Shane Ross (Dublin Rathdown, Independent) | Oireachtas source

No, that is alright. I thank the Ceann Comhairle.

As I had only just begun my response to these amendments when we ran out of time yesterday, I would like to begin by again thanking both Deputies Troy and Munster for tabling these amendments to extend the list of drugs listed in the Bill. I am fully sympathetic with their intent and I do believe the list will grow in the future. I would like to explain why this is not the time to do it and why, when they are looked at closely, both amendments would unintentionally undermine rather than extend the law on drug driving. The same attitude applies to virtually all of the amendments on Report Stage, that is, that nearly all of them are aspirations I share.

However, there are difficulties with the drafting and there would be, quite understandably, unintended consequences if we were to accept them in their entirety. I am learning on the job myself that road traffic legislation is extremely complicated and very difficult to get right. If there are any drafting problems, this can give rise to unintended consequences which we cannot accept and obviously cannot allow into law. That said, I am happy to work with those Deputies who have tabled amendments which we cannot accept for those reasons. I am happy to push them further and include their provisions in future road traffic Bills. There are almost always road traffic Bills pending or being drafted by officials in my Department.

I will now remind the House of what the law already says on drug driving. It is an offence under the Road Traffic Act 2010 to drive a mechanically propelled vehicle while under the influence of any intoxicant to such an extent as to be incapable of controlling the vehicle. The law covers legal and illegal drugs. If gardaí find a person driving while intoxicated, a specimen will be taken for testing by the Medical Bureau of Road Safety, MBRS. The bureau tests for 42 different drugs. This covers the whole range of drugs likely to be found and to cause intoxication in drivers.

The law as it stands also has quite a different offence in it, namely, driving while over the limit for alcohol. In this case, the prosecution needs to prove only that a driver was over the legal limit, not that he or she was actually impaired. This Bill is putting three drugs, cannabis, cocaine and heroin on the same basis as alcohol by setting legal limits for drivers for these drugs. It will be an offence to be driving while over this limit without any need to prove impairment. This is a major step forward in Irish law. It will still be an offence to be impaired due to any other drug and as I said, the bureau's wide-ranging tests will identify all likely drugs.

I have selected three drugs, cannabis, cocaine and heroin, based on the best scientific advice. I am not sure why Deputy Troy believes that my proposals are based on 16 year old evidence. They are based on detailed discussions with the MBRS during 2015 and further ongoing discussions with the bureau since then. The bureau's advice is clear. Setting specific levels for drugs is extremely difficult and inevitably the evidence base for drug driving internationally lags far behind what is available for dealing with alcohol. The bureau is clear that it is possible to set scientifically reliable levels for these three drugs now but not for others. It is not that we do not want to include other drugs. We do and we will, as and when the scientific basis for doing so exists. The time is not yet right and the evidence basis is not yet there to extend the list today.

I also believe that accepting either of the proposed amendments could have a damaging effect on drug driving law. To take Deputy Munster's proposal first, it would replace the list of drugs and levels agreed with the bureau with a new list. The proposed list would double the level of cannabis recommended by the bureau and would remove cannabis acid from the Bill. This is a by product of cannabis which is often traceable when the original drug is not. The effect of taking it out would be to make it easier, not harder, to get away with driving after taking a serious quantity of cannabis. The other drugs in Deputy Munster's list also present a few problems. For example, the proposed limit for flunitrazepam is set at 300μg/L but I understand that it is possible to be seriously impaired well below that level. This presents a risk that persons charged under the existing offence of being under the influence of an intoxicant could argue in their defence that they were under the legal limit.

Deputy Troy is proposing to amend the schedule of drugs in the Bill by introducing a link to Part 1 of Schedule 6 of the Misuse of Drugs Act. This would bring all of the drugs in that schedule into the new presence only offence being created in the Bill. There are several reasons this could cause serious problems. First, the Misuse of Drugs Act is focused on the dangers posed by drugs while road traffic legislation is about road safety. Many of the drugs listed in the Misuse of Drugs Act may be addictive and damaging to human health but are not necessarily of relevance to safe driving. This would create confusion between drug enforcement law and road traffic law and would require the Garda traffic bureau to spend time dealing with drugs which have no relevance to traffic. I have said that it is important to proceed on the basis of sound scientific evidence. When it comes to the drugs in the Misuse of Drugs Act we do not have, in many cases, the scientific evidence base to tie them to road safety dangers, much less to contemplate setting appropriate limits for them.

The proposal to allow me, as Minister, to set levels for these drugs in regulations is not likely to be constitutional. Members may remember the Bederev judgment. In that case, it was found that the practice of allowing the Minister for Justice to add drugs to the list of illegal substances by way of regulation was unconstitutional. Only the Oireachtas can create an offence. It cannot be done in regulations. As Deputy Troy's amendment stands, it asks the Minister to set levels for drugs and being over those levels would be an offence. A Minister cannot do that, constitutionally, which is precisely why we are setting levels for each drug in the Bill.

Deputy Troy's suggestions are fine. I do not have much of a problem with them, with many of the other suggestions for the Bill or with the list but the point is that the Minister cannot make such regulations. To do so would mean that the Bill would be open to constitutional challenge. We do not want the Bill to be open to such a challenge. That is the problem with some of the amendments. We do not want any part of this Bill to be subject to legal challenge. It would be very detrimental to the entire Bill and could delay it for a very long time.

I am happy that we are taking the right approach at this stage with a limited number of illicit drugs being included in our new presence only offence. Setting drug levels is complicated and requires careful scientific review. Expanding the list of drugs and limits is not something we would want to rush into at this time. The drugs covered by the new law will be kept under review and once the new system has bedded down we will consider, with the MBRS, whether to expand it based on the operational experience gained and any further advances within the scientific community with regard to setting appropriate threshold levels for other substances.

Deputy Munster asked on Committee Stage for an assurance that the list would be expanded within a year. If we are to rely on scientific evidence, which we should, then it is not possible to guarantee when the scientific evidence will have advanced to the point where we can add more drugs to the list. However, I can promise that when the evidence is there, we will definitively act on it.

See this speech in context