Seanad Éireann - Volume 139 - 03 March, 1994

Road Traffic Bill, 1993: Committee Stage (Resumed).

[984] SECTION 16.

Debate resumed on amendment No. 10:

In page 13, subsection (1), line 33, after “station” to insert”, on the advice of a designated doctor who is of the opinion that the person is under the influence of an intoxicant, drug or drugs,”.

—(Senator Enright.)

An Cathaoirleach: We had a great deal of discussion on this amendment last night and I indicated that I would allow very little further discussion this morning. Senator Enright indicated that he was pressing this to a vote so I ask him to make a final comment.

Mr. Enright: This amendment deals with the detention of a person in a Garda station for a period of up to eight hours. In circumstances where a doctor will have had to be in attendance to take either a blood or urine sample, persons should only be detained for that length of time after a doctor has confirmed that he is of the opinion that they are incapable of looking after themselves. It is not right for a garda to be allowed to keep a person in a Garda station for that length of time on his own volition. There are some safeguards in the section in that the Garda Síochána must contact a relative or friend and so on. However, it would be much more practical, safer and prudent for a designated doctor who is of the opinion that the person is under the influence of an intoxicant, drug or so on to make that decision.

Amendment put.

[985][986] The Committee divided: Tá, 14; Níl, 22.

Cosgrave, Liam.

D'Arcy, Michael.

Dardis, John.

Doyle, Joe.

Enright, Thomas W.

Honan, Cathy.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Norris, David.

Reynolds, Gerry.

Ross, Shane P.N.

Taylor-Quinn, Madeleine.

Níl

Bohan, Eddie.

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

Finneran, Michael.

Fitzgerald, Tom.

Gallagher, Ann.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

Kiely, Dan.

Lanigan, Mick.

Lydon, Don.

McGennis, Marian.

Mullooly, Brian.

O'Brien, Francis.

Ormonde, Ann.

Roche, Dick.

Townsend, Jim.

Wright, G.V.

Tellers: Tá, Senators Cosgrave and Doyle; Níl, Senators Mullooly and Kelly.

Amendment declared lost.

Section 16 agreed to.

SECTION 17.

Question proposed: “That section 17 stand part of the Bill.”

Mr. Howard: What is required of a person and the penalty for non-compliance under this section is a little over the top. This section relates to the procedure following the provision of a breath specimen. The person will provide a breath specimen to this apparatus and apparently the apparatus will automatically issue two identical statements. On receipt of these statements, the person will be requested by a garda to “forthwith acknowledge such receipt by placing his signature on each statement, and thereupon return either of the statements to the member.” Subsection (4) states that “A person who refuses or fails to comply with subsection (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding three months” for simply refusing to sign a piece of paper issued by this apparatus.

Why should a penalty of this extent apply in these circumstances? A person is required by a garda to blow into this apparatus and provide a specimen of their breath. Two pieces of paper are automatically issued from the machine and the garda asks the person to sign both pieces of paper and return them to him. The person, for some reason, may decline to sign them. He is then suddenly faced with three months in jail or a £500 fine. The apparatus has shown whether the person is within or above the permitted limit. Implementing these penalties for failure to provide a signature is over the top. There may be a valid explanation for it but I do not see it.

Minister for the Environment (Mr. M. Smith): What the law prescribes are maximum fines, which is the case in all of these matters. Senator Howard has been in this House for a long time and surely he is not trying to say that maximum fines prescribed in law are the norm. It would be a matter for the court to decide whether any, a part, or the full fine is appropriate in each case. That has [987] always been the position. We prescribe maximum fines in all cases. However, the courts can never go above that figure. Indeed, they are more likely to go considerably below it.

Question put and agreed to.

Section 18 agreed to.

SECTION 19.

Government amendment No. 11:

In page 16, lines 6 to 31, to delete subsections (4) and (5).

Mr. M. Smith: This section sets out the procedures to be followed by the Medical Bureau of Road Safety in dealing with specimens of blood or urine. Subsections (1) to (3) are re-statements of the law as set out in section 22 of the Road Traffic (Amendment) Act, 1978. Under the section the bureau is required to forward a copy of a certificate to the person who provided the specimen. In recent years there have been a number of cases where persons tried to avoid receiving the copy of the certificate in the hope of avoiding a conviction on technical grounds. Subsections (4) and (5) were designed to remove the potential for such challenges by providing that proof of postage of the certificate would be deemed to be proof of delivery. On further examination of those subsections, I have been advised that the new provisions are not necessary and that they might create new avenues for legal challenges concerning proof of postage. In the circumstances, I am proposing the deletion of subsections (4) and (5). The effect of the amendment is to leave the existing law as it stands.

Amendment agreed to.

Question proposed: “That section 19, as amended, stand part of the Bill.”

Mr. Howard: I have a query on subsection (2) where it is required that two [988] specimens of blood or urine be sent to the bureau for analysis. The section, as I read it, provides that it is sufficient for the bureau to make an analysis or determination in respect of one of the two samples of blood or urine. If only one sample is to be analysed, why is it necessary that two should be sent?

Mr. M. Smith: This is a restatement of existing law. I emphasise this because many of the arguments against this legislation have presented its provisions as being new, draconian and unacceptable. This has been the law for a long time. The explanation I would give off the top of my head is that there are circumstances where, for one reason or another, it is possible that one of these samples could be lost. There is a greater chance of a successful conviction when one has at least two samples from the beginning. There may be a better legal answer than that.

Mr. Howard: The Minister stated several times yesterday and again this morning that various provisions are part of existing law. That is a statement of fact. The Minister was a distinguished Member of this House and an ambitious man. I am glad to see his success in the political field but I do not think it befits that achievement for the Minister to just say that a provision is part of existing law and therefore perfect.

Mr. M. Smith: That is not what I mean.

Mr. Howard: Both law and circumstances evolve and therefore nothing is sacrosanct, or should not be, just because it is part of existing law. Our function and the Minister's function is to examine existing law to see whether circumstances have changed and whether the law is adequate for today's circumstances. It is never a good answer to say it is perfect because it is part of existing law.

Mr. M. Smith: There is a better explanation than the one I have given. The only circumstance where two specimens [989] of blood or urine are forwarded to the bureau, and it is necessary to analyse only one, is where a person objects and does not take their own sample.

Question put and agreed to.

Sections 20 and 21 agreed to.

SECTION 22.

Mr. Cosgrave: I move amendment No. 12:

In page 18, subsection (1), line 21, before “unless” to insert “except in the case of a first offence and”.

This is one of the most fundamental changes introduced in criminal proceedings. There is no other instance in the prosecution of serious offences, such as murder, manslaughter, rape, serious assault or robbery, where a convicted person has to pay the State's costs. In cases involving serious offences where a person's liberty is at stake, there is quite a generous legal aid scheme. A person's ability to defend themselves should not be regulated by their means or ability to secure the services of a lawyer to appear for them in court. This highlights a fundamental wrong in the legal system.

This section will have to be tested as citizens are not being treated equally. People get legal aid in cases of more serious offences and they do not have to pay the State's costs. Can the Minister confirm whether or not this section was certified by the Attorney General to be in accordance with the constitutional guarantee that all citizens shall be held equal before the law?

This is a fundamental change in the manner in which our legal system operates and such a section cannot be valid or constitutional. Is this the first step in a programme of reform? Will there be amending legislation dealing with serious crimes, such as murder, rape, armed robbery and assault, which will introduce a requirement that the defendant pay the costs of the case?

[990] While I have reservations about a defendant paying the costs of the case, I would like to see defendants paying compensation to victims. Yesterday the Minister tried to imply that some of us on this side of the House are not too worried about the victims of road traffic accidents. I wonder whether he is concerned about the victims of assault, robberies or murders? When serious crimes are committed the State ensures that the best of legal brains are brought together to defend that person. This is as it should be, particularly if their means are not sufficient. The State is lagging behind in its care for the victims of crime. From time to time various victim support groups and others appeal for extra funds; far too often the balance is wrong.

In this instance the balance is wrong. Did the Attorney General certify this aspect of the law? If this measure goes through, a person convicted of one of these offences will pay all the costs. Is this to be the norm in relation to other matters? Is legal aid in other areas now to be withdrawn? This is a fundamental change in our criminal law. I understand that in certain areas compensation is paid by the defendant and some of it goes to the victim, or the defendant may have to pay money into the court poor box, but is there any other area in the law at the moment where when the State brings a prosecution, the defendant, if convicted, pays all costs?

Mr. Howard: I support the points made by Senator Cosgrave and I share his concerns. This is part of a battery of penalties which will be visited upon a person convicted of drink-driving. Four penalties are involved here. There is the conviction, the fine, the loss of the person's licence because of the automatic disqualification and now there is this added penalty which is unique, as Senator Cosgrave said, where the defendant has to bear the costs of the case. There is also the penalty of having to do a driving test before a person can renew their licence at the end of their disqualification period. There are few other offences within the criminal code [991] which attract such a battery of penalties in respect of the same offence. We need to examine this and the Minister can help us. The court may order the person to pay to the court the costs and expenses measured by the court and reasonably incurred by the State

...in the investigation, detection, and prosecution of the offence (including costs and expenses incurred in the taking and analysis of specimens) and not exceeding such amount as may, for the time being, stand prescribed.

Therefore the costs of investigation, detection and prosecution, the costs and expenses incurred in the taking and analysis of the samples and all the other costs related to this can be claimed from the defendant. I am sure the Minister will respond as best he can to my question. These cases come before the court on a regular, perhaps even on a daily basis. Is it possible under the various headings to establish what figure these costs amount to in average circumstances? How much will the average person be asked to pay in these circumstances?

Mr. Enright: Will the Minister consider carefully where we are heading with this section. The saving grace in this section is that the court shall have a power where it is satisfied that there are special and substantial reasons to award costs against the State. Senator Cosgrave has made his point very clearly and I re-emphasise the situation. The court has power to grant legal aid for indictable crimes such as rape, manslaughter, murder or armed robbery. The court has power to grant full legal aid to a solicitor and a counsel defending that person, who has been charged with very serious crimes. In the situation we are discussing a person may be drunk in charge of a car. Up to now that has not carried a disqualification but from now on that person will be disqualified from driving and he will also have to pay the State costs. That is penal. It is going too far.

We should be looking for prevention of these crimes. It is everybody's duty [992] to try and prevent all sorts of accidents taking place. It is not the State's job to penalise somebody to the extent this section sets out to do. The Minister is moving into the situation where a person can be fined £1,000 and suspended from driving for two years as well as losing their job. How is a judge to assess the cost of the investigation? Will the cost of the garda being called out to investigate the accident be included? Will all the paper and secretarial work involved at the Garda station be included? Will the payment of the staff in the medical bureau be included? How far does it run? How exactly does the Minister envisage these costs arising?

I stated yesterday that we have supported all legislation dealing with road traffic and we will continue to support all reasonable efforts by the Department, the Minister and both Houses of the Oireachtas but this measure is penal. We are heading in a new direction here. I ask the Minister to stop and think. I am not aware of a similar situation in Europe. I would like the Minister to let me know if there are any examples where the convicted motorist has to pay the State's costs in Britain, Europe or America. The ordinary motorist is now faced with such a range of charges against him that motoring has become a hazard. At present a car can be taken to a pound if a person has parked illegally. There is a huge list of potential charges against a motorist. Simple cases where a car crosses a white line or somebody does not see a stop sign and goes a bit too far out can now mean a charge of careless driving. All of these measures make life more difficult for a motorist. The motorist should have some rights. I ask the Minister to re-examine this amendment because we are going overboard.

Mr. Dardis: I have no objection in principle to the court being able to exact costs and expenses. The argument which says this exemption would occur in the case of more serious crimes suggests that the provision in this Bill should be extended to the more serious crimes rather than deleted. I object to the word [993] “shall” being used, although small words are important. The court does not have discretion, but it “shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the court the costs and expenses, measured by the court”. This does not give the court discretion.

Yesterday the Minister was at pains to point out the degree to which the courts could vary the severity of fines or sentences under the legislation. This gives them no such discretion to take the circumstances into account other than for “special and substantial reasons”.

In the event of a disagreement what type of appeals procedure is available to the person who regards himself or herself as the injured party? For example, if I have a dispute with my solicitor about his costs, I can go to the taxing master who will adjudicate and make a ruling on the severity or otherwise of the costs. There does not seem to be any such safeguard involved here. In the event of non-payment of these costs and expenses, there does not seem to be anything in the Bill which exacts a penalty. What is the penalty under law for non-payment of such costs and expenses as exacted under this legislation?

The Bill states that the court shall “order the person to pay to the court the costs and expenses”, but it does not take into account the degree of severity of the crime and how the court will adjudicate on that. Under this legislation a person who is marginally over the limit could find themselves in the same situation as someone who has committed a more serious offence. The court does not have discretion and that is a deficiency. I accept the principle which says the court can exact the costs. I would apply it more widely because these are serious crimes which could have great consequences. The people who commit these crimes have a responsibility to the State and to society to indemnify the State for what they have done.

Ms Kelly: Perhaps the Minister could tell us what he considers to be “special and substantial reasons” in this section.

[994] Mr. M. Smith: On each occasion when a case is made against provisions, particularly by Senator Howard and Senator Enright, a certain type of sympathetic situation is highlighted — for example, someone loses their job. We are talking about situations where there is a conflict of interests, where a person decides to drive a car or other vehicle while intoxicated. The reality of this is that approximately 150 people who leave their homes in perfect health are dead within hours and approximately 3,500 people are admitted to hospital with appalling injuries. Some of these may never walk or think again. The total cost of insurance claims for one year is £500 million. Arguments are consistently made about reducing insurance costs for young people. How can one do this if insurance costs and claims continue to rise? This Bill is trying to make the roads safer and to reduce the number of claims, injuries and deaths.

The conflict of interests arises when the life of a person who has caused no legal infringement is threatened by someone who decides to drink and drive. There are risks involved for the driver, but there are more risks for the innocent victim. There is no battery of penalties for someone who does wrong, but there are implications for someone who risks their life and that of others. Why should the innocent taxpayer be expected to foot the bill? Those who are convicted should make a contribution.

Senator Cosgrave asked me if this was a new development. These provisions are similar to the provisions of section 28 of the Local Government (Water Pollution) (Amendment) Act, 1990, and section 12 of the Environmental Protection Agency Act, 1992. The situation where the polluter and the offender pays is not new in Irish law and everything I have presented to this House has the authority of the Attorney General.

Section 22 provides that a person found guilty of a drink driving offence will be ordered by the court to pay a contribution towards costs incurred in the detection and prosecution of the offence. While the payment of the costs will generally be [995] mandatory, the court will have the power to waive payment where it is satisfied that there are special and substantial reasons for doing so. These would be matters for the court, but they would have to take into account a person's financial position and other attendant matters. In determining the amount of the contribution someone who is in a better position to foot a greater part of the bill would be expected to do so, while someone who is unable to pay would be shown certain consideration.

The amount of costs in individual cases will be measured by the court and will be subject to a maximum amount to be prescribed by the Minister. It is intended that the maximum amount to be prescribed will be adequate to offset the running costs of the Medical Bureau of Road Safety, which is now in the Vote of the Department of the Environment. The financial provision by the State to the bureau is now £0.5 million per annum. In determining the contribution we are not looking at the total range of costs involved, because these would be astronomical and unattainable for many people. However, £0.5 million from my Department's Vote has been provided to cover the costs associated with the Medical Bureau of Road Safety.

If we are serious about economic matters and about reducing the burden of taxation on the taxpayer, then someone else must pay a greater share. Is it legally and morally wrong to ask someone who has committed a crime to pay a contribution towards the cost of the detection and prosecution? Is it right to expect someone who is innocent to pay the same share of the cost as someone who is culpable?

Mr. Enright: I want to comment on what the Minister has said. If a drunk person leaves a function to rest in his car or to collect cigarettes from it and if a garda sees him, he could charge him with being drunk while in charge of the vehicle although he was not driving it. He could then be convicted and fined up to £1,000 or six months' imprisonment and be suspended [996] from driving for two years, and that is for somebody who was not driving at all and did not drive the car. The £1,000 fine more than compensates and covers the costs involved for the State.

Having been a public representative since 1967, the Minister will be aware that most Members of this House have made representations to the Minister for Justice to mitigate fines. In her wisdom — although it is being challenged nowadays and I am not going to go into that matter — the Minister for Justice and her predecessors have reduced fines on occasion because somebody is unable to meet them. We are facing into a situation where the Minister for Justice will face an increasing number of people seeking a reduction of fines and costs. I see what the Minister is trying to do and I appreciate the important point in this section but this is going overboard.

Considerable efforts have been made towards improving safety and reducing accidents on national primary roads. It would be of great help if county and smaller roads were made safer also, but that is another day's work. This measure, however, is penal and should not stand up. The fines provided for more than adequately compensate the taxpayer, if that is what we are trying to save costs on. They are very heavy fines and £1,000 would certainly cover the costs. The judge has discretion over the amount and most judges will take that into account when imposing fines.

Mr. Cosgrave: Section 22 (1) states that the court shall:

.....order the person to pay to the court the costs and expenses, measured by the court, reasonably incurred by the State in the investigation, detection and prosecution of the offence (including costs and expenses incurred in the taking and analysis of specimens)...

When it comes to investigation and detection, is the entire bill for wages on the day going to be footed, including everything from the doctor's costs to those of the State's barrister and solicitor and the Garda Síochána? The part of section 22 [997] (1) in brackets includes what the Minister said about the medical bureau. So, the section entails a bit more than what the Minister said. If that is the case, the garda's salary on the day of the court sitting as well as the barrister's and solicitor's work in bringing the case and building up the file, would all come under this section. That would be a lot more than the Minister seemed to indicate in his earlier reply.

I, too, am anxious that the convicted person should contribute, but I would prefer them to contribute to the victim rather than the State. It is in that area that the State is singularly falling down. Are we going to see a follow on, because a better system of compensation is needed; or are we still going to go out of our way to provide legal aid and assist the criminal? Yet we do not seem to assist the victims, who are the forgotten people. They have no one to shout for them. Are we going to see that in other areas of the law?

This a fundamental change in the law. I do not think the Minister, in replying, addressed other serious aspects of law. I do not like categorising laws, because if someone takes out a car and is involved in an accident in which someone is killed, they are probably equally as culpable as someone who goes out with a pick-axe. However, there is a difference between someone who goes out and murders someone and someone who is convicted in a driving case, having taken three or four drinks. What might have been within the law last week is not legal the following week. Not alone are drivers having to pay various costs, but they are being treated differently to murderers and rapists, who do not have to pay any legal costs while the State bends over backwards for them.

We all want to see something done to improve safety on our roads. At times, from the way the Minister has been trying to portray it, one would think that we had no legislation to date and that we were opposing the introduction of anything to do with this legislation. This should be looked at further because the Minister did not address the amendment relating to a first offence.

[998] Mr. M. Smith: In reply to Senator Enright, the court will decide on the question of whether a party is guilty or not, and it is only where there is a conviction that this applies. So, there is very little point in putting forward the type of circumstances that might appear to be of a doubtful variety. It will be up to the court to decide in all circumstances who is guilty and who is not. Where there is a conviction we would propose that this contribution applies and may I assure Senator Cosgrave that I will be prescribing regulations? I said the maximum I intended to prescribe for was to bring in an amount roughly equivalent to the cost of running the medical bureau at the present time, which is £500,000. I have indicated that the principle is already enshrined in existing law.

The State is not responsible for compensating the victim. Victims are compensated through the motor insurance system. It is no harm to say how that can run in terms of overall costs because samples are emerging. While you cannot put a value on life, claims which include all costs can reach as high as £750,000 in a particular case. We are dealing with very substantial costs associated with the results of dangerous driving and drunken driving. Whether the State or the motor insurance companies are involved, in the long run it is the individual taxpayer and the insured who ultimately, in a great many cases, share a big burden of costs associated with actions which they themselves were not involved in. It is only fair to accept that there would be a relatively modest contribution from those who are convicted, with the courts having the power in all circumstances to ensure that that will not be necessary where they had a justification for so doing.

An Cathaoirleach: We have had a long discussion on this and I would be anxious to put the question as quickly as possible.

Mr. O'Toole: I have listened to most of the discussion. I think this is ridiculous and that we have gone completely over the top in this legislation. This brings the [999] law into disrepute. It puts justice out of the reach of ordinary people.

It is somewhat disingenuous of the Minister to say that this provision is modest. There is no room for modesty in this section. The Minister's intentions may be different but what is written in this section is very clear:

....the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the court the costs and expenses, [“the” is the definite article] measured by the court, reasonably incurred.....

There is no room in that phrase for a lessening of the costs or for a modest contribution. This is written in clear English. The court must order the person, except where there are “special and substantial reasons”, to pay the costs and expenses, not a variation or percentage or portion of the costs and expenses. The phrase “the costs and expenses, measured by the court, reasonably incurred by the State in the investigation, detection and prosecution of the offence” must mean all the costs. What are those costs? People who have paid the costs of a legal team to represent them in court know that such costs can amount to hundreds of pounds. Overtime for gardaí is an additional cost.

This is ridiculous legislation. It is grossly unjust. It is a new approach which shows no understanding for ordinary people. The bottom line is that it will undoubtedly make people plead guilty in cases where they will be unable to meet the costs of putting their case forward. Anything that is a disincentive to achieving justice cannot be supported. I urge the Minister to remove this section.

Mr. Norris: Senator O'Toole has anticipated the substance of what I intended to say. This is a savage provision. Senator O'Toole is correct in his interpretation of the language. It is quite clear that in a normal case people would be required to pay the costs. This is a Thatcherite measure. I fear that we [1000] appear to be travelling in that direction in general. Services such as the fire brigade are provided at a substantial charge to the people who must avail of such services.

The principal point, which Senator O'Toole made so eloquently, is that such a charge could seriously inhibit the individual from instituting a defence in a court case. Anything that inhibits somebody from exercising their right to defend themselves in a case where there is a margin of doubt or error is inimical to the principles of justice. I will vote against this provision for that reason.

Mr. Cosgrave: I support my two colleagues. The Minister said that the provision would only involve the bureau costs. Is he categorically excluding the costs of the gardaí, the doctors, the Chief State Solicitor and the barrister? Those people and their costs would be involved in the investigation, detection and prosecution of the case as outlined in the section.

The Minister talks about the cost of sending a package and analysing a specimen. However, we cannot avoid what is contained in the section. The Minister wishes to recoup the costs of the medical bureau. What about Garda overtime costs, detection costs, barristers' costs, solicitors' costs and the costs of witnesses? The solicitor's and barrister's costs, as I know from practice, would be substantial. People will be confronted with a mammoth bill as they will also have to pay their own solicitor and barrister. From the night the person is stopped to the day the judge gives a verdict the meter on the costs will be running.

Mr. M. Smith: I made it clear on two occasions that I will prescribe regulations which will set a maximum figure to offset the running costs of the medical bureau. Those costs are currently £0.5 million and I will prescribe the regulations accordingly. On the basis of convictions at present the figure will be about £60 or slightly more than that.

Mr. Howard: Is that £60 per case?

[1001] Mr. M. Smith: To suggest that such figures are unfair or unjust is over the top. If there is any sense——

Mr. Cosgrave: The Minister should read the section.

Mr. M. Smith: Let me finish.

Mr. Cosgrave: The Minister should read the section. It says investigation, detection and prosecution in addition to the medical bureau.

An Leas-Chathaoirleach: The Minister without interruption.

Mr. M. Smith: There are two ways to approach this. I can prescribe these costs to be directly associated with the cost of the medical bureau but that is not the normal way to do it. Usually one would specify the primary legislation as I am doing here. In the regulations one would specify a maximum amount to be paid under those headings, that in turn being about equal to the present cost of running the medical bureau. I can take either course and the House would probably agree with either.

I have explained what is involved and if the House prefers the exact prescription of the analysis in terms of the medical bureau, I am happy to do that. However, I resist the proposition that the taxpayer should cover the cost and the individual concerned not make any contribution.

It is not good enough to say that the fine covers the costs. Senator Enright knows the total costs and implications of accidents. In many cases fines cover only a fraction of those costs. In this legislation we are seeking a modest contribution from those who are convicted. I will be happy to change the section to spell that out although it should not be necessary when I have told the House that I will prescribe in the regulations a maximum figure which is roughly equivalent to the cost of running the medical bureau.

[1002] Mr. Enright: Senator Howard has read the section aloud to the Minister. It states:

.....order the person to pay to the court the costs and expenses, measured by the court, reasonably incurred by the State in the investigation, detection and prosecution of the offence (including costs and expenses incurred in the taking and analysis of specimens)....

That is plain English. With the greatest respect to the Minister, he is the present Minister for the Environment but there may be other Ministers who will be empowered by this legislation to bring in regulations. The provision in this section is dynamite.

Senator O'Toole pointed out the case of somebody charged with an offence who rather than incur large expense may decide to plead guilty. That would be a detrimental change to allow take place. It may not have occurred to the Minister until he saw the unanimity on this side of the House regarding the danger to which people are being exposed. Many people in this House if they had to defend a case could afford to do so, but the ordinary, hard-pressed PAYE person, on whose behalf the Minister is speaking, is already barely able to keep body and soul together, earn a living and survive. It is the ordinary person who will be hit by this measure. Ordinary people must have the right to be able to defend themselves and this provision may put a bar on that.

Mr. O'Toole: I have listened to what the Minister has said and I would have to endorse the points made by others. We cannot deal with this on the basis of the present Minister in his position. The Minister knows that Ministers come and go but legislation stays. Whatever the Minister's intentions may be about the amount he would prescribe, however small it would be, it is not relevant and cannot be part of today's debate. I make that point with respect for the office of the Minister.

Prescribing a small amount defeats the purpose of what the Minister set out to do. If this legislation set out to penalise [1003] people who were abusing the courts or the justice system, I could understand it. However, prescribing the amount has the opposite effect. Once a ceiling is introduced, then the better off the person the more likely they are to be able to deal with it. It hits the poor.

It is unacceptable for the Minster to say in the impassioned way he did — I know the Minister is being honest — that we cannot have the taxpayer or the Government paying for this, that or the other. Justice should be free, although I know that is an impossible dream at this point. This provision is an additional tax on justice and I object to it. People who go to court have to get the money together to defend themselves, which in an ideal society they should not have to do; they should be able to go to a court and get justice as part of a democratic process. But if that cannot be given it is grossly unfair to threaten people seeking to defend themselves that, if they lose the case, as well as having to deal with the fine, the suspension and their own legal costs, there will now be an additional cost put on by the State. It is unfair, it is a tax on justice and it is a direction we should not take; and prescribing it does not help.

I would be prepared to consider a provision directed at people who were considered by the court to be abusing the system, as some people with a lot of money have done over the years. This will hit the ordinary person. It is a tax on justice and I urge the Minister to remove the section.

Ms Kelly: I join with the Members on the other side in asking the Minister to look at the section again because the potential is there for other Ministers to implement it in full force and put justice out of the reach of many people.

Mr. Cosgrave: I am glad to hear one Member on the other side agreeing. I am not necessarily the best with the English language, but even on an average interpretation the section as it reads does not add up to what the Minister indicated. I [1004] would have no objection to £60 or £100 or some such a figure in relation to the bureau, but that is a long way short of what is envisaged here, where investigation, detection and prosecution of the offence is taken into account. Hopefully, the Minister will come back to us with a specific amendment dovetailing in what he has said. I do not question what the Minister has said in relation to what he might do, but the section as it reads would open up many avenues regarding the whole gamut of costs. One might include the cost of the judge under this section. I ask that the Minister come back with an amended section.

Mr. Norris: I have always found the Minister to be an eminently reasonable man and I recognise that——

Mr. M. Smith: I know I am losing when I hear that.

Mr. Norris: No, just yielding gracefully. I know it is part of the Minister's brief to defend what is in the Bill, but it is also to listen, and he has shown a capacity to listen on many occasions before. He accepted a couple of amendments from my colleague. Senator Henry, yesterday. What we are attacking here — and it is significant that there has been a voice from the Government side which shows an understanding of our position — is the principle. The principle of further penalising somebody who has been found guilty is wrong. It goes back to the bad old days when in serious cases which involved execution the costs of the execution could be charged against the estate of the person executed. That is rightly regarded as a barbarous and immoral practice.

Mr. Enright: That is not in the joint programme for Government.

Mr. Norris: It is an extreme variation of the same principle and, as Senator O'Toole and I have said, it will inhibit people, particularly at the lower end of the income scale, from entering their own defence. It would be a matter of insignificance [1005] to certain small sections of the population to enter a defence; and we are already aware of the unfortunate fact that, despite the best wishes of the courts, the judges and the solicitors, justice is inevitably administered on a class basis. People who have the financial power to secure the services of good attorneys have a far greater chance of getting off. In this section the Minister is militating against the rights of the least advantaged section of the population.

Setting a ceiling is no answer, even if it is £60. I was fined £50 recently for parking my car somewhere I was not supposed to park. I found that stung me and I have a reasonably good income. I drive a car that cost £500. I know of people who drive cars that cost £60 and they are living on the edge of being able to afford transport of this kind. A charge of £60 is a severe amount to add on to the existing penalties.

The Minister is introducing a principle here which is being introduced for the first time and the implication is that it will be extended to other areas where people who are convicted may be expected to pay the costs of conviction. Is this the first stage in the extension of a free enterprise free market in the courts?

Ms Honan: I understood that my colleague suggested that the word “may” be inserted instead of the word “shall”. This would be a major improvement. I accept what has been said by my colleagues on this side of the House and by Senator Kelly. There are grave reservations on this matter. The Minister has indicated he will look at this again and the House would welcome that. This should not be put out of the reach of ordinary people and if the word “shall” was changed to “may” it would be acceptable.

Mr. M. Smith: If I have to disagree with Senator Norris and Senator O'Toole on fundamentals, I will. I have no difficulty with examining this section between now and Report Stage with a view to clarifying what I want to do. By so doing the most I hope to achieve is that convicted persons will be required [1006] to pay an amount equivalent to the cost of running the medical bureau.

It is unfair to say this is a fundamental and new change. The Environmental Protection Agency Act and the Local Government (Water Pollution) Act contain exactly this provision. I see no problem in asking for the cost of prosecution, etc., from convicted persons, although some in this House may see such a problem.

This is essentially a deterrent. We do not necessarily want to see people in court and get convictions. We want to encourage people to drive with greater responsibility and not to drink while driving. The consequences, costs and trauma for so many innocent people are astronomical. I have often outlined to the House how the graph is rising, what the statistics show and the dangers people face if this trend continues.

I know all Senators support this aim but the question is how to achieve it. I do not wish the measures to be draconian but I am satisfied with the principle. I will return on Report Stage, requiring the contribution but specifying and clarifying the circumstances in which I would expect that to happen.

Within these provisions the court may in special circumstances decide not to impose that additional contribution. That is enshrined and will continue to be the case. Senator O'Toole suggested there could be a more graduated system. I am not inclined to do that but I am prepared to consider that proposal. On Report Stage I will clarify what is intended but the principle stands.

An Leas-Chathaoirleach: Is the amendment being pressed?

Mr. O'Toole: Before we finish with it I wish to reply to the Minister.

An Leas-Chathaoirleach: Senator, this discussion has gone on for some time.

Mr. O'Toole: If someone asks in two years why his case ended up in court he [1007] will wonder why we did not take more time.

An Leas-Chathaoirleach: I have a duty to keep the debate moving. We have spent a long time on this matter and there has been much repetition. Please be brief, Senator.

Mr. O'Toole: I appreciate what the Minister has said and I will not press for a vote against the section. I appeal to him that the court be allowed discretion. If “shall” was changed to “may” that would [1008] go a long way towards meeting the objections mentioned. I appreciated the Minister's generosity in his response and I look forward to what changes may be made on Report Stage.

Mr. Byrne: To avoid hardship I suggest to the Minister that the fine be paid in instalments. I recognise the principle involved but perhaps payment could be made in that fashion.

Amendment, by leave, withdrawn.

Question put: “That section 22 stand part of the Bill.”

The Committee divided: Tá, 23; Níl, 17.

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

Finneran, Michael.

Fitzgerald, Tom.

Gallagher, Ann.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

Kiely, Dan.

Kiely, Rory.

Lanigan, Mick.

Lydon, Don.

McGennis, Marian.

Magner, Pat.

Mullooly, Brian.

O'Brien, Francis.

Ormonde, Ann.

Townsend, Jim.

Wall, Jack.

Wright, G.V.

Níl

Cosgrave, Liam.

Cotter, Bill.

D'Arcy, Michael.

Dardis, John.

Doyle, Joe.

Enright, Thomas W.

Honan, Cathy.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Norris, David.

O'Toole, Joe.

Reynolds, Gerry.

Ross, Shane P.N.

Sherlock, Joe.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Mullooly and Magner; Níl, Senators Cosgrave and Doyle.

Question declared carried.

SECTION 23.

Question proposed: “That section 23 stand part of the Bill.”

Mr. Enright: I outlined my reservations regarding this section yesterday. However, I re-emphasise my reservations on the use of the breath test in isolation.

Mr. Howard: I fail to understand the implications of section 23 (1) which states:

In a prosecution of a person for an offence under section 13 for refusing [1009] or failing to comply with a requirement to provide 2 specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.

What are the special and substantial reasons that make it a defence for a person to refuse to comply with the provisions outlined?

Mr. M. Smith: In circumstances where those involved have certain disabilities and problems associated with complying with the provisions.

Mr. Howard: I understand therefore that such circumstances would be temporary and as soon as the time became appropriate they would offer to comply with the provisions, although at that stage they might not be called upon to do so. May I ask the Minister if my understanding of the position is correct?

Mr. M. Smith: Could the Senator elaborate?

Mr. Howard: My understanding is that the disability preventing certain people from complying with these provisions would be temporary and that at the expiration of the period of disability they would be prepared to present themselves, but at that stage they might not be requested to comply with the provisions. I accept that the Minister's reply, clarifying my difficulty with understanding this issue, has to be couched in discretionary terms, but my argument here is in many respects the opposite to my arguments on other sections. I believe that in this instance, the Minister is opening the gate.

[1010] Mr. M. Smith: The Bill is generally a re-enactment of existing legislation. I understand that there are circumstances, generally of a medical kind, where the provisions of section 23 (1) will apply. Regarding the issue whether an inability to comply would be temporary there are very few situations of a medical kind which are of a permanent nature, but the requirement to comply would not be waived solely for health reasons.

Question put and agreed to.

Section 24 agreed to.

SECTION 25.

Mr. Howard: I move amendment No. 13:

In page 19, line 20, after “then” to insert “or within 10 days fails to produce the licence”.

This concerns the production of the driving licence. The position heretofore — and it will apply as I drive home this evening — is that I may have my driving licence in the compartment of my car with the result that if I was driving another vehicle which I owned I would not have my licence available should I be stopped and asked to produce it. In such circumstances I would have ten days in which to produce the licence at a Garda station. Section 25 changes this position and if enacted it would mean that I would be committing an offence while driving without my licence on my person to produce if requested to do so.

Mr. M. Smith: The purpose of this amendment would appear to remove the requirement to produce a driving licence on demand by a member of the Garda Síochána. This would leave the law as it stands at present and effectively render the provisions of the new section null and void which is not acceptable. The present system requiring production of a licence within ten days has given rise to practical difficulties. Problems arise in establishing the veracity of personal details given to [1011] the Garda at the time of the demand. Misleading or false information is often supplied, frustrating the process of law enforcement. For example, drivers may give the name of a relative or other person who holds a driving licence. The new requirements will permit the Garda to have immediate proof of the identity of the driver. They may also permit more extensive application of on-the-spot fines as the system could be applied to minor offences for which the driver, as distinct from the owner, is liable.

The Garda are experiencing real problems on this issue and are regularly given false information by drivers. For example, some drivers give the Garda the name and address of a relative who holds a driving licence and some drivers of goods vehicles give the name and address of a passenger for the purposes of avoiding offences under the regulations pertaining to tackographs.

Some fears were expressed regarding this provision by a small number of Members during the passage of the Bill through the Dáil. They tended to the view that the existing powers were adequate. However, this section attempts to deal with circumstances where the law is being frustrated. In this respect a contribution from the public at large is desired to assist in dealing with these problems. One such problem is joyriding; others would be well known. We are all aware of situations where it has been impossible for the Garda to trace those who have committed crimes. This often happens with people who are very mobile in the country.

A task force has considered this issue together with an inter Ministerial committee, chaired by Deputy O'Malley, which strongly recommended this measure in order to assist the Garda in circumstances where they are being frustrated at present.

The provision is not a big burden on the community. The driving licence is small and can fit neatly into a person's wallet or purse. In circumstances where the Garda have a person's identity and have no problems with it, the old system [1012] is the natural way to proceed. However, the new powers proposed by this section are essential if we are to be serious about trying to combat some of the crimes which have down faced the Garda in recent times.

Mr. O'Toole: I raised this issue under section 2 of the Bill. The Minister referred to the small size of the current driving licence. This in itself will mean that it will be shredded from use within six months as people are going to have to be married to it. Whatever the reasons for requiring every driver to keep his or her driving licence with him or her at all times, it is a draconian measure in order to deal with crime. For example, regarding the crime of joyriding, is the Minister presenting this House with the image of a joyrider screeching to a halt and saying to a garda: “Here garda, here is my driving licence”? Joyriders do not stop for gardaí.

Mr. M. Smith: The Senator misunderstands me.

Mr. O'Toole: I accept that there appears to be a misunderstanding. However, the measure will do nothing to stop joyriding. It will only, once again, hurt the innocent. People who were innocent hitherto will now become guilty if they do not have their driving licence with them at all times. People cannot leave their licences in their cars because they may be stolen. Insurance companies have advised that such items should not be left in cars. It is draconian to require people to carry their licence at all times. The reason for this measure is because some people have broken the law and have failed to give correct names and addresses. Surely a garda who suspects he is not getting correct information should be given the same powers contained in legislation which requires a citizen to give a correct name.

I sympathise with what the Minister is trying to achieve. I have heard cases where people when in a different area have given the name of a relative they vaguely look like. I know this has created [1013] problems and was the basis for the argument for having photographs on a driving licences so they would be a type of identity card. However, this is using a sledge hammer to crack a nut. Those guilty of not giving their proper name and not producing a licence within ten days have created a situation where law abiding citizens must carry their driving licence while in charge of a vehicle. I take the Minister's point that it is a small additional burden.

Mr. M. Smith: It is a very small burden.

Mr. O'Toole: It is only a small additional burden until one is found guilty of not being in possession of one's driving licence. I do not know how people will cope. It will place a great demand on people and it is unfair to make them guilty of an offence simply because they do not have their driving licence. There will be resistance to this requirement.

I agree with the thrust of this legislation; it is badly needed and I support what the Minister is trying to do. However, Committee Stage means that all of our comments tend to be directed to negative parts of the Bill, which gives the impression there is antipathy towards the legislation. It is an unfair to expect drivers to have their driving licence with them at all times. I ask the Minister to reconsider this section and remove it.

Mr. Norris: Once again Senator O'Toole has anticipated a lot of what I am about to say. I spoke about this issue on Second Stage and I do so again because I intend to put down an amendment on Report Stage which would delete paragraph (a) and the first section of paragraph (b). This is a barbed principle which will render people guilty of an offence by not carrying a licence. The Minister mentioned it would help prevent joyriding and Senator O'Toole indicated puzzlement at how this might happen. I, too, am puzzled as to how precisely it would help; perhaps it would. I ask the Minister to explain how this provision making an offence of not carrying a [1014] licence would assist in dealing with what is a serious problem, joyriding. If people are compelled to keep their licences with them at all time they will put them in the glove compartment of the car. When the car is stolen, so is the licence. A fair number of car thieves are intelligent and they will look in the glove compartment for a licence to see if it is the appropriate sex. While I am on the topic of the appropriate sex, may I say that this is unreconstructed legislation and the draftsperson is of the opinion the Garda Síochána is entirely male because one is required to submit to “him”. The House has passed the Interpretation Act so I hope this language will be tidied up.

Ms Honan: I support this amendment because the present system is sensible. This requirement will place too great a burden on people to carry a driving licence. It is a serious matter for law abiding citizens to be found guilty of a criminal offence. I never carry my driving licence and I am sure many Members will find it difficult it to have their driving licence on them. One's driving licence will be left in one's car which may be stolen, or it will be constantly lost. I accept what the Minister said about the Garda being frustrated by certain individuals. However, it is outrageous that a law abiding citizen may be found guilty of a criminal offence if they do not have their licence on their person. I ask the Minister to reconsider this section.

Mr. Sherlock: I do not understand the reason for this requirement. In some local areas there is evidence of discrimination, yet we are passing legislation whereby a garda may decide that a person, if they refuse or fail to produce a licence, shall be guilty of an offence. Paragraph (b) states that a garda may require a person to produce their licence within ten days. This legislation also gives a garda power to allow an individual to produce his licence within ten days at a local Garda station. However, if another individual does not produce it on the spot he may be found guilty of an offence unless the garda decides otherwise. The [1015] word “may” should be changed to “shall”. There is no justification for the inclusion of section 25 (1) if a provision is made whereby a garda may ask a person to produce a licence within ten days.

Mr. M. Smith: I remind Senator Honan what Deputy Keogh, the spokesperson for the Progressive Democrats, said in the Dáil. She said:

Part IV of the Bill refers to the carrying of a driver's licence at all times. I was surprised that a number of people reacted against the idea. Ireland is one of the few countries in the world where people do not have to carry a driver's licence.

We must not exaggerate the impact on the community of having to carry a driver's licence. A garda confronted with this situation may prosecute or allow the licence to be produced within ten days. Essentially, it is a way to identify the driver. A number of motions in the Dáil dealt with stolen cars and what the Government is doing about them. The Garda Síochána seek support in the identification process. As soon as we come up with a proposition recommended by the interministerial committee chaired by Deputy O'Malley and try to implement it, there is opposition to it. Fine Gael has not opposed this in either House and I am grateful for that support. It is essential in assisting the identification of people the Garda Síochána are suspicious of. It does not place a burden on the rest of the community. A garda has the discretion to prosecute or to request that the licence be produced within ten days.

If we look at the practicality of this, it is much easier to produce one's driving licence when one is requested to do so than to have to bring it to a Garda station ten days later. From the point of view of administration for an individual, it is a convenient way of dealing with the situation. I am absolutely convinced, on the basis of the report of the interministerial committee which discussed this matter [1016] for over a year and on the advice of the Garda Síochána, that this is essential for dealing with certain problems well known to the House. It is accepted as normal in most countries without any hitches or bother.

Amendment put and declared lost.

Section 25 agreed to.

SECTION 26.

Acting Chairman (Mr. R. Kiely): Amendments Nos. 22 to 24, inclusive, and 39 are consequential on amendment No. 14. Amendments Nos. 15 to 18, inclusive, 20 and 21 are related. Amendment No. 21 is consequential on amendment No. 18. Therefore, amendments Nos. 14 to 18, inclusive, 20 to 24, inclusive and 39 may be discussed together.

Government amendment No. 14:

In page 20, line 29, to delete “Where” and substitute “Subject to subsection (5) (b) of this section, where”.

Mr. M. Smith: These amendments propose a number of changes to the provisions governing consequential or mandatory disqualification orders so as to give a certain level of discretion to the courts in applying the provisions. 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. A number of reservations about these provisions have been expressed during the debate in both Houses. It has been suggested in some quarters that the whole concept should be deleted. My position on this is clear. Mandatory disqualification is not a new concept and I am not prepared to dilute the existing law.

It has also been suggested that some of the longer periods of disqualification [1017] proposed, and the application of the principle to first offences of dangerous driving and uninsured driving, may be excessive, or that there could be cases of technical offences or other special circumstances in individual cases which would not warrant disqualification. I am satisfied that longer disqualification periods are warranted for drink driving offences, dangerous driving causing death or injury and hit and run offences where death or injury is caused. I am also satisfied that the principle should apply to dangerous driving and uninsured driving, both of which are serious offences.

However, I accept that special circumstances can arise in individual cases and, accordingly, I propose to give the courts discretion to cater for such special cases. The effect of the amendments I am proposing is that where the court is satisfied that special reasons or circumstances exist in individual cases, it will have power to decide the following: that the requirement to pass a driving test before a licence is returned will not apply; in the case of a drink driving offence that a shorter period of disqualification may be imposed on a first offence but not less than one year, which is the existing minimum period in all cases; and in the case of first offences of dangerous driving and uninsured driving to apply no disqualification or to apply a shorter period. These amendments cater fully for any special or mitigating circumstances which may arise in individual cases.

Mr. Howard: There has been a slight movement by the Minister to meet the many concerns which have been expressed about the implications of the legislation. I welcome the limited discretion being restored to the courts in relation to some of the penalties. The Minister stated he is not prepared to dilute the existing law. Discretion is being given to the courts if there are special reasons why a person may not be required to pass a driving test before a restoration of his or her licence. Has this general application, irrespective of the period of disqualification?

[1018] Mr. M. Smith: In special circumstances in a first offence case.

Mr. Howard: The Minister spoke about an uninsured driving offence and another offence, which I did not hear correctly.

Mr. M. Smith: In the case of uninsured driving the court may decide to impose no disqualification or a disqualification for a shorter period.

Mr. Howard: The Minister also mentioned a second offence in that category.

Mr. M. Smith: Dangerous driving.

Mr. Howard: I welcome the limited acceptance of the principle of giving discretion to the courts. I hold strongly that it is not right for the Oireachtas to deprive the courts of discretion in most matters which come before them. It is a long accepted principle that the circumstances of individual cases vary. We have judges and juries to consider these circumstances, decide if a penalty is to be imposed and the nature and extent of the penalty in accordance with the circumstances of each case. It is dangerous, and has in many cases proved to be unsatisfactory, for the Oireachtas to prescribe a set level of penalties, irrespective of the circumstances of individual cases.

I would have been much happier if the Minister had gone further in meeting the concerns expressed during the debate in the other House, and shared by many of us here, about other matters related to section 26. I do not want to progress at this stage to the Fine Gael amendment No. 19. There is a relationship between what we are attempting to do and what is being proposed by the Minister. He has taken a short step in that direction, but I encourage him to extend more discretion to the courts and recognise that when we talk about blood alcohol levels which will emerge from urine samples, there is a vast difference between those who are just over the limit and those who are considerably beyond it — and this may apply especially in the case of first [1019] offences. We are not prepared to extend discretion to the courts in relation to most levels of alcohol; we should at least be prepared to look at a system of grading. I recognise, Sir, that I am probably straying into amendment No. 19.

Mr. O'Toole: I appreciate the movement which the Minister has made with these amendments which has eased the situation somewhat. I support much of what Senator Howard has just said about the need for grading. The movement which the Minister has made gives a level of discretion to the courts. It does not meet all of the issues which I raised on Second Stage but it creates a level of discretion between finding a person guilty and implementing a sentence which I think is important in the workings of the Judiciary.

Ms Honan: I thank the Minister for moving some way towards what we have requested. It is important that the court has discretion because, as Senator Howard pointed out, no two cases are the same. It would be undesirable for the discretion to be taken away from the judges.

Acting Chairman: Is the amendment agreed to?

Senators: Yes.

Acting Chairman: Amendment No. 15 has already been discussed. Is it being pressed?

Mr. Howard: We are dealing with a complicated measure and I appeal to the Chair to give me the opportunity to establish exactly where we are.

Mr. M. Smith: It is to make disqualification permissible rather than mandatory.

Mr. Howard: The Minister has gone part of the way on that so I will not press the amendment.

[1020] Amendment agreed to.

Amendments Nos. 15 and 16 not moved.

Government amendment No. 17:

In page 20, to delete lines 51 to 53, and substitute the following:

“period and, unless the court is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his particular case such that it should not so operate, thereafter until he has produced to the appropriate licensing authority, as may be specified in the order, a certificate of competency or both a certificate of competency and a certificate of fitness.”.

Amendment agreed to.

Government amendment No. 18:

In page 21, line 1, to delete “The” and substitute the following:

“(a) Subject to paragraph (b) of this subsection, the”.

Amendment agreed to.

Mr. Howard: I move amendment No. 19:

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, subject to the discretion of the courts,

(2) 12 months where blood alcohol exceeded 100-150 milligrammes per millilitre, subject to the discretion of the courts,

(3) 18 months where blood alcohol exceeded 150-300 milligrammes per millilitre, and

[1021] (4) 2 years where blood alcohol exceeded 30 milligrammes per millilitre;

and to double those stated periods in the case of a second or any subsequent conviction for an offence under the same section.”.

Acting Chairman: I think that Senator Howard has already spoken on this amendment but we will give him an opportunity to speak on it again.

Mr. Howard: I have not already spoken on this amendment.

Acting Chairman: The Senator did not say all that he wanted to say.

Mr. Howard: I felt that there was some overlapping which I was endeavouring to explain and I was responding generously to very tentative steps which the Minister had taken. I was hoping that I might encourage him to extend——

Mr. M. Smith: The conversion process is both ways.

Mr. Howard: ——his tentative steps in facilitating what we are seeking under this amendment. By reducing the blood alcohol level from 100 milligrammes to 80 milligrammes the Minister is creating a new category of criminals who are currently operating within the law. I recognise that the 80 milligrammes level applies in a number of European countries but it is a level which is easily reached. Certain tests have shown that people can reach that limit by having a meal in a restaurant. For example, if brandy was used in the cooking of the meal and the person consumed one glass of wine——

Mr. M. Smith: I thought we had moved on from that,

Mr. Howard: ——no, we are still there — and a sherry trifle they could reach that limit.

[1022] Mr. Finneran: Tell us the name of the restaurant.

Mr. Howard: Yesterday, the Minister described the deterioration which sets in after a certain point in the reflexes and capacity of a person to make coherent decisions.

Mr. Dardis: Is that by virtue of age or of alcohol?

Mr. Howard: By virtue of taking a little drink. I felt that it was almost implicit in what he was saying that when he and his colleagues adjourn a Cabinet meeting for lunch, perhaps they should go through the process of breathing into the breathalyser before resuming business because of the deficiencies created by the consumption of a few glasses of wine.

Mr. M. Smith: The Senator is obviously not up to date. There is no such thing as adjourning Government meetings. That was done under a previous Taoiseach when there was a number of adjournments but there is no such thing now.

Mr. Dardis: They just keep drinking now.

Mr. Howard: The deterioration in a person's judgment to which the Minister referred and which could be caused by the content of——

Mr. M. Smith: The problems at that time used to drive them to drink.

Mr. Howard: In order for the Minister to be consistent he should consider that option. I am seeking in this amendment to make the penalty fit the crime. There should be special recognition for people who come within the category of 80-100 milligrammes and who are operating perfectly legitimately at the moment which is why I have sought to obtain graded penalties. Subject to the discretion of the court, a person with a blood alcohol level of between 80 and 100 milligrammes per [1023] millilitre should not be disqualified for more than six months.

A great deal was said yesterday, especially by the Minister, in relation to the norm in Europe. According to information available to me, the norm in Europe and North America is that there are graded penalties depending on the amount of alcohol. In some countries, penalties depend on the time of day at which the detection occurs.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. Howard: The point I made earlier was that justice demanded that, as far as possible, the penalty should fit the crime. The lower limit — which is currently 100 milligrammes per millilitre and after the passage of this legislation will be 80 milligrammes per millilitre — represents less than two pints. When we move up the scale, we find that the Minister is proposing the same penalty level for a person caught driving having consumed two pints as for one who has taken 20 pints. The scale of penalties should reflect the level of alcohol in the bloodstream.

In the case of a first offence under this section, my amendment proposes to set the period of disqualification at “6 months where blood alcohol exceeded 80-100 milligrammes per millilitre, subject to the discretion of the courts.”. I inserted the words “the discretion of the courts” in this category and the next because it is fundamental we recognise that every case is different. The courts should be provided with the opportunity to judge each case on the unique circumstances pertaining to it.

This amendment proposes that disqualification would be for a period of “12 months where blood alcohol level exceeded 100-150 milligrammes per millilitre, subject to the discretion of the courts.”.

My amendment also proposes a third penalty level, which would cater for a disqualification period of “18 months where blood alcohol level exceeded 150-300 milligrammes per millilitre.”. [1024] Despite my commitment in giving discretion to the courts, I am prepared to exclude it for both this and the next categories. A person who has deliberately consumed in excess of, or within, the limits contained in the third and fourth categories are a menace to themselves and to every other road user. Such a person does not deserve this sort of protection. These levels of penalties would apply in the case of a first offence. These penalties should be doubled for second or subsequent convictions for a drink driving offence.

We referred to the norm in other countries in relation to the level of alcohol at which an offence occurs. Having a greater level of penalties is also the norm in many other countries, especially since it is proposed to reduce the level of alcohol in the bloodstream from 100 milligrammes to 80 milligrammes per millilitre.

This amendment is reasonable and would reflect our reaction to the differing alcohol levels. The third and fourth categories would be a recognition by us of the discretion that could be applied by the courts. All offences should be judged on the circumstances. However, I would make an exception for the third and fourth categories.

Mr. M. Smith: Senator Howard's amendment proposes that the period of disqualification should be graduated, depending on the level of alcohol in the driver's body. When preparing this Bill, we looked carefully at the question of graduated penalties, which is defined as the range of penalties depending on the extent to which the driver is over the limit. Unfortunately, we had to reject that concept.

Graduated penalties would inevitably result in legal challenges to the precision of the analysis of specimens. A driver with an alcohol rating of 101 milligrammes per millilitre would face a greater penalty than one with a reading of 100 milligrammes. This would most certainly invite legal challenges to the accuracy of the results and I have been [1025] advised that such a challenge in those circumstances may be successful.

Apart from the mandatory disqualification element, the courts have full discretion to decide on appropriate penalties. The courts may decide the level of any fine or if a term of imprisonment is appropriate. They can also impose longer disqualification where they decide the circumstances warrant a more severe penalty. The bottom line is that the real risk of a successful legal challenge on the basis of the precision of the results of analysis requires me to oppose different automatic penalties for different alcohol levels. At present, it is only necessary to prove the person's alcohol level is in excess of the legal limit.

To ensure there is no doubt in borderline cases, the Medical Bureau of Road Safety deducts a tolerance from the results of all specimens analysed and the reduced level is the official result of the analysis. The period specified is the minimum for anyone over the limit. If a person is twice the limit, the courts can double the penalty period. I am aware of cases where persons who were twice or three times over the limit have been disqualified for periods up to ten years. The bottom line, as I have explained on numerous occasions in the other House and on Second Stage in this House, is that the prospect of successful challenges in the courts would be very much on the cards where graduated penalties were to be the norm.

Mr. Enright: The Minister seems to be concerned with the difficulties of enforcing our amendment. The Medical Bureau of Road Safety issued a certificate specifying precisely the figure at which a person would be either over or under the permitted limit. It can range from 40 milligrammes per millilitre to 400 milligrammes per millilitre. There should be no difficulty accepting this amendment. I urge the Minister to accept this concept of a graduated approach.

I will give a simple example. A widow who rarely took a drink attended a function and was breathalysed on her way home. She lived about four miles from a [1026] town. Her alcohol level was 105 milligrammes and she was suspended for 12 months. She has been unable to get insurance and had to move from the country into town. That is only one case of hardship which did not involve an accident. The woman had been at a function and had one or two glasses of wine. The use of a graduated system is common sense. Where people are flouting the law by drinking to excess and driving, this measure will penalise them. The system will benefit people who are barely over the limit and happen to be on the wrong side of 80 milligrammes — they might be 81 or 82 milligrammes — by disqualifying them for a shorter period of time.

The Minister made a relevant and important point about the number of accidents and horrific deaths that occur because of drink. We are all making a genuine effort to reduce the number of such accidents. However, it is part and parcel of everyday life for people to have a social drink. People attend card games in licensed premises or hurling and football matches and have one or two drinks. People attend meetings night after night and have a social drink afterwards. If the limit is reduced to 80 milligrammes and people are disqualified for one and two years, it will have a serious detrimental effect on life in rural Ireland. The point is made that people can get taxis home. That may apply in cities and large towns but it does not apply in rural areas as there are no taxis available and there is no way for these people to get home. It will cause major problems in rural Ireland and lead to the closure of a number of pubs in smaller villages and rural areas.

The recommendations are phrased to allow a tolerance level. Yesterday the Minister spoke about when the present Tánaiste said that “two will do” when he was Minister for the Environment. This Minister is saying that two will no longer do. One or two drinks is part and parcel of living. If we were to be strict about regulations, we should not allow people who are tired to drive. People who have a big meal and drive are likely to fall asleep but one cannot control that as one [1027] cannot test a person to see if they are after over-eating.

We are trying to introduce a practical measure. A judge can read the certificate from the medical bureau which will specify exactly the amount by which the person is over the limit. The judge can then impose the penalty relevant to that amount. The Minister instanced cases which involve accidents. There are penalties, fines and suspensions to deal with these. The person will be charged with dangerous driving and a range of other offences. The judge has the opportunity to ensure that the person is convicted of drunken driving but also dangerous driving and other offences. The State will have sufficient weapons in its armoury to ensure the person is penalised. The amendment reflects common sense and practicality and could be implemented by the court without difficulty.

Mr. Dardis: The nature of the social activity being conducted is irrelevant. What is relevant is the amount of alcohol consumed. I accept what Senator Enright said about somebody going for a game of cards but people who go for a game of cards sometimes consume too much alcohol just as people who go for a game of cards sometimes do not consume any alcohol. I would divorce the activity from the amount of alcohol. The latter is what is relevant to this argument.

Having said that I support the idea of graduation. I listened to the Minister's response in terms of the legal challenges which might arise about the level being 101 milligrammes as compared to 100 milligrammes. The law has set minimum limits which are established at, for example, 80 milligrammes per millilitre of blood. If we have a minimum limit, why can we not have graduated limits? What is the difference between a minimum limit and graduated limits when one is establishing what the level of alcohol is through scientific procedures? Yesterday I mentioned the inaccuracies that might arise in breath testing. I am sure inaccuracies can arise in the analysis of blood and urine. However, if there is a [1028] minimum, why is it impossible to have penalties related to other limits at different levels?

I have another question which I suspect has been asked before and I apologise if this is the case. Do we know what the background level of alcohol in a person's body is? We all have a certain amount of alcohol in our bodies; that is part of our metabolism. Is there any evidence as to what the background level is? It was used as an argument against having a zero limit. One could stipulate that people should not consume any drink but one could not insist on a zero level of alcohol. I ask if there is an answer to that question.

Mr. M. Smith: I have no experience of the day-to-day work of a solicitor in a rural town. On the basis of experience given by Senator Enright, if the community were acting in the way he seems to consider they are, we would not have the problem we are facing in terms of trying to combat drink driving and problems related to accidents. I examined this question carefully when we were preparing the Bill. I appreciate the sense of equity in Senator Howard's proposals but he will agree that no legislation passed by successive Governments has been challenged in the manner that drink driving legislation has been challenged. I am happy to accept solid and constructive challenges based on reality. However, in many cases the nature of the technicalities on which judgments were based to enable people to escape natural justice have been of a very peculiar order. This Bill set out to close those loopholes and there has been unanimous agreement on all sides of the House as to the desirability of doing that. It is not the only thing the Bill is doing — I do not pretend that — but a major component in the philosophy of the Bill is to close off those loopholes.

I am advised in the strongest way possible by the Attorney General that if we were to have graduated penalties, despite what Senator Enright has said, the question of mounting a legal challenge would certainly be on the cards in circumstances where there was a very considerable difference in the penalty range between [1029] offenders and where the difference in alcohol levels was just one milligram, in the case of, say, one offender at 100 mg per 100 ml and the other at 101 mg. We are now down to exact precision in the courts. I have already said, and Senator Enright knows this from his own experience, that the tolerance level is allowed by the medical bureau in order that its certificates could not be challenged. We would be opening the door here to the possibility of successful challenges in circumstances where an offence is committed.

Where a person is found to be over the limit, there are penalties. These penalties are graduated by the court depending on the circumstances, as I outlined earlier. For people who are twice or three times over the limit, the court can opt for a more severe penalty and that happens. In many ways I would like to be able to accommodate the Senator, but I regret I am advised that this would create a situation where types of challenges which have been successful in the past dealing with aspects of current road traffic law would be successful again. People have gone free in circumstances where many of us would feel they were culpable; and were I to accept that amendment, I would be adding greatly to that list of possibilities.

As far as Senator Dardis's point is concerned, there is a minuscule level of alcohol in every body. I cannot give the exact range, it would depend on many factors; but there is no question of it being a significant factor in determining whether a person is over the limit. We have set the limits beyond any possibility that a person could be found to be over the limit in circumstances like that. In accepting this amendment we would with the best will in the world be adopting a system which would be open to successful challenge in circumstances where that is not the wish of the proposers here today. It certainly is not my wish and for that reason I have to reject the amendment.

Mr. Howard: The Minister in the course of his reply recognised that I was seeking equity and I appreciate that. If I [1030] understood him correctly he said that he would be inclined to do the same if it were possible for him. We are debating this in a constructive atmosphere today; I am not saying that we were not constructive yesterday but there was more flak flying about the place.

The Minister has responded on two different matters that were a cause of concern to us and to quite a number of people. He has undertaken to examine section 22, the possibility of awarding the costs of court cases against a defendant, between now and Report Stage next week. He has also responded by putting down his own amendments on the matter of discretion of courts in respect of certain aspects of the legislation. While he is permitting only a limited amount of discretion, he is responding to wide felt fears. On two issues he has attempted to meet the genuine reservations of quite a number of people. Report Stage is next week. I invite the Minister in the few days that are available to him to look again at what we are attempting to achieve here.

I understand what the Minister has said about legal challenges to the position of the results of analysis. He has also spoken about the unusual number of legal challenges that have been mounted to drink-driving legislation over the years, and I accept that. Part of the reason for that is due to the severity of the penalty that is incurred in the loss of a licence. Disqualification from holding a driving licence can often mean the loss of livelihood and it is only reasonable to expect that people who are confronted with the loss of their livelihood or business will seek by whatever legitimate means are open to them to preserve that livelihood or business. While there are other penalties which the court can impose in relation to the level of fines and imprisonment and so on, there can be no question that the disqualification and the loss of a driving licence, in some cases resulting in the loss of a business or a livelihood, is the greatest of those. There are certain senses in which I support that. I seek at the lower levels to have either [1031] discretion at court level or to have the shortest possible term there.

I will conclude on the question of borderline cases, threshold limits and precision, which are all linked. If the advice available to the Minister is that he cannot accept the graduated level of penalties because of the risk of a successful legal challenge to these thresholds, does that not hold good in relation to the minimum level of 80 mg per 100 ml which he is proposing? If other levels are capable of being challenged and the Minister fears successful challenge, then it automatically follows that the level of 80 mg per 100 ml can also be successfully challenged. I suggest to the Minister that having responded positively in two other areas to reservations there, he might again use the number of days between now and Report Stage to check if it is possible to incorporate in this legislation the equity which he recognises I am trying to achieve and with which he sympathises to a degree.

I do not want to be controversial about this matter, but the Government has received legal advice which has, on occasion, taken it by surprise. I would appreciate it if the Minister would ask his advisers between now and Report Stage to reconsider the advice they have given him. If they advise that successful challenges can be mounted to the provision of certain thresholds, then that must also hold true in relation to the threshold of 80 milligrammes which he is incorporating in this legislation.

An Cathaoirleach: I ask the Senators to be brief because we have spent a long time discussing this amendment.

[1032] Mr. Cosgrave: It is an important section.

Mr. Enright: This is an important amendment. In regard to the Minister's fears of a legal challenge to this amendment, I am sure the Minister will agree that the Supreme Court, in particular, has tried to ensure that the laws we have made here are practical and workable. The court was most helpful in closing many loopholes and it tried to ensure that these Acts worked because they were important. Similarly, if a frivolous challenge was brought against the amendments we have tabled I believe the Supreme Court would reject it.

We are anxious to target people who are drinking above a certain limit or are drinking excessively. We do not want to penalise the person who has a social drink to the same extent as someone who drinks to excess and whose driving is impaired. This amendment affords an opportunity to the courts to ensure that someone who is barely over the limit — perhaps they have taken one or two drinks — should only be suspended for six months. However, if someone's blood alcohol level exceeds 250 milligrammes, the penalty should be 18 months or two years. I am sure everyone agrees with this.

The Garda Síochána has done a good job. It has used common sense in the implementation of the road traffic legislation, particularly in relation to drunken driving. Sufficient powers exist and this amendment would be a step in the right direction to ensure equity and practicality in the law.

Question put: “That the words and figures proposed to be deleted stand.”

The Committee divided: Tá, 22; Níl, 17.

Bohan, Eddie.

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

[1033]Kiely, Dan.

Kiely, Rory.

Lanigan, Mick.

Lydon, Don.

McGennis, Marian.

Finneran, Michael.

Fitzgerald, Tom.

Gallagher, Ann.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

[1034]Mullooly, Brian.

O'Brien, Francis.

Ormonde, Ann.

Townsend, Jim.

Wall, Jack.

Níl

Belton, Louis J.

Cosgrave, Liam.

Cotter, Bill.

D'Arcy, Michael.

Dardis, John.

Doyle, Joe.

Enright, Thomas W.

Farrelly, John V.

Honan, Cathy.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Norris, David.

Reynolds, Gerry.

Sherlock, Joe.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Mullooly and Wall; Níl, Senators Cosgrave and Doyle.

Question declared carried.

Amendment declared lost.

An Cathaoirleach: In the interests of correctness I must tell the House that I understand the Minister accepted four consequential amendments which should have been moved on amendment No. 18. These are simply renumbering paragraphs (a), (b), (c) and (d) as sub-paragraphs (1), (2), (3) and (4). Is that agreed? Agreed.

Amendment No. 20 not moved.

Government amendment No. 21:

In page 21, between lines 17 and 18, to insert the following paragraph:

“(b) the period of disqualification specified in a consequential disqualification order shall, where the person to whom the order relates is convicted of an offence under—

(i) section 49 or 50 of this Act, or

(ii) section 13, 14 or 15 of the Road Traffic Act, 1994,

and the court is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his particular case to justify such a period, be less than 2 years but no less than 1 year in the case of a first offence under the section concerned.”.

Amendment agreed to.

Government amendment No. 22:

In page 21, line 18, to delete “The” and substitute the following:

“(a) Subject to paragraph (b) of this subsection, the”.

Amendment agreed to.

An Cathaoirleach: As the Minister has explained, acceptance of amendment No. 22 requires drafting amendments regarding the renumbering of paragraphs (a) and (b) to sub-paragraphs (i) and (ii). Is that agreed? Agreed.

Government amendment No. 23:

In page 21, between lines 28 and 29, to insert the following paragraph:

“(b) where a person is convicted of an offence under—

(i) section 53 of this Act tried summarily, or

[1035] (ii) section 56 of this Act,

the court may, in the case of a first offence under the section concerned, where it is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his particular case to justify such a course—

(I) decline to make a consequential disqualification order, or

(II) specify a period of disqualification in the consequential disqualification order of less than 1 year.”.

Amendment agreed to.

Government amendment No. 24:

In page 22, to delete lines 18 and 19, and substitute the following:

“annulled on appeal unless—

(a) the conviction by reference to which it was imposed is reversed, or

(b) the provisions of subsection (5) (b) of this section apply.”.

Amendment agreed to.

Question proposed: “That section 26, as amended, stand part of the Bill.”

Mr. Enright: Why is the Minister introducing a provision that requires a person to pass a driving test? I am concerned about the person who, having been disqualified for two years and having lost his or her job, must do the driving test in order to get his or her job back. According to the section the person will be prevented from holding “any driving licence whatsoever...”. Would the Minister clarify that provision?

People between the ages of 18 and 50 years will not have much difficulty passing a driving test. However, older people may. How far will this provision [1036] extend? The word “whatsoever” is included. Will the person be entitled to get a provisional driving licence in the interim? Will the person be permitted to drive a car if accompanied by a qualified driver?

Mr. M. Smith: The question of a provisional licence does not arise until after the minimum period. It would not make sense to have an order from the court disqualifying a driver and requiring the driver to do the driving test again if a provisional licence was to be the replacement. In my amendments I have given discretion to the court to decide the special circumstances in which this would or would not apply. It will be up to the court to decide. The Senator is asking me what circumstances would obtain which would necessitate this. Clearly that is related to the driving competency, judgment and other factors which led to the accident and it should be determined by the court.

Mr. Cosgrave: The Minister is aware that section 53 offences can be reduced to section 52 offences. Consequently, there is a new section 51A which is a slightly lesser offence. However, it appears that in this legislation there is no provision for a reduction of a section 52 offence to a section 51 offence. It was apparently omitted under the previous Act. Would the Minister consider this matter. On Report Stage I might propose the introduction of a new section. It makes sense that if a section 53 offence can be reduced to a section 52 offence, it should have been possible to reduce a section 52 offence to a section 51 offence. A person convicted of a second minor driving offence within three years would face disqualification. Perhaps the Minister would take this on board.

Mr. M. Smith: Amendment No. 40 deals with that question and it will be discussed later.

Question put.

[1037][1038] The Committee divided: Tá, 23; Níl, 16.

Bohan, Eddie.

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

Finneran, Michael.

Fitzgerald, Tom.

Gallagher, Ann.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

Kiely, Dan.

Kiely, Rory.

Lanigan, Mick.

Lydon, Don.

McGennis, Marian.

Mullooly, Brian.

Norris, David.

O'Brien, Francis.

Ormonde, Ann.

Townsend, Jim.

Wall, Jack.

Níl

Belton, Louis J.

Cosgrave, Liam.

Cotter, Bill.

D'Arcy, Michael.

Dardis, John.

Doyle, Joe.

Enright, Thomas W.

Farrelly, John V.

Honan, Cathy.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Reynolds, Gerry.

Ross, Shane P.N.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Mullooly and Wall; Níl, Senators Cosgrave and Doyle.

Question declared carried.

SECTION 27.

Question proposed: “That section 27 stand part of the Bill.”

Mr. Dardis: This provision would appear to be standard in legislation. Nonetheless why have a penalty if it is to be subject to review and may be reduced from two years? If the court imposes a defined procedure why is there a procedure to look at the sentence again? I do not understand the logic.

Mr. M. Smith: I think Senator Dardis understands the logic of this perfectly well. Our discussion over the last two days has been much concerned with giving discretion to the court. This provision adds to its discretionary power in these instances. They may or may not use it.

Mr. Enright: This section is to be welcomed.

Mr. M. Smith: My system has been thrown into shock by the Senator's support.

An Cathaoirleach: Can we go home now?

Mr. Enright: This section is worthy of inclusion. If a person pays his fine, conducts himself properly and perhaps takes a course of treatment for alcoholism that may have been prescribed and if a court feels the licence should be restored, that can be done under the section. This is welcome.

Mr. M. Smith: There may be some small benefit for the legal profession also.

Question put and agreed to.

Section 28 agreed to.

[1039] SECTION 29.

Question proposed: “That section 29 stand part of the Bill.”

Mr. Howard: The section states that where a person is disqualified by a court from holding a driving licence, before he applies for a full licence he must undergo a driving test. However, the section seems to indicate that the person can apply for a provisional licence. I understood from the earlier discussion that was not the case and that a test was necessary before obtaining a provisional licence.

Mr. M. Smith: At the end of the disqualification period a person may apply for a provisional licence. That is covered under the provision.

Mr. Howard: Can that person continue on the provisional licence?

Mr. M. Smith: Yes, at the end of the disqualification period.

Mr. Enright: When a person has been suspended he can, after the period of disqualification, apply for a provisional licence?

Mr. M. Smith: Yes, pending his passing the driving test.

Mr. Enright: Will that person then be entitled to drive as if he was a first time holder of a licence, as long as he is accompanied by another person?

Mr. M. Smith: What is the Senator's experience of provisional licence holders?

Mr. Enright: They always travel with qualified drivers.

Mr. M. Smith: Perhaps the Senator should not say always.

Mr. Enright: The people in question [1040] here will be entitled to travel as normal drivers?

Mr. M. Smith: Yes.

Mr. Enright: Under the earlier section such a person would have no driving licence.

Mr. M. Smith: That was during the period of disqualification.

Question put and agreed to.

Section 30 agreed to.

SECTION 31.

Question proposed: “That section 31 stand part of the Bill.”

Mr. Dardis: This section inserts a new section 44B into the Principal Act and it mentions “70 miles per hour”. When will we start talking of kilometres per hour? The figures in the earlier part of the Bill are metric; they refer to milligrammes per millilitre. The country is supposed to become metric at some future date.

Mr. Belton: Does the 70 miles per hour limit apply to all roads?

Mr. M. Smith: No, only to motorways.

Mr. Belton: Does it apply to all traffic?

Mr. M. Smith: No, there are different limits for articulated trucks and buses. Seventy miles per hour is the maximum limit.

Mr. Belton: I ask the Minister to outline those limits in his reply. In an emergency it would be impossible for larger vehicles to pull up in the same distance as an ordinary car, so the limit should be much smaller. There is often a problem with the enforcement of limits. The Minister's Department is not responsible for the enforcement; that is a matter for the Garda and the Department of Justice. In many of our smaller towns the 30 miles per hour speed limit is not being [1041] observed. The Minister should use his influence to improve that position. It is easy to say the Garda should impose more penalties and fines, but people do not slow down when travelling through villages.

Perhaps the Minister should use the Department to highlight this fact for the public. In some urban areas the traffic is so heavy drivers have to slow down, but that does not apply in these villages. The places affected by this problem have schools and post offices. The Leas-Chathaoirleach should know this as he comes from a rural area. It is fine for us to talk about speed limits but the real issue is to ensure that those limits are imposed and that the public respect them. Speed causes more accidents than anything else.

Mr. Dardis: I am sorry I asked.

Mr. Cosgrave: I support my colleague, Senator Belton's comments on speed limits. I ask the Minister to outline the speed limits for articulated trucks, large vans and buses. People driving articulated trucks know that unless they are most unlucky they will not come off second best in an accident. Some of them drive on roads and highways as if they were the only people on the road. It is time something was done about speed limits, particularly with regard to articulated trucks.

Mr. McDonagh: Following the lively and constructive debate over the last two days, this might be an opportune time for the Minister to relaunch a nationwide campaign to make people aware of the great danger of speeding. It is accepted that many accidents, if not most, are caused by speed. It is also the case that speed limits are not observed on our roads. For example, there is a speed limit on the main Galway-Tuam road. I observed the 30 mph limit the other day yet four cars passed me although I was barely under 30 mph. By the time I left the speed limit zone I could not see one of those cars ahead of me. Somebody was breaking the limit. It would be a [1042] worthwhile exercise at this time of the year, before we come into the busy summer period, to remind people of the danger on our roads and the importance of observing speed limits. I await the Minister's response regarding the speed limit for buses and service vehicles.

Mr. M. Smith: The speed limit for single deck buses is 50 mph and 40 mph for double deck buses and goods vehicles. I am glad this matter has been raised because it affords me an opportunity to make a number of points.

The main emphasis of the debate on this Bill, in both Houses, has been on drink driving. However, the House will be aware that the Bill also covers increased penalties for dangerous driving and affords local authorities the opportunity of more autonomy in terms of how they deal with problems related to traffic calming at schools, etc. It is correct that a significant proportion of overall traffic exceeds speed limits; it is also correct that speed causes more accidents than any other element as far as our transport network is concerned. Approximately 33 per cent of accidents and deaths are associated with drink driving, and if one adds another 40-50 per cent where speed is a factor, the level of drink driving and speed related accidents is over 80 per cent. This is why the Bill seeks to deal in the same way with dangerous driving and drink driving offences.

Regarding the national road safety campaign, there have been a number of attempts to further educate the public but there is plenty of room for improvement. The greater sophistication of Garda instrumentation, such as speed guns and the introduction of speed cameras, will help in an effective way. Notwithstanding that, we have all experienced the situation where 30 mph and other limits were ignored. In terms of the legislative framework, the educational programmes we are promoting, the road safety campaign itself and enforcement, which is critical, we will continue to ensure that there is better adherence to road traffic laws and rules by motorists and by drivers of heavy vehicles. Senators are correct to [1043] raise this point but if they look at the Bill in general they will note that it contains a number of elements which will help to combat the problem.

Mr. Dardis: What about the question of metric versus imperial?

Mr. M. Smith: The aim is to complete the implementation of a comprehensive metric system. If all the necessary resources were available that would happen quickly. We are moving towards that in most of the new developments that are taking place. Resources have been provided to local authorities to continue the completion of the scheme. However, in fairness, it will take a few more years before there is a comprehensive metric system in place.

Question put and agreed to.

Section 32 agreed to.

SECTION 33.

Mr. Cosgrave: I move amendment No. 25:

In page 25, between lines 2 and 3, to insert the following:

“(b) the local authorities referred to in paragraph (a) shall, in particular, specify a special speed limit, in respect of all of the roads in its area of the kinds specified in that paragraph, which are located at or near schools within their functional area.”.

This amendment provides that, in certain areas, there should be special speed limits, particularly near schools where children gather and where there are many cars, even if only twice a day. This might also apply at other places where the public gather, such as churches. However, the intention is to protect school children in particular. We will deal with a couple of sections in the Bill where the question of trying to improve road safety arises, aside from various matters [1044] which have already been discussed and which, to a certain extent, speak for themselves. Road safety involves a number of areas, including drivers and their conduct, pedestrians and the role local authorities could and should be playing. Does the Minister see validity in special speed limits in certain areas, which would ensure that safety precautions are taken? There are many areas where children are dropped off from buses and congregate near schools.

Mr. McDonagh: I support Senator Cosgrave's remarks regarding safety adjacent to schools. I understand that the Department of the Environment has made a certain allocation to counties for traffic lights at schools. Last year, my own county was allowed to put up three lights at three schools around the county which is welcome. However the funding available for this kind of measure is meagre and insufficient. I understand that in 1994, Galway Council will be allowed to erect three more traffic lights of this kind adjacent to schools. This is a welcome development, especially on the national primary and secondary routes. I hope the Minister will appreciate that this is a worthwhile scheme and make greater funding available to the county councils around the country so that many more safety-type warning lights can be erected at national schools.

Restrictions on traffic should be imposed on large housing estates. Controls, such as ramps, should be used. In this way many accidents could be avoided and damage greatly reduced. It is a fact of life that so called joyriders often career through built up housing estates to the great danger of children and adults.

I do not wish to appear parochial, but in the Renmore area of my own city Galway, an experimental ramp is currently in vogue and is proving successful. I hope many other cities, corporations and councils around the country will examine this experimental ramp control system and establish similar schemes and I ask the Minister to have his officials take cognisance of the success of this system.

[1045] Safety within housing estates is a most important issue, as is safety adjacent to schools, already outlined by Senator Cosgrave.

Mr. Belton: I agree with Senator McDonagh. This issue is being dealt with under the traffic-calming provisions of section 38 which will be addressed later.

May I ask the Minister to explain the difference this legislation will make to local authorities? As a member of a local authority I can testify that heretofore there have been many occasions when councillors have requested that speed limits be extended as a village or town has expanded. In such circumstances the local authority could not act on such requests until the matter was raised with the local gardaí. For example, the superintendent would meet the local authority every two years or so and such matters were discussed. The Garda would then impose the desired speed limits. It appears that the local authority will now have more flexibility and will be in a position to act faster.

An Leas Chathaoirleach: I must remind the Senator that he has moved away from the amendment. His remarks are more relevant to section 33 than the amendment before the House, which specifically refers to schools.

Mr. Belton: I note your remarks, a Leas-Chathaoirligh. Does this mean I am unable to address the section?

An Leas Chathaoirleach: The House will consider the section shortly. It must deal with the amendment first.

Mr. Belton: With all respect and apologies to you, a Leas Chathaoirligh, I was not advised of this. I was dealing with the section.

[1046] An Leas Chathaoirleach: However, Senator, the House is dealing with the amendment.

Mr. Belton: I accept that.

Mr. M. Smith: I readily understand Senator Cosgrave's anxiety to improve this legislation, but the effect of his amendment would be to lessen the autonomy of the local authorities regarding the provisions of the Bill. If special speed limits are required on roads near schools, the local authorities can, under this section, provide for those limits. There are a number of ways in which local authorities can provide advance warning at approaches to schools, including special signs incorporating flashing lights, the application of restrictions on parking, the special new system which applies a total ban on stopping at school entrances and which is now available for experimental use in Dublin, the introduction of a school warden service at senior or junior level where necessary and the application of appropriate traffic-calming measures.

The amendment is unnecessary and restricts the autonomy of the local authorities. The overall thrust of my proposals is to give greater autonomy to local authorities to decide what is the best and most appropriate action to take.

Regarding the use of calming measures and the effectiveness of road signs, it has been found elsewhere that there must be a combination of calming measures, traffic signs and a number of other elements put together to make them effective.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendment Nos. 26 and 31 are related and may be discussed together.

Government amendment No. 26:

In page 26, line 16, to delete “Minister” and to substitute “National Roads Authority”.

[1047] Mr. M. Smith: Amendments Nos. 26 and 31 are proposed consequent upon the enactment of the Roads Act, 1993 and the establishment of the National Roads Authority. The effect of the amendments is that the local authorities will seek the consent of the NRA rather than the Minister regarding speed limits or traffic calming measures affecting national roads or motorways.

In view of the general role of the NRA provided for in the Roads Act, 1993, it is appropriate that these functions would be vested in the NRA rather than the Minister.

Amendment agreed to.

Section 33, as amended, put and agreed to.

Section 34 agreed to.

SECTION 35.

An Leas Chathaoirleach: Amendments Nos. 27 and 29 are related and both may be discussed together.

Mr. Cosgrave: I move amendment No. 27:

In page 27, subsection (2), between lines 13 and 14, to insert the following:

“(b) specifying rules for the wearing of fluorescent apparel;”.

Mr. M. Smith: Amendments Nos. 27 and 29 raise similar issues, for example, the wearing of helmets and the use of reflective material to make cyclists and pedestrians more visible at night. These are desirable practices and are strongly recommended. The National Safety Council actively promotes their use and they are also recommended in the Rules of the Road booklet.

Having a statutory compulsory requirement is a separate question. The issue of types of clothing or equipment is not relevant to traffic regulations. If a [1048] compulsory requirement is to be introduced, it should be done under regulations governing equipment and use of vehicles. A provision already exists under section 11 of the Road Traffic Act, 1961, empowering me to make regulations requiring pedal cyclists to wear helmets or reflective material.

However, having considered the matter in some detail, I remain convinced that it is not practical to make it a legal requirement. There are very few places in the world where it is a compulsory requirement. The practice elsewhere has been to try to generate, through educational and promotional activity, acceptance by the public of the need for this. The imposition of an absolute legal requirement is not the way to proceed.

There is broad agreement on more use of these safety measures. Requiring the Garda to arrest somebody or deal with children would appear to be a rather draconian way to approach this problem, but we will do our best in the promotional programmes available to us to encourage parents and especially young people to wear helmets.

Mr. Cosgrave: I understand what the Minister has said, but we must promote road safety. Drivers who have not taken a drink often come across cyclists, in particular, who are contributing to the unsatisfactory situation on the roads at present by wearing dark clothes or having only a small light on their bicycles. People should wear armbands, fluorescent jackets or strips, etc. Lorries must be well lit and people are often pulled up for having a broken tail light or no light on their bicycles. People have-a duty in regard to road safety. Motorists driving slowly in bad weather conditions find it difficult to see what is ahead. Pedestrians and cyclists are not being helpful if they cannot be seen.

We seem to follow other European countries in regard to some aspects of road safety. Why do we not take the lead in this regard? Road safety is an aspect [1049] of Irish life which is only highlighted now and again — I am not saying this is the Minister's wish — and we must be made more aware of it. Although this is not entirely related to this amendment, what is the Department doing to promote road safety in schools? Is it advising young and old people to wear something which makes them visible? Motorists who have not taken a drink are often involved in accidents which could have been avoided if pedestrians and cyclists paid more attention to road safety.

Mr. M. Smith: We do not follow slavishly what is done to prove something is right. Once this provision becomes a compulsory legal requirement, it must be enforced by the Garda Síochána. A young ten or twelve year old child could be arrested for not wearing a helmet. We must consider the cost of helmets for some families. We are using educational programmes — this has been done in many other countries — to encourage greater use of safety measures, including helmets, reflective bands, etc.

Because of anxiety expressed in the Dáil in relation to this matter, I asked the National Safety Council to give special prominence to encourage the use of helmets in 1994. This is a more practical way to change attitudes, rather than enforcing a legal requirement before greater public acceptance. It would add to the work of the Garda Síochána. I am not sure what we would do with young minors or children in the early days of the implementation of such a law.

I do not disagree with Senator Cosgrave on what he has suggested, but on the best way to achieve it. We believe — this has been the experience elsewhere — the best way to approach this is through educational and road safety programmes. Often when we introduce measures arguments are made that they are draconian, too legalistic or that they are not needed. With improvements in our educational programme and the advent of opportunities to display the value of helmets, [1050] reflective bands, etc. I believe the public will realise their advantage. It should not be necessary to say people must do something because it is law. People should do this because it is in their interest and it is a safety measure. We will progress by achieving broader acceptance and better use of well known and advanced facilities which aid people not to be a threat to themselves on the road or elsewhere.

Amendment put and declared lost.

An Leas-Chathaoirleach: Amendment No. 28 has been discussed with amendment No. 1.

Government amendment No. 28:

In page 28, between lines 20 and 21, to insert the following subsection:

“(4) The making of a resolution pursuant to regulations under subsection (2)(1) shall be a reserved function.”.

Amendment agreed to.

Question proposed: “That section 35, as amended, stand part of the Bill.”

Mr. Finneran: This important section allows the Minister to make regulations to control road traffic and the parking of vehicles and also regulations pertinent to pedestrians and cyclists. To a certain extent, I agree with what Senator Cosgrave said in regard to this section. He was practical and analysed the situation in regard to complications brought about by people cycling without proper markings on their clothing or bicycles, and pedestrians who use the roads without proper markings. It is important the Minister makes regulations in this regard.

It is disturbing for someone driving a vehicle with care to be involved in an accident and be confronted with a pedestrian on the bonnet of their car through no fault of their own. That could happen to anyone in bad weather. The parking [1051] of unlit vehicles is also a danger to the public and it is important regulations are made to deal with this.

People often forget the rights of those who must transport animals along a road. In the past, due care and attention was given to a farmer and his stock. It seems people no longer care; motorists believe the farmer and his stock are a nuisance on the road. Many farmers must transport stock along a road and they have rights. I would like the Minister to make regulations in this regard. Farmers' holdings are often divided in the interests of road development programmes and we must accommodate the farming community.

This section is important. There are many areas where the Minister can make regulations which can be helpful to motorists and the public.

Mr. McDonagh: There should be special provisions for cyclists. More and more it is becoming the norm for people to use bicycles, particularly in cities. They are used for health purposes and to overcome traffic congestion. Many people cycle to and from work, to social functions, games, etc. and there is inadequate provision in many of our cities for these thousands of cyclists. I would like to see cycle lanes introduced in our major cities. I would also like the Minister to provide proper parking facilities for cyclists. Regretfully, in the times in which we live, not everyone is honest and many bicycles are stolen every day. It is sad, given that we are promoting tourism, that bicycles hired by tourists and on which heavy deposits are paid, are stolen by villains. Every effort should be made to provide proper and adequate parking facilities for bicycles. The provision of cycle lanes should also be a priority. I hope the Minister will consider these views in the near future.

Mr. M. Smith: I am glad Senator Finneran raised the problems caused by unlit vehicles and careless cyclists and pedestrians. [1052] There is a great need for a radical improvement in overall road traffic management. There is emphasis on motor and heavy vehicular traffic because of its lethal nature and there is a consequential and desirable need for much greater emphasis on safety measures by all road users. I will look at the issues the Senator has raised.

The matter raised by Senator McDonagh is primarily for local authorities. I issue regulations and give more freedom and autonomy to local authorities so that they will take those measures. I have encouraged investment in the provision of cycle ways and significant advances have been made in this city. During the last year close to £1 million has been invested in creating better facilities for cyclists. I look forward to the day we will have better facilities and greater use of bicycles. This will not only contribute to the improved health of individuals but it will help to solve the problem of traffic congestion. It is primarily a matter for local authorities to come up with their own proposals and we will see to what extent our joint resources can enhance improvements in other cities.

Mr. Enright: It is important to provide as many facilities as possible for pedestrians and cyclists; far too little attention has been paid to them. One rarely sees people cycling at night because they are afraid. Cycle lanes should be provided for cyclists.

I agree with any regulations which will regulate and control the driving and leading of animals and which will ensure that the people driving animals are properly attired and carry lights to show where they are on the road. I accept that some farmers have their milking parlours on one side of the road and their land on the other. I wrote to the Department to point out that on part of the Dublin to Galway road, a national primary, footpaths and margins for pedestrians had been done away with. This is a straight stretch of road for about five miles and a farmer [1053] drives his cattle on it. There used to be a small grass margin on which he was able to drive his cattle and then cross in safety but now he has to drive his animals on the road and he takes his life in his hands every time he does so.

The Department cannot disclaim responsibility if accidents occur in such situations. Finance should be provided to construct tunnels under roads through which people can drive cattle. Most farmers would agree to contribute to this. Regulations should be made for this type of situation. I hope money will be provided from the EU Structural and Cohesion Funds — which will amount to £7.8 or £6.9 billion — to improve our county roads which have become dangerous for cyclists and motorists.

[1054] An Leas-Chathaoirleach: We are not discussing county roads.

Question put and agreed to.

NEW SECTION.

An Leas-Chathaoirleach: Amendment No. 29 has already been discussed with amendment No. 27.

Mr. Cosgrave: I move amendment No. 29:

In page 29, before section 36, to insert the following new section:

36—It shall be compulsory for all persons to wear helmets when cycling or horseriding.

Amendment put.

The Committee divided: Tá, 18; Níl, 23.

Belton, Louis J.

Cosgrave, Liam.

Cotter, Bill.

D'Arcy, Michael.

Dardis, John.

Doyle, Joe.

Enright, Thomas W.

Farrelly, John V.

Honan, Cathy.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Norris, David.

O'Toole, Joe.

Reynolds, Gerry.

Ross, Shane P.N.

Taylor-Quinn, Madeleine.

Níl

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

Finneran, Michael.

Fitzgerald, Tom.

Gallagher, Ann.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

Kiely, Dan.

Kiely, Rory.

Lanigan, Mick.

Lee, Joe.

Lydon, Don.

McGennis, Marian.

Mullooly, Brian.

O'Brien, Francis.

Ormonde, Ann.

Townsend, Jim.

Wall, Jack.

Wright, G.V.

Tellers: Tá, Senators Cosgrave and Doyle; Níl, Senators Mullooly and Wall.

Amendment declared lost.

An Cathaoirleach: Amendment No.30 has already been discussed with amendment No. 1.

SECTION 36.

Government amendment No. 30:

In page 31, between lines 23 and 24, to insert the following paragraph:

[1055] “(c) The making of a resolution pursuant to paragraph (a) shall be a reserved function.”.

Amendment agreed to.

Section 36, as amended, agreed to.

Section 37 agreed to.

SECTION 38.

An Cathaoirleach: Amendment No. 31 has already been discussed with 26.

Government amendment No. 31:

In page 33, subsection (5), line 34, to delete “Minister” and substitute “National Roads Authority.”.

Amendment agreed to.

Section 38, as amended, agreed to.

Sections 39 and 40 agreed to.

SECTION 41.

Mr. Enright: I move amendment No. 32:

In page 35, subsection (1) (c), line 22, to delete “3 months” and substitute “2 years”.

The seizure and the subsequent selling of a car if it is untaxed for a period of three months is a drastic measure; it should not be tied into such a short period. A person purchasing a car, for example, may have difficulty obtaining the tax book or certification from the garage where it is purchased because the relevant paperwork is not in order and they are unable to tax the vehicle, but they still drive it on the roads. There is also the case where a car in a garage may be taken out by a person who might forget it is untaxed and the Bill as it stands gives the State the power to seize and later sell the car. The Minister will probably say [1056] such situations will not arise because the Garda will use discretion. However, it is not right to impose such a stringent measure.

The Minister's party abolished road tax in 1977. By seizing and selling a person's car because it is untaxed for three months, that party has gone the full circle. That is not a U-turn; but a treble somersault. Seizing a car is an extreme move. I do not condone those who drive untaxed cars. My amendment wants to substitute a two year untaxed period before the State could seize and sell someone's car; I would even agree to one year. If a working man with a car has run into financial difficulty — trying to pay his rent, health or school bills, and is unable to pay the car tax for a certain period, he may lose his job if it is seized.

I fully support giving the Garda powers to seize cars when there is no insurance on the vehicle or if the vehicle is defective. However, it is a little harsh to seize a car because it has been untaxed for three months.

Mr. M. Smith: Senator Enright's amendment proposes that vehicles could only be impounded for road tax offences where the road tax has not been paid for a period of at least two years. I could not agree to such a change. Is this House going to give the motoring public the impression that it is acceptable to have an untaxed car for two years? Senator Enright can use any language he likes, but when he looks at what he is proposing, that is essentially what be is saying. The State has already lost £20 million revenue because of untaxed vehicles which are being subsidised by the law abiding citizens who pay their taxes.

Senator Enright said that Fianna Fáil have done a treble somersault since 1977. A law abiding and principled party who wants to enforce the law is asking this House to tolerate circumstances where people can happily drive on the road with their cars untaxed for as long as two years [1057] without suffering from the provision which is already in the Bill.

In this city if a car is parked on a freeway, it can be towed away. There is not a whisper from the motoring community about that power because they know they can get the car back when they pay the impounding costs. It is the same in this case; one can retrieve the car when the tax is paid.

There was an argument about this in the Dáil and Fine Gael sought to have the period increased to six months. My original proposal was two months and after a long debate I agreed to three months. I am surprised there is now a proposal that this measure should not be implemented until a car remains untaxed for a period of two years. It is an insult to the law abiding public. It would be a retrograde step for this House to present itself to the public as accepting people's non-payment of legitimate car tax as normal.

Earlier Senator Enright asked me to provide more funds for county roads and he is now trying to deprive the country of the necessary funds by sending out the wrong message. It is all very well to give examples of a car locked in a garage, etc. but there are few people who own a car and do not know whether it is taxed. I have no wish to see these measures implemented. I am telling the public that they run the risk of this happening if they decide not to tax their car for a period longer than three months. It is a good warning and it is not excessive. It was accepted in the other House after a lengthy debate and I could not be expected to consider a measure which would allow people to have an untaxed vehicle for as long as two years.

Mr. Howard: The Minister has made an impressive defence of his position. He has gone to certain extremes in doing it because one would imagine, if one was not aware of the situation, that once this legislation is passed the only sanction against a person with an untaxed car is [1058] the seizure of the car. The Minister is aware that this is not the only sanction. The gardaí will still prosecute people with untaxed cars on the road.

Three months is a short period. I ask the Minister to consider the fact that there are other sanctions and methods by which the taxation of cars can be ensured. I would be flexible on the period of two years, even though the amendment comes from this side of the House. If, after a lengthy period, it is obvious that somebody persists in not taxing their car, this would be a useful measure but it is not the only sanction against people with untaxed cars. It should be used only in extreme cases, and a period of three months cannot be called extreme.

Mr. Enright: Senator Howard correctly pointed out that there are other penalties. If a person's car is untaxed, the district judge can impose a penalty which is equivalent to three times the amount of tax due. If a car is untaxed for a six month period and £150 is due on it, a district judge can impose a fine of £450. They normally impose three times the amount of tax due and most people are aware of that. It is a reasonable and fair penalty.

It is an extreme measure to seize a car from a person where, due to ill health or family problems, it is left untaxed. Where the car is used for getting to and from work, this seizure is a severe penalty. The Minister said my proposal is an insult to the law abiding public. Has he read Fianna Fáil's 1977 manifesto? At that time it was part of his party's policy to eliminate car tax. I am not going to rehash history but those were solemn promises made by the Minister's party. He has now changed the ground rules and not alone is car tax back but, if a person is a few months in arrears, their car will be seized. It is an insult to people's intelligence to make solemn promises about the removal of car tax yet the Minister said that I insult the law abiding public when I ask that he give [1059] some benefit to a family in financial difficulties.

I agree with the other provisions relating to seizure and I was prepared to agree to one year, but the three month period is too severe. If the Minister was to do a head count in his own party, I think a [1060] sizeable number would agree that this measure unnecessarily penalises people. Seizing a vehicle can deprive people of their means of making a living. I have put my case as well as I can. I believe the provision is wrong.

Question put: “That the words and figures proposed to be deleted stand.”

The Committee divided: Tá, 23; Níl, 12.

Byrne, Seán.

Calnan, Michael.

Cashin, Bill.

Cassidy, Donie.

Daly, Brendan.

Dardis, John.

Finneran, Michael.

Fitzgerald, Tom.

Hillery, Brian.

Kelleher, Billy.

Kelly, Mary.

Kiely, Dan.

Kiely, Rory.

Lanigan, Mick.

Lydon, Don.

McGennis, Marian.

Mullooly, Brian.

O'Brien, Francis.

O'Toole, Joe.

Ormonde, Ann.

Townsend, Jim.

Wall, Jack.

Wright, G.V.

Níl

Belton, Louis J.

Cosgrave, Liam.

Cotter, Bill.

Enright, Thomas W.

Howard, Michael.

McDonagh, Jarlath.

Naughten, Liam.

Neville, Daniel.

Norris, David.

Reynolds, Gerry.

Ross, Shane P.N.

Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Mullooly and Wall; Níl, Senators Cosgrave and Belton.

Question declared carried.

Amendment declared lost.

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

Mr. Enright: I asked the Minister to consider providing a period of two years but he has not accepted. I now ask him to table an amendment on Report Stage — “for a period of either six or 12 months”. Three months is a short period for a person to obtain proper documentation.

Question put and agreed to.

Sections 42 to 47, inclusive, agreed to.

SECTION 48.

Government amendment No. 33:

In page 37, subsection (1), line 35, to delete “the Road Traffic Acts, 1961 to 1993,” and substitute “section 64 or 115 of the Principal Act”.

Amendment agreed to.

Mr. Enright: I move amendment No. 34:

In page 37, subsection (2), line 45, to delete “3 years” and substitute “6 months”.

Amendment put and declared lost.

Government amendment No. 35:

[1061] In page 38, subsection (3), line 7, to delete “the Road Traffic Acts, 1961 to 1993,” and substitute “section 64 or 115 of the Principal Act”.

Amendment agreed to.

Section 48, as amended, agreed to.

SECTION 49.

An Cathaoirleach: Amendment No. 36 is consequential on amendment No. 37 and both may be discussed together.

Government amendment No. 36:

In page 38, subsection (1), line 30, to delete “and”.

Mr. M. Smith: This amendment proposes to insert into the Road Traffic Act, 1961, an amended definition of the term “public place”. The amendment is required to deal with an anomaly shown up by the High Court judgment. A “public place” is defined in existing law as “any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge”. The High Court has held that where a public road is pedestrianised for certain hours of the day it is not a public place within the definition, “during pedestrianised hours”. Accordingly, a person who drives into such a road during pedestrianised hours is immune from prosecution for a variety of offences under the Road Traffic Act, 1961. This amendment is designed to correct that anomaly and to put beyond doubt that all public roads are public places at all times. Once more this demonstrates the importance of trying to close loopholes in this legislation.

Mr. Enright: This amendment is a practical one.

[1062] Mr. Howard: I want to ask the Minister about the definition in amendment No. 37. Rather than telling us what a public place is, the definition in paragraph (b) might be more helpful if it told us what is not a public place. The definition states: “any street, road or other place to which the public have access...”. The words “street” and “road” are acceptable but “other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge” creates a problem. For example, if I permit the public to have access to one of my fields which adjoins the public road, is that a public place? Is the car park of the Roscrea showgrounds or cattle mart a public place?

Mr. M. Smith: Yes.

Mr. Howard: What is not a public place?

Mr. M. Smith: Any place which does not belong in the categories I have already outlined. There is considerable case law in relation to what is a public place, the most recent related to Grafton Street during pedestrian hours. The argument that it is not a public place does not stand, but it did in this case and we are correcting that. Amendment No. 37 is a re-enactment of the 1961 Act.

Mr. Howard: We all have residences and parking spaces attached to them. Is the car park of my home a public place?

Mr. M. Smith: In special circumstances the courts may decide this issue, but it is not considered to be a public place.

An Cathaoirleach: Sometimes I think my car park is a public place.

Amendment agreed to.

Government amendment No. 37:

[1063] In page 38, subsection (1), between lines 30 and 31, to insert the following subparagraph:

“(iv) by the substitution for the definition of ‘public place’ of the following definition:

“‘public place” means——

(a) any public road, and

(b) any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge;’;

and”.

Amendment agreed to.

Government amendment No. 38:

In page 38, subsection (1), between lines 35 and 36, to insert the following paragraph:

“(b) in section 7——

(i) by the substitution in subsection (1) for ‘under this Act made by the Commissioner and every rule thereunder made by him or a local authority’ of ‘and rule made under the Road Traffic Acts, 1961 to 1993’, and

(ii) by the substitution in subsection (2) for ‘under this Act made by the Commissioner and rules thereunder made by him or a local authority’ of ‘and rules made under the Road Traffic Acts, 1961 to 1993’;”.

Mr. M. Smith: The purpose of this amendment is to apply the relevant provisions of the Documentary Evidence Act, 1925, to by-laws made by local authorities. It is necessary to do this to provide a straightforward mechanism of proving the existence of a by-law in any legal proceedings. Section 4 of the Documentary Evidence Act, 1925, provides [1064] that prima facie evidence of rules, orders, regulations or by-laws which apply throughout the State may be given in court or in legal proceedings by producing a copy of the printed instrument. Section 6 of that Act deals with offences related to forging or printing false copies of such instruments. The 1925 Act did not extend those provisions to local by-laws.

Amendment agreed to.

Government amendment No. 39:

In page 39, subsection (1), line 4, after “years” to insert:

“and, in the case of an offence which is specified in paragraph 8 or 11 of the Second Schedule to this Act, being an offence in respect of which the court has declined, pursuant to section 26 (5) (b) of this Act, to make a disqualification order,”.

Amendment agreed to.

Mr. Enright: I move amendment No. 40:

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.”.

A judge may decide to reduce a dangerous driving charge to one of careless driving after hearing the evidence. It is important for a judge to have discretion to reduce a charge of dangerous driving under section 53 to a charge under section 52. When a judge hears the evidence in the case of a person who has been charged with dangerous driving under section 52, he shall be entitled to reduce the charge of dangerous driving to driving without due care and attention.

[1065] When this was being introduced in the original 1961 Act, the Dáil and Seanad put in the proviso to reduce the charge of dangerous driving to careless driving. It would have been the intention of the Legislature at that time to give a judge the discretion of reducing a charge of careless driving to driving without due care and attention. “Without due care and attention” does not carry an automatic endorsement; it is a very minor offence. However, if a person gets an endorsement on their licence their insurance can increase by £800 in one year. It is now reaching the stage that if a person has an endorsement on their licence they may not even be able to get a quotation for insurance. This is an important amendment and I would ask the Minister to consider it favourably.

Mr. Dardis: We are back to this matter of discretion which has taken up a lot of the Committee Stage of this Bill. When the Minister was replying to observations I made on section 27 - about sentences that might have been passed on disqualification and then would be subject to a review within a certain period - he made the point about the need for discretion. That theme has been running consistently throughout our debate. This would seem to me to be consistent with the arguments made earlier in respect of allowing the court to have a degree of discretion. The law should allow that.

Mr. M. Smith: I do not see the need for this provision nor do I see any reason the amendment should be made. When a person is charged with careless driving it is for the courts to decide if the person is guilty and to sentence accordingly. I am not aware of any difficulties that have arisen in relation to persons charged with this offence. Apart from the requirement to disqualify a person for six months if found guilty of three careless driving offences in three years, the courts have full discretion with regard to the penalty they may impose. Specific provision [1066] exists in the section dealing with dangerous driving allowing a court to reduce a dangerous driving charge to one of careless driving. A similar provision does not exist, as Senator Enright has said, to reduce a careless driving charge to one of driving without reasonable consideration. There is no valid reason for such a provision.

Dangerous driving is a very serious offence. It is open to the courts, on the facts of the case, to find a person guilty of the lesser offence of careless driving and to sentence accordingly. It is not logical to suggest that, because the very serious charge of dangerous driving can be reduced by the courts to one of careless driving, a similar provision should also exist in relation to the lesser offence of careless driving.

Mr. Enright: The Minister has missed the point. A person can be charged with careless driving having made a small driving error, for example, having failed to indicate or perhaps making a simple manoeuvre on the road while checking on a child passenger. A charge of careless driving can arise from a momentary lapse of concentration but if convicted, the driver automatically receives an endorsement. People are aware of the serious penalties that an endorsement carries regarding insurance. At present, if someone is charged with careless driving where there has been a breach of regulations, a judge normally gets the garda to recharge the defendant under section 51 with a new summons to allow a charge of “without due care and attention”. I am seeking to allow a judge that discretion.

There appears to be a lot of sympathy for insurance companies but I do not have much sympathy for them because, from what I can see, they are prospering and canvassing for business. If they are losing all the money they claim, it is strange that they are canvassing for business they will lose money on. If a driver's licence is endorsed they are loaded from then on with increased premiums. The [1067] measure I am proposing would allow a judge discretion in such circumstances.

Mr. M. Smith: I will not criticise insurance corporations and others for canvassing for business.

Mr. Dardis: The Cathaoirleach is very relieved to hear that.

Mr. M. Smith: I would be afraid a similar attack might be made on the legal profession because they do much more——

Mr. Enright: I was never in favour of that.

An Cathaoirleach: There are many new ads on the back of the Sunday Tribune.

Mr. M. Smith: It is one matter to have insurance companies canvassing for business, as alleged by Senator Enright, in circumstances where he claims they are going to lose money; is it not quite extraordinary to have another profession canvassing for business where they say “no foal, no fee”? They know they will not get any money in some circumstances. We will not get into the argument about who should canvass for business.

An Cathaoirleach: You lost that one.

Mr. Enright: There will be another round.

Mr. M. Smith: Senator Enright is trying to equate two distinctly different things: the reduction of a dangerous driving charge to careless driving with being able to reduce careless driving to inconsiderate driving. He knows from experience that there is a vast difference between two. In a case of inconsiderate driving there is no need for a power to reduce careless driving to inconsiderate driving. Careless driving and inconsiderate driving are two distinct offences [1068] and can be clearly differentiated. The former is aimed at the person who is careless but not necessarily without consideration for others if only because there are no others about, while the latter covers the selfish driver who may be quite careful in so far as his or her own safety is concerned but disregards the comfort and convenience of others. It should never be necessary — just because there is one special set of circumstances where it is possible to reduce the charge from dangerous driving to careless driving — that reducing careless to inconsiderate driving should automatically flow from that.

We all have a tendency to make light of some of those problems while the thrust of what all of us want to do is to tighten up, to put in deterrents and encourage people to do the right thing for themselves and for others. I feel that Senator Enright, with the best will in the world, is equating two separate and distinct features in law with a view to getting a further change which would not be necessary.

Mr. Howard: The Minister has an unjustified concern about the amendment which is that if he were to accept it, somebody charged with dangerous driving could finish up being charged with driving without due care and consideration, in other words, you would have a two-step reduction, but that is not what is being proposed here. What is being proposed is something that equates to consistency and giving discretion to the courts. Let me put it simply. There is already provision in law for a charge of dangerous driving to be reduced to one of careless driving; that is the end of that. We are not for a moment suggesting that that charge of dangerous driving, having been reduced to one of careless driving, should be further reduced. The court has the discretion to reduce a charge of dangerous driving to one of careless driving. However, entirely separate from that and to be consistent, there should then [1069] be another provision where an initial charge — and I emphasise initial charge — of careless driving could, in view of the circumstances unfolding in the court, be reduced to one of driving without due care and consideration.

Amendment, by leave, withdrawn.

Mr. Enright: I move amendment No. 41:

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”.

I am anxious that the courts be given discretion regarding endorsements. I cannot over-emphasise the serious consequences of having an endorsement on the cost of the person's car insurance. When a person gets an endorsement his or her insurance premia increase to three or four times the original amount. I appeal to the Minister to allow the court decide whether an endorsement should be given. It is mandatory in this instance and I believe it should not. The court should have that discretion.

The Minister or his Department should undertake a study of the effects of endorsements and the cost of premia charged by insurance companies following endorsements. Exorbitant amounts are being charged from a person who has an endorsement. An endorsement should be given at the discretion of the court.

Mr. M. Smith: This has been a matter of fundamental difference between myself and Senator Enright during the last two days. I believe that deterrence and the enforcement of road traffic law contribute to reducing the number of accidents and deaths. Consequently there is a reduction in claims and as a result there is a possibility of lightening the load of insurance costs on the public. It is not possible to try to achieve that end while at the same time trying to mitigate [1070] and reduce either the enforcement or the provisions.

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 the 1968 Act when paragraph 5 (b) was inserted in the Second Schedule to the 1961 Act. The Second Schedule lists offences which attract disqualification. This amendment appears to suggest that the licence be endorsed at the discretion of the court instead of disqualification. Senator Enright will be aware that this provision has been in force for 25 years. The amendment cannot be accepted.

Mr. Enright: I am seeking to give the court the opportunity to decide whether an endorsement should be imposed. There is a common theme in this Bill. The powers of the Judiciary are slowly but surely being whittled away. I have great faith in the Judiciary. There are rare lapses when mistakes are made. Overall, however, the Judiciary has proved to be serious about the duties allocated to it by the Oireachtas.

We are putting the Judiciary in a position where the cases coming before it are processed like food; it is like a conveyor belt system. That is not justice. That is not the way its business should be conducted. We should give our judges the opportunity to use common sense — which they already apply in large measure — when making their decisions. In many instances under this Bill the rights of the Judiciary are being whittled away and becoming statutory functions. That is not good or wise law. Under this amendment a judge can decide whether a person will be given an endorsement.

Amendment, by leave, withdrawn.

Section 49, as amended, agreed to.

Title agreed to.

[1071] Bill reported with amendments.

Report Stage ordered for Tuesday, 8 March 1994.

An Cathaoirleach: When is it proposed to sit again?

Mr. Finneran: At 2.30 p.m. on Tuesday, 8 March 1994.