Bill is that of the garda.
In rural Ireland people might be intercepted some distance from their homes. Due to the changes in the location of Garda stations in rural areas, people have been taken 15 to 20 miles from the place of interception to a Garda station and detained there. The station could be a substantial distance from their homes. The proposed amendment is a compromise to ensure that the person is treated in a humane fashion.
I remind Members that we are on Report Stage which is not as flexible as Committee Stage. Senators should comment before the Minister speaks.
I support the amendment. The legislation gives substantial arbitrary power of detention to a garda who is not any more professionally qualified than a member of the public to assess the state of intoxication. I understand the reason for the provision. People may cause nuisance and may be a danger to themselves or others. However, a person who does not sober up within six hours is unlikely to sober up within eight hours. Six hours is a reasonable time because the provision gives a substantial power to members of the Garda Síochána. It is significant that there has been a reasoned response from members on all sides of the House. I hope the Minister will accept the amendment.
The period of eight hours is proposed where, in the judgment of the garda, an intoxicated driver may be a danger to himself or the public. Senator Howard said that this Bill as drafted caters entirely for an urban situation. Regrettably, the statistics show that accidents have occurred in every parish in Ireland. We are talking about 3,000 accidents, including fatalities, per year in which drink driving is involved. A number of messages can be sent to a person's home: that the person is detained due to being intoxicated or more serious, that there has been an accident and a son, daughter, brother or sister was involved. Lengthening or shortening the period involving an intoxicated driver who, in the view of the garda, is a danger to himself and the public, is a sensible way of ensuring an accident is avoided. If most of us had a choice as to which message should be delivered we would prefer to hear that someone was detained than involved in an accident.
Senator Howard has pleaded his case. H said that so far he has not been successful with his amendments; Senator Dardis also said his amendments have been spectacularly unsuccessful. However, in a generous mood I am prepared to accept this amendment.
I am pleased the Minister has accepted this amendment. Many of the people who have taken an interest in this Bill will also be pleased.
Amendment agreed to.
Amendment No. 6 has already been discussed with amendment No. 1.
Government amendment No. 6:
In page 18, between lines 18 and 19, to insert the following:
"(5) Where, pursuant to section 13, 14 or 15, a designated doctor states in writing that he is unwilling, on medical grounds, to take from a person a specimen of his blood or be provided by him with a specimen of his urine, the statement signed by the doctor shall, in any proceedings under the Road Traffic Acts, 1961 to 1993, be sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that signatory was the proper person to sign it.".
Amendment agreed to.
Amendments Nos. 7 and 8 are related and both may be discussed together.
I move amendment No. 7:
In page 18, line 21, before "unless" to insert "except in the case of a first offence and".
We are anxious to point out the costs involved in this matter. We do not want to see them imposed in the case of a first offence. As the Minister is aware, this will only arise after a conviction is recorded. When making his decision on imposing penalties, the judge will only then make a decision whether the costs and expenses incurred by the bureau will be involved. He will also inquire whether there have been previous convictions against the defendant. In the case of a first offence, these measures should not apply.
These amendments are reasonable and fair and I ask the Minister to accept them. We are anxious to ensure that the costs of the prosecutions under sections 49 and 50 would not apply in the case of a first offence.
I second the amendment.
I support both amendments, although the principle of forcing people to pay for justice is a vitiated one. I will not repeat the arguments made on Second Stage. The Minister will be aware of them because Senator O'Toole and I spoke forcefully on this issue. We regarded it as a dangerous and bad principle.
I would prefer not to have costs extracted from the accused and convicted person. It is a bad principle. However, the Minister has moved some way in response to our arguments in proposing amendment No. 8 which dilutes the original intention by describing it as a "contribution towards the costs", rather than the full costs. Amendment No. 7, which excludes a first offender, is reasonable and it would be easier for the Minister to justify requiring a payment from a persistent offender. In the case of an offence, such as drunken driving, a second or third offence would be regarded as persistence in the offence. I support amendment No. 7 to insert "except in the case of a first offence" and I do not see any conflict with the Minister's amendment No. 8. It would be possible for the Minister to accept amendment No. 7 in addition to amendment No. 8 and I hope he does so.
There has been a change of attitude in the country in recent times towards drink driving, and a significant proportion of the population act totally responsibly, and that trend is increasing particularly among young people. We should recognise that; I may not have done so on the last occasion.
It was evident in some of the speeches on Second and Committee Stages however, that there is a tendency towards lightening the consequence of what is a serious first offence. There are many cases we can talk about where first offences in particular areas may be of a minor nature. However, we are talking here about driving a lethal vehicle while intoxicated or under the influence of drink and the seriousness of that should never be understated in the House.
On the last occasion Opposition Members had severe reservations about the original provision and I emphasised that I would see to what extent I could bring more certainty into my proposal relative to the maximum costs etc. That is why I propose this amendment that the person should "pay the court a contribution towards the costs and expenses incurred by the Bureau in the performance of its functions" not exceeding an amount to be prescribed.
On Committee Stage Senator Cosgrave said he would have no objection to £60 or £100. Taking everything into account I have gone as far as I can to meet the wishes outlined on Committee Stage and at the same time held the principle which I will argue with Senator Norris anywhere, any day, that there is no denial of justice where the person convicted is asked to make a contribution.
Unfortunately, due to the rules of the House, I cannot argue that issue today.
I emphasised the last day, and I do so again today, that we are talking about a conflict of rights and that should not be forgotten. There is a great number of innocent people who leave their homes in perfect health and within hours have crossed the great divide. They were not responsible; they may have had a bright future, they may have been in Trinity College, but the event occurred and they were not responsible, they were innocent victims. To argue that in all circumstances the person who is responsible is denied justice when asked to make a contribution is a strange argument. I will argue it with the Senator any day, anywhere for however long he likes.
Not now.
We look forward to that day.
I have only a small contribution in today's functions.
I have gone as far as I can in meeting the general consensus which emerged last week — that the wording in the original provision was so strong as to allow the court too much freedom in this area. We have now confined it in a way which the House should find acceptable.
I agree with the Minister that there has been an amazing change in attitude towards drinking and driving in relatively few years. This is more obvious among younger people who, if they are going out for a drink, will walk or make special travel arrangements to and from licensed premises.
The Minister has come some of the way with the deletion of some of the words in the section which referred to the investigation, detection and prosecution which were particularly strong and caused me considerable concern. Senator O'Toole, Senator Norris and others made forceful cases, for example, a garda might be on overtime and the person might have to pay the costs of the garda's wages. That and other costs — the State solicitors' or barristers' costs — have been covered in this legislation.
However, a new principle is introduced here. On the last occasion the Minister spoke about the Water Pollution Act under which people have to pay some of the costs. I would not like the principle invoked in this case to be used as a precedent or a further step along a path where defendants will have to pay State costs. Senator Bohan is probably better at history than I but I think the principle dates from about 1120 that a person is innocent until proven guilty. In this case the person may have to pay the State costs.
Please do not say that.
The Minister may put it whatever way he likes but it refers to a contribution towards the costs of the bureau, and that is the costs of the State irrespective of how it is phrased.
State costs are much greater than that and Senator Enright knows it.
I will give way to the Minister if he wishes.
The Senator should make his point in reply.
These are the costs of the bureau. This is a new principle and there is a danger that it will be used in later legislation. I concede that the Minister has met us some of the way.
On a point of order, there is some confusion about the location of these amendments. Amendment No. 7 refers to "page 18, line 21" and amendment No. 8 refers to "page 18,...lines 23 to 26". In my view it should refer to page 17. Are we working from the memorandum?
We are working on the Bill as passed by Dáil Éireann. This was prepared by our own office and we suggested this as a better way.
It is particularly well done.
It was done for the Seanad this way with the Report Stage in mind.
Amendment, by leave, withdrawn.
Government amendment No. 8:
In page 18, to delete lines 23 to 26 and substitute the following:
"the person to pay to the court a contribution towards the costs and expenses incurred by the Bureau in the performance of its functions not exceeding".
Amendment agreed to.
Amendments Nos. 9 and 10 are related and may discussed together.
I move amendment No. 9:
In page 19, to delete all words from and including "A member" in line 11 down to and including "then," in line 25.
I feel strongly about this amendment because the Bill as printed confers power on the garda to demand the immediate production of a driving licence. It therefore becomes the responsibility of a member of the public to carry the driving licence at all times and it becomes an offence not to do so.
On Second Stage we asked the Minister why this was necessary and he mentioned joyriding. One can understand the desire of the Minister and the Garda to prevent joyriding and no one is in favour of it. However for this provision to be effective there must be an implied consequent power of detention or arrest of someone who does not have a driving licence. I assume that is part of the powers residing with the Garda. That is worrying because a great number of people do not habitually carry driving licences with them and it is an extreme requirement to force them so to do.
There are a number of casual examples in everyday life. Many Senators are busy people, who leave this House and go to functions where evening dress is required.
The Senator is lucky; I never get invited to those functions.
Of course Senator Dardis does not get such invitations, he is a PD.
(Interruptions.)
An Leas-Chathaoirleach
Senator Norris, without interruption, on the amendment.
I am glad you agree, a Leas-Chathaoirligh.
An Leas-Chathaoirleach
I did not necessarily say that.
There are many circumstances in which even members of the proletariat like Senator Dardis may find it necessary to change out of his working clothes or his denim jacket into something more suitable to this House, thereby inadvertently discarding his driving licence.
The alternative may be that people will keep the driving licence in the glove compartment of the car. They may do so and the car subsequently may come into the possession of a joyrider. Unless the joyrider is a complete nincompoop he or she will look in the glove compartment and see if the rightful owner is of the same sex as and looks similar to the joyrider. If stopped by the gardaí the joyrider can produce the licence and claim to be the rightful licence holder.
The Bill as it stands is of no great assistance to the gardaí unless there is a consequent power of arrest and detention. That means anyone can be arrested for the minor slip of not always carrying the driving licence. That is a swingeing power and I do not agree with it.
I am happy with the traditional position. The gardaí are entitled to ask to see a driving licence and if the driver does not have it he is required to bring it to a Garda station within ten days. My amendment removes this power which requires the instant production of a driving licence and the consequent power of detention if that does not happen.
If there is no consequent power of detention this provision is useless and meaningless in any case. Someone may not have a licence when a garda requires him or her to produce it and there may be reason for the garda to suspect the person is not the owner of the car. If there is no power of detention that person can go free.
I have the strongest reservations about this erosion of the liberties of the individual citizen.
I second the amendment. I am practical as well as reasonable and I support the practical points made by Senator Norris. I see the reasons for requiring a person to carry a licence. I carry mine in my wallet all the time. However, when I go to Senator Quinn's emporium in Blackrock I only bring a purse. If I bring the driving licence as well as the purse it may be easily lost and it is a valuable document.
From a practical point of view this provision will be difficult to enforce. What is a garda supposed to do if a person does not have the licence in his possession? Does he simply give a warning or, as Senator Norris said, does he bring it to a Garda station within ten days?
I acknowledge the suggestion in the alternative amendment that the licence be brought produced in seven days; it could even be done in two days. However it will be difficult to enforce in practice if it is made an offence not to possess the licence when driving. Perhaps the provision could be changed so that one is not required to carry it but one must produce it as soon as it is practical from the Minister's viewpoint.
I understand the reasons it is necessary to have a licence but it is foolhardy to leave one in a glove compartment. At the same time it is difficult to carry the licence if one does not have a coat or a bag. What is a tractor driver to do? He or she may have it in a shirt pocket and it could easily fall into a slurry pit. The spirit of the provision is fine but the practical implementation will be difficult.
I support the amendment for the reasons I gave last week. Since Committee Stage I found I was not carrying my licence when driving. If this Bill had been the law a garda could have prosecuted me there and then if he had asked me for the licence. If he could have done that, why is someone given the privilege under the next subsection of being allowed to produce the licence at the Garda station within ten days? The Bill reads:
Where a person of whom the production of a driving licence is demanded under this section refuses or fails to produce the licence there and then, a member of the Garda Síochána may require the person to produce it within ten days...
Does the Minister intend that in one instance a person may be prosecuted if he or she does not produce the licence there and then while, at the same time, if the garda likes the person he may defer production of the licence for ten days? This troubles me and I ask the Minister to clarify the position.
Since amendment No. 10 is being discussed with amendment No. 9 and I will speak to it. I also support the arguments of those who have spoken on amendment No. 9.
Our amendment seeks to deal with what arises under section 25 (1) (a). Under this provision if the driver who is required by a garda to produce a licence does not have it with him, he is automatically guilty of an offence. The subparagraph in question states:
.....if the person refuses or fails so to produce the licence there and then, he shall be guilty of an offence.
This does not provide any opportunity for someone in a similar position to Senator Sherlock.
On the last occasion I referred to my own circumstances. In addition to the family car, I drive a jeep and a tractor. I have three vehicles and if I must produce my driving licence at a moment's notice I will be continuously looking for it. There is a big risk that it will be lost if I must carry it at all times, when driving any of these three vehicles.
We are proposing a straightforward amendment: that the word "shall" be deleted and the word "may" substituted. The Minister explained on Second Stage what he was attempting to achieve in this subsection. We are not diluting the effectiveness of that subsection by substituting the word "may" for "shall". If our amendment is accepted, a person with an innocent and understandable reason for not having a driving licence on them may be guilty of an offence. However, under the Minister's provision, the person is automatically guilty of an offence.
I recognise the Minister's generosity in accepting an earlier amendment in relation to the number of hours a person may be detained in a Garda station. This is an eminently sensible substitution of words. I used myself as an example of the difficulties that can arise. On a personal level, I do not like to be confronted with the certainty that if I do not have a particular document on me at 12 p.m. when I am driving one vehicle, even though I had it in another jacket at 10 a.m. and will have it in another jacket at 2 p.m., I am automatically guilty of an offence. It will not deprive the Minister of the power he wants to give to the Garda by accepting that a person "may" be guilty of an offence.
This is an interesting point. It is obvious that the people who support this amendment have no experience of driving in my area. If one changes one's vehicle, one should have one's driving licence. This is clearly established in the North of Ireland. If people from Dublin or another part of Ireland had the same discipline we have, given the increased number of Border patrols and checkpoints, etc., they would realise that one's driving licence is one's passport. It is essential to administer the law evenly throughout the State. The production of a driving licence is paramount. If a person is driving a vehicle he must have his driving licence and display tax and insurance discs. If people had the experience of driving in the Border region, they would not need to be told that this is basic and important. I want fair administration of the law and this legislation does nothing more.
The Minister will recollect that some years ago we did not have to display an insurance disc on our cars. On numerous occasions I said we should make it obligatory to display an insurance disc on all motor vehicles.
The Senator did not do it.
No, I did not succeed in doing that but I said it was essential, desirable and necessary. I hope I was heard.
With regard to this matter, there is a volume of legislation building up against motorists. I am aware of the statistics the Minister outlined about the level of accidents on the roads. I do not deny those facts. However, the vast majority of motorists are law abiding citizens. For many motoring was a pleasure but now it can be quite unpleasant because of the many problems facing the harassed motorist.
This section is clear. In lines 19 to 21 it states that "if the person refuses or fails so to produce the licence there and then, he shall be guilty of an offence". Law abiding citizens can forget to transfer their driving licence from one garment to another. That is a fact of life. It is a serious matter to impose a measure along those lines. The vast majority of gardaí are courteous, helpful and co-operative. However, if a garda is not in good humour, he can decide to summons one for not producing a driving licence there and then. That can happen but it is not what the Minister intends. If powers are being given, the Minister must be careful.
This is an excellent country in which to live but all these additional powers will make people feel they are being harassed. It is not a wise or good move and I am not in favour of it. I agree with Senator Norris's amendment and our amendment; I believe "within seven days" is reasonable. In the next section, the Minister mentions ten days; either number is reasonable. In section 41 (1) (a) the Minister is trying to deal with the situation where a car has been taken and the driver has no licence and he wants to give the Garda powers of arrest. There are many other ways to deal with cases where a garda has reason to believe a car has been stolen; he has other powers. However, under this section, ordinary motorists can find themselves liable to prosecution for an offence, and it is not necessary.
I spoke about this on Second Stage and I listened to the debate on Committee Stage. I hoped the Minister would reconsider the position. I listened to Senator McGowan's points and, with respect, what he said is not true. I cross the Border once a week or once a fortnight and I never produce my driving licence.
Why should you?
I am always asked for identification and I produce it. I am not in the habit of carrying my driving licence in my car or on me because it is unsafe. I carry some other form of identification.
I have a good example of the point previous speakers made about what happens when people are given power to arrest where a person may be guilty of an offence. I have just come from my office where I was writing to the Minister for Justice and to a local District Judge in a Border area. A teacher friend was travelling from Belfast to Dublin two weeks ago and had four people in the car. He was driving at 45 mph and two wheels of the car crossed over a continuous white line. He was not overtaking and did not exceed any speed limit but he incurred the wrath of a sergeant of the Free State. He was taken 15 miles to a Garda station and held there until he produced £120 bail. He now has to take a day off work to appear in court, otherwise a summons will be issued. That is total overkill; it is a misuse of power. That was a minor offence.
I do not suggest that laws be made to deal with those kinds of situations. That is not possible because there will always be a certain element of power but in this case it was completely officious. It is a worrying situation, especially when we are trying to make the south of Ireland a welcoming place for people from the North and so on.
People are going to be caught. In this legislation the Minister is relying on the good sense of gardaí, which is reasonable. My father was a garda, so I know what I am speaking of; 95 to 97 per cent of gardaí will operate the law correctly until one garda decides to operate it differently. Take, for example, the case of a woman who has a kettle on the boil, hops into the car, drives to the school, collects her child and on the way home passes through a checkpoint. The Minister does not expect the local garda to charge this woman with an offence because the garda knows her and knows what she is doing. However, she is guilty of an offence.
She is not.
She is guilty of an offence only if the garda asks her for her driving licence and she is unable to produce it.
She is not.
The gardaí do not always ask for a driving licence simply in order to prove the identity of the person. They check the licence to ensure that it is up to date. The reality is that if a person's driving licence is up to date and it is not being carried by that person when it is requested for inspection, then that person is guilty of an offence.
I will remind Senator McGowan of his speech when the next door neighbours of some of those in Government find themselves driving home from a football match or on their holidays and charged with an offence on this basis. At that stage they and others like them will approach Ministers and let it be known that it is unreasonable that good, upstanding, law abiding citizens attending a football match or pursuing their interests in Irish culture should now be guilty of an offence. Such people will be appalled at this, yet that is what the Government side of the House is voting for today. There are Members of the Government Parties in both Houses who have said to me that they believe this measure is unnecessary. It is similar to applying a sledge hammer to crack a nut, or taking a surface to air missile to duck shooting. It will be undoubtedly effective, but it will have other effects also.
On this issue the Government must be firm, fair and sure about what it is doing. I urge the Minister to reconsider this matter, which is addressed by a number of amendments. If one of these, that in the name of Senator Norris and myself, was accepted, it would effectively delete the section from the Bill. Even to allow for circumstances where the matter would not always be an offence would be welcome.
Senators who vote for this measure today will, at some stage over the next ten years, remark to somebody that it is appalling that a law abiding citizen is guilty of an offence because an officious representative of the Garda Síochána decides to implement the law as it stands. As legislators, we must take responsibility for the law. We cannot blame gardaí for implementing the law which we give them.
This measure is an overkill. It must be reassessed and I ask the Minister to reconsider. I recognise that on Report Stage I do not have the opportunity to respond and therefore I urge the Minister to accept our amendments or consider the other amendments put down in other names.
Apart from the debate today and the contribution by Senator McGowan, many of the contributions on Second Stage, especially in the Dáil, indicated wholehearted support for this provision. It is absurd to be describing this as an overkill in circumstances where Senator O'Toole and many others have travelled to other parts of the world, all over Europe and find this provision the norm, with total acceptance by the public and no problems surrounding it.
I regret to note that Senator Norris either has an old driving licence or a potentially expired licence in that there is no photograph on it; and if he is likely some day to be taken in as somebody else, he will appreciate this provision.
Time and time again when an incident with stolen vehicles occurs, Senators and Deputies put down motions requesting that the problem be addressed and the Garda be given some opportunity to deal with it. Senator Enright suggests that there are other ways. That is the easy way, out as there are always other ways. The simplest way is to try to see how fast somebody can produce something which they are expected to have and, if they do not, the Garda may take appropriate action.
A garda always has a discretion on minor offences. In this respect I am surprised at remarks made by Senator O'Toole, who has already indicated his family experience regarding the Garda Síochána and the way it generally operates. It is unrealistic to introduce examples into this House of where a particular garda in a particular situation might do something which we may not agree with. We support the Garda wholeheartedly in their activities. We recognise that the vast majority of the Garda set out to do a good job in often difficult circumstances. They are entitled to expect our support and they are not entitled to be accused of going for an overkill——
I did not accuse the Garda of overkill; I accused the Minister of overkill. The Garda implement the legislation we give them. The overkill takes place in the Department and by the legislators, not with the Garda. It is unfair of the Minister to make such an allegation and I ask him to withdraw it.
I am satisfied that the Garda in all but the most exceptional circumstances carry out their duties in an admirable way and they are entitled to expect from the Houses of the Oireachtas the fullest possible support in the work they undertake.
I did not accuse the Garda.
A garda does not have to prosecute. He can caution and then ask to have the licence produced in ten days. There is no problem for gardaí where they have a knowledge of the kinds of situations outlined in this House, such as individual farmers or housewives going out to shop.
I believe that everybody would agree with that.
In addition, there is a range of legislation where the Garda could act in the way that Senator O'Toole suggested they might, but they do not. They are practitioners. They realise that they need certain powers in certain circumstances which are not applied generally. I say again that it is unfair and wrong to suggest that this would be the norm for the Garda, even where——
Nobody suggested that that was the norm for the Garda. I ask the Minister to withdraw that remark. The Minister may say what he wishes, but I will not be talked down to in that manner. If the Minister chooses to point his finger at me, he had better be clear as to what he is saying.
An Leas-Chathaoirleach
I would ask Senator O'Toole to resume his seat.
I will not be browbeaten on this kind of allegation. The Minister is trying to put words in my mouth which I did not say. I will not have it.
An Leas-Chathaoirleach
I ask Senator O'Toole to resume his seat.
I am entitled to make my point of view in defending the Garda——
The Minister is not entitled to put words in my mouth which I have not spoken.
An Leas-Chathaoirleach
Senator O'Toole must resume his seat.
——in circumstances where they do not abuse their powers. I have already indicated that there are many circumstances where gardaí are given the wrong name and address and where they are unable to prosecute because false information has been given. We are asking people to make a change and, as far as possible, to carry a driving licence at all times. It will be up to the discretion of the garda as to whether a prosecution may be put in place or not.
Regarding the circumstances outlined by Senator Sherlock, the option for the garda to demand production within ten days has been retained for the following reasons. Where there is an accident, the Garda may still need to establish the identity of the driver. Accident investigation is one circumstance where production of a licence within ten days is an essential option. The ten day option could be used as a reserve power if the garda wishes to caution a driver rather than prosecute for the offence of not producing a licence on the spot. Senator Sherlock asked if the retention of the option to demand production within ten days would limit the power to require production of a licence on the spot. The two provisions are totally separate.
Under subsection (1) (a), a garda can demand production of a licence there and then. Failure to produce the licence could be an offence if the garda charged the individual. Under subsection (1) (b), a garda can ask a person who fails to produce the licence on the spot to produce it within ten days. Based on the support for this provision, I see no reason to change my mind. I ask the House to support something which is the norm in other countries and which people do not object to. Why is it a big issue in Ireland? I do not understand the reason for this.
I want to support the Garda in circumstances where they must deal with false information or criminal activity. It a small request to ask the public to carry a certificate as often as possible. The people know the reasons this is necessary. It will help take off the road people who steal cars, defy the law and consistently provide false information by giving the name of the owner of the stolen car. These proposals emanated from a task force dealing with this area and also from advice from those in security in order to help them to deal with these problems. I hope that, as far as possible, Senators will help us to deal with these problem.
This is not overkill. I regret if during this debate I used language which indicated that any Senator, including Senator O'Toole, chose language to make the case in an undesirable way. I regret if I gave that impression. I ask for support in seeking the help of the public to deal with these problems. Is it a big or difficult demand? One could be given a choice about a range of demands which one may object to or which may hurt one. However, this is something which will enable the public to help the Garda in circumstances where they need support to deal with different elements in society.
I am a democrat and I do not wish to impose my will on the public in these areas in terms of what is done in legislation. If there are problems I am anxious to meet requests made in this House or by agents of the State. I refuse to accept that I am imposing an unfair or difficult obligation. This is something which is accepted in other places without question. People who have visited this country have sent letters to me and to the newspapers asking why we do not use this provision to deal with crime. In many cities, gardaí must deal with difficult situations. I will show Senator Norris these letters if he wants to see them. He would be surprised by the correspondence I get, but I will not bore the Senator.
It is said Bord Fáilte does not work. We bring lunatics into the country. I thank the Minister for restoring good nature and amusement to the debate after a tetchy period. I will not get up on my high horse, but it is unfair to suggest that those tabling amendments are doing so out of malevolence towards the Garda Síochána.
I accept that.
I have the highest regard for the police force. I had run-ins with gardaí from time to time, but they treated me with courtesy and exemplary professionalism.
The Senator does not have to make a confession.
The Minister said he has asked something simple and reasonable of us and we are to try to meet this obligation as far as we can. That is fine; but that does not go in the same direction as the Bill, which is clear and explicit. It states "he shall be guilty of an offence". I may not be directly acquainted with the professionals in this field whom the Minister spoke about, but I have a certain acquaintance with the English language. I know what the word "shall" means. Although in certain circumstances individuals may not be prosecuted, this is an offence. There is no ambiguity about this. If a person refuses or fails to produce a licence he shall be guilty of an offence. The Bill does not state he may be or may not be or he should or should not be guilty of an offence. It states "he shall". It is clear and unambiguous; an offence has been committed and he is guilty of committing an offence. I agree with Senator Sherlock that this is confusing because later the Bill states he may not be prosecuted.
I share Senator O'Toole's amazement in regard to Senator McGowan's contribution. I did not believe I would hear this partitionist mentality from a soldier of destiny — I nearly said a soldier of density. I would have thought Senator McGowan would have said it is an outrage for people to be required to produce passports in Northern Ireland. I refuse to carry a passport in my country and I have no intention of producing a passport at the Border. I am amazed that anyone would suggest we need to produce passports, driving licence, etc. Any British or Irish soldier who demanded a passport from me at the Border would be given a dusty answer. This is part of a creeping bureaucracy. I feel strongly about it and I do not believe the Minister has provided a strong enough argument for me to withdraw this amendment.
On a point of order, Senator Norris has intentionally implied that the law is such that one would use one's driving licence as a passport.
An Leas-Chathaoirleach
That is not a point of order, Senator.
Question proposed: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 22; Níl, 17.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Cashin, Bill.
- Cassidy, Donie.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Hillery, Brian.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Magner, Pat.
- O'Brien, Francis.
- O'Kennedy, Michael.
- Townsend, Jim.
- Wall, Jack.
- Wright, G.V.
Níl
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Henry, Mary.
- Honan, Cathy.
- Howard, Michael.
- McDonagh, Jarlath.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Reynolds, Gerry.
- Sherlock, Joe.
Tellers: Tá, Senators Fitzgerald and Magner; Níl, Senators Norris and O'Toole.
Question declared carried.
Amendment declared lost.
Amendment No. 10 not moved.
Amendments Nos. 11, 12 and 14 are related and may be discussed together.
I move amendment No. 11:
In page 20, line 30, to delete "shall" and substitute "may".
We either have faith and trust in our courts or we do not. There are many instances where a court should be given discretion and in this instance, replacing the word "shall" with the word "may" meets the bill. In dealing with the last section, Senator Norris correctly pointed out that using the word "shall" means that no discretion is left to the courts as a particular sentence must be imposed.
The further changes which we are looking for in section 26(3) relate to four separate and distinct charges. Section 49 of the Road Traffic Act, 1961, relates to drunken driving, section 50 to drunk in charge of a motor vehicle, section 53 to dangerous driving and section 106 to hit and run. We accept that a consequential disqualification order may be appropriate in a case of drunken or dangerous driving. The amendments we tabled on Committee Stage sought to give the courts discretion in that area. With regard to section 106, because of the serious nature of a hit and run we would have no quarrel with empowering the courts to make a disqualification order.
However, where somebody is not driving a car, where a person who has taken alcohol is standing beside his car but has no intention of driving it but the judge believes he was in charge of the car, to suspend such a person for a period of two years resulting, perhaps, in them losing their job and in the long term causing the break up of a family, is far too serious for such an offence. Being drunk in charge of a car but not actually driving the vehicle should not carry such a sentence. I ask the Minister to accept the amendment.
I second the amendment. I made my arguments in relation to amendment No. 11 earlier and I do not intend to repeat those points. Amendment No. 12 relates to a charge of being drunk in charge of a car but not driving it. I outlined on Committee Stage the dangers of this provision in the case where a person may be standing by their car. I know of one person who waits with his car outside my pub for his son to return from another establishment to drive him home. It would be unfair and difficult to justify penalising a man who is exercising all the care and consideration that could be expected of him on a winter's night when I am compelled by law to remove him from my premises. He is standing by his car. He is in charge of it, but he is not driving it and does not intend to drive it.
I agree with the Minister's observations about the general conduct of gardaí but we have to provide for exceptions. In this case a person could be charged and lose their licence even though it was never their intention at any stage to drive the car. They may be sitting in or standing by the car. They would be in charge of the car but probably would not have the keys. Nonetheless, as the section is worded, that is the predicament in which such individuals would find themselves. We have a duty to provide for all eventualities. I focused on one set of circumstances simply to illustrate what can happen and what can be repeated on a number of occasions in similar circumstances.
As Senator Enright said, amendment No. 14 seeks to insert the words "15 months" in place of "four years" and include "or at the discretion of the courts". I have argued the issue of discretion for the courts on a number of occasions. I have never been happy about denying discretion to the courts because a judge has the opportunity to consider all the facts and circumstances of each individual case.
Eight years ago we discussed another matter relating to drink: the mandatory endorsement on publicans for having people on their premises after hours. I argued strongly with the Minister's predecessor about the desirability of giving discretion to the courts. The then Minister told me that the advice he was continually receiving from both Garda authorities and his advisers was that the removal of mandatory endorsements would render the licensing laws inoperable. The issue was pursued and argued and eventually the logic of the case that I and others were arguing was accepted. That was eight years ago and I am satisfied that nothing has happened in the intervening period which would have justified the fears being conveyed to the Minister.
We are in a similar situation now as we are again being told that denying discretion to the courts will in some way weaken defences in relation to drink driving. That is not the case. Our amendments seek to give discretion to the courts and enable every judge to consider the merits of each case and impose an appropriate penalty.
These amendments propose to limit the application of automatic disqualification and repeat of driving test. The effect of amendment No. 11 would be to make all consequential disqualification permissive rather than mandatory by using the word "may" instead of "shall". The acceptance of this amendment would render section 26 and the Second Schedule meaningless. The courts already have permissive powers to disqualify for any offence under section 27 of the Road Traffic Act, 1961.
The principle of consequential disqualification is that the courts must, on conviction of specified offences, impose a period of disqualification from holding a driving licence. This principle has been an important feature of road traffic legislation for many years and is a very effective deterrent. In a survey carried out to determine public attitudes, about 40 per cent of people have indicated that disqualification is the feature they fear most. Mandatory disqualification is not a new concept and I am not prepared to dilute the existing law.
It is quite extraordinary that having gone this far in trying to improve the legislation to deal with the problem of drink driving and its lethal effect, we now have a proposal from Fine Gael to dilute existing legislation and change the current law before we come to any new proposals to weaken those provisions. I do not know from where the pressure on Fine Gael is coming to make those propositions. It is a far cry from the position the party held in the Dáil where there was general support for these provisions. In few cases was there any attempt to dilute the existing provisions rather than an attempt to improve them in the face of the horrific statistics of accidents arising from drink driving on our roads.
Amendment No. 12 proposes to exclude section 50 offences from the requirement to repeat a driving test. This is an offence of being in charge of a vehicle with an intent or attempting to drive. The amendment does not propose excluding section 49 offences or refusal offences from the requirement. The Bill does not differentiate between the various drink related offences in terms of penalties. In many cases the difference between a section 49 offence and a section 50 offence may be only a technicality. Any special circumstances are already fully catered for. Senators will recall that on Committee Stage I introduced suitable amendments to take care of special circumstances. I do not want to again hear of special cases in circumstances with which we have already adequately dealt.
The meaning of amendment No. 14 is unclear. It seems to suggest a minimum of two years disqualification for a first offence and a minimum of 15 months or, at the discretion of the court, four years for a second offence. My amendments, agreed on Committee Stage, provide substantial discretion for the courts to take special circumstances into account. I believe they deal fully with the difficulties raised and I cannot accept this group of amendments.
On a point of order, is amendment No. 13 included in this group?
No, we are dealing with amendments Nos. 11, 12 and 14.
Our court system is part of a successful democracy. The separation of powers and the powers of our courts are very important. Our courts should be entitled to the utmost respect at all times. Over the years our courts have been allowed less discretion in these matters and they appear to be heading in the direction of becoming rubber stamps. That is not what the Oireachtas intends. At all times in the face of the strongest opposition our courts have maintained the strength to make free and fair decisions. They have never been intimidated. Nobody has ever been able to point the finger of suspicion at our judiciary. They have been above bribery in every respect. It is very important to place that on record.
In regard to this legislation I said on Second and on Committee Stages that the members of the judiciary have been to the forefront in helping to close loopholes. I have great faith in democracy and in our courts. Our judiciary should be allowed the discretion to impose a driving disqualification.
In regard to the Minister's point that he does not know where the pressure is coming from, whenever a person or group has tried to put pressure on me, I have always been able to make up my own mind and do what I felt was right, and I am sure that applies to everyone in this House as well. There was no pressure on me to put down amendments because I would not succumb to such pressure.
I am anxious that our courts should not be treated as rubber stamps but that is the direction in which we are heading. The insurance company lobby succeeded in having juries abolished on the promise that we would have a sizeable reduction in the cost of insurance premiums. Juries were abolished but the decrease in the cost of insurance premiums did not follow. They now want to have awards for personal injuries capped and to further reduce the powers of the judiciary. That is not right and should not be allowed. Our judges should be entitled to impose and grant whatever awards they feel necessary. In this instance I want our courts to have discretion.
In regard to section 50, Senator Howard outlined the situation where a person can be standing at his car and be charged with being drunk in charge with intent to drive. Our courts have always had the power to impose a disqualification on the defendant but this was at their discretion. In most instances the courts did not impose a disqualification because the person was not driving but was in charge of a car with intent to drive. There was no driving offence involved. That was reasonable and fair. I am sorry the Minister cannot accept the amendment. He is not prepared to accept our amendments, but they were worthy of consideration by this House.
Amendment put and declared lost.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 21, to delete lines 14 to 17, and substitute the following:
"in the case of a first offence under the section concerned be not less than:
(1) 6 months where blood alcohol exceeded 80-100 milligrammes per millilitre with a fluctuation level of 2 milligrammes between 100 and 102, subject to the discretion of the courts,
(2) 12 months where blood alcohol exceeded 100-150 milligrammes per millilitre with a fluctuation level of 2 milligrammes between 100 and 102, subject to the discretion of the courts,".
By reducing the blood alcohol level to 80 milligrammes per millilitre nobody will be able to take even a social drink; a level of 80 milligrammes per millilitre is too low. Since there was no demand for the reduction from 100 milligrammes per millilitre to 80 milligrammes per millilitre it should have been left at 100 milligrammes per millilitre. Right across the country people go out for one or two drinks after a day's work. Many people have to drive their cars home, and they should be entitled to do that.
An elderly widower with no family lives three miles from a pub down a bad road full of potholes and water. There is no footpath. He was driving home one night recently and he was stopped by gardaí. He had two drinks taken. The gardaí told him they would not summons him that time and he went home. For the last 20-40 years that gentleman has gone to the same licensed premises at 8 p.m., read the Irish Independent, had his two pints, watched the news and driven home. That man cannot walk the roads in safety because the roads he travels are not lighted, the roads are in an impossible condition for walking on and he is sentenced for the rest of his life to stay at home and look at television. I do not think that is what the Minister is trying to achieve here.
If the level of 100 milligrammes had been enforced it would have met the case but now nobody can go out and have a drink. Maybe that is what the Minister wants to do. There is no such thing as taking any drink because that is what is being imposed in this Bill. I am against people drinking to excess and driving with excessive drink in their system but a person who takes a social drink should be afforded the opportunity to do so. If I call to a friend's house I am offered a drink. It is good manners to offer one and good manners to accept, but even that will have to stop. Most of the pubs in rural Ireland will probably close because of these restrictions. To meet the Minister we are suggesting a six months disqualification where the level of alcohol was under 100 milligrammes per millilitre. That would be fair. I do not know how the Minister will react to this amendment, but we want a variation where a person with a blood alcohol level of 81 milligrammes per millilitre is just over the limit and would be disqualified for a period of six months. To introduce a provision whereby a person who has a limit of 81 milligrammes per millilitre should be suspended for the same period as a person with a limit of 300 or 400 milligrammes is not fair, equitable or right. That is why I am moving this amendment.
I second this amendment. Earlier the Minister accepted an amendment from us and I hope he will respond as generously to this one. We are seeking to achieve equity. All reasonable people believe it is wrong to have the same penalty for a person who has consumed two pints as for someone who has consumed 20. The Minister may say, that there are other sanctions including fines. The real sanction in all this is the period of disqualification, but the penalty should always fit the offence. Legislation that prescribes the same level of penalty for different levels of offence is wrong.
On Committee Stage, the Minister referred to the advice he had received concerning a possible challenge to the precision of certain thresholds. If we are into the field of challenging the precision of any thresholds, then, of course, we are up against the same situation at the first threshold which in this legislation will be 80-100 milligrammes per millilitre. Once there is a threshold, and if the Minister's advice is correct, the first threshold is equally in jeopardy but I do not accept that.
Our amendment is an attempt to recognise and respond to the person who is marginally over the limit on a first offence. We are saying that the penalty for someone within the 80-100 milligramme level on a first offence should be not less than six months' suspension subject to the discretion of the courts, and 12 months' suspension in a case where blood alcohol level exceeds 100-150 milligrammes. We have allowed for a fluctuation of two milligrammes in both cases.
I do not want to repeat the arguments that have already been made about the desirability of enabling the courts to have discretion as far as possible. I endorse Senator Enright's observation that it is bad for democracy to have a growing body of legislation which increasingly makes rubber stamps of the work of the courts and the judiciary mere rubber stamping. Comments by a member of the judiciary who is noted for the severity of his penalties, including fines, imposed for drink driving offences appeared in one of today's newspapers. He said there are many cases where a one month suspension would be adequate to get the message home and he referred to the loss of a person's livelihood. If a member of the judiciary — who has experience of these situations daily — is of the view that one month's suspension would be adequate to ensure justice is done in certain cases where people are marginally over the limit, that is something we should not ignore. Yet the Government is using with a sledgehammer in this legislation.
Between Committee and Report Stages we have tried to reduce our expectations and offer what we consider is a reasonable and worthwhile compromise. I hope the Minister can respond as generously to this amendment as he did to an earlier one.
We had a long Second Stage debate on this Bill in the Dáil and we ended up without having a division. We had an equally successful debate here on Second Stage and ended up without a division. That was because many Senators and Deputies supported the thrust of what I was trying to do. It is extraordinary that, as we try to put those provisions into effect, there are counter amendments which not alone do not support the principle of what I am trying to do but set out in a general way to weaken existing legislation. We have had this argument time and again about how I am being accused of interfering with the courts by having mandatory disqualification. May I again put it on the record that mandatory disqualification for drunken driving goes back to 1933 and that there would have been no prospect of such an evolution in terms of the change of attitudes towards drink driving without that mandatory disqualification? That has been very good for society. We would like to see more of it and encourage it.
Time and again Senator Howard and Senator Enright have given examples of individuals who might suffer hardship because of what is proposed. Not once has either Senator referred to people who have lost their lives, those who have suffered brain damage or physical injury, including loss of limbs. The rights of those who drink and drive are much better represented than the rights of those who are injured. At this stage of the Bill I do not particularly want to see a difference between us on this but there was support on all sides for the general principle of what is being attempted.
We are returning to the argument of not reducing the alcohol level in the blood from 100 milligrammes per millilitre to 80 milligrammes. In the Dáil Deputy Avril Doyle said she would prefer a 50 milligramme limit. I sought to find a balance between the conflicting arguments and to come out with the best provisions. On Committee Stage I set out my arguments for opposing this concept. The amendment introduces a grey area which raises new doubts about what ban applies to the defendant's alcohol level. It refers to fluctuations and would give defending barristers and solicitors new grounds on which to mount legal challenges. The amendment, instead of improving the situation, increases the danger of successful challenge by introducing uncertainties. In previous debates in both Houses I pointed out that it was only necessary for the DPP to prove that the alcohol level exceeds the legal limit. I remind Senator Howard that this is a different question to discussing thresholds at various levels above the legal limit.
The Medical Bureau, having given evidence in court on numerous occasions, has shown to the satisfaction of the courts that the levels shown on the bureau certificate could not be lower than the legal limit. It does not matter whether the certificate states 108, 110 or 120 when proving excess alcohol. The amendment, apart from introducing grey areas, would require a level of precision in a scientific test which may be impossible to prove to the satisfaction of the courts. It could endanger everything we have achieved since analysis of specimens commenced in the late 1960s. The dangers inherent in the amendment require my opposition to it.
Members of this House will be as familiar as I with the legal challenges to road traffic law. There have been extraordinary successes. Senators will agree that it is right to close those loopholes. However, I am now being asked to open the door to the possibility of successful challenges being mounted to this legislation. That is unacceptable. Although I am to willing to accommodate amendments from Members, no amount of persuasion will lead me to believe that leaving the door ajar in this way would lead to the success we wish to achieve through the enforcement of new road traffic provisions.
I am not interested in prosecuting people, bringing them to court and convicting them, regardless of where they live. My primary interest is safety on our roads. Everybody can contribute to such safety. This is not about drinking less. It is about driving without drinking. About £5 million a day is spent on drink in Ireland.
Half of that is tax.
If that figure is accurate — and I have no reason to believe it is not — and if I accept that a considerable number of people do not drink, the people who purportedly drink only two pints cannot be as regular in their intake as is claimed in debates in this House.
I have not contributed previously in this——
Acting Chairman
The Senator cannot speak after the Minister has replied.
Just to make a brief comment?
Acting Chairman
Only the proposer of the amendment can speak after the Minister.
The Minister said that neither Senator Howard nor I had mentioned the people who are injured. I have regularly spoken about the injured during debates and the necessity for improved legislation. There has been cross party support in both Houses for all Governments since the 1930s to improve legislation and the enforcement of law to ensure the safety of people on the roads.
The Minister said we had introduced this amendment on Report Stage. In fact, we moved amendments dealing with this issue on Committee Stage. We said that on a second conviction the penalties should be doubled. It is not true or accurate to say that we in any way condone drunk driving.
On Committee Stage, the Minister expressed concern that our amendment was very precise in relation to the 80 and 100 milligrammes per millilitre requirement and he mentioned the variable tolerance level when testing was carried out by the Medical Bureau. In order to meet the Minister's concerns we inserted a 2 milligrammes fluctuation level in this amendment so that if somebody had a level of 100 milligrammes the courts would have discretion whether to impose a six month or 12 month disqualification. If the level was between 80 milligrammes and 102 milligrammes the court could impose a six month disqualification and if the person was over 100 milligrammes the court could impose the 12 month disqualification.
The Minister mentioned uncertainties. In this instance our amendment is precise and definite. Irrespective of what law is passed, people have the right to challenge any section of it. It is one of our rights as citizens to challenge a regulation in court. The Supreme Court has closed the loopholes. There may be challenges to this legislation but that is a fact of life. We have tried to ensure that there is a common sense approach. The inclusion of a deadline means that somebody who is convicted can be disqualified for having a level of 81 milligrammes. The Minister has provided that the judge can take account of special circumstances. The judge is not necessarily obliged to impose the two year disqualification. That is an acceptable provision. However, we wish to ensure that somebody who is barely over the limit of 80 milligrammes is not disqualified for two years.
Judge Pattwell is quoted in today's Irish Independent as saying that a one month ban might be sufficient in some cases, that might be too short. I do not agree with a one month ban. However, a six month ban as suggested in our amendment is desirable. The Bill will be sent back to the Dáil. I do not know if the Minister can make any further changes to the Bill but our amendment is worthy of consideration. Senator Howard and I believe that a six month disqualification for a person with a level of between 80 milligrammes and 100 milligrammes is fair.
We are speaking not only for those living in rural areas; many people living between ten to 15 miles from Dublin city centre may have to come to the city. Many of these working class people often cannot afford to come to and from town in a taxi. This amendment is designed to give a person the right to take a level of drink which would be safe for themselves and for everyone else. I ask the Minister to agree to our request.
Question put: "That the words and figures proposed to be deleted stand."
The Seanad divided: Tá, 23; Níl, 16.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Cashin, Bill.
- Cassidy, Donie.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Hillery, Brian.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Magner, Pat.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Kennedy, Michael.
- Townsend, Jim.
- Wall, Jack.
- Wright, G.V.
Níl
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Henry, Mary.
- Howard, Michael.
- McDonagh, Jarlath.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Quinn, Feargal.
- Ross, Shane P.N.
- Sherlock, Joe.
Tellers: Tá, Senators Mullooly and Magner; Níl, Senators Cosgrave and Belton.
Question declared carried.
Amendment declared lost.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 35, line 22, to delete "3 months" and substitute "9 months".
On the last occasion we spoke about this we were looking for a period of two years; the Bill refers to a period three months. I am concerned that where a person's car is untaxed for a specific period power is being given to the Garda to seize the car. The car is then sold and the person is paid the balance when the tax has been deducted. The seizure of a person's car can mean taking away their livelihood. This is an extreme power. We have gone along with the provisions where the vehicle is uninsured and where the vehicle is dangerous. However, it is extreme to take away a person's car and the State sells the car. That is wrong. I ask the Minister to consider our amendment.
I second the amendment. Senator Enright has explained it well. When responding to our amendment on Committee Stage the Minister indicated that two years was too lengthy a period for him to accept. In an effort to accept his argument we have tabled this amendment which specifies a period of nine months. I do not wish to repeat everything Senator Enright said but we are giving powers to the Garda to detain a vehicle if the road tax had not been paid for a continuous period of three months.
On the last occasion Senator Enright explained in detail the circumstances that can arise which may cause a person to be unable during a period of three months to find the finance to pay the tax. We should look at special situations which can arise, although the Minister takes exception to our argument about special situations. It is our duty to be aware of these circumstances. Three months would be a particularly short period especially if a person was ill, for example. A number of other factors can result in a person not complying with what is required within three months. A period of nine months is more acceptable because if a person cannot meet these requirements within nine months, something is wrong and it must be addressed.
The Minister made a number of observations about our contributions today and I wish to forestall any he may have about this contribution. He said we failed to express sympathy for the victims of road accidents and their families. What does he expect us to do? I made clear my position on Second and Committee Stages. Am I required to do so every time I go on record? Of course I have the utmost sympathy for the victims of road accidents and the problems faced by their families and it is disingenuous of the Minister to imply that Senator Enright and I have no sympathy for them. We have sought to restore balance in this Bill because we felt it was lacking.
On a number of occasions the Minister observed the Fine Gael position in the Dáil was different to that taken here. The Minister has been a Member of this House on a number of occasions. In my recollection he was a worthwhile contributor whose offerings invariably reflected his own thinking, and that is how it should be. There is enough cynicism about politics, politicians and this Chamber. If it becomes accepted that a Government thinks this House is a rubber stamp and that the Members are incapable of independent assessment of the value of a given Bill, this House has no real function.
My understanding is that this House is a review Chamber for legislation which has passed through the Dáil. Those of us who have contributed during the passage of this Bill have endeavoured to fulfil that role. You, a Chathaoirligh, as Cathaoirleach and as an ordinary Member of this House for many years, sympathise with and understand that point of view.
It is, therefore, entirely unjustified to attempt to undermine the arguments from this side of the House by saying they were not made by this party in the other House. What difference does the opinion in the Dáil make? This House has the right to express its independent opinion on any legislation coming before it. On the day we depart from that there will be no useful function for this House. It is wrong of the Minister to imply what he did.
Debates in this House will always be lively and Senator Howard has made his special contribution towards ensuring that. I am sorry if he read my remarks in that way. I said there had been no votes on Second Stage of this Bill in either House and that I was grateful for that because it meant there was solid support for what I was trying to do. However, as I put teeth into the provisions, attempts were made to extract them. I said there was a certain inconsistency there. I have served in Opposition and I am sure I could be accused of being inconsistent on occasion. I ask Senator Howard to accept that could also be the case with himself and his colleagues.
The Minister was a good performer.
I received correspondence recently which suggests some people have misinterpreted what is intended under this section. The section does not provide for automatic confiscation and sale of a vehicle. On the subject of being disingenuous, Senator Enright has sought to create that impression on both occasions, and did so delightfully well. Nonetheless, it should be said the provision will operate in exactly the same manner as parking infringements. The vehicle will be returned as soon as the road tax and a fixed charge is paid.
Vehicles parked on freeways are impounded in the city under the law of the land and they are impounded in other places as necessary. There has been no problem with that; nobody, not Senator Howard, Senator Enright or anyone else, has complained.
We had this debate last Thursday and today is Tuesday. The period called for in the Fine Gael amendment has been reduced by roughly three months for each of the five intervening days. If this debate had been delayed two more days we would have been agreed on three months. The Senators are accelerating towards my position and if we had had the debate later we would have agreement.
We may have come a long way in five days but the Minister has gone a long way in 17 years.
I have had some setbacks along the way; at times I was like a boy going to school on a frosty road.
Section 41 reads:
The Minister may, after consultation with the Minister for Justice, make regulations authorising and providing for the detention, removal, storage and subsequent release or disposal of a mechanically propelled vehicle in use in a public place where...a member of the Garda Síochána is of opinion that any excise duty...has not been paid....
It also provides that the vehicle can be sold. Regulations will undoubtedly be made under the section.
Someone may own a car worth £1,000 and owe about £100 in tax. There may be a reason for not having paid the tax — family circumstances, illness, etc. The vast majority of gardaí will be fair. They may know the person's situation and allow the tax to be paid later.
Once the car is seized and stored a storage fee may be charged. If a car is seized when parked on a freeway, the fee for releasing it from storage is £100. A poor person with an untaxed car may have a further £100 expenses imposed upon him. A garda may not be on good terms with a person and seize his untaxed car. This is a serious power and these regulations will cause major problems.
Laws are not made for the wealthy and powerful, they are normally made for the protection of the weaker members of society but this law will not help them. We should be representing those people now.
Some people are unable to pay their television licence fee. They may be fined in court but, to date, no television sets have been seized because of a failure to pay a licence fee, and I hope that never happens. It is not right that a person's car can be seized, stored and sold if he is unable to pay the balance within a particular period. His car may be sold at an auction for a knock down price and although he will be given the balance, he may never be able to buy another car.
This is a relatively serious power. Some people feel this is a good measure that will teach manners to many of these people who are poor. This should not be what the law is about. People should be obliged to pay tax but in this instance we are going overboard. We are hitting people too severely. I included a period of nine months because I felt the Minister would meet it; he should meet it because it is not unreasonable. As I said on a previous occasion, Fianna Fáil was in favour of abolishing road tax and allowing people to drive without paying any tax. People should be obliged to pay tax but if they are unable to do so for a period, at least their cars should not be seized.
People should not park on freeways but I know of people whose cars were taken away after five minutes. If a taxi driver in Dublin leaves a car in a taxi rank for a short time — perhaps he has to go to the toilet — the taxi can be taken away and he has to pay £100 to get it back. That is fine because there can be some who abuse the situation but others are caught. I believe the Minister should accept our fair amendment.
Question put: "That the words and the figures proposed to be deleted stand."
The Seanad divided: Tá, 22; Níl, 15.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Cashin, Bill.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Hillery, Brian.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Magner, Pat.
- Mullooly, Brian.
- O'Brien, Francis.
- Roche, Dick.
- Wall, Jack.
- Wright, G.V.
Níl
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- Dardis, John.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Howard, Michael.
- McDonagh, Jarlath.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- O'Toole, Joe.
- Ross, Shane P.N.
- Sherlock, Joe.
Tellers: Tá, Senators Mullooly and Magner; Níl, Senators Cosgrave and Belton.
Question declared carried.
Amendment declared lost.
I move amendment No. 16:
In page 37, line 45, to delete "3 years" and substitute "1 year".
On the previous amendment the Minister referred to Senator Howard and the rate at which he was accelerating downhill. I am accelerating at a more rapid rate in this amendment by endeavouring to reduce the period when proceedings shall be taken from three years to one year.
As the House proceeds to the final stages of Report Stage, may I say that I do not dispute the remarks made by the Minister in terms of the knock on the door? The difference between a knock on the door which tells somebody that a person is being held in prison for a period of six or eight hours — and it is now six hours — is of immense qualitative difference to a knock on the door which imparts news of an accident. That is not in dispute. But we do have a presumption under our law that people are innocent until proven guilty and, in view of this, there are aspects of civil liberties to be considered.
It is in that spirit that the amendments are being moved, not in any sense in a spirit of dispute with the Minister as to the need for the law to address drunken driving. This amendment returns to the civil liberties aspects of the matter in that it appears to give extraordinary discretion to allow a period of three years within which proceedings shall be instituted. It is a long time and it raises questions as to the efficiency in dealing with offences, in processing summonses and so on. It also raises questions on the civil liberties side in that somebody could have the threat of proceedings hanging over them for that period of time. Also it is not desirable from the point of view of evidence, where the recollections of those called to give evidence dim over time.
In view of this, I believe that 12 months is a reasonable balance. As a matter of personal preference I might have suggested an even shorter period, but 12 months is reasonable, whereas three years is a long time. It is in that spirit that the amendment is moved and I strongly recommend it to the Minister because it has serious implications for individuals who may be subject to proceedings.
I second the amendment. The Minister has made a generous concession in regard to the change in the Bill. He confined it to proceedings under sections 64 or 115 of the Principal Act or the facts stated therein. Despite that change, a three year period is long and I ask the Minister to reduce it to one year. This refers specifically to cases of fraud and that is why this regulation was introduced. I ask the Minister to accept Senator Dardis's amendment.
Section 64 of the Principal Act deals with fraud in obtaining a policy or guarantee. I understand the Minister's reason for doing this. However, as Senator Dardis said, a person may not know if fraud has taken place; and if a case goes on for three years, he may be unable to prove this because of changes in circumstances. It weakens people's opportunity to obtain evidence to defend themselves. Section 115 of the Principal Act relates to penalties for false declarations, etc. in the issuing of a grant, licence or certificate. A three year period is too long and in these instances a one year period is long enough.
I am glad the Minister agreed to the change because a three year period for summary offences would have been too severe for a minor infringement. One could be charged with an offence three years after it had been committed. That was wrong; it was a change in proceedings which up to then had been six months. In this instance the Minister has confined it to fraud only, and I welcome that. However, a 12 month period would be fairer.
The Government amendment to this section, agreed on Committee Stage, limits its provisions to two specific offences: fraud in obtaining insurance or making a false declaration. The extended period is fully justified in these cases. Amendment No. 16 would limit the period to one year and this would be insufficient for the two offences in question. Existing law already allows one year in those cases. The need for section 48 arose because specific cases came to notice where the one year period proved inadequate. Senators will appreciate that fraud is an offence which can remain undetected for lengthy periods. As the section does not apply to motoring offences generally, the extended timescale is fully justified.
On Second Stage, Senator Cosgrave said:
I compliment the Minister. Uninsured drivers are a major problem in this country. There are also difficulties with insurance certificates, falsification of such certificates and related scams. Any measure which will tackle those problems and bring the perpetrators to justice will have our support. I thank the Minister for his efforts in that regard.
Senator Enright said:
Where fraud is involved, all Members realise that the investigation of such a fraud can take some time. The Minister has pointed out that there are occasions when it may take some time to discover that such fraud has been perpetrated. This amendment and the idea behind the Minister's proposal are worthy of support.
I have considerable support for what I am trying to do. I assured the House that in cases of fraud and where documents were falsified, existing law proved inadequate. I am extending the period to allow for freedom to deal with cases when they come to notice up to the period described. I had support for that one week ago. However, in the intervening five days I lost some ground, but I hope to recover it again. I am sorry that once again Senator Dardis has hit between rocky ground and a hard place.
I am encouraged by the Minister's expression of sorrow. I accept the thrust of the Minister's argument and I understand that in certain circumstances a year might be inadequate. Fraud is a serious matter which must be dealt with severely in the event of a conviction. While I welcome the amendments made to the Bill, the thrust of my argument is that that degree of clemency — if we may use that word — should be extended. I do not understand how in a modern society it can take three years to bring a case, a long time by any standard. It is within that context the amendment is being put down rather than that those guilty of fraud should be able to avoid the penalty due in circumstances where fraud was committed.
From a civil liberties point of view, I am uncomfortable about this. The threat of proceedings can hang over people and that can be a penalty as severe as the sentence which would arise in the event of a conviction. The threat of proceedings can also hang over the innocent and that is a severe penalty for them to put up with over such an extended period.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 39, between lines 6 and 7, to insert the following:
"(1) Where a defendant is charged with an offence under section 52 of the Road Traffic Act, 1961, a judge at his discretion may reduce the said charge to a charge under section 51 of the said Act.".
Under section 53 of the Road Traffic Act, where a person commits an offence, a judge has the power to reduce it to section 52 — from dangerous to careless driving. In some instances, for example, a minor offence where a person is charged under section 52 for careless driving, the judge for one reason or another may want to reduce it to section 51. I ask the Minister to allow this reduction to driving without due care and attention. It is a reasonable amendment which gives a judge power to reduce it.
I second the amendment.
I have nothing to add to what I said last week, as there is no need for this provision. When a person is charged with dangerous driving it is a matter for the courts to decide if the person is guilty and to sentence accordingly. I am not aware of any difficulties in regard to persons charged with this offence.
There are instances where a judge may believe that a case of careless driving is one of driving without due care and attention caused by a momentary lapse of concentration or a minor error. The judge may not want to convict the person of careless driving, which carries an endorsement. He may want to reduce the offence further, but he is not permitted to do so. The only way he can do this is if the Garda withdraw the summons and charge the person with the lesser offence of driving without due care and attention. I hoped that the Minister would accept this amendment. The Minister, his advisers and officials should look at this in the future. Perhaps the Minister could discuss this with the President of the District Court, the Chief State Solicitor's office or the DPPs office.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 41, line 6, after "Act" to insert "shall carry an endorsement at the discretion of the Court, where the offence merits such an endorsement".
The courts should have discretion and I ask the Minister to consider this.
I second the amendment.
The amendment is unclear. The Second Schedule merely lists offences which attract disqualification. The amendment seems to suggest that the licence will be endorsed at the discretion at the court rather than disqualification. The thrust of the amendment is not acceptable. Paragraph 7 of the Schedule provides that a con sequential disqualification of six months applies where a person is convicted of three offences of careless driving in a three year period. This is not a new provision, as was suggested in a recent newspaper article. Automatic disqualification currently applies on a third conviction of careless driving within three years. This was provided for in 1968 when a new paragraph 5 (b) was inserted in the Second Schedule of the 1961 Act.
Amendment, by leave, withdrawn.
This has been the best Report Stage debate I have witnessed. It has been extraordinary.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
This legislation is very important and, as expected, the debate in both Houses has been wide ranging, detailed and fruitful. The Bill has been significantly amended during its passage. The debate has given public representatives an opportunity to make views known, suggest better ways of doing things and, as a result, the provisions have been improved in many respects. While we have disagreed in a number of areas, I am sure the House will accept I have approached the debate with an open mind, have listened carefully and moved amendments to clarify and deal with many of the concerns expressed.
When I introduced the Bill I pointed out it was intended to deal with a number of specific issues. The enforcement aspects and the drink driving provisions in particular have been the focus of much of the debate. This aspect of the Bill is not anti-motorist and is not intended to make life difficult for the vast majority of law abiding motorists who use our roads. The opposite is the case. The provisions have been developed in the interests of road users. They are designed to help make our roads safer, reduce the number of road accidents causing death or injury and eliminate, or at least reduce, uninsured driving.
The Bill should not be viewed in isolation; it is an addition to a wide body of existing road traffic law. It is also an element of a much wider road safety campaign, which includes initiatives in the areas of publicity, education, enforcement, research and legislation. Other elements of the Bill have not received the same media attention but this does not diminish their importance.
The Bill introduces important new provisions in the area of traffic management. It streamlines procedures. It confers new functions on local authorities and gives them more freedom to take action at local level without waiting for a Minister to tell them to do so. These are important new powers and a boost to local democracy.
During the course of the debate we agreed a number of amendments, which must go back to the Dáil. Subject to final consideration in that House, I hope the Bill will be enacted in the next few weeks. Now that we are approaching the conclusion of the debate, I look forward to the successful implementation of the Bill. Many of the provisions require action before they can be commenced. Regulations and by-laws are needed in a number of areas and my Department will have to prepare guidance documents to assist local authorities in dealing with their new functions. I expect to commence the Act in stages. I will work with my officials over the coming months to ensure its various elements are brought into operation as quickly as possible.
The debate has been long and tedious at times but has been successful. I thank you, a Chathaoirligh, and your colleagues in the Chair over that extended period. Special thanks is due to the Front Bench spokespersons of all parties, all of whom do not have available to them the services available to a Minister in a debate like this. I very much appreciate the concerns expressed, the support given and the detailed matters raised. As a result we have more satisfactory legislation. I have not got my own way on everything but neither have Members. Different views have been expressed but we all agree on where we want to go in terms of road safety. I thank Members for their contributions. I thank my officials who spent a long time in the Dáil and the Seanad. They worked many nights dealing with a range of amendments and consulting with the Attorney General. I am grateful to them for their enormous contribution and detailed backroom work, which often does not receive the attention and thanks it deserves.
I hope I will not return to the House for many years to come with further legislation of this type. This Bill has extended my capacity to deal with matters like this to the greatest possible extent. From time to time people may view these matters differently to us. As far as my officials and I are concerned, our real interest is to change culture, allow the public to drink socially and enjoy themselves but not to put others or themselves at risk because of that enjoyment. There are too many tragedies and accidents. Another one is one too many. Thanks to all of you who have contributed to the debate over those long hours.
I express my appreciation to the Minister for his stamina. This debate was long and at a high level. I agree with the Minister when he says there was give on all sides. Not all got what they wanted. The Government tabled 24 amendments on Committee Stage and five on Report Stage. This is an indication of the Minister's respect for the views of the House and its purpose. It has done excellent work in amending the Bill, which now goes back to the Dáil for endorsement. This exercise in democracy in the Upper House has been very useful. The Minister, by his acknowledgement of the arguments, has shown he is prepared to respect and understand the views of the House. The number of amendments tabled by the Minister is an important public statement by him. I thank him, all the Members and you, a Chathaoirligh.
I thank the Minister for the open manner in which he accepted many of the amendments we proposed. We had disagreements on a few occasions. I have known the Minister for a long time and courtesy is one of his hallmarks. He showed this in the manner and graciousness he displayed when agreeing and disagreeing with us and in the general discussion today and other days. This is important, because where there is courtesy and graciousness there is always good humour and this has been clearly displayed throughout this debate. Members of the Dáil and Seanad have put a great deal of good work into this Bill. When it was originally published it did not generate the publicity some of its sections deserved.
When Deputy Avril Doyle was in the Seanad she was very strong on the rights of the Garda Síochána to enter a person's home. The Minister accepted that this should not be allowed in connection with a drunken driving offence, which was a good change. Now they can only come onto a person's property. The reduction in the period of time for which a person can be detained in a Garda station from eight hours to six hours is to be welcomed. It is an important change.
With regard to the section dealing with summary summonses, the reduction of the period in which they can be instituted from the original blanket three year period in the cases of section 56 and the section dealing with fraud is to be welcomed.
It is important that lobbies are listened to. We, on this side of the House, have at all times understood and been sympathetic to the problems which arise from accidents caused by drink driving. We are also conscious that people can drive dangerously and cause accidents without drinking and that people without insurance cause accidents and injure people. We support all measures to ensure that our roads are safer and that fewer people are injured, maimed and killed.
I still have some very profound worries about some aspects of the Bill and I disagree with some sections, particularly in regard to relying solely on the breath test. The Minister would want to be very careful in framing the regulations on that.
I join with the Minister in his praise of the officials in his Department. I have only met them briefly but I know he received expert advice because he was well appraised of all the intricacies of the Act. I thank the Cathaoirleach and the Acting Chairmen. I would like to pay a special word of thanks to the staff of the Seanad office, Ms Blake and Ms Lane. During the passage of this Bill they worked very late on a number of occasions. They were good humoured and helpful and have a thorough knowledge of the Road Traffic Acts and this Bill. There was an excellent memorandum which I think was produced by the Seanad office after a great deal of hard work. Their knowledge of procedure was very helpful to me as one who is not very long in this House.
I wish this important Bill well.
I thank the Minister for the way he has handled this legislation. It is a good example of how Government and this House should work. The legislation has been improved, which is to be welcomed, and we have done an effective piece of work here.
It is remarkable that the Minister stayed with the legislation throughout the various Stages. That is quite unusual in my experience and he is to be thanked. His officials are also to be thanked for their diligence. There were a few times when we landed them with unexpected aspects of the Bill and I was very impressed by the speed and manner with which they dealt with them. I do not think there was ever a need for the Minister to say he would come back to us later with an answer, which is a tribute to his staff.
I share the hope that this legislation will achieve its objectives. I was impressed by the Minister's manifest determination to ensure that the misery which has been inflicted by drunken driving will be eliminated. He is to be congratulated for that and will unquestionably have our support in implementing the legislation.
I also thank the Cathaoirleach and the Clerk's office. I was injudicious enough earlier this afternoon to wonder whether an amendment had been located in the right place. I unreservedly apologise to the staff for even beginning to doubt they might make such a mistake. I thank the Minister and his staff for the way they have conducted the Bill. I wish the legislation well and hope it will achieve its objectives.
This legislation was discussed in this House in exemplary fashion. The Minister said that nobody got everything they wanted out of it. As usual, he got the most but we accept that is how democracy operates.
I was sometimes not as good humoured as I should have been but it was important that arguments were made, issues were teased out and, more importantly, that modifications were made to the proposed legislation. I look forward to watching the operation of the Bill. One of the tenets from which I operate is that anything which cannot be implemented should not be in legislation. I do not think I made that reference at any stage of the debate on this legislation. The drafting of the Bill was superb and congratulations to all concerned. It is rare that I do not say about a Bill that some part does not make sense or is not implementable. Unfortunately, too much of this Bill is too easily implementable.
I ask the Minister to take two issues on board for the future. There is a niggling worry about the breath test in that there will be no back up. I agree with Senator Enright that we should watch that very carefully — which I know the Minister will. It is a worry when one item of direct evidence — I know the test is done twice — is to be totally relied on.
On Second Stage I gave my own experiences of the Road Traffic Bill. I have sat on a number of road safety committees in the County Dublin area and also organised road safety classes. I was delighted to hear the Minister refer to the need to develop that area of education. May I make two comments on that which I think are important? There are issues which are perhaps well known within the Department and which the Minister thinks have wide circulation and knowledge but which in fact are not widely known. The Minister made two comments in the last two or three weeks. First, he referred in this House to the effects of drink on a driver in terms of their confidence, judgment, decision making, speed and so on. That is not widely known and it might be much more effective to put out that kind of information rather than some of the cleverer advertisements. I am not saying we should not have the clever advertisements as well but the straightforward empirical evidence should be publicised. Second, his recent indications of what a 20 tonne truck does to a road — those kind of issues are well known within the Department — could be shown to the rest of us in different ways.
At some stage in the future the Minister will have to look at introducing a consolidated Bill which will take everything into consideration. There is one issue which needs to be looked at, that is, the safety of vehicles.
In fairness, Senator O'Toole, we are not going to have another debate.
The Minister mentioned the safety and I am following it up. A car which costs £20,000 because it has safety features worth £10,000 might be safer at 80 miles an hour than another car at 50 miles an hour. Insurance companies recognise that people take action to make their home safer. Legislation might at some stage take cognisance of the fact that some cars are safer than others and there should be some reflection of the fact that people go to the trouble to make their cars safer.
I too, found the memorandum extraordinarily helpful. This is key legislation. I hope it works and that my problems with it will fade over time. I thank the Minister and the draftsmen. However, we will still have the problems of people riding unlit cycles, jay walking pedestrians, who apparently do not break any law, and slow drivers.
Obviously, Senators regard this as important legislation. I thank the Minister for his devotion to duty and for his knowledge of the Bill. I thank the staff who were a great back up to him and all the spokespersons and other Senators who contributed. I also thank Deirdre Lane and Jodie Blake, to whom praise has already been rightly given, and the other members of the Seanad staff. There were many amendments resulting in much hard work. They burnt the midnight oil on many a night to get everything right for us when we came in. I thank everybody, particularly the Minister and his team. It was an important debate and the Report Stage debate in this House was the best we have had in my period in Seanad Éireann.
Question put and agreed to.
When it is proposed to sit again?
It is proposed to sit again tomorrow at 10.30 a.m.