Olivia Mitchell (Dublin South, Fine Gael)

I welcome the eventual emergence of a Bill which is long overdue and of which much is expected. However, I regret that the Bill, as constituted, does not derive from any over-arching and coherent policy on our road safety problems. It is, in effect, a miscellaneous provisions Bill rather than a road traffic Bill. It deals with the issues in a piecemeal fashion. It is a collection of unrelated issues simply pulled together into single but disconnected legislation. Having said that, Fine Gael accepts and supports the general principles of the Bill.

The issues dealt with in the Bill would never have seen the light of day had it not been for the Opposition's persistent criticism and outrage at scandals such as driving without a licence and without passing a test, which was allowed to persist for 400,000 drivers. The Minister spoke about his efforts to tackle the driver testing backlog, but the truth is that the Government was quite happy to sit on its hands for eight years before any attempt was made to address the problem. The problem has grown over these eight years and it is not at all clear that this Bill will make any great difference. Simply changing the name from a "licence" to a "permit" does not make acceptable the failure to ensure the right to drive freely on our roads is contingent on passing a test. Giving the Minister additional powers to provide for graduated licences or permits is a pointless exercise and cannot be implemented until the testing system works and drivers can be tested virtually on request.

The Minister has been announcing and reannouncing measures for this Bill on an almost daily basis, for which it seems he must have a press conference. Passing legislation which provides for further restrictions on learner drivers gives the impression of progress. However, we cannot even implement the single restriction we already have for learner drivers, that is, the requirement to have an accompanying fully licensed driver. While we have put up with that situation in Ireland and have an almost limitless capacity to tolerate the intolerable, our neighbours in Europe, rightly, are not willing to tolerate that. Now that they have discovered with disbelief that we have been blithely allowing untested drivers and failed drivers to drive freely, not just on our roads, but on their roads as well, they are rightly about to throw the book at us.

Nothing in this Bill will change that scandal and the timid measures recently announced by the Minister will not have an impact for years. I refer to the measures for the outsourcing of 40,000 tests, which I believe is insufficient. I do not believe it will have the expected impact. The Minister has blamed everybody for the delay, including the unions, Sustaining Progress and the drivers who fail to turn up for their tests. It is always the fault of someone else, but the truth is that the fault is with the Government. This is the result of monumental incompetence and indifference over many years. The gross incompetence demonstrated in respect of the driver testing system reflects the general attitude to road safety by the Government. In turn, this is reflected in the attitude of many road users to drink driving and speeding. These attitudes are directly responsible for the growing and unacceptably high numbers killed and seriously injured on our roads.

Most measures in the Bill, such as the graduated licence, depend on enforcement of the existing legislation. We have not managed to do that. It seems a pointless exercise to introduce graduated licences because one must take a test to graduate to the next level. Until the testing system is sorted, there is no point in bringing in further restrictions. Our legislation and how we implement it shapes public attitudes and informs public behaviour. There is a huge responsibility on all of us to take very seriously road safety legislation and implementation.

The Bill provides for a long overdue ban on mobile phones. Successive Ministers assured us that this could not be done because a definition of a mobile phone could not be found. It was only when Fine Gael introduced a Bill to ban mobile phones that the Minister was able to do so. However, I am not sure he was quite as able, because any lawyer to whom I showed this section has said that it is utterly deficient. I ask the Minister to consider amendments before Committee Stage. For instance, there is no definition of "driving" yet the operation of the entire section rests entirely on that word. The Bill states: "A person shall not, while driving a mechanically propelled vehicle in a public place, hold a mobile phone." The Minister and I both know the everyday meaning of the word, but it may have a very different interpretation in a technical, legal sense. Does being stopped in traffic constitute driving? Does being belted up with the engine on, ready to go but not actually moving constitute driving? If we do not define "driving", the courts will do it for us.

This provision will be widely enforced by the Garda because it is widespread practice and we can see it at any time of the day. Conviction can result in penalty points or a fine of up to €2,000. In some cases, the penalty points may push the driver over the 12-point limit, resulting in the loss of a licence. Therefore, this provision will be the subject of intense scrutiny by lawyers. Everyone to whom I have spoken has indicated that it is wide open to legal challenge. We cannot prevent the challenges, but we can anticipate them and the very least we can do is ensure there is no ambiguity in the Bill. One way of avoiding ambiguity is to include a strong definitions provision in legislation. It is our job to say what we mean in the legislation we pass, otherwise the courts will say it for us.

As the Minister is aware, the provision regarding the use of a mobile phone will be primarily applied in the District Court where judges are well known for their lack of consistency in approach. The decisions and direction of decisions depend on individual judges' likes and dislikes, preferences and prejudices. If we are serious about what we do in this House, we must take this fact into account. It should reinforce our determination to limit the opportunity for judicial imagination in interpreting what we say in regard to this legislation. It is not only that this section is ambiguous, it is also weak in limiting what is prohibited merely to holding a mobile phone. It should also be given the belt and braces provision of prohibiting the holding and-or using of a hand-held mobile phone.

The defence provided for in section 3(7) to allow a call to be made to a member of the Garda Síochána is wide open to abuse. This defence provision would open the flood gates to applications for penalty points to be removed. I can understand a person using a mobile phone to make such a call in a genuine emergency, but the section does not state that. The section is open to people claiming they were making a call to the Garda because in respect of pay as you go mobile phones, there is not a record of calls made. A motorist caught by a garda making a call on a mobile phone could say he or she was ringing the Garda and in the case of a call of short duration — the destination will not necessarily be recorded on the bill. Inevitably some motorists caught in such circumstances will claim they were using a mobile phone to telephone the Garda, even when they were not. Even if they were, such a call is permitted under the legislation even when the call is not in respect of urgent matter. One could telephone the Garda about one's driving licence or about a signature on a passport application form. A mobile phone should be only used by a motorist to make a call in a genuine emergency and the circumstances must be demonstrated to be an emergency. While a mobile phone can be used by a motorist to make an emergency call, the section must be amended to ensure claims of casual calls to the Garda cannot be used as a defence.

Another significant provision allows for mandatory alcohol testing. This is a measure we were assured could not be included in the legislation. The Minister informed us that he had consulted the Attorney General and received independent legal advice on this matter. However, it was only after a period of sustained political pressure that suddenly not only was this measure possible, but the Minister was claiming credit for its inclusion. The reality is that he was dragged kicking and screaming to this Pauline conversion.

In terms of the way the legislation is framed, there is no doubt that giving power to the Garda to test for alcohol without suspicion or cause is considerable and represents an encroachment on a constitutionally guaranteed liberty. The giving of such power has been a problem in regard to such legislation and a reason such a measure has not been introduced prior to now. I believe that society will accept this encroachment. We may not like it but given the widely accepted consequences of drink driving for potentially every member of society, it will be viewed by society as a justified limit on our liberty. Some protection for the public in this context is required and some constraints on the exercise of Garda power are required if this legislation is to withstand challenges in the courts.

The requirement for authorisation by an inspector to be in place prior to a road-block is reasonable and a necessary protection for the public, but the legislation, as it is worded, does not limit an authorisation to a specified day or week. Every one in the legal profession to whom I have shown this legislation indicates it is far too lax, open-ended and open to challenge. It offers no protection to the public in the way in which we envisage it will be necessary and the courts will find necessary if it is to withstand constitutional challenge. In practice, under this legislation an inspector could sign an authorisation in January which might be valid for the entire year. It is a protection intended to protect the public and the provision is to ensure that a measure would be acceptable in the courts should it be challenged and, as the Minister is aware, undoubtedly it will be challenged.

The legislation should also provide for authorisation by the Garda of other persons to escort people who have failed a roadside breath test to a station or perhaps to a van where they could be given an intoxiliser, blood or urine test. Such a provision is not included in the Bill. Given the strict time limit allowed between the beathalyser test and the intoxiliser evidential test, the numbers potentially to be caught at a busy checkpoint could result in a major waste of gardaí time while they ferry motorists to a station to be tested. I accept the test must be done by an expert who is trained to carry out such testing, but such a provision could ensure that gardaí could remain on duty at a roadblock while an authorised person could bring an offender to the station or elsewhere to have the test carried out.

Section 4 also allows a garda to arrest without warrant a person "who in the member's opinion" is committing an offence under this section. I have spoken to many lawyers and many members of the public about this provision, but nobody has the slightest idea why it is included or what it means. Perhaps the Minister could clarify it. We already know there is a difficulty in establishing in court the basis for forming an opinion — that has always been problematic for the Garda. As the section is worded, it appears it would allow a garda to form an opinion independent of any testing. If that is the case, what is the point of having a roadblock and a test in the first place? Doubts about the intention underpinning this provision will result inevitably in court challenges. It may be that the Minister or somebody else is perfectly clear about why this provision is included, but it is not clear to anybody else. If it is not clear to me or to legal experts, it certainly will not be clear to the courts and it will leave judges free to interpret what it means. The provision must be clarified by amendment on Committee Stage to ensure the intention of the Minister and the Oireachtas is made clear to judges and that it is clearly stated in the Act and not merely in the House as part of a parliamentary debate on Second or Committee Stages. It must be amended and I ask the Minister to take that on board.

Sections 5 and 17 relate to outsourcing and in the case of section 5 to the issuing of disqualification notices as a result of drink driving offences, accepting fine payment and issuing receipts. I understood that practice was already under way and therefore I am a little perplexed as to why we are now legislating for it.

The main issue I wish to raise is in section 17, which empowers the Minister for Justice, Equality and Law Reform to outsource the operation of speed cameras subject only to selection by the Garda of the camera locations. I welcome what the Minister said about the complete disconnection intended between the number of speeding offences detected and remuneration to the speed camera company. I favour the introduction of speed cameras and I would like them to be introduced on a widespread basis. The speed camera system can be utterly fair if it is properly implemented and, more importantly, it can release gardaí for real policing duties.

I raised the issue of the danger of using the speed camera system for revenue raising purposes. It is important that members of the public see that the system is not used for that purpose because if they are to accept the speed camera system they must be assured it is entirely objective. I do not believe anybody could accuse me of being against outsourcing but this is an issue of the administration of justice and it is different from other kinds of outsourcing. For that reason not only should the location of the cameras be subject to Garda control and supervision but the overall speed camera system should be subject to supervision by the Garda. I fully support getting the day to day work off the shoulders of gardaí, but such a system must have the overall safeguard of Garda supervision if the public is to have confidence in it. More important from an evidential perspective, the backing of Garda authority is essential from the point of view of withstanding court challenges, which will occur, to the outsourcing of the speed camera system. I urge the Minister to ensure the legislation is amended accordingly to put the overall system under Garda supervision.

I wish to refer to the penalty points system because this legislation extends penalty points to a further number of offences and increases fines and penalties. I have raised with the Minister and the Minister for Justice, Equality and Law Reform on a number of occasions the issue of how the penalty points system is implemented. I am concerned specifically about the removal of penalty points from people's driver licence files. I welcome the clarification the Minister has given today about the court case in Wicklow, which I always understood was quite different from the problem that seems to be associated with special speed limits. There have been questions in that regard. I welcome the Minister's clarification that this is watertight in legislation.

Nevertheless, in reply to a parliamentary question, I was informed that, since the new protocol was introduced, there have already been 823 cases of penalty points being removed from people's licences. This protocol was not introduced until I raised the problem in the House and it began to arise in the courts. Almost all the 823 cases had to do with the absence of by-laws, which implies there is a major problem and a need for local authorities to get their by-laws in order. This problem may be a slightly different problem from that referred to in newspapers, but it is urgent if all the points relate to that matter.

The minimum requirement of our justice system is for it to be just. With the protocol in place, we now have a mechanism for removing incorrectly recorded penalty points from a person's licence file, but it only applies to penalty points received as a result of paying a fine. Penalty points received as a result of a court case are doubled as a result of the case going to court. We must have an automatic system in place to remove these points from people's files when they are found to be incorrectly recorded, which happens often, as evidenced by the batch that arose in court last week.

It is unacceptable and unconscionable that people who were incorrectly accused, through no fault of their own but as a result of a defect in the system or a mistake by the authorities, should be forced to the inconvenience, cost and stress of returning to court when they are clearly not to blame. I urge the Minister to set the automatic system in place as part of the legislation. If the penalty points system is to work and gain widespread public acceptance, the least the public is entitled to expect is that the implementation of the scheme should be impeccable and fair.

The legislation does not deal with the issue of expired driving licences or the offence of driving without a licence, but this type of legislation should change the current system. Many people get ten-year driving licences although they could get licences for a shorter period. We have, apparently, invested a fortune in getting the national driver file up to scratch to be capable of operating the penalty points system. I hope this is true and that it can do what is expected of it. Now that the system is fully computerised, it is only reasonable to expect that people will be notified when their driving licence is about to go out of date. This is not too onerous a demand. We are notified when our road tax is out of date, so we should be notified about our driving licences. This is the least people can expect if they will have to go through the process of retaking a test if their licences lapse. I hope the Minister takes this on board.

I could have raised many of the headline-grabbing issues omitted from the legislation, but I have tried to concentrate on what is in it instead. Much of the Bill, especially that dealing with permits and driving licences, is enabling legislation and we do not know when it can come into force. Whether it will be of value and give results depends on two things, namely, the resources provided for the implementation of the measures proposed and the robustness of the legislation. Much of our current legislation does not work because resources were not invested in it. I accept there is an urgency to the legislation, but in recent weeks we have seen several cases in the courts which show the impact of court challenges to our road safety regime. We cannot prevent challenges, but we can do all in our power to ensure our legislation is as robust and resistant to challenge as possible.

The new chairman of the Road Safety Authority expressed the hope that the Opposition would not delay the legislation. We found that hard to take because we were not aware the Opposition was to blame. If it had not been for the Opposition's persistence, there would have been no legislation. We certainly cannot be blamed for the delay and, without our persistence, Mr. Gay Byrne would not have been chairman, nor would there have been a Road Safety Authority. It is a little difficult for us to be taken to task for delaying the legislation and for us to be referred to as "that other crowd".

Notwithstanding this, it is vital for us to scrutinise this type of legislation thoroughly. It is important that the chairman of the Road Safety Authority and others understand the role of both Parliament and Opposition in a democracy. Nobody will be slow to criticise us if the legislation falls at the first fence, and we all accept it will have many fences to face. Road traffic legislation is the most challenged of all, and we should bear in mind that no legislation might be better than bad legislation.

We know from events in the courts in recent weeks that the potential for harm and for sending the wrong message is enormous where legislation is found to be deficient. It need not even be found deficient, just sufficiently doubtful not to be taken seriously by the courts and for them to accept that a reasonable case to challenge it exists.

I understand and share Mr. Byrne's impatience to see additional measures enacted to enforce road safety. I want the Minister to know that I and my colleagues intend to do our job on this legislation. I have taken time to outline some of the amendments necessary if we are to produce a robust Road Traffic Act that will make our roads safer for all who use them. I urge the Minister to listen to my concerns and do his part to bring forward the necessary amendments to ensure the Act we pass is robust. Perhaps he could take Opposition amendments on board. He must be open to the fact that we understand the urgency and need to have the legislation on the Statute Book before the end of the session. Nevertheless, if he wants our co-operation, he should listen to our concerns about it.

See this speech in context