Tuesday, 3 October 2006
Road Traffic and Transport Bill 2006: Second Stage
Martin Cullen (Minister, Department of Transport; Waterford, Fianna Fail)
I thank all the Members present for their interest in the Bill and the Leader of the House for agreeing to deal with it so quickly and at such short notice.
The Bill itself is short, as it comprises only two sections, the first relating to road traffic law underpinning and promoting road safety in the area of drink driving, and the second to road transport matters. The Bill is, in essence, mainly technical, although it proposes two important policy initiatives that improve and strengthen provisions relating to drink driving. I shall address the road safety provisions in the first instance.
Senators have shown particular interest in road safety issues generally, expressing a concern that I share about the high level of deaths and injuries on our roads. Many issues raised by Deputies during debates and discussions are now reflected in legislation enacted by this House.
The ongoing progression of road traffic legislation reflects a response to the changing environment in which we use our roads and an increase in the number of vehicles on them. The scope and level of investment in our road network in the past ten years, allied to programmes for the improvement in the design, construction and performance of vehicles, has given rise to an ongoing need for an appropriate legislative response. However, the most significant driver of the process of legislative modernisation has been the need to augment and enhance existing road safety provisions.
The promotion of legislation to support road safety initiatives represents an important response by Government and the Oireachtas to the need for the ongoing advancement of improved safety performance. This, allied to consistent and effective enforcement of the traffic laws promulgated in such legislation, the promotion of road user education and awareness, and programmes to promote the formation of drivers, provide the bedrock for the application of the measures that stem from legislative initiatives and ensure their effectiveness and relevance.
In Ireland, as in many other states, the force that binds the various road safety measures and programmes into a cohesive policy framework can be found in the road safety strategies. First adopted eight years ago, the strategies have provided the basis for the development of a range of legislative and other responses promoted over that period. Through the adoption of road safety strategies, we have seen the identification of a series of significant and, in many instances, linked measures that have to date, and will continue in the future, to advance the safety message for all road users. One of the great advantages of adopting strategies is that they place our plans in the public domain, thus allowing for informed debate that in turn provides a benchmark of public, media and political opinion for the delivery of the measures identified.
The key determinant of road safety performance is the behaviour of road users. Positively influencing such behaviour lies at the centre of our road safety programmes and forms the primary focus of our road safety strategies. Behaviour is influenced by initiatives across a number of areas. One of these is the promulgation and enforcement of laws that promote road user behaviour. Such laws must also be underpinned and supported by the application of fines, prison sentences and driving disqualifications that collectively create an appropriate deterrent to those who endanger the lives of others by their failure to acknowledge and comply with the appropriate behavioural norms.
The Road Traffic Act 2006 considerably strengthened the law in these areas. In the area of legislation as promoted in the current strategy, we have already seen the implementation of the new system of speed limits based on metric values, the extensive roll-out of the penalty points system and the allied system of fixed charges, which is being outsourced to relieve the Garda of administrative functions. We have seen the introduction of roadside mandatory alcohol testing, MAT, the establishment of both the Garda national traffic corps and the Road Safety Authority, and both of those organisations will, I am sure, have a profoundly positive effect on road safety in the future.
The debate on road safety has for some time now become the centre of political media and public attention. There is understandable and significant disquiet at the level of death and injury inflicted by road collisions. The number of people being killed and injured on our roads is still unacceptably high. I do not hide my concern about the trends in road deaths that have become established over the past two years — 396 people lost their lives on Irish roads in 2005 and 279 this year up to the end of September.
However, there is a glimmer of hope for the future. A small change has occurred and potentially a very significant one. Since the introduction of roadside mandatory alcohol testing in July, which has a legislative basis in the Road Traffic Act 2006, drivers are beginning to take heed and, more importantly, they are beginning to change their behaviour and attitudes towards drinking and driving. The number of road deaths in August 2006 was 17 — the lowest number for any month since November 1999. This compares with 24 road deaths in August 2005 and 35 in August 2004. This trend is also reflected in the number of deaths during September 2006 which was 22, compared with 31 in 2005 and 34 in 2004. The downward trend follows the introduction of roadside mandatory alcohol testing by the Garda. In parallel, the number of road collisions has fallen. The increased levels of enforcement are having a significant deterrent effect on those who would otherwise drink and drive. While it is important not to base trends on two months' statistics, the reduction during August and September is a positive development and I hope with the levels of enforcement, the downward trend will continue.
In general terms, the immediate focus of the Bill before the House today on the road traffic side is to support the introduction of legislation that will further strengthen drink driving provisions and improve the enforcement of drink driving legislation generally. These provisions relate to a proposal to take away the necessity in a Garda station for a garda to form an opinion, in advance of administering an evidential test, that a person has consumed an intoxicant, and a proposal to provide that nurses can take blood or urine samples at a Garda station. At present, the Road Traffic Act provides that only a designated doctor can take a blood or urine sample in a Garda station. Unfortunately, a typographical error also occurred in the Road Traffic Act 2006 which could have a limited impact on the operation of mandatory alcohol testing. This is being corrected. The error may have come to Members' notice through coverage in the national newspapers last week. This error relates to only a small number of cases where a person refuses to give a roadside breath sample and where he or she is arrested for the purpose of providing an evidential test. Overall, the mandatory alcohol testing system has operated effectively since the end of July and the numbers who refuse to provide samples are very low, according to the Garda.
I will now refer in some detail to the main road safety provisions proposed in the Bill. Section 13 of the Road Traffic Act 1994 provides that a person arrested under various provisions relating to drink driving, as well as the commission of other serious offences, can be required to provide a breath, blood or urine sample in a Garda station for evidential purposes. However, the section refers to the formation of an opinion by a member of the Garda that an intoxicant has been consumed in advance of administering an evidential test. My Department has looked at decisions in the courts and found that the presentation of the wording of the section gives rise to the potential for misinterpretation. In recognising that this is a pivotal provision in the overall code applying to drink driving, I am taking the first available opportunity to both clarify and strengthen the provision.
It is proposed, therefore, to re-state section 13 (1) to remove the requirement for a member of the Garda to form an opinion in the Garda station that an intoxicant has been consumed, where a driver is arrested under any of the drink driving provisions, including those relating to a refusal to provide a roadside sample, and in the case of the other serious road traffic offences which are not related to drink driving. This amendment is sensible since the initial roadside encounter between a garda and a driver involves either the commission of a serious road traffic offence, the formation of an opinion that an intoxicant has been consumed, or in the case of a mandatory alcohol testing checkpoint, a refusal by a driver to provide a sample where there was no requirement to form an opinion. With the assistance of the Attorney General, I propose to streamline the provision so that the necessity to form an opinion again, in the Garda station, no longer applies.
The Road Traffic Act currently provides that only a designated doctor can take a blood or urine sample in a Garda station. For some time, the timely availability of a doctor has given rise to problems in this area. Given the increase in detections resulting from the introduction of mandatory alcohol testing, it is likely this problem will become more significant. It is therefore proposed to extend the pool of resources available to the Garda to take blood and urine samples. The proposed improvement to this provision will ensure that, once practical arrangements are in place for the identification of nurses in the vicinity of Garda stations, greater numbers of medical staff are available for taking samples. There are several consequential amendments included in the Bill resulting from this provision.
A typographical error, which could have a limited impact on the operation of mandatory alcohol testing, is also being corrected. Section 4 of the Road Traffic Act 2006 provides for the introduction of mandatory alcohol testing checkpoints. It is an offence under section 4(6) to refuse to give a roadside breath sample, the penalty for which is a fine of up to €5,000 on conviction and-or imprisonment for up to six months. A person who refuses to give a roadside breath sample can be arrested under section 4(7). Section 13 of the Road Traffic Act 1994 provides that a person arrested under various provisions relating to drink driving, as well as the commission of other serious offences, can be required to provide a breath, blood or urine sample in a Garda station for evidential purposes. Section 4 of the Road Traffic Act 2006 amends section 13 of the Road Traffic Act 1994 to provide that a person, who is arrested for refusing to provide a roadside breath sample under the mandatory alcohol testing system, can be required to provide an evidential test in a Garda station.
The amended section 13 refers to a person arrested under section 4(6) of the 2006 Act. This should read section 4(7). This typographical error relates to only a small number of cases where a person refuses to give a roadside breath sample and where he or she is arrested for the purpose of providing an evidential test. The mandatory alcohol testing system has been operating effectively since the end of July and the numbers who refuse to provide samples are very low. It would be ultimately a matter for the courts, in any relevant case brought before them, to determine whether the typographical error did or did not negate the clear intention of the Oireachtas in enacting the relevant provisions of the 2006 Act. However, to remove any such uncertainty, and in light of legal advice received from the Attorney General on this matter, it is proposed to amend the section. There is a small number of consequential technical amendments being made, which arise as a result of the changes.
The road transport provisions of the Bill, dealt with in section 2, address a problem which was discovered by my officials in recent days. It emerged that section 3 of the Road Transport Act 1986, which contains the power for the Minister for Transport to grant road haulage licences, had been inadvertently repealed by the Road Transport Act 1999 (Repeals) (Commencement) Order 2005 made on 28 October 2005. The repeal was made as part of a wider exercise of modernising the licensing regime as provided for under the Road Transport Act 1999. The issuing of any further licences was immediately suspended pending further investigation of the legal position. Following this internal investigation, clarification of the legal position was sought from the Office of the Attorney General. That office confirmed that a power for the Minister to grant such road haulage operator licences must be contained in primary legislation. The necessary powers to do so do not exist under the European Communities Act 1972, even though the framework for access to the profession of road haulage operator is contained in EU law. This means that an Act of the Oireachtas is required to restore the power of the Minister to grant a licence.
The Minister's powers regarding the granting of licences to passenger operators were also reviewed by the Office of the Attorney General, as both passenger and haulage operators share a common regulatory framework under EU law. Currently, the power for the Minister for Transport to grant passenger transport operator licences is contained in regulation 3 of the European Communities (Road Passenger Transport) Regulations 1991 (SI 59 of 1991). This statutory instrument was made under section 3 of the European Communities Act 1972 to give effect to European directives which laid down the criteria for access to the profession of passenger transport operator. However, after reviewing the position, the Office of the Attorney General advised that as a specific power to grant road passenger operator licences is not contained in the relevant EU directive, I as Minister did not have a power to issue those licences under the statutory instrument made in 1991. The Office of the Attorney General advised that such a power must be provided for in primary legislation. Section 2 of the Bill is designed to remedy this problem. The Bill was considered and approved by the Government on Wednesday, 27 September 2006 for publication and introduction at the earliest possible time.
This brings us to today. As soon as this Bill is passed, subject naturally to the consent of both Houses, it will restore the ministerial power to grant these licences. In summary, therefore, the licence granting power for road haulage was repealed in 2005 which leaves the Minister without any power since that time to issue such licences. Road haulage operator licences issued before 31 October 2005 are not affected. As regards road passenger transport, the power to grant licences by means of regulations made under the European Communities Act 1972 had been considered to be satisfactory. It has now emerged that this is not the case. Having regard to recent Supreme Court decisions, it is not possible to make such a provision in secondary legislation if none existed in primary legislation. No such power was available in the directive which the order was brought in to give effect to, hence the urgent need now for primary legislation. I should point out to the House that there are no safety implications arising from this issue. Matters relating to the roadworthiness of vehicles, public service vehicle licensing, insurance etc., are contained in different statutory provisions and are not affected.
Section 2 provides for the Minister to have the power to grant road haulage and road passenger transport operator's licences and other related matters. Subsection (1) provides for the Minister to have the power to grant national and international road haulage operator's licences and to grant national and international road passenger transport operator licences. Subsection (2) provides for the conditions to be met in any application for a road haulage or road passenger transport operator's licence, specifically that applicants must satisfy the Minister that they are of good repute, appropriate financial standing and have professional competence. Subsection (3) provides that operator's licences (which include both road haulage and road passenger transport operator's licences) come into effect on the date specified on the licence, and expire on the date specified on the licence.
Subsection (4) amends section 1(1) of the Road Transport Act 1999 to redefine certain terms commonly used in road transport legislation. Subsection (5) gives effect to any operator's licence (which includes both road haulage and road passenger transport operator's licences) granted, or deemed to have been granted, under the Road Transport Acts or under any statutory instrument made under the European Communities Act 1972. Subsection (6) provides that the Minister may make regulations regarding applications for operator's licences, which includes both road haulage and road passenger transport operator's licences.
Subsection (7) provides for an amendment to section 13(1)(b) of the Road Transport Act 1999 to modernise the text. Subsection (8) clarifies that any reference in the Road Transport Act 1986 or in the Road Transport Act 1999, or in any other Act or regulations made under the European Communities Act 1972, to a road freight carrier's licence is now to be read as a reference to a road haulage operator's licence. Subsection (9) provides for the definitions of some of the terms commonly used throughout this section. Subsection (10) provides that this section and the Road Transport Act 1933 are to be read as one. Section 3 contains standard provisions regarding the Short Title of the Act.
In line with the advice of the Office of the Attorney General, my Department is urgently reviewing all relevant statutory instruments made under the Road Transport Acts to ensure that they are statutorily compliant as regards licensing. My officials will then begin a thorough root and branch review of all legislation governing the road haulage and road passenger operator sectors in order to consolidate them into a single Bill. I know Senators have previously raised an issue in different debates. I am conscious of the fact that the Road Traffic Acts have also become a complex body of legislation and this must be addressed. A programme of restatement of legislation is being commenced under the Government initiative to improve the quality and accessibility of legislation. In response to the consultation exercise carried out during the summer, my Department put forward the Road Traffic Acts as a body of legislation suitable for restatement and I understand this is currently under consideration. The restatement of these Acts will greatly facilitate their subsequent consolidation.
I thank the House for allowing this urgent debate on these important provisions. I look forward to a positive and supportive debate on the Bill and I commend it to the House.