Oireachtas Joint and Select Committees
Thursday, 16 April 2015
Joint Oireachtas Committee on Transport and Communications
General Scheme of Road Traffic Bill 2015: Discussion
We are now in public session for pre-legislative scrutiny of the general scheme of the road traffic Bill 2015. The purpose of this afternoon's meeting is to engage with officials from the Department of Transport, Tourism and Sport and with representatives of the Medical Bureau of Road Safety as part of the committee's pre-legislative scrutiny of the heads of the Bill.
On behalf of the committee, I welcome Mr. Fintan Towey, Ms Nicola Hayes, Mr. Paddy Campbell, Mr. Paul Hannon and Mr. Oisín Timoney of the Department of Transport, Tourism and Sport. I also welcome Professor Denis Cusack, Ms Helen Kearns and Dr. Richard Maguire of the Medical Bureau of Road Safety.
By virtue of section 17(2)(i) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the Chairman to cease giving evidence on a particular matter and continue to do so, they will be entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Any submissions or opening statements witnesses have provided will be published on the committee's website after the meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person or persons outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
I call on Mr. Fintan Towey to make his opening statement, which will set out the key elements of the Bill.
Mr. Fintan Towey:
I thank the Chairman for the invitation to address the committee today and for introducing myself and my colleagues. I have a short presentation which I will run through quickly. The Bill comprises about 25 heads. There are five major themes within the Bill and some further miscellaneous provisions. Those themes are as follows: driving under the influence of drugs; issues linked to distracted driving due to electronic communications; mutual recognition of driver disqualifications with the UK; provision for a regulatory regime for written-off vehicles; and an obligation for employers to carry out tests on their drivers for intoxicants. We are also proposing, as the Minister has communicated to the Chairman, to include a provision for a special speed limit of 20 km/h in certain residential areas. While that final measure is not included in the heads as they have been communicated to the committee, the Minister has indicated his intention to propose an amendment in this regard.
I will focus first on driving under the influence of drugs. The Bill provides for a very significant advance in the measures pertaining to drug driving. Essentially, the policy objective is to bring the provisions pertaining to driving under the influence of drugs other than alcohol more closely into line with those pertaining to driving under the influence of alcohol. At present, there is an offence in the Road Traffic Act 2010 of being intoxicated and unable to maintain proper control of a vehicle. What we are proposing to do here is introduce new offences. One will be an offence of driving with illicit drugs in one's bloodstream. We are also proposing to add a new offence of driving while impaired by prescribable drugs. There are two tests for prescribable drugs and one test only for illicit drugs.
We are making provision that the Medical Bureau of Road Safety will be statutorily empowered to test, approve and supply devices to the Garda for roadside testing for drugs other than alcohol. This is essentially providing for new technological developments that allow roadside testing for drugs to take place. The Garda will be empowered to require the provision of an oral fluid specimen at the roadside. We will also make provision for mandatory intoxicant testing. That is an expansion of the mandatory alcohol testing rules that exist right now. Essentially, it is random testing for drugs as well as for alcohol.
There will be an obligation for drivers to provide a blood specimen at a Garda station following arrest after detection of drugs and, where applicable, impairment. The penalties imposed will be similar to those that apply in cases of drink driving.
Higher penalties will be provided for in instances where a person is driving under the influence of both alcohol and drugs.
I will now deal with the distracted driving provisions. Essentially, this relates to instances where drivers are driving while using mobile technology. There is already an offence in legislation since 2006 relating to holding a phone while driving. Since 2014, an additional provision has been introduced to regulations which relates to texting and issuing a short message service, SMS, on a cradle-borne device. That is provided for in secondary legislation. What we are doing now is an integrated provision, setting out all the prohibitions in primary legislation relating to the use of electronic devices while driving. It will incorporate both existing provisions with respect to holding a phone and also the use of hands in interacting with a mobile device that is cradle-borne.
The next section of the Bill I will mention relates to mutual recognition of driving disqualifications between Ireland and the United Kingdom. This was already provided for in legislation through a European Union convention on driving disqualifications. However, the convention was ratified by only seven member states and only implemented by Ireland and the UK. Under the Lisbon treaty, the UK had an option to withdraw from this convention and a number of other measures under the justice and home affairs provisions. It has exercised its right to withdraw from the convention, with effect from 1 December last year. In effect, the legal arrangements we have had in place with the UK regarding mutual recognition of driver disqualifications have not been operating since that date. We have negotiated a new bilateral agreement with the United Kingdom and we hope to sign it shortly. The UK will not be in a position to sign until after the elections there on 7 May. We are providing for legislative implementation of the agreement so we can ratify it after we have passed the legislation.
I will turn to new measures relating to written-off vehicles. Currently, there are no statutory regulatory measures relating to vehicles that have been written off. There are approximately 45,000 vehicles written off in Ireland each year, with approximately 40% finding their way back into service. There are administrative arrangements in place with a link between the insurance companies and the national vehicle and driver file to record vehicles that have been written off beyond repair. There are measures to prevent them being brought back into use. We are proposing to provide a statutory basis for that administrative arrangement on the one hand and the development of a more comprehensive regulatory regime regarding written-off vehicles that would govern the possibility of these vehicles being reintroduced to use. It would also govern the possible reuse of parts of vehicles involved in road collisions. Essentially, the regulatory regime would be developed to regulate, with secondary legislation made by the Minister.
There are some further measures provided for in the Bill. We are providing for a responsibility on employers of drivers of buses, minibuses and heavy goods vehicles to test their drivers for intoxicants. This mirrors a provision already in place relating to safety-critical workers on railways and Bus Éireann has asked us to provide statutory underpinning for this so it can introduce the measure for its workers.
We are introducing an offence relating to participation in unauthorised races of animal-drawn vehicles. There is already an offence relating to the organisation of such events but there is no offence relating to participation. The Garda has reported that there is difficulty in taking a prosecution where it is not possible to identify the organiser of such an event.
We are also making some minor provisions for penalty points relating to the use of trailers. We are expanding the penalty points provision in order to cover the issues I have referred to with regard to distracted driving and the use of electronic devices while driving.
Professor Denis Cusack:
On behalf of the Medical Bureau of Road Safety, I thank the Chairman and members of the committee for the kind invitation to present to and assist the committee in its pre-legislative scrutiny of the general scheme of the road traffic Bill for 2015.
Driving under the influence of drugs remains a significant problem in Ireland. The Road Safety Strategy 2013-2020 includes actions to address this forensically, legally and medically. The Medical Bureau of Road Safety is the national, independent and statutory forensic body with responsibility for testing for intoxicants in Ireland and with a designated role in implementing these actions. The bureau's Report on Roadside Drug Testing and Equipment and Related Matters, published in 2012 and available in advance to members, is a study on all aspects of roadside drug testing, including reference to and analysis of any equipment currently in use or anticipated to be used to carry out such tests. I would be happy to refer to any issues within that to assist the committee.
The report considers the current definition of a "drug" - we may have to return to that issue - and current drug analysis procedure under the Road Traffic Acts. As part of the evidence base for driving under the influence of drugs, the prevalence of drug taking in the general population, in the driver population, in suspected drugs-driving population and the toxicology data for drivers in fatal crashes are presented and reviewed, including the bureau study, Driving Under the Influence of Drugs in Ireland: Results of a Nationwide Survey 2000-2001. That was also sent to the committee in advance of today's meeting.
A number of international data and reports are also considered to inform the relevant bodies as to drugs that could and should be targeted for testing into the future. The studies indicate that cannabis and benzodiazepines are currently the most prevalent drugs in driving under the influence of drugs cases, followed by the opiates, methadone and cocaine.
The effects of individual drugs on driving and the relationship between impairment and measurement of those drugs in the human body are examined in the report. The methods of detection of drugs-driving by means of roadside impairment testing - implemented by gardaí since last November - and with particular emphasis on roadside chemical drug testing in oral fluid are reviewed to include medical, practical and scientific considerations. The consequential confirmatory laboratory testing for drug detection in body fluids, including oral fluid in the future, is explored. I thank my colleagues, including Ms Pauline Leavey, the recently retired chief analyst, Dr. Richard Maguire and Ms Helen Kearns, our current chief analyst, for their assistance and expertise in this report.
We considered some previous international studies, and I will mention one in order to assist the committee.
It is very important to have evidence to say why we are doing this. I am aware that there are important issues about road safety but also about civil liberties. It is a question of striking the right balance. We studied in particular the DRUID report 2011, which is one of many international reports. The current status of roadside drug testing in the international literature by way of extended studies is presented and how they support the introduction of roadside chemical drug testing, RCDT, devices but these reports and our report also acknowledge certain limitations. The introduction of roadside drug testing devices is a far more complex and complicated initiative than was the case for roadside breath alcohol testing.
A number of currently available roadside drug testing devices were considered and reviewed by us to inform the report on how they operate, their storage and operation conditions, the scientific criteria on which they are based and also the countries which are currently using the devices or proposed to use them at some stage in the future, after 2012.
We also studied the practices for driving under the influence of drugs, DUID, roadside testing in 13 other countries by way of survey to colleagues because it is important that in Ireland we are aware of what other countries do and we learn from them and they learn from us. We noted that eight of these countries or jurisdictions already have in place provision for the use of such devices. The remaining five countries had decided not to use the devices and to rely only on impairment testing.
The report also sets out the considerations and options for the introduction of RCDT devices in Ireland, under four main headings, legal, operational, scientific and medical. A number of options were outlined with the considered recommendation being the combination of roadside traffic impairment testing and roadside chemical drug testing. An implementation plan for the introduction of the recommended option was set out, including the working timeframe for implementation of the roadside chemical drug testing following the introduction and implementation of the 2014 legislation for roadside intoxicant impairment testing. That has been in since last November and is another context.
Scientific evaluation of RCDT devices requires specification, selection and evaluation of a suitable testing RCDT system. The 2015 Bill provides the statutory basis for the Medical Bureau of Road Safety’s, MBRS, function for approval, supply and testing of such systems for the taking of oral fluid and blood samples for roadside and confirmatory testing of drugs which impair driving. Based on current national and international prevalence data the drugs to be targeted initially in RCDT are cannabis, cocaine, opiates and benzodiazepines.
The general scheme of the Bill before the Oireachtas also empowers the Garda to carry out RCDT and to establish checkpoints for RCDT with similar powers to existing mandatory roadside alcohol testing. It is suggested and recommended that there be a combined twin track approach of zero tolerance for drugs not licensed for human medicinal use and the confirmed presence with impairment for prescribable or over the counter drugs. Other jurisdictions have approached this issue with variations on this theme. Recent legislative changes, just over a month ago, in England and Wales informed us of one approach. The statutory definition in the 2015 Bill of the types and classifications of impairing drugs will require further consultation and consideration. We must link that with the health aspects of the issue.
It is very important that as well as considering road safety we reassure people about their civil liberties and health in driving and do not cause undue alarm to people on prescription medicines. A parallel health educational initiative is needed to support and encourage drivers with medical conditions to take their prescribed medications in accordance with health care advices and medical fitness to drive guidelines.
On the technical side, there was a competitive EU tendering process initiated in 2014 under which we set out suitable specifications including 98 separate specifications for an RCDT system. These, and the overarching legislative, financial and operational parameters, will be summarised and addressed in whatever detail the committee would like. We wish to help it in every way possible to understand those technical aspects. A number of RCDT systems are undergoing full scientific evaluation by the MBRS. Liquid chromatography-mass spectrometry, LC-MS, and gas chromatography-mass spectrometry, GC-MS, are sophisticated laboratory techniques. We utilised these in the evaluation of using genuine oral fluid spiked with target analytes to confirm the spiked level before challenging the sensitivity and selectivity for the drugs under test for the different systems. Sensitivity and selectivity are very important scientific concepts to consider. Are we picking up the drugs that are there and are we sure we are not picking up something that is not there? That is a question of accuracy and fairness. It is very important that the public and drivers have confidence in an independent forensically assessed system. The results of the scientific evaluation and of a recent Garda Síochána field trial of devices at the MBRS will be reviewed with the epidemiological and demographic background and legislative requirements.
When the gardaí came to us last month just before and just after sunset in good Irish fashion, and to our delight, it poured rain. The conditions were awful, which was terrific for assessing how it works. The gardaí, the devices and our volunteers were completely rain-soaked and we said it was a wonderful condition under which to test the devices.
The introduction of RCDT needs a carefully integrated and co-ordinated approach harmonising scientific, medical, legislative, and law enforcement requirements to enable enhanced awareness, detection and deterrence of DUID. The general scheme of the road traffic Bill 2015 currently being scrutinised by this committee is an essential part of that procedure and reflects the need to consider the requirements of the administration of justice within the integrated framework. The MBRS is very pleased to assist the committee in that consultative and deliberative process and to answer questions on any issues arising.
I have six core points, the fourth, fifth and sixth summarise what I have said. The first three are: recognition that driving under the influence of drugs is a significant problem; promotion of road safety to reduce deaths and injuries due to road traffic collisions and to ensure that the people taking drugs do not themselves become the victims of a fatality or serious injury, or put others in that position; and promoting and supporting the health and well-being of the driving population linked with medical fitness to drive. The fourth, fifth and sixth points are: provide an evidential basis for RCDT system; set scientific requirements ensuring accuracy and fairness of the RCDT system; and ensure a harmonised and integrated approach.
I thank the Chairman and members of the committee.
I thank Professor Cusack. Both presentations have given us much food for thought. I am sure there will be many questions. As Professor Cusack said in his conclusion, the aim of the Bill is to make our roads safer. He spoke about prescription drugs and illicit drugs. What is the situation in our present legislation and what will be the practical difference when this legislation is passed?
Mr. Towey said the UK pulled out of the European convention.
What is the situation if a person has penalty points and is detected for road traffic offences in the North or down here? How does it work at present if a person from the North is driving in the South? How will it work when this legislation is implemented?
Mr. Fintan Towey:
I will answer the questions in reverse order because Professor Cusack might add some points on the drugs question. As regards the mutual recognition of driving disqualifications, the UK has withdrawn from the applicable EU convention with effect from 1 December 2014. That effectively means that in instances where people who are disqualified from driving in the UK, if they have an Irish-issued licence and an Irish address, since 1 December 2014, those disqualifications cannot be applied here within Ireland.
Mr. Fintan Towey:
We do not have an agreement on the mutual recognition of penalty points. That is something that has been identified as an aspiration, but a lot of issues need to be resolved, including having comparability of offences, equivalent arrangements for the application of penalty points, and equivalent thresholds for disqualification. Therefore, there is a lot of work to be done on aligning the overall offences that we are dealing with.
Mr. Fintan Towey:
The focus of this Bill is on restoring the arrangements for mutual recognition of driving disqualifications, which had been provided for but lapsed because of the UK's withdrawal from the EU convention.
As regards the drug questions, at present under the Road Traffic Act 2010, there is an offence for driving while intoxicated to the extent that the driver is unable to maintain proper control of a vehicle. Where a garda is of the opinion that the driver is impaired, the garda can carry out an arrest and have the appropriate tests undertaken at a Garda station, which means giving a specimen of blood by the person who has been arrested.
These new measures will provide for increased powers in terms of what a garda can do at the roadside. In particular, a garda will be able to carry out roadside testing for the presence of drugs, as well as the existing breath-testing arrangements for the presence of alcohol. The roadside testing arrangements will capture a number of the possible types of drug that can be used. Professor Cusack will expand on this. Where the presence of a drug is detected, the garda will arrest the person and a specimen of blood will be taken at the Garda station.
There is also provision for mandatory intoxicant testing. Therefore, in parallel or in a similar vein to the existing arrangements for mandatory alcohol testing, there would also be provision for random testing of drugs. That will capture both prescribable and illicit drugs. Illicit drugs are the ones we all know to be illegal drugs. Prescribable drugs are those that may be administered under the guidance of a health professional, but equally can be taken outside of that guidance. It is also an offence to drive while impaired as a result of being under the influence of prescribable drugs.
Mr. Fintan Towey:
I will ask Professor Cusack to expand on this. Essentially, however, we are looking at a situation where we will need to have an education and information campaign, so that drivers generally are aware there is a potential that they can be impaired as a result of prescribable drugs. There will also be an information campaign which will emphasise the responsibility on health professionals to provide guidance to patients, and other persons to whom they are prescribing drugs, on the possible implications for them when driving.
Professor Denis Cusack:
I will revert to the first question concerning what will change. At the moment, an intoxicant is defined in the 2010 Act as alcohol and drugs, and any combination of drugs or of drugs and alcohol. Therefore, it is not an entirely new concept. To put it into context, in 1998 when the bureau was still only dealing with blood and urine, there was no evidential breath-testing, so every sample was blood or urine. Out of about 15,000 samples only eight were tested for drugs. Last year, it was in the region of 1,200 of the blood and urine samples that came in, which is approximately one quarter of all the samples. Therefore, we are already testing quite extensively for it. This recognises, first, that it is an increasing problem and, second, that technology is now available which can assist in the recognition. I do want to stress, however, that at the moment we are only looking at the four classes - they are, cannabis, benzodiazepines, opiates and cocaine.
There will always be other drugs that we cannot currently, and maybe for some time into the future, assess at the roadside. That is why I would also like to put in context the fact that roadside impairment testing, for which thousands of gardaí have been trained and which was implemented last November, is still an important part of it.
The Chairman's question is one of great concern. If I were to speak as a forensic doctor or as an ordinary doctor, there would be different aspects. The last thing anybody wants to do is cause distress or worry to anybody who is on prescribed medication, or who goes to their supermarket or chemist and gets over-the-counter products for a headache, some of which contain codeine, paracetamol or caffeine. If somebody takes an awful lot of codeine it could show up as an opiate.
This is not about illegal or prescribable drugs, however, it is about impairment and safe driving. Therefore, whether or not somebody is taking a prescribable or prescribed drug and is impaired, they are no less of a danger to themselves and others. It is important to recognise that there are certain types of drug which have no legitimate medical use.
I had a look at my old-fashioned licence document and it does say that it is a driving licence or ceadúnas tiomána. It is a licence, not a right, so everyone who drives has to take care they are not tired, distracted, on medications or changed medications. If somebody is taking it in accordance with a prescription, including their pharmacist's or doctor's advice, I want to stress that we see this linking in with medical fitness to drive, not the misuse of drugs. Therefore, sláinte agus tiomáint is important for drivers. In general, they will not have anything to be worried about. However, if somebody changes their medication and feels groggy, they should not be driving. Where somebody is taking something that has no legitimate medicinal use, such as cocaine or heroin, by driving they are putting themselves and others at risk because of the known impairment effects.
That is why there is an attempt to differentiate between these things. Again, I need to be very careful, but this is not about misuse of drugs. It is another issue as to whether people should be using cocaine or cannabis socially or whatever. This is entirely about whether it is safe for a person to drive in respect of him or herself and in respect of others.
We need a very important campaign. This cannot be brought in without ensuring that there is a balance. People need to be told not to worry about their blood pressure tablets or to continue taking their diabetic treatment or epilepsy tablets. Whether in a GP surgery, a pharmacy or elsewhere, information on fitness to drive that people can rely on needs to be provided in simple, plain and understandable language. I have seen the equivalents in other countries because I am on the medical advisory panel for the Department for Transport in London. That is terribly important. I hope it answers the legitimate concerns.
I thank the officials from the Department and the representatives from the medical bureau for coming here. It is disappointing in many ways, because we are all worried about road safety, that there is an issue regarding mutual recognition of disqualifications North and South. A problem exists, although we are reaching some sort of agreement with the UK. When we spoke to the Minister in the past about penalty points and trying to tie them up between North and South, he said there were legislative reasons we could not do it. He indicated that it would prove very difficult. There is a whole raft of issues on which consistency between North and South would be very important, including speed limits, signage, penalty points and all such areas.
There is an issue with regard to employers being responsible for their employees. I often wonder if that is normal European practice. If a person has a haulage company with a load of people driving trucks and so forth, how can we hold the employer responsible if something goes wrong? The employer cannot test everyone. People come and go. There would be very serious implications for an employer if this requirement was introduced. Perhaps that proposal could be explained a bit more.
The combination of drink and drugs is an issue. A person could be caught with drink and a person could be caught with drugs. Should there be a special offence where there is a combination of the two, be they prescribed drugs or illegal drugs? A new offence was mentioned. Should it be a special offence when it comes to something like that? The combination of both is very serious and there should be a higher penalty for it.
I am glad to see that we have come round to the idea of having some sort of vehicle register. In the past, we had company cars. My area was plagued with them for years. The issue has died off with more modern cars. However, it is important that cars that are sold on or thought to have been scrapped do not come back onto the roads. A register that would deal with this issue would be very important. Mr. Towey said that he reckoned that approximately 40% of cars come back onto the roads. I did not think the figure was as high as that, but it is a substantial amount and it could be very dangerous if vehicles are coming back onto the roads.
I am delighted that the Minister is bringing in the new speed limit of 20 km/h. I brought that Bill through the Dáil. There was cross-party agreement to examine this issue. It is very important, especially in housing estates. We seem to have an increase in the number of children who have been killed on the roads recently. We had a very good record over the past few years in terms of reducing the number of people who were killed on the roads. For some reason, the figure increased a bit last year.
I want to ask a few things about medical issues and drugs in general. I have been on the drugs task force for many years. I am repeatedly told that to measure properly the amount of heroin, cocaine or grass or cannabis in a person's system, testing needs to be done within 24 hours. Is it the case that to get a proper measurement it would be necessary to get to an individual within 24 hours? Is there a longer period for different drugs? I am curious about that. How are prescription drugs distinguished? How does that work out? Many car crashes appear to have occurred out of the blue. It has been my opinion for a long time that these crashes could be drug-related, or people may have committed suicide. Do we carry out tests in all incidents? Is there proper testing in what appear to be random car accidents?
Blood specimens and urine were mentioned. What about hair samples and saliva? There is no mention of that. We are still talking in terms of blood specimens and urine. Should we be taking these things into account? I would appreciate a response on some of those issues.
Mr. Fintan Towey:
I am happy to respond. In respect of employer responsibility and testing drivers for intoxicants, as I have said, we want to introduce a provision that mirrors the provision that already applies under Part 9 of the Railway Safety Act to safety-critical workers on the railways, under which Irish Rail has introduced a system of random testing. Irish Rail reports that the system is very successful in creating the kind of culture that it wants to create with regard to safe driving. The essential element of the regime would be an obligation on employers to put in place random testing. A certain proportion of workers would be subjected to testing. It would not be a particularly significant testing obligation but the requirement would exist. There would also be an obligation on employees to provide the necessary specimens. The purpose of the provision would be to introduce preventative measures and to have a deterrent effect. It has worked successfully elsewhere. We understand from the State bus companies, Bus Éireann and Dublin Bus, that they feel that there would be positive benefits if it were introduced in their companies, but that they have said that a legislative underpinning is necessary in order to bring it forward.
Deputy Ellis mentioned the issue of drink and drugs in combination. That does happen and it is very evident from the specimen sampling which has been undertaken by the Medical Bureau for Road Safety. We are proposing, therefore, that the legislation provide for increased penalties when a person is driving under the influence of both alcohol and drugs. We envisage that the penalty would be increased by potentially 50% in those cases. That would establish a minimum penalty, with the possibility of a higher penalty being imposed at the discretion of the judge.
On the issue of written-off cars coming back on the roads, Deputy Ellis reflected the figure I used of 40% of vehicles finding their way back on to the roads. It may be important for me to clarify what I meant when I used the term "written off". I am talking about a situation in which the insurance company has made a decision that the cost of repair of the vehicle exceeds the insured value of the vehicle. In many cases - about 40% of cases - the vehicle is typically beyond repair. However, in 60% of cases, the vehicle is repairable but it is the view of the insurance company that it is better from its point of view to pay the insured value of the vehicle rather than the cost of repair. It is not necessarily the case that all of those vehicles that come back on the road are unsuitable to be driven, but there is a possibility that some of them may be unsuitable.
Deputy Ellis welcomed the speed limit issue and no particular question arose from it. As to the issues he raised concerning drugs and the 24-hour period, Professor Cusack might be best placed to expand on the matter. He may also wish to expand on another of the Deputy's questions, that being, saliva samples. The preliminary roadside testing for drugs will be based on saliva samples. Where such a test indicates the presence of drugs, the person will be taken to a Garda station where a blood sample will be taken. The blood sample will be the definitive sample for the purpose of any prosecution that might be taken.
Professor Denis Cusack:
They were pertinent questions. On the issue of the 24-hour period, alcohol is a particular drug, a pleasant one, that many people take voluntarily and sensibly but which some others do not. In this context, though, we are dealing with seven other classes of drug: cannabis; benzodiazepine; Valium or tranquiliser-like drugs; cocaine; amphetamines and methamphetamines like ecstasy and speed; methadone; and other opiates. In addition to these are other drugs that are not always tested for under road safety measures. This is a complex area. Those drugs fall into different classes of being sedative-like drugs, hallucinogen-like drugs and stimulant-like drugs. They are different family types. Some will only stay in their active components in the body for short periods. Sometimes, this presents a difficulty. I know from my forensic doctor colleagues that, although police in England will test someone on the roadside who is clearly impaired, by the time he or she is brought to a police station the doctor conducting the examination must honestly find that the person is not impaired. Other drugs can last much longer, so each must be taken on its own merits.
I will link this matter to that of hair. A hair sample is a useful forensic tool, but it covers a much longer sphere. For those who still have head hair, certain drugs will get deposited as our hair grows. This tool is used more to see whether someone has used a drug of abuse over the longer term, that is, weeks or months. It is not particularly useful in the immediate phase. The Bill's measures are concerned with whether a driver has an impairing active drug in his or her system while driving, not with whether he or she took drugs last week, two weeks ago or three months ago. That is another issue.
I do not know whether the Deputy was referring to car crashes when discussing the tragedy of suicide. Under the Road Traffic Act, we in the bureau only deal with living samples, but the coroners send samples from all road traffic crashes to determine what was in people's systems. One of the studies involved Kildare. This is a relevant issue.
The Deputy also asked about blood, urine and saliva. He is right, in that much of this work to date has been concerned with blood and urine. We define "oral fluid" as including saliva. Dr. Maguire will pick me up if I mislead members in any way. What goes through our blood goes into our saliva. Different drugs bind in saliva in different ways, which is what makes this process so complex. Had the Deputy asked me ten years ago after the ROSITA and DRUID studies, I would have said that we were not yet at a stage where we could reliably look to the tests in question. The situation has since progressed significantly and we are now examining oral fluids at the roadside. As part of our recommendation, we have suggested that, as technology develops, saliva might be suitable for confirmatory or evidential testing. The roadside test is only meant to determine whether it looks like there is a drug. That will not be enough for a prosecution, as it must be confirmed that a drug is in the blood. Currently, the emphasis is on blood and urine, but oral fluids could be included in future. We hope to develop this aspect.
The Deputy asked about prescribable drugs but he also referred to alcohol and other drugs. Of the 1,000 drivers we studied who were under the then alcohol limit, one third tested positive for drugs. Of those who were over the alcohol limit, 15% also tested positive for other drugs. The Deputy is right about there being a problem. Ireland has a nuanced balance. In terms of blood measures for alcohol, we are one of the few countries with levels at 20 mg, 50 mg, 80 mg, 100 mg and 150 mg. As members are aware, there are tiered and increasing penalties between the 50 mg and 150 mg levels. I understand that the Minister will make a recommendation in this regard to the Oireachtas. For example, if someone has alcohol at a particular level plus a drug, one way to approach the issue would be to bring the person up to the next penalty tier. If we recognise that a driver with an alcohol level of 81 mg is more dangerous than a driver who has a level of 50 mg or that someone with a level of more than 150 mg is more dangerous than someone with a level of 81 mg, a person with a blood alcohol level of 81 mg plus ecstasy is clearly more dangerous than someone with a level of just 81 mg. Therefore, should this be reflected in the penalty? This question is being considered actively.
I am unsure as to whether I have answered the Deputy’s questions.
I welcome the officials from the Department and the Medical Bureau of Road Safety and thank them for their presentations.
Regarding the distracted driving section in the Bill, the Garda has stated that it is difficult to bring a prosecution for texting, for example. Under this legislation, however, even texting on a device in a handheld cradle will be covered. Increasingly, mobile telephones in cradles are being used as satellite navigation devices. Insurance companies use applications to gauge driving behaviour, particularly of younger drivers, with a view to providing discounts, for example, Aviva. The departmental officials referred to SMS messaging, but there is more to the issue. Will we reach the point of having to proscribe many different mobile telephone processes or applications? When one starts listing things, one leaves out others. What are the officials' opinions in this regard?
Regarding the employer’s test for intoxicants, the departmental officials might outline what is involved. They mentioned railways. Have they sought or will they seek legal advice on issues arising with testing schemes introduced by employers? Would an employer be liable for any accident that occurred after a driver had been tested? Would employers become criminally or civilly liable due to equipment failure or some other failure?
I presume local authorities will be empowered to make by-laws or do whatever they need to do to introduce the special speed limits of 20 km/h in some areas that will be permitted under this legislation.
I would like to put a few questions to the representatives of the Medical Bureau of Road Safety. They spoke about the balancing of rights. Obviously, nobody wants to be stopped or delayed too often by being asked for samples, etc. A suite of different drugs require different testing and sampling regimes. They have different effects and different timescales apply to them. In alcohol situations, the medical bureau can be very definitive about the blood alcohol level. I believe that is never questioned. Prosecutions fail for different reasons. There are many variables in the drug-testing regime. Impaired driving can lead to testing. I am not sure how we can provide for solid legislation that will allow for a reasonable number of prosecutions in this area. Have we tested all of that out?
Reference has been made to prescribed drugs. I agree that when drugs are listed in the legislation, there are always drugs that are left out. It is then a matter for the Garda to say it is a case of impaired driving and it goes back into the system. Loophole after loophole arises, in my opinion, when we try to provide for something like that in legislation. We have a difficulty when we are providing for legislation in the full knowledge that it will be very difficult for it to succeed, or for the Director or Public Prosecutions to take a prosecution on the basis of it, because there are so many variables in the testing. Maybe the witnesses can address those questions.
I thank the witnesses for their presentations. I will begin by putting some questions to Mr. Fintan Towey. Over the last few years, every lorry driver has had to take the certificate of professional competence. It makes a lorry driver a competent driver. As part of that process, lorry drivers are given explanations about drinking and driving, etc. Mr. Towey spoke about Bus Éireann and Iarnród Éireann. Is he suggesting that small operators who employ two or three people should be responsible for getting breathalyser tests done on each of their drivers, who might leave somewhere like Ballyhaunis or Cork with the fridge on to bring a load of meat out of this country? Where do employers stand in all of this from an employment rights perspective?
How legal is what the Department is proposing to do? A person who has taken a certificate of professional competence is supposed, as a competent driver, to check his or her vehicle every morning. I suggest that knowing the legal alcohol limits and the law with regard to drug abuse is supposed to be part of being a competent driver. Those who are shoving this over to employers have given us American statistics, but I remind them that drivers in America could spend a fortnight on a road train. That is not the case in Ireland. Irish drivers go out of the country. Did the departmental officials look at the legality of what they are trying to impose on the heavy goods vehicle sector, which is under ferocious pressure at the moment? No one condones drink driving, but to be quite frank, I think what the Department is trying to do will never work from a legal perspective. I would like to hear Mr. Towey's comments on that.
Reference has been made to what England has done with regard to licences. Why does Ireland use EU licences if countries do not have joined-up thinking with one another? The new licences at the moment are EU licences. Why have we not stayed with our own Irish licences if England basically does not even recognise what is going on at the moment? It needs to be made clear that the points system does not work between the two countries.
As someone who has a daughter with diabetes, I would like to tell Professor Cusack I am aware that people in England who have diabetes are coming under fair pressure to keep their licences. Having promoted people to do things in this country, are we going to bring in a scenario where this will happen because of certain illnesses? I would not like to see that happen. I think those fears need to be allayed very quickly.
I welcome both presentations. I would like to direct my first question to Mr. Towey. Will the bilateral agreement that has been negotiated with the UK, which will be signed by us shortly and will be signed by the UK after next month's general election in that country, apply to and include Northern Ireland? Perhaps Mr. Towey answered this question in his presentation. I am not quite sure. Perhaps he can confirm the answer.
Deputy Ellis spoke about vehicles that have been written off. I was alarmed to learn that 45,000 vehicles are being written off each year. My interpretation of "written off" obviously differs from what Mr. Towey is talking about. I think that if a car is written off, it is a danger on the public road. If 40% of cars that are written off are coming back onto our roads, that means we are talking about approximately 18,000 cars. Surely this is creating a dangerous situation for us. If a car has been written off, it should be broken down for its scrap value and any suitable parts should be reused. I think the current approach is putting dangerous vehicles on our roads. Are these written-off vehicles still liable for or subjected to national car testing? Is there any way we could reduce the number of written-off vehicles that are being reused and coming back onto our roadways? Is there any way to ensure a car is demolished or broken up for its scrap value, perhaps three months after being written off?
I would like to give my personal view about the 20 km/h speed limit. I appreciate the work that Deputy Ellis is doing on this issue in the Lower House. As far as I am concerned, speed limit signs are worth absolutely nothing. They are a waste of money and a waste of time. I accept that vehicles are parked here and there to catch people who exceed the speed limit. I was caught doing 63 km/h in a 60 km/h zone, after coming off a motorway where I could do 120 km/h. No discretion was shown, but that is not my issue. I am saying that these signs are absolutely useless. The only way to slow down traffic in built-up areas like housing estates is to construct speed bumps. In fact, some local authorities have made it obligatory for them to be constructed in housing schemes at the construction stage. Not many housing schemes are being built at present. Some local authorities - I will not mention their names - have constructed speed bumps at the construction stage. It is the only way. I have seen them and studied them near schools on main roads in many counties in this country. I have taken photographs of locations where flashing lights and various "slow down" type signs, showing schoolchildren walking hand in hand, are used. I have gone into local schools. The only way to slow drivers down, even after all those signs were installed, was to construct a speed bump in the middle of the school road and one at each end of the school road.
I firmly believe that is the only way to address the problem in existing and new estates. There are no long stretches of straight roadway through many of our estates. The perpetrators of excessive speeding in housing estates are not, by and large, people driving through them for the first time, rather they are residents of those estates, some of who themselves have children. We must protect the children. The only way of doing so is to encourage drivers to slow down.
Mr. Fintan Towey:
I hope I capture all of the questions. In regard to the issue of distracted driving as a result of the use of mobile communications and the difficulties that arise in that respect, it is important to point out that in terms of road safety this has been identified as a significant issue. As such, it is incumbent upon us to introduce whatever measures we can to bring about changes in driver behaviour, in particular in regard to the use of mobile devices.
In 2014, there were approximately 30,000 instances of offences in relation to the holding of a mobile telephone by drivers, in respect of which penalties were imposed. I understand there are a small number of prosecutions pending in relation to drivers texting while driving. It is true that it is difficult to detect and prosecute that offence. The month after the introduction of the regulations in regard to texting while driving the number of offences relating to the holding of a mobile phone while driving was approximately 5,000. This decreased to 2,000 in the following month. As such, the regulations had a significant deterrent effect.
It is true that technology continues to evolve. Following the introduction of the regulations there was an increase in SMS messaging, which is traditional texting. There are many new communication possibilities through various applications, such as WhatsApp, Viber, Facebook and so on. Our objective is to try to prevent drivers interacting, using their hands, with mobile devices while driving and to encourage the use of cradle born devices such as a SatNav. Use of a SatNav involves entering data regarding the trip into the device prior to driving, after which SatNav voice commands takeover, with a driver having to glance only occasionally at the screen. There is no interaction by hand once the SatNav has been set up. That is the track we are going, although I do not think anybody would suggest that that is perfect. The issue of people using mobile devices while driving has been identified as a safety issue and is one that we need to try to tackle.
The issue of employers testing for intoxicants was raised by two Deputies. It is an issue that we have examined carefully. We have taken legal advice on the matter and that advice suggests that the imposition of an obligation of this kind on an employer is justified and will withstand challenge. I do not believe that the imposition of an obligation of this type on an employer necessarily gives rise to employers' liabilities in regard to actions of an employee.
Mr. Fintan Towey:
It is a matter on which we can seek further advice.
On the issue of speed limits and the proposed provision for a new speed limit of 20 km/h, I can confirm that it will be the responsibility of the local authority to determine the circumstances in which that type of limit can be imposed. I know that Senator Brennan has concerns in relation to this issue. Trying to bring about change in driver behaviour is a challenge we are constantly fighting to improve.
On the 20 km/h speed limit, there are ramifications for this in terms of planning. In many rural areas where there are narrow roads, in some cases with grass growing down the middle of them, the speed limit is 80 km/h. The line of sight and stop distances on such roads is, off the top of my head, 120 yards right or left. If the speed limit on such roads is reduced to 20 km/h - which proposal I support - a shorter line of sight and stop distance will be required. This should be addressed in the planning regulations and not left to the discretion of an engineer. The imposition of a 20 km/h limit on such roads would require a shorter line of sight and stop distance. This issue must be addressed by law and not left to the discretion of a local authority engineer.
Is Mr. Towey saying that if I own a lorry and employ a person to drive it, that following the passage of this legislation I can change the terms and conditions of the contract under which I employed that person?
Mr. Towey spoke about Iarnród Éireann, which has thousands of employees. He should consider the person who has one or two lorries going to the Continent, Cork or Belfast. What the Department thinks it can achieve is ludicrous. We designed the CPC course to put responsibility on drivers to ensure checks are done every morning when they go out and to put responsibility on drivers to drive properly and safely and not to drive when under the influence of alcohol. Now, the Department is kicking the ball back to the employer. If a person decides to go to the nearest town a mile down the road after the test has been done, how does one prove a machine was accurate? There are so many ifs and buts. I cannot believe we are trying to impose this on employers. If my wife is working for me and she goes down the road in the car, there is a responsibility on me to test her. We have not thought this out and we need to think it out. There are serious implications for employers and the Department has not examined all the nuts and bolts.
Mr. Fintan Towey:
The essence of the regime is that there would be a statutory obligation on the employer to carry out a minimum amount of random testing, for example to test each employee once or twice per year. The mechanics of testing are that a medical professional would take a sample, which would be examined by a laboratory.
Then it is not good enough to buy the kit used in Australian mines to see if any worker had a drink the night before. It will cost a good bit to bring a doctor to premises to take samples from drivers. Is that what the Department is thinking of?
This is the pre-legislative stage and it is important that it is raised now rather than later. In practical terms it sounds crazy and it is important that we highlight it. While the purpose of the Bill is to save lives, we must not do it in a totally impractical way. The consensus is that this must be examined closely before it is put in legislation. This proves that it is good to have such discussions. After we have had all the stakeholders in, we will issue a report in which we can make our suggestions. From what we have heard today, this will be an aspect of it.
Would the test screen for drugs and alcohol or would they be done separately? If it were being done twice a year, I assume one test could test for drugs and alcohol. It is putting great emphasis on an employer, especially somebody who took cocaine. While one might notice if a person were drunk - they would be falling all over the place or there might be other signs - one would not notice if a person had taken prescribed drugs or serious drugs.
This is the point I made. This would be a facility for an employer who had a suspicion that something was going on. It would protect the employer by giving him or her the right to do it. However, to impose it in certain situations seems impractical.
Mr. Fintan Towey:
We can examine the kinds of costs this may involve. I do not think they are excessive. The objective of placing the obligation on the employer to undertake tests is as a preventative measure and a deterrent. Where the employer finds that the result from the laboratory suggests that a driver has been under the influence of drugs or alcohol, it is a matter for the employer to decide what course of action to take.
Deputy Harrington asked which drugs could be detected by the testing regimes and the possibility that some drugs might not be covered and that, over time, more drugs may emerge that cannot be detected, causing loopholes. This is true and nobody suggests that this is a perfect regime that would catch everything. However, we know there are problems. There are people who are driving while impaired due to the presence of drugs in their systems. Based on tests done on samples, we know certain types of drugs are prevalent, such as cannabis. We are introducing new measures that give new tools to the Garda to detect and take action against drivers who have intoxicants in their systems and who are impaired.
Deputy Fitzmaurice's points on recognition of driver disqualifications were well made. Ultimately, within an EU regime we would have mutual recognition across EU countries of disqualifications. The convention that was introduced was ratified by only seven member states and only implemented in practice by Ireland and the UK. While, ultimately, there is a logic behind the idea that any offences within Europe would result in a sanction being imposed regardless of the licensing regime that has issued the driving licence in question, we are a long way from it and we are trying to re-establish the arrangements with our nearest neighbour that have fallen away, somewhat by accident.
Mr. Fintan Towey:
I take the point. There was a question for Professor Cusack about prescribed medication. Senator Brennan raised similar issues regarding the bilateral agreement with the UK. Although vehicles that may not be suitable for use are coming back on the roads, it is incorrect to suggest that all 18,000 vehicles that the insurance companies have deemed to be written off are unsuitable.
There is a significant proportion of vehicles where the insurance company decides to implement a financial write-off and pays the insured value of the vehicle rather than the repairs even though the vehicle is capable of being repaired safely. Cars that are reintroduced onto the road are subject to the NCT. Those tests are carried out at certain intervals - after four years for a new car and after two years for an older car up to the age of ten. The NCT does not test the structural integrity of a vehicle which has been involved in a traffic collision. It is not a suitable test for establishing if a vehicle that has been in a collision is suitable for reintroduction to service. It would be cost prohibitive to introduce such a test for all cars in the NCT.
This committee is looking at more new legislation. In line with the CPCs, every lorry or plant driver is obliged to tick their boxes and be a competent driver every morning they go out. Will the witness tell the committee how is it that every private driver has to do this and yet there are public bodies that have refused to do it and ignore it?
The CPC is a competence certificate. There is a legislative process in place that one has to do five courses in order to become a competent driver. It is part of the NTA and is European-wide, even though France has refused to do it. One will not be allowed to drive plant on a road here without doing the five modules. How come every private plant or lorry driver in Ireland is obliged to fill in these forms every morning and there are public bodies that are allowed to refuse, without a word about it?
Professor Denis Cusack:
I am not speaking for the Medical Bureau of Road Safety, but I will touch on some of the points Deputy Fitzmaurice raised. I do not know if it will be of help to the committee, but there is a provision in the Safety, Health and Welfare at Work Act 2005, section 13(1)(b), which puts responsibilities on the employee not to be intoxicated and put others at risk. I believe this is a theme. It is about shared responsibility and it is not all on the employer nor all on the employee. I do not know if this is a help and it might cross-reference with different legislation.
On Deputy Harrington's question, my response was to Deputy Ellis, who was asking how drugs are tested for and how they go into the body, the Deputies are quite right that it is more complex, but that is simply in terms of how we test what we are looking for. There are many variables and it is more complicated than alcohol, but perhaps I can reassure the committee by simplifying the variables. In terms of road safety and impaired driving, it comes down to whether the drug disappears from the system in 24 hours or three hours and whether we can test it by one method or another. They are the complexities we have to deal with. When it comes to the safety of driving the simple variables are whether there is an active substance in the bloodstream at the time of driving which is known to impair driving and make it more dangerous, and how we find that substance. One can take all the variables and reduce them to just that moment in time.
One might also consider all the things for which we cannot test. This is why I go back to the opening statement. It is important to know what is happening elsewhere. From all of the literature, we know that the classes of drugs picked up in the majority of impaired drivers are drugs such as cannabis, benzodiazepine or valium-type drugs, cocaine, opiates, methadone, amphetamine and methamphetamine. Members are right that it is not 100%, but if we were to not to do anything until we can find everything, then we would be putting lives at risk. This is a very comprehensive start. I will give the committee an example. When we checked the blood and urine samples of drivers arrested by gardaí on suspicion of driving while intoxicated, but who were found to be under the limit for alcohol, approximately 75% of samples turn out to be positive for drugs. That is a very good start. It is not perfect; it is more complicated.
There is a discrepancy between the number certified as definitely having drugs in the bloodstream versus the number of prosecutions. I brought this up with previous Ministers Michael McDowell and the late Séamus Brennan, which illustrates how long ago it was. Part of the reason was the difficulty in bringing evidence that would satisfy. One of the important things in our democracy is that nobody should be found guilty of an offence unless there is evidence beyond reasonable doubt. Taking away a person's driving licence is a very big step. We are trying to balance that with road safety.
Since November 2014 there has been impairment testing which is fairer to the driver and assists the Garda in bringing forward better and fairer evidence. The roadside chemical testing is adding to that. We hope that this course is progress. I remind members that it took decades to get the roadside mandatory alcohol testing. It is a significant step, but it will take time. We take our job seriously to make sure that what is out there is fair, accurate and practical for gardaí. For example, can they use these devices in the pouring rain? Even though the gardaí and the devices came in dripping wet, we found they could be used. I wish to reassure the committee that, despite all the complexities, we are trying to make sure this is a simple and fair system.
I thank Deputy Fitzmaurice for discussing drivers with diabetes. In another life my specialty training here and abroad was diabetes. I will mention the medical fitness to drive guidelines. What the Deputy has said is exactly what we want to ensure - that people are reassured. I hope, since the Deputy brought it up, he does not mind me replying in a personal way. This is about making sure that the Deputy remains healthy and fit to drive and to support him in that. I am a member of the fitness to drive group, which has representatives of both patients and specialists in diabetes. I do not know if members have had the opportunity to read the medical fitness to drive guidelines, Sláinte agus Tiomáint. They are probably not light reading. Up to a few years ago we were relying on very skimpy 1980s guidelines from what was then the Department of the Environment. We actually had to refer doctors to the UK guidelines. Chapter four of Sláinte agus Tiomáint deals with diabetes mellitus. The thing about medical fitness to drive is that the aim is not to stop people driving but to facilitate people with medical conditions to be in the best health possible and to make sure they are not precluded from driving because of a medical condition, whether it is epilepsy, heart disease or diabetes. The chapter of the guidelines dealing with diabetes mellitus contains a number of appendices to help doctors and their patients ensure that the patients, as drivers, remain fit and healthy and do not run foul of the regulations. It is very positive and we need to get the message out that somebody taking insulin or an oral hypoglycemic is not going to run foul of roadside drug testing. It is a very important message and I thank the Deputy for bringing it up. Road traffic legislation deals with the penal and criminal, but instead of linking it to misuse of drugs and criminality, as a doctor I am trying to link it to where it belongs - road safety and medical fitness to drive. Rather than trying to have prosecution, why not try to get people to realise that all we are trying to do is make sure that drivers are driving safely for themselves, their families and other road users. I hope this reassures members about medical fitness to drive. The Deputy himself is probably an expert on diabetes.
It is just to get the message out there. I have spoken to people in the UK. There were difficulties in the UK through he years but they have come along a lot.
People on blood pressure tablets or with heart conditions need to be reassured with regard to drug testing. The first message which should go out is that guidelines exist whereby such people will be encompassed. This will give them the courage not to fear this. This should be emphasised.
Professor Denis Cusack:
Three members of the board of the Medical Bureau of Road Safety, including me, are doctors. As doctors we want to emphasise that deterrence, detection and ensuring people act responsibly in driving must be balanced with ensuring positive health promotion. This is not easy reading, but it is meant to help doctors and reassure patients about their health and driving.
On behalf of the committee, I thank Mr. Towey and the departmental officials for coming before it and explaining the purpose and provisions of the Bill. I also thank Professor Cusack and his colleagues for giving us their technical expertise on the effects of drugs. I speak for everybody when I say it has been a very informative meeting. We may not agree with everything we have heard but it is good to have it out there. I hope it will inform the witnesses in progressing the Bill.