Wednesday, 14 June 2006
Road Traffic Bill 2006: Committee Stage.
I move amendment No. 1:
In page 3, subsection (2), line 26, to delete "the" and substitute "An".
I welcome the Minister of State to the House. These are all technical amendments which propose to substitute "An Garda Síochána" for "the Garda Síochána". "An Garda Síochána" is used in some cases while "the Garda Síochána" is used in others. There is much confusion over this and the purpose of the amendments is to clear up the situation and ensure consistency.
We are committed to the Irish language on both sides of the House and want to use it as much as possible. However, in these circumstances the English version, involving the use of the word "the", is used, as is the normal practice. "The Garda Síochána" is used in all Bills passed in both Houses. This has been the standard practice since 1961 and was not introduced by me. The Bill will be available in Irish as soon as it is enacted. The Irish version will, of course, use "An Garda Síochána" rather than "the Garda Síochána".
I move amendment No. 2:
In page 3, subsection (2), lines 29 and 30, to delete "and holding a mobile phone in relation to the performance of his or her duties".
These amendments concern the use of hand-held devices by Garda, ambulance and fire service personnel. These are generally not the people to whom we refer when talking about giving penalty points for using mobile phones or other devices when driving a car. There is no need to refer to such personnel in the Bill. They may need to have such devices in their hands during emergencies and they are not the people we are targeting.
There could be operational circumstances in which a driver of a Garda car, ambulance or fire brigade vehicle would need to use a hand-held mobile phone "in the performance of his or her duties". It is for this reason that drivers of essential service vehicles have limited exemption from the prohibition on holding a mobile phone while driving. The exemption is strictly controlled and only permits a driver to hold a mobile phone when he or she is acting in the course of his or her duties. Amendment No. 2 proposes to remove this condition and if we were to accept it, would result in a general prohibition affecting drivers of Garda and emergency service vehicles. I disagree with this. The subsection, as drafted, provides the right balance between ensuring safe and responsible driving and permitting a driver of an emergency service vehicle to use a hand-held mobile phone in certain circumstances, if so warranted.
Amendment No. 9 provides that using a hand-held mobile phone to call the Garda or an emergency service is a defence for a person charged with holding a hand-held mobile phone. The Bill recognises that there may be certain emergency circumstances in which a driver needs to use a hand-held mobile phone while driving his or her vehicle. In short, it is for such circumstances that what may be termed a "genuine emergency defence provision" is included in the Bill. If one is apprehended in circumstances that are not deemed to be an emergency, but where one believes they are, it is a matter for the court to determine the merits of the genuine emergency defence. I consider this approach to be fair, reasonable, balanced and pragmatic. I suggest the Senator consider withdrawing his amendments. His proposals would not result in the strong, clear legislation we propose to introduce.
I move amendment No. 3:
In page 4, subsection (4), lines 3 to 5, to delete ", to avoid the impairment or interference with the driving capacity or capabilities of the driver of a mechanically propelled vehicle,".
Section 3(4) states, "The Minister may, to avoid the impairment or interference with the driving capacity or capabilities of the driver of a mechanically propelled vehicle, make regulations in relation to the restriction or prohibition in mechanically propelled vehicles in public places [of the use of certain listed equipment]". This could leave a loophole in that the Minister is using the word "avoid". There is no need for the legislation to state this and we do not legislate in that fashion. The loophole could be exploited in the courts, as has often occurred in respect of other legislation, because the State is listing a reason in the Bill. I hope the Minister of State will accept my amendment.
Perhaps there is some ambiguity in the thinking but, as far as I am concerned, the proposed section is very black and white. Subsection (4) recognises the need to have a broad, flexible legislative framework to regulate in-vehicle technologies for providing information, communication or entertainment for the purpose of restricting or preventing driver distraction associated with the use of technologies by both drivers and passengers. The broad view is that mobile phones comprise the only in-vehicle technology but there is an exhaustive list with which I want to deal.
Given the scale of innovation in the technology sector, it is important to give the Minister power to prohibit the inappropriate and irresponsible use of in-vehicle technology without generating the need to introduce primary legislation on each occasion he or she wishes to do so. In giving such powers to the Minister, it is usual for the enabling provisions to spell out the parameters and purpose of the regulatory powers. Section 4 specifies that regulations to control the use of in-vehicle technologies by occupants of vehicles must be for the purpose of avoiding the impairment of, or interference with, the driving capacity of the driver of the vehicle.
If the Senator's amendment were to be accepted, it would give the Minister broad power to make regulations concerning the technologies in a way he may desire but he would not be required to base them on furthering driver or road safety objectives. An open-ended approach to the making of regulations of this kind is unusual and I have received legal advice that this could be ultra vires. If the amendment were accepted, listening to a radio and using navigational equipment that can be programmed prior to setting off on one's journey and which can give oral directions could be banned by the Minister. However, the purpose of this type of equipment is to make roads safer and assist drivers. I ask the Senator to consider this and realise his amendment would allow an open-ended approach in the making of regulations, which we want to avoid.
I am advised by the Parliamentary Counsel that he is satisfied that the correct use of singular or plural, or a mixture of both, is in conformity. I refer to an example relating to amendments Nos. 4 and 5. Subsection (5) gives wide discretion to the Minister regarding the scope of regulations to restrict or prohibit in-vehicle communication information and entertainment technologies. Essentially, it allows for regulations to be vehicle-specific or case-specific. This type of provision is common in regard to regulation-making powers under the Road Traffic Acts. I am satisfied that the use of "cases" and "vehicles" in the subsection is appropriate. The Parliamentary Counsel has advised me that this is in conformity.
Amendment No. 7 is in the name of Senator Burke. Amendments Nos. 8, 10, 20, 21, 28, 33, 42, 58, 62 to 65, inclusive, 69, 84, 86, 108, 113, 116 and 117 to 120, inclusive, are technical or drafting amendments and may be discussed together. Is that agreed? Agreed.
Senator Burke has proposed these amendments which relate either to commas or hyphenation in the Bill. I am again advised by the Parliamentary Counsel that the insertion of punctuation such as commas in the Bill is a technical drafting matter and therefore I cannot accept the amendments.
A number of issues arise in the context of the section, one of which has been touched on. I am a little concerned about subsection (4), which in effect allows the Minister make regulations providing for the prohibition of certain devices. In effect, this subsection allows the Minister to create an offence and I wonder whether legally that is the right approach.
The argument over the past year and a half or so was that we needed explicit legislation to enable us to prohibit the use of mobile phones. It appears the same argument might apply to this subsection in that if we are to explicitly prohibit particular types of in-car communication devices, we must explicitly spell that out in the Bill and also the penalties that will apply. What we have said is that the Minister may do that by way of regulation should he or she choose to do so at some stage in the future. However, I wonder whether we need to specifically prohibit it in this Bill rather than give the Minister power to prohibit it at some stage in the future by way of regulations.
While I am on this issue, will the Minister of State specifically address the issue of whether that subsection could or will be used to prohibit the use of car kits in the future? It appears it could be used in that fashion and I wonder whether it is the Minister's intention to provide that by way of regulations at some stage in the future.
I welcome what the Minister has set out in the Bill regarding the issue of in-car entertainment and other modern technologies. Obviously, it is all about driver behaviour and ensuring drivers concentrate on the management of the vehicle and on the road.
Something which is not in this section but to which the Minister of State might give consideration at a later stage, is the issue of scenic routes, which are now defined through the Department of the Environment, Heritage and Local Government, or more particularly through the local authority, in terms of their development plans. They are creating and identifying routes as scenic routes.
The designation of scenic routes and the belief that they can be used for something other than that for which they are designed, namely, as thoroughfares to get from A to B, has the capacity to lead to accidents due to people slowing down in particular scenic spots, not concentrating on the road and, more particularly, looking at the visual amenity in the area. On another level, it is creating major problems in terms of people getting planning permission in particular areas. That aspect should be addressed by the Minister of State's Department in terms of road safety.
We have many scenic routes in County Clare and the Department must examine, in conjunction with the local authorities, the possibility of providing more lay-bys in particular areas to accommodate tourists and others who wish to appreciate the scenic value of particular areas. There is an exercise between the Minister's Department and the Department of the Environment, Heritage and Local Government to move away from the principle of all stretches of road being seen as some type of scenic amenity. It is more important that they be seen as thoroughfares and try to discourage people from gaping over ditches in a way that has an impact on road safety.
Senator McDowell raised an important question in regard to spelling out the various devices and new technologies that are coming on stream. Many people now use their cars as an office because they spend so much time in them. Perhaps the Minister of State should consider putting a speed restriction on cars driven by people using mobile phones or other devices to ensure they cannot exceed the limit.
Section 3(4) empowers the Minister to make regulations to restrict or prohibit the use of mobile phones, other communications equipment, and information and entertainment equipment by occupants of motor vehicles. This provision is important because it recognises the need to have a broad, flexible legislative framework to regulate in-vehicle technologies and information, communication or indeed entertainment equipment for the purpose of restricting or preventing driver distraction associated with the use of such technologies by occupants of motor vehicles.
When we consider the scale and pace of innovation in these technologies, the assigning of regulation-making powers to the Minister is prudent and sensible. Technology is advancing so quickly it is important that we should be able to act immediately, if necessary. If a piece of technology is introduced which might have an effect or impair the driver and lead to dangers or distractions, it is important the Minister should have that power.
Scenic routes are a distraction. I would like the hedges trimmed in some of the most beautiful scenic routes in the country but I am told that can be a distraction for drivers. That is something I will discuss with my colleague in the Department of the Environment, Heritage and Local Government. There should be ample notices in advance of such scenic sites and lay-bys whereby those who want to view our scenery, and we want them to do that, would be able to do so without endangering their own safety or the safety of others.
Perhaps I did not make myself sufficiently clear. I was looking to explore the difference in approach between subsection (1) and subsection (4). Subsection (1) provides for a specific offence of holding a mobile phone and a later subsection outlines the penalty, but subsection (4) is simply enabling. Why is it being done in an enabling way? Why does he not create a general offence of using an in-car communications device in such a manner as to be dangerous, rather than saying regulations may be made at some stage in the future to deal with these other issues?
The reason I am pursuing this now is that we were told by the Minister of State's predecessor, Deputy Callely, that it was impossible to enforce an offence of holding a mobile telephone simpliciter — in other words, if it was not otherwise dangerous — for the last 18 months to two years because we needed to create the specific offence, as we are now doing. That is fine. It seems to me the same argument applies to the offences that are obviously contemplated in subsection (4). Surely we need to explicitly create that offence or those offences if we believe they are to be enforceable. In making the regulations, is the Minister of State contemplating the possibility of prohibiting the use of car kits where the phone does not have to be held manually?
I apologise in that I omitted to refer to subsection (1) which prohibits the holding of a mobile phone while driving a motor vehicle in a public area. The word "hold" is defined in subsection (9) as "holding the phone by hand or supporting it with another part of the body". This prohibition, it is clear, does not apply to hands-free mobile phones or two-way radios. Accordingly, mobile phone use involving bluetooth technology, where the phone is placed in a cradle, is legal. However, if we find that at some time in the future there is sufficient evidence of infringements by drivers arising from phone use, then the Minister has the power to act under subsection (4).
Amendment No. 13 is in the name of Senator Paddy Burke. Amendments Nos. 13, 17, 22, 30, 36, 50, 71 to 74, inclusive, 79, 80, 82 and 83 are all technical or drafting amendments and may be discussed together. Is that agreed? Agreed.
My reply is similar to the earlier one involving a number of drafting amendments. I am advised as regards the substitution and deletion of words without any change in the context that I should not accept these amendments.
I move amendment No. 14:
In page 5, subsection (3)(b), line 24, to delete "hours at any time" and substitute "times".
We want to include "times" in place of "hours at any time". That might make matters clearer, given that the provision as set out at present could give rise to a loophole. A Garda Síochána superintendent might specify that the gardaí are conducting business between certain hours. If it was not on the hour or half-hour specified, this could give rise to a loophole. We are substituting "times", say, from between five o'clock until seven o'clock, so that matters are made much clearer and a loophole may be avoided at some stage.
I see where Senator Paddy Burke is coming from. However, if a Garda inspector, superintendent or someone of higher rank decides there should be mandatory alcohol testing between, say, 17:00 and 19:00 hours, I believe there is sound reason for providing some degree of flexibility. If a Garda testing unit is on the Castlebar-Westport or the Donegal-Ballyshannon road at a time when there is no great flow of traffic, if we stipulate between 17:00 and 19:00 hours, that means the gardaí must remain there during this time. Perhaps when the particular unit is alcohol testing, it should be able to move to another venue, with the approval of course of an inspector or someone of a higher rank. Our legal advisers say that whatever the merits of Senator Paddy Burke's proposal, it would very much tie the hands of the Garda authorities and not give them the flexibility they require.
Amendment No. 32 calls for a new section to be inserted at page 6, after line 34, specifying that a member of the Garda Síochána "who attends the scene of any road accident, may, and as far as practicable shall, require the driver of any vehicle involved in the accident to provide (by exhaling into an apparatus for indicating the presence of alcohol in the breath) a specimen of his or her breath". I tabled this amendment on foot of a recent report that surprised me. According to that report, there is no legal requirement on the gardaí to take a breath test after an accident. The result is that sometimes it happens and at other times it does not, which is quite an unsatisfactory situation. Perhaps the Minister of State will put me right, but my amendment seeks to close that gap and to place an obligation on the gardaí who attend an accident scene to take breath tests from any driver involved.
I put in the words "as far as practicable" to cover the situation in which it is not always possible to take the test, for example, where a driver is severely injured and all the focus is on getting him or her to hospital as soon as possible. That type of situation aside, however, everybody will agree that the gardaí should be required to take breath tests at the scene of every accident. Perhaps I have not read the Bill correctly, but it seems to me there is no onus on the gardaí to do that, and that is the reason for the amendment.
I am responding to amendment No. 32, which is linked, of course to amendment No. 31 tabled by Senator White. Both Senators referred to this matter on Second Stage. I want to refer to section 4 of the Bill, outlining the provisions on mandatory alcohol testing. Both Senators propose that the Bill should be further amended so that a driver involved in a road traffic accident shall be required, where possible, or indeed as far as is practicable, to undergo a mandatory test for alcohol or drugs. The Road Traffic Acts already provide that a member of the Garda Síochána may require a person in charge of a mechanically-propelled vehicle to provide a preliminary specimen where the vehicle is involved in a road collision or where a garda considers that a road traffic offence has been committed or forms the opinion that the person has consumed alcohol.
The purpose of preliminary roadside breath testing is to provide the garda with the facility to determine whether the person in charge of the vehicle has consumed alcohol. The Acts provide that a person may be arrested for a drink driving offence without recourse to a preliminary breath test. There may be circumstances, as I referred to on Second Stage, especially in the context of a road accident, where it may not be possible for a member of the Garda to require that a person, who may be unconscious or injured, submit a preliminary breath test. In those circumstances, under the Road Traffic Acts, the gardaí may place an obligation on a person to provide a blood or urine sample in hospital. This applies where an event occurs involving a vehicle which results in a someone being injured or a person claiming or appearing to be injured, where he or she is admitted to or attends a hospital and where a member of the Garda is of the opinion that at the time of the event the person had consumed an intoxicant. An intoxicant can include both alcohol or drugs or indeed any combination thereof. Garda discretion as regards the use of preliminary roadside tests is an integral and indeed important element of the enforcement provisions relating to the laws that apply to drink driving. It is my view that the legislation in place is adequate and I hope that the explanation I have given will satisfy both Senators. The spirit of what they intend is already incorporated.
I thank the Minister of State for his comments. However, I believe there would be tremendous public support for compulsory testing of people at the scene of an accident, especially drivers. I understand that it would not be ethical to test a person in a life and death situation at the scene of a serious accident, but it should be done as often as possible rather than on a random basis. The public would like that policy. There was almost one death per day last year on the roads. More people were killed on the roads in the past nine years than in Northern Ireland since 1969. I do not know why there is not a bigger hue and cry in here every day about road deaths.
The other point I wish to make is about mandatory testing for drugs. In the UK, studies found that 59% of those surveyed had driven a vehicle after smoking cannabis, while 37% had driven after taking cocaine. I asked a colleague this morning about the effects of taking cocaine. Apparently, one feels invincible. We must keep up to date with other countries and we should put drug testing on the same level as alcohol testing in this Bill.
I wanted to explore some of the issues raised by Senator Burke because they are very important, especially the issue of how specific the authorisation needs to be in respect of time and place. At the moment, there is a requirement that specifies an hour and date at which a checkpoint may begin and an hour and date at which it may finish. As the Bill currently stands, there is no restriction on that so it would be possible for a particular inspector to specify that an authorisation could run for two or three weeks, or every Saturday night for the year between 12 a.m. and 3 a.m. There is no specific requirement that a separate authorisation would need to be issued. If an inspector felt that it was reasonable to have a checkpoint close to a pub every Saturday it seems to me, that as currently formulated, it would be possible for the inspector to run off one authorisation to allow that to happen. I do not see any restriction on his or her capacity to do that.
The Bill is also very loose — maybe that is the intention — in defining the place. It actually states "place or places". If there is a concert in Croke Park, is it possible for a local inspector to issue an authorisation saying that the Garda may mount checkpoints in the vicinity of Croke Park? Would that extend to Mountjoy Square? How precise does it have to be?
I am not a member of the Joint Committee on Transport and those who are have an advantage over me. The Minister has chosen to introduce a parallel system of breath testing in addition to the current system. He has not chosen to modify the powers that already exist. He has chosen to add on an additional power which can only be exercised under this authorisation at checkpoints. We need to know how this will work. It seems clear under this section that individuals who are stopped cannot ask the garda for a copy of the authorisation. For example, if I am stopped at Artane roundabout, I do not know whether the garda has the power to exercise his powers under section 4. He may be acting under the Road Traffic Acts and he must therefore have a suspicion that I have taken drink, or he may be acting under an authorisation to set up a checkpoint. The individual being tested has no way of knowing that. In those circumstances, we are open to the possibility that authorisations will be issued post facto. If someone is stopped on the Artane roundabout on a particular evening and tested using the powers under that subsection, the garda can go back to the Garda station later and get an authorisation.
If we restrict the power to test randomly — that seems to be the intention — we need to be clear how it is restricted and we need to have the restrictions enforceable. On the other hand, if we intend that testing should be random, we should not be going about it by creating a different way of doing things. We should simply change the existing powers.
We believe it is very important that gardaí have flexibility with the time factor. There is nothing in the legislation that states that authorisation should be presented if requested, but there is nothing to stop gardaí from showing an original or certified copy to the individual who has been stopped for a random breath test. On Second Stage, I stated that there would be guidelines from the Commissioner which would assist gardaí in carrying out mandatory alcohol testing.
It is important that the proposed legislation in the Bill gives a degree of flexibility to the Garda Síochána. If a garda's hands were tied, it would not achieve the purpose of mandatory alcohol testing, for which there is much support. Senator White's idea is the same principle as Senator Quinn's amendment. In the event of an accident, the person involved can be tested. If he or she is seriously ill, the test can be carried out in a hospital. With regard to accidents, I do not believe I have heard of anyone being involved in an accident where there was a suspicion at all of drink being involved who was not tested, except in a situation where one was seriously ill, and of course that can be carried out in a hospital.
I hear what the Minister of State is saying. Is it his view that an authorisation issued by an inspector to place checkpoints on the N11 between Wicklow and Wexford, at any time between 12 a.m. and 3 a.m. for the foreseeable future, is valid?
I have been told that the guidelines will be more specific and that they will indicate very clearly where the tests should be carried out. It could be one or more places within that period of time. Does that answer the Senator's question?
It does up to a point. I have not had the benefit of the debate in the Joint Committee on Transport. I assume there was some reason for trying to limit the time and place. If that decision was taken, the power in the Bill is very general.
I want to get a sense from the Minister of State as to whether he wants the power to be that general, whether he wants authorisation to be given by an officer in charge of a Garda district which would allow checkpoints to be set up with little limitation. If that is his intention, it would be useful for that to be on the record.
The authorisation would state that and it could indicate that authority has been given to the garda to carry out a mandatory alcohol test at one or more than one location during that period. That would have to be worked out. If the Senator could indicate the practicalities or the inefficiencies in the system, I would communicate with him on that issue.
That is not my intention. I am not trying to pin the Minister of State to specifics. I am trying to get a sense of what he envisages to be the purpose of this section. Does he envisage its provisions would be applied for special occasions such as a bank holiday weekend and at other times when there is a risk of people abusing alcohol and driving? Does he perceive that to be the purpose of the section or it having a much more generalised use?
It would have a much more general use. If it were only to be applied at specific times such as after a concert, late at night or after functions, we would lose out on the impetus of this measure. Such testing could happen at any time. While the official words used are "mandatory alcohol testing", the common use of the words "random breath testing" suggests it could be carried out at any time or place, subject to authorisation.
This brings me back to the central question, namely, why bother with this measure. Why should an authorisation be required in the first instance? If the intention of the Minister of State is that the testing should be genuinely random and general, why require an inspector to issue an authorisation in advance specifying a time and place? Why not simply give power to gardaí to test randomly?
When this issue was debated initially there was a question mark over whether we could do this or whether it would be constitutional to do so. Our advice now is that to do this, such testing must be prescribed and authorised by an officer of the rank of inspector or chief superintendent. This requirement is to circumvent the danger that existed at all times, namely, the suggestion that it was a case of big brother looking on and that it was unconstitutional. I attended meetings at which this issue was discussed. I am advised by our legal people that what is proposed is the one way that this can be addressed. At some time in the future someone may test the constitutionality of this legislation but we believe this provision will ensure it is watertight.
This is probably the most important section of the Bill and I am sure we will not give the other sections the same treatment. I assume, although I do not know if this is the case, that the logic behind that legal advice was that the inspector would on some rational basis authorise a checkpoint for some particular reason and, therefore, it would not be random in that sense. I assume that is the sort of advice the Minister of State received.
If that is the case, the Bill will not achieve random testing. As the Minister of State said, this section is intended to have a wide and general effect and for the testing to be genuinely random. The section does not require the inspector to have a rational basis on which to set up a checkpoint. We may be falling between two stools in that either the testing is random or it is for a specific purpose. The Minister of State appears to suggest that we have a framework which is intended to suggest that there might be a specific purpose for such testing but we do not require a specific purpose for it. The message we are sending to Garda inspectors throughout the country is that they should use this measure widely.
The implementation of this provision would be a matter for the Garda Commissioner who would delegate authority, and guidelines will be drawn up to assist in this regard. Such testing will be totally random. This is a matter for the Garda. It will have to use its resources to the full. There will be times of the day, weekend or year that the incidence of such testing will be much higher than other times. We should leave flexibility in that respect to the Garda Commissioner, with a view to ensuring this measure would be effective. We are trying to find the right balance.
I wish to continue on this topic. I was surprised some years ago to discover that there was a constitutional problem with random breath testing or any other testing. I can understand the Minister of State's quandary. I am delighted Senator McDowell raised this issue because it appears that such testing is no longer random. Somebody will have to make a decision as to where and when such testing is carried out. There is a constitutional problem with such testing and I hope this provision will solve it. I am delighted Senator McDowell brought this issue to the fore because I was not aware of it.
Perhaps the Minister of State has explained this point and I did not understand it but am I correct in saying that a superintendent, chief superintendent or inspector will need to have a reason for doing this? If that is so, I do not know to whom the officer would communicate that reason and, if that is the case, the testing would not be random. Given our Constitution, perhaps there is no other way of doing this.
I wish to deal with my amendment No. 32. The Minister of State said that the Garda "may require" and I was hoping that the measure would be that the Garda would require such testing in the event of any accident. My mind has been put at rest by what the Minister of State said, namely, that he has never heard of a case of an accident in which there was a suspicion of alcohol abuse where a test has not taken place. I may be sticking to the letter of the law on insisting that on every single occasion a test must be carried out. My main reason for requesting that was that such a requirement would act as a deterrent. If everybody knew that random breath testing was in place and that in the event of one being involved in an accident, regardless of the circumstances, one would be tested for alcohol, that would act as a deterrent to drinking or taking drugs and driving. Is there a definite test for alcohol consumption in the event of an accident in other countries, regardless of the cause? The Minister of State might not be aware of that but I would be interested to know if that requirement applies elsewhere.
I wish to deal with the point raised by Senator McDowell. What is proposed is a cumbersome way of testing because the dogs in the street will know the location of the checkpoints. How far in advance will a superintendent or other officer make an order authorising the testing and will the officer make it on a daily, weekly or monthly basis, because the officer must specify the location? The provision in the section is rigid because the time and location of the checkpoint must be specified. If the Garda operate outside the remit of this section, there will be confusion because it will have to use another Act to prosecute a person who breaks the law. This is a rigid provision. The Minister of State should accept the amendment I tabled which would give the Garda greater flexibility. The teasing out of this section indicates it will not provide for flexibility in its application.
To respond to Senator Quinn's point, I do not know the position on compulsory testing at the scene of an accident in other countries. If that is the position, it does not necessarily follow that we would adopt that position. I am satisfied that if one is ill, what is paramount at that stage is the health and well-being of the individual. If a test is required, it can be carried out in the hospital.
Senator Quinn appreciates the thinking behind this measure. There is no question of having legislation in place which would allow anyone to escape if he or she was drinking and involved in an accident.
I wish to make one further effort to deal with the question of the flexibility or rigidity of the mandatory alcohol testing. The whole purpose of such testing is that it must be proportionate to the problem and the question is one of who makes that call. It is not for us to call that in legislation. We must leave that to the discretion of the Garda. The Garda Commissioner will draw up guidelines in consultation with his colleagues.
It is not a question of putting it up in red letters that there will be a mandatory alcohol test at some point on the road between Dublin and Naas, between 5 p.m. and 7 p.m. The inspector or relevant garda from the rank of inspector can do this at short notice. At times it might be an impromptu decision. If it happens it is because the gardaí in that district or subdistrict feel it is proper to do this.
The legislation should be enacted by the summer and I hope not too many will suffer as a result of this. This will be a major deterrent to the too many people who drive having consumed alcohol. When the system is in place its deterrent effect should result in fewer people being caught. This will prove its effectiveness and that people are observing the rules. Hopefully, this will lead to a drastic reduction in the excessive number of fatalities we are experiencing. Many of those fatalities are the result of drink driving.
Amendment No. 25 in this group refers to taking a sample. At the moment if a person breaks a checkpoint and refuses to give a sample he is not automatically disqualified. Our amendment proposes that the person can be disqualified in those circumstances.
If one is not prepared on the roadside to take the test one breaks the law and is brought to the Garda station where the gardaí may request that one give a blood or urine sample. Refusing to give the sample is an offence and one can be brought to court and may lose one's licence.
If Senator Paddy Burke, or any other Senator, is stopped and asked to submit to a mandatory alcohol test, when he knows there is no alcohol in his system, he may still be taken to the Garda station and asked to provide the necessary sample. If the alcohol level does not exceed the prescribed limit one cannot be disqualified but can suffer the penalty of a fine or imprisonment. There is a belt and braces here, namely, that if one refuses to give a sample it does not mean that one can simply roll up the window and drive on. One can be taken to the nearest Garda station and tested in the traditional way.
Lest there be any misconception, the mandatory alcohol test is not alone sufficient to prosecute, even when the gardaí stop a driver and show that he or she has exceeded the limit. One must be brought to the Garda station and given the full evidential test. That is the evidence the gardaí will present if the case comes before the court.
Senator Paddy Burke has raised an interesting issue. The Minister of State will correct me if I am wrong in saying that the current legislation provides that if somebody refuses to give a sample, the penalties mirror those which would have applied had the person been over the alcohol limit, which include disqualification. In that case one can be disqualified if one refuses to give a sample. The Minister of State, however, seems to suggest a two-tier approach whereby if one refuses on the roadside one can be fined or imprisoned, but one is then brought to the Garda station where, if one refuses again to give a sample, one can be disqualified on prosecution of that offence. This is a clumsy way of dealing with the problem. Why create separate offences of refusal on the roadside and in the station, with different penalties?
One is disqualified only on refusing to submit to an evidential test. There is no disqualification for refusing the mandatory alcohol test. I cannot conceive of a situation in which the gardaí would dismiss one for refusing to submit to a mandatory alcohol test on the side of the road. They would bring one to the nearest Garda station and ask one to provide the blood or urine sample which would be a full evidential test. A refusal to undergo that would trigger the fine or disqualification.
Why do we need to create this new offence? If the Minister of State envisages that in all circumstances when one refuses at the side of the road one will be brought to the station where the additional penalty of disqualification is available, why create an offence of refusal at the side of the road?
Perhaps I am not making myself clear. At the moment we are saying, in theory, that somebody could be prosecuted twice, for having refused at the side of the road, at the checkpoint, and again for having refused in the station. On the latter offence one can be disqualified but not on the first offence. Why is that necessary? I cannot imagine any circumstances in which a person would be prosecuted for those two separate offences.
I do not see much that is new in this provision. The only new feature is that in the past if a garda decided to apprehend one he had to form the opinion that one had consumed alcohol. The garda does not have to form that opinion now but can ascertain this by way of random testing. In extenuating circumstances when one does not comply with the test, and the test on the side of the road indicates one has not exceeded the limit, that is the end of the matter. If, however, the test indicates that one may have exceeded the limit there is the opportunity to give a further evidential test. The purpose of doing this is to create a deterrent to those who in the past have taken risks.
While I do not disagree with the Minister of State, I do not understand why there is this two-tier level of offences. The subsection under discussion prohibits non-co-operation and provides for a penalty of up to €5,000 and possible imprisonment. As I understand Senator Paddy Burke's amendment, he says if one is guilty of that offence one should also forfeit one's licence because that is what happens now. If one does not comply with any of the requirements the penalties are exactly the same as they would be had one taken the test and failed it. That is fair enough because otherwise there would be an incentive to refuse to take the test.
I appreciate that the Minister of State says one can take a further evidential test in the station but if one has the option of a fine or imprisonment, and theoretically one does not lose one's licence for refusing on the roadside, one could decide that, rather than take a test and fail, one would not take the test but simply pay the fine. Why should we bother having this additional offence if the real offence will be committed in the Garda station?
Amendment No. 25 proposes that in addition to the fine or term of imprisonment, a convicted person could be disqualified from driving for a period not exceeding two years. This proposal would mean that a court would have the discretion to apply either of the penalties or the disqualification as it saw fit.
I will refer to the Road Traffic Acts which include a number of provisions to deal with disqualifications that result from convictions for the commission of specific offences. Consequential disqualifications which are an immediate consequence of a conviction are applied to a specific number of serious offences through provisions in the Acts. The courts, however, are free to apply disqualifications in respect of any other traffic offence and such disqualifications are referred to as ancillary disqualifications. Section 12 of the Road Traffic Act 1994 which was subsequently substituted by section 10 of the Road Traffic Act 2002 and amended by the Road Traffic Act 2005 provides current arrangements under which a person may be required to submit to a preliminary roadside breath test and if the person fails to submit to that requirement, he or she will have committed an offence and can therefore be arrested and subsequently be subject to a blood or urine evidential test.
Therefore, a conviction for an offence under section 12 of the 1994 Act does not attract a consequential disqualification. This is because the test to which the section relates does not establish any evidential basis to the effect that the driver has consumed a particular amount of alcohol. However, where the subsequent evidential test establishes that the person has consumed an amount of alcohol that exceeds the limits set in the Acts, a conviction results in an automatic or consequential disqualification. The corollary is that if the person did not have alcohol in his or her system or was not above statutory levels, there would be no disqualification. However, if we accepted this amendment, there would be automatic disqualification for a person who did not agree to the mandatory alcohol test and that is not acceptable.
The approach we are adopting in respect of both preliminary roadside testing and evidential testing will apply equally to the new system as proposed in the Bill and in the case of current arrangements. It is for those reasons that it is not possible to accept these amendments, particularly amendment No. 25.
I want to explore the notion of the "where" rather than the "when" in the context of this section. There is no definition of "checkpoint" in the section, but it seems clear from any reasonable reading that it must be in a public place. Therefore, I assume it could not, for example, be in a pub car park or somewhere that is not public. I presume the Minister of State will correct my assumptions if they are wrong. It seems clear the checkpoint must be on a roadway and at a point where cars are moving.
Under current powers it is open to gardaí to stop people before they even get into their cars. If they are in charge of the car the garda can approach them, ask for their keys and ask them to blow into the breathalyser. Am I correct that it is no longer possible to have this sort of test on a random basis under this section? Must the car be moving on a roadway and be stopped at what we conventionally think of as a checkpoint?
The checkpoint must be in a public place and the vehicle must be stopped at the location indicated in the authorisation. The definition of checkpoint is defined in previous Road Traffic Acts. The section provides that the establishment of checkpoints for mandatory alcohol tests can only be pursued on specific written authorisation of an officer of the Garda Síochána not below the rank of inspector. The authorisation must clearly establish the date, the place and times of the day when the checkpoint can be operated. The details of how this will work will be worked out by the Garda Commissioner in conjunction with his colleagues and they will make guidelines available.
What if the person is parked on the side of the road and gets into his or her car, can a garda approach him or her and use the power? In that case there is no checkpoint as such and the car was not stopped. The Minister of State may be assured there will be litigation in this regard.
Australia has booze buses in areas where police do random breath testing and the police there advertise when they are carrying out random breath testing. Will it be the same here or will it be the case that gardaí can just step out and stop a person to conduct a random breath test?
We should have both. I hope random testing will take place. The fact it is random means there is no need to put a sign up advertising it, but it could also be a benefit to advertise it.
My query relates to a matter that has just been raised by Senator McDowell. I read recently about the case of a person who decided not to drive when he left a pub because he had consumed too much alcohol. He sat into his car and was charged by the Garda. His defence was that he had no intention of driving — he was just taking a rest because he felt he should not drive. I am not sure what happened in that case. I do not know whether his defence was sufficient. I mention the case in the context of Senator McDowell's question about whether a car has to be moving in a public place. Can a person use the defence that the car was not moving?
We have all heard that in our public lives. I have been approached by many people making such a case. It is against the law to be drunk in charge of a vehicle. One does not necessarily have to be driving while drunk. It would be unusual for a person who wants a rest to sit in the driving seat. One would imagine that a person who wants to sleep would sit in the back seat or the passenger seat. I am not being facetious when I say that. I have outlined the position in that regard.
Senator Paddy Burke spoke about booze buses, about which I was informed by my colleagues who have been to Australia. The Garda Síochána can make a decision in that regard when it is drawing up the guidelines. I do not want to impose my views on the Garda as this is a matter for the force. If it is well-known in a local pub that mandatory testing is taking place down the road and that people should not move their cars, the whole purpose of these new provisions will be defeated. If we ensure that there is a degree of randomness in the testing system, it will be very effective. We can refer the proposal to provide for booze buses to the Garda.
That is precisely the point. Booze buses are made available in Australia to deter people who have been drinking from driving. They act as a deterrent. The Australian authorities are quite happy if such people do not drive. They do not try to trap people with random breath tests after they get into their cars. They go out of their way to advertise that testing will take place so that the public begins to see it as a deterrent. In such circumstances, people choose to take taxis rather than to drive home. The aim is to deter people from drink driving rather than to trap them.
We need to strike a balance between the carrot and the stick. Senator Burke has mentioned a carrot. I am sure people in every pub who wish to act responsibly but cannot avail of a booze bus are capable of lifting the telephone to get a taxi to take them home. When the Garda starts to implement this new measure, it will have a major deterring effect. The provision of booze buses is very sensible. We are all familiar with very responsible publicans who do not allow drivers who have consumed alcohol to drive their vehicles. In such circumstances, publicans will drive the people in question home or arrange for them to be brought home in taxis. The Australian approach, which involves booze buses, seems to be working in that country. Perhaps the Garda will consider it when they are drawing up the guidelines.
I move amendment No. 34:
In page 7, lines 17 and 18, to delete subsection (4) and substitute the following new subsection:
"(4) The fixed charge is €300 and such fixed charge shall be index-linked to the inflation rate as set by the European Central Bank and automatically updated on the 1st of January each year after the coming into force of this section."
This amendment seeks to provide for the index-linking of fines. As fines should be index-linked so they do not go out of date, I suggest they should increase gradually each year in line with the annual inflation rate.
While I am not accepting the amendment, I believe it has a great deal of merit. I have suggested in this House on numerous occasions that we could deal with matters of this nature by introducing a fines Bill. I understand it is proposed to introduce such a Bill at some time in the future. Such legislation would deal with problems involving the fines provided for in many Acts. The level of fines should be linked to the consumer price index or some other index. Section 5(4) of this Bill states that "the fixed charge" to be applied under the Bill in respect of certain drink driving offences is €300. It is an enabling provision that allows the Minister to prescribe some other amount in lieu of the amount of €300. If a fines Bill has not been enacted in three or four years' time, the Minister of the day will be able to increase this fine to a realistic level. The provisions of section 5(4) of this Bill are standard features of various areas of the Road Traffic Acts, which give the Minister discretion in the timing and determination of the level of the fixed charges which apply.
While I agree with the principle of index-linking with the rate of inflation, as set by the European Central Bank and automatically updated on 1 January each year, I do not believe it would be appropriate to depart from the standard practice I have mentioned by accepting this amendment. When the Minister of the day decides that a fine of €300 is not adequate, he or she will have the power to increase it. If a fines Bill is introduced by the Department of Justice, Equality and Law Reform in the meantime, it will deal adequately with this matter by providing that it will be necessary to have a statutory regulation if fines are to be increased. If it is clear that the Minister of the day is not satisfied that the penalty fits the crime or that the rate of inflation is such that it causes a fine to be increased sufficiently on 1 January each year, changes should be made on an ad hoc basis or by means of the fines Bill that I hope will eventually be introduced.
Amendment No. 35 basically proposes that section 5(5) should state that "the person shall be disqualified from holding a driving licence" rather than "the person shall be disqualified for holding a driving licence". The terminology proposed in the amendments in this grouping is contrary to the terminology used since 1961 in the Road Traffic Acts, which refer to a person being disqualified "for" holding a licence, or being disqualified "for" applying for a licence. This form of terminology has stood the test of time. I am advised that it is the correct legal terminology. When licence holders are disqualified from driving, they are disqualified "for" holding the licence but are not disqualified from the entitlement to the licence, as it is returned to them after the period of disqualification has elapsed, when they again become entitled to the licence. If I were to accept this amendment, there might be a suggestion that people are disqualified "from" holding a licence and that it might not be possible to return it to them. I have been informed by the legal advisers that the correct terminology is being used.
Amendment No. 39 is a technical drafting amendment that proposes to incorporate in section 5(6) the phrase "is eligible to be served", which was omitted from the printed version of the Bill.
Amendment No. 38 tabled by Senator Paddy Burke pertains to the same issue as Government amendment No. 39. I am advised by the parliamentary draftsman that the Government amendment has the appropriate wording to remedy this omission. Hence, while both amendments are trying to achieve the same objective, the draftsman has informed me that amendment No. 38 will remedy the matter and will suffice.
I move amendment No. 40:
In page 7, subsection (7)(c), line 40, after "notice" to insert the following:
", but the person shall continue to be liable to prosecution in the same manner as if such fixed charge notice had not been served,".
This is an important amendment and I ask the Minister of State to consider accepting it.
I move amendment No. 44:
In page 8, subsection (8), line 6, to delete "should in the circumstances have known" and substitute ", in the circumstances, could reasonably have been expected to have known".
This is an important issue and I ask the Minister of State to consider it. If the system errs, the person involved will pay the price, which is unfair. This is why I tabled the amendment. Moreover, this provision is outlined in the Bill in a somewhat tough manner and appears to be unreasonable. I ask the Minister of State to accept the amendment.
I support the important amendment tabled by Senator Paddy Burke. My understanding of the system as set out in this section is that one will be served with a fixed charge notice and will be informed subsequently that one has been automatically disqualified. Obviously, this measure is intended to be more lenient than a normal prosecution and, consequently, one is only eligible to be so treated if one has not been convicted of an offence during the previous five years. I assume the form which will inform people that they may pay €300 will state that they are only eligible to do so if they have not been convicted within the past five years, and that if they do so anyway, they will be liable to much greater penalties, which are set out later in the section.
Senator Paddy Burke is correct. Many people will simply not read the form. Most people, on receipt of a form stating they must pay a fixed penalty of €300 and will be disqualified for six months, will not appreciate, and probably will not bother to read, that they are ineligible for such lenient treatment if they have been convicted of an offence during the previous five years. In such circumstances, the onus should be on the authorities to know whether people have been disqualified or convicted of drink driving in the past five years and to be able to tell such people that, consequently, they are ineligible for the more lenient treatment outlined in this section.
It is wholly unreasonable to inform someone who receives a form stating that he or she must pay €300 that arising from the operation of this section, about which he or she is unaware and which he or she is unlikely to read, if he or she pays the fixed fine of €300, he or she could be landed with a fine of up to €5,000 or €10,000. This is unreasonable, as most normal people will not know enough to avoid stumbling into committing an offence under this section.
I wish to add a word in support of this amendment. The word "reasonable" appears to be a reasonable term to use. From that perspective, the case has been made. I urge the Minister of State to give serious consideration to this amendment.
Before I make a final decision in this regard, I should state that the section provides that where a motorist has been detected with a level of not more than 100 mg of alcohol per 100 ml of blood, or the equivalent levels in urine or breath, he or she will be offered the opportunity to pay a fixed charge of €300 and to accept a driving disqualification of six months. However, as the Bill stands at present, a motorist who has been convicted of a drink driving-related offence within the five years before the date of the alleged offence, will not qualify. The person who is in the best position to know whether this is the case is the individual himself or herself.
It is a question of making it clear to people that if they have been convicted in the past five years, they do not qualify. This will not be in small print on the relevant document. Hence, such individuals should know themselves whether they have been convicted. The onus should not be on the State to raise this issue at the time. However, given the Senators' views, while I do not wish to give the impression that I will try to escape from this matter, I will consider the issue. Although I do not have any preconceived views and am prepared to examine the issue, Members should not hang a noose around my neck if I do not accept it on Report Stage. I want to discuss the issue with legal experts.
Might it be possible for the Garda to ask the person in question, or to make the Bill's provision known to the person in question? The Garda do so when issuing general cautions. Might it be possible to suggest that a garda could first raise the question with the individual concerned, asking him or her whether he or she had been convicted within the previous five years and on receiving a negative answer, proceeding with the issuance of a fixed penalty, as outlined in this section?
Obviously, in a case where the individual concerned stated that he or she had not been convicted, and was subsequently found to have been so convicted, the onus would be placed back on such a person. The points raised are valid, although the State should not be expected to maintain a database for the purpose of notifying people, to the extent of leaving itself open to challenge at a later stage. As the Minister of State has suggested, the onus should be placed on the driver concerned. However, this could be achieved by asking a simple question as part of the defined language used generally by gardaí in the course of issuing a caution.
I will give the matter some thought. In particular, I will consider the point at which an individual should be made aware of this provision. I refer to a person who has been found, after being tested on the side of the road and further evidential tests, to be under the level of 100 mg of alcohol per 100 ml of blood. It would be somewhat impractical for the State to be responsible for this. However, I favour such information being included on the written notice or at another stage. People should be cautioned in this regard or, at least, the point should be highlighted for them. I will consider this issue and will come back to the Senator.
Before Members finish their discussion on this topic, I wish to explore further the important issue raised by Senator Dooley. I refer to the amount of information available at any given time about disqualified people. Are there local databases or a national database which contain such information? If so, how recent is such a database and how much is known? It is important that the Garda should have a database available to it which would inform it whether a person had been disqualified. As the computerisation of the functions of the Garda Síochána occurred relatively recently, it is possible that such information does not extend back five years. However, it seems reasonable to expect that in a few years' time, there should be a national database, which can be checked by gardaí relatively easily, to ascertain whether a person has been disqualified at some point in the preceding five years. What is the present status regarding such information?
Such information is available from the national driver file, which is the responsibility of the Department of the Environment, Heritage and Local Government. However, both the Garda and the Department of Transport have access to that file.
Possibly not. It does not have to be done on the spot. I want to talk about the stage at which it should be known. While it is necessary for the State to keep a file, it would be a major event in any individual's life. If one loses one's licence it must be a red-letter day and almost as important as one's date of birth. If a person is asked or it is highlighted, it may overcome the difficulty. I will examine the practicalities of that.
The reference to the Exchequer is a standard provision used in all Road Traffic Acts where money is received by the Garda Síochána and specifies the arrangement for the payment and disposal of moneys for the benefit of the Exchequer under the Minister for Finance. It would be inconsistent to change the term "Exchequer", which has been in use for many years, to "State".
I move amendment No. 51:
In page 8, subsection (13), line 38, to delete "€1,000" and substitute "€3,000".
Both amendments seek an increase in the fine. I put forward amendment No. 51 because the existing wording does not recognise the full seriousness of the offence. This subsection imposes a penalty for an offence under the preceding section which applies to the requirements for a person whose licence has been suspended to surrender his or her licence to the licensing authority. We have read in the press that many people get around the suspension by failing to hand over their licences. This allows them to continue driving and if they are stopped for a routine inspection there is nothing to show the inspecting garda that the licence has been suspended. That is a serious offence and to impose a maximum fine of €1,000 is no more than a slap on the wrist. We need to show people that we mean business about taking away their licences and following up on the procedures involved. I therefore propose that we increase the maximum level of this penalty to €3,000, which is still a small amount. As I mentioned here some time ago, I was impressed in Finland recently that the fines are related to one's income. A senior executive in one of the telephone companies was fined approximately €200,000 for a motorbike offence because he happened to have high earnings that year. Somebody else might have been fined only €30 or €40. A fine of €1,000 is not sufficient.
Amendment No. 91 proposes replacing €2,000 with €3,000 on page 16, line 24, similar to amendment No. 51. I propose this amendment because the penalty in the Bill is not appropriate to the gravity of the offence of not having a valid driving licence. The subsection provides for a reduced fine where the person has had a valid licence but failed to renew it during a period of 12 months after it expired. The penalty in that case is a maximum of €1,000, which should be an effective deterrent that would encourage people to be diligent about renewing their licence. That situation aside, the offence is of not having a licence at all. A maximum fine of €2,000 is not in proportion with the seriousness with which we should regard that offence. I admit that driving without a licence is not as serious as driving without insurance, which should result in the vehicle the person is driving being impounded. However, given the importance we attach to driver testing and the difficulties in that area, it is not sensible to regard the offence of driving without a valid licence as anything other than serious. That is why I suggest we raise the maximum fine in this case from €2,000 to €3,000. The Minister spoke about the fines earlier and I was interested to hear that there is a separate fines Bill that will probably relate this to inflation. However, in both these cases €1,000 is not a heavy fine and I urge the Minister to consider increasing them to €3,000.
I appreciate Senator Quinn's motives in bringing forward these amendments and I was interested to hear about the situation in Finland where fines are related to one's income. It may have some merit, not today but in the future. On the proposed fines of €3,000 in amendments Nos. 51 and 91 we should take other factors into consideration. They are disproportionate to the range of fines for other road traffic offences set out in this Bill and in the road traffic codes generally. There is a proposed fine of €1,000 for failing to surrender one's licence and €2,000 for letting one's licence lapse for more than 12 months, which also attracts penalty points, the effect of which is difficult to quantify in monetary terms. Therefore, the fines do not stand alone. The penalty points are provided for in section 16. The fines in the Bill are adequate and I hope a future Bill will deal with inflation.
I move amendment No. 52:
In page 8, between lines 38 and 39, to insert the following subsections:
"(13) A person who, subsequent to the receipt by that person of a notice under subsection (11), drives or attempts to drive a mechanically propelled vehicle in a public place, shall be guilty of an offence.
(14) A person who is guilty of an offence under subsection (13) shall be liable on summary conviction
(i) to a fine not exceeding €5,000,
(ii) to a further and consecutive disqualification of a period of not more than 2 years, or
(iii) to both.".
This covers the issue of a person driving while disqualified. This amendment creates a separate offence for a person driving while disqualified and sets out the penalties. It also allows for the extension of the disqualification period and a fine. It is worth considering in view of the serious situation in which a person who is already disqualified takes to the road. Such a person deserves rougher treatment than he or she currently receives.
The proposed new subsection (13) would have the effect of disqualifying a person in advance of a date specified in a notice under subsection (11), which is 14 days from the date of the notice. As the date of disqualification would be dependent on receipt of the notice, such a provision would be difficult, if not impossible, to enforce, it would be unwise to include it in the Bill. The Bill is stronger as it stands. On the proposed subsection (14), the penalties for driving while disqualified already provided for in section 6(2), which provides for a mandatory disqualification of at least one year, and section 12(b), which provides for a fine of €5,000 or imprisonment not exceeding six months, or both, meet the objective of Senator Paddy Burke's amendment. There is little difference between our positions and, having explained this, I hope Senator Burke might consider withdrawing his amendment.
This is an ancillary issue to Senator Burke's amendment that relates to the same general area. Under subsection (13) there is an assumption that the onus is on the individual who pays the fine to prove that he or she has done so and that is reasonable. However, the onus is also on the person who claims never to have received a disqualification notice to prove that this is the case and this is problematic. How can one prove one did not receive something? It is reasonable in such circumstances that the person who served the notice be responsible for proving that he or she did so.
I can imagine circumstances where a person driving while disqualified will claim never to have received the notice. The Department of Transport expects such people to prove they did not receive it, but how can they do so? A certificate of posting or another evidential requirement should exist in order that it can be proven that a disqualification notice has been served.
I will have discussions on this issue and whether it can be proven easily. The Garda will be able to prove a notice was issued, but I take Senator McDowell's point and I will consider it.
It would be a pity to allow this section to go by without some debate, even if that simply involves me expressing my concerns. This section aims to provide for a quick form of prosecution for people who have had a few pints. The limit of 100 mg of alcohol per 100 ml of blood equates to two or three pints, roughly, for the average male of reasonable stature. I understand that there are people, perhaps quite a few, who can drink a pint and a half and be totally incapable of driving. The bulk of people caught by the use of this section will have consumed a relatively small amount of alcohol, by the traditional Irish social definition. I am not saying they should not be prosecuted, I merely think we should keep our eyes wide open.
It is my understanding that, generally speaking, this offence is not prosecuted in large numbers at the moment. There are few prosecutions of people who have driven a vehicle with 80 mg to 100 mg of alcohol in their blood. I do not know why this is the case. It could be that the Garda is taking a pragmatic view and does not want to prosecute for such a level of alcohol consumption. It has been speculated that the techniques of measurement are not sufficiently sensitive to allow it be argued in court that a person has 85 ml, rather than 75 ml, of alcohol in his or her blood.
This Bill should be based on analysis and evidence. I would like to know the number of accidents that occur largely because of the consumption of this level of alcohol. How many people who have driven after drinking two to three pints have been prosecuted? We could have a more informed debate about the wisdom of providing for this sort of quickie mechanism if we had this information. This information has not been in the public arena heretofore and I have a funny feeling we will not get it in the near future. If this is the case then we should publicly acknowledge that this is a far more rigorous approach to the consumption of a level of alcohol that many people regard as normal and acceptable and that this is being done without evidence that this amount of alcohol causes many accidents. I know it impairs judgment and that some people can be very drunk after very few beers but I am not convinced that we should introduce this level of strict liability for what are, largely, exceptional cases. I appreciate that this is not the politically correct thing to say, but it is a view, perhaps not articulated as often as it might be, which is very common in Ireland and which should be reflected in these Houses.
The Garda did not make a conscious decision that those who were at a level of between 80 mg and 100 mg of alcohol per 100 ml of blood should not be pursued. In the past, legislation stated clearly that a garda had to form an opinion on the level of alcohol consumed. I do not know of any cases of people who were not pursued at the level suggested, however, perhaps Senator McDowell does through his profession. I have no statistics relating to this but if they are available I will circulate them.
This Bill ensures that those driving with between 80 mg and 100 mg of alcohol per 100 ml of blood may now be stopped by way of mandatory alcohol testing and the new administrative sanction will be another deterrent. It may be said that six months off the road may be too long for an offence where very little alcohol has been consumed, but I believe it is quite lenient. One drink is too many and one of the aims of this Bill is to catch people who drive with between 60 mg and 100 mg of alcohol per 100 ml of blood in their systems where it is not obvious from their behaviour and the garda cannot form an opinion.
Senator McDowell raises an important point relating to statistics. We should gather this information and make it freely available to public representatives, the media and the public. Legislation was passed on the Road Safety Authority recently. Will all of this information be collated and passed on to this authority in future or will we have access to the information mentioned by Senator McDowell? It is important to see where we are going on this issue.
Any information, not of a sensitive nature, that is available to me will be made available to the House. It would be interesting to have a benchmark against which to measure the effectiveness of the new legislation so that we could compare statistics with those prior to the enactment of this Bill.
The section envisages farming out the process of sending out notices.
Perhaps the Minister of State will talk us through that and tell us his intentions. I notice subsection (15) allows the Minister to enter into an agreement, presumably with a private sector company, to serve the notices.
The process set out in the section seems very cumbersome, involving three or four different agencies before somebody is disqualified and we have a record of it. I do not have a solution for making it easier, but it appears to be a very cumbersome process.
I would hope the situation as outlined in section 5(16)(a) is relatively clear. The section states:
The Minister for Justice, Equality and Law Reform may by an agreement in writing entered into with any person, upon such terms and conditions as may be specified in the agreement, provide for the performance by that person, of any of the functions of a member of the Garda Síochána relating to the issuing of a fixed disqualification notice, the receipt of such notice, the acceptance of a payment and the issuing of a receipt of such payment, as are set out in this section or of the function of the Commissioner in respect of the issue of a notice under subsection (11).
I wish to refer to an agreement referred to in the earlier paragraph, which may apply to the performance of all or any of the functions to which that paragraph refers in respect of all the selected offences. The Senator may know that An Post is responsible for accepting the fixed charges. This will now be a matter to be decided with the Department of Justice, Equality and Law Reform.
I move amendment No. 57:
In page 11, line 29, after "disqualification" to insert the following:
", provided that there are extraordinary and exceptional circumstances to justify such an application".
This amendment relates to the removal of disqualifications. Until now, one could apply to get a licence back after six months. I propose that this would only apply when extraordinary and exceptional circumstances justify such an application. There would have to be justification to apply to get a licence back.
This is an interesting issue. The practice heretofore, as I understand it, is that after a person has been disqualified for a certain period, he or she could get the licence back. This was the normal practice in most District Court areas and District Court judges were inclined to give back a licence if there were any reasonable causes to do so. I applaud what the Minister of State is doing, as he is at least setting out some restrictions.
A person still does not have to back up an application or state that it is for a particular reason. That is, of course, the practice. The person must go in, indicate that the required period is over and ask for the licence back. With the manner in which this is written, it is almost as if the licence is given back for good behaviour.
What is the rationale for providing early return of licences? As Senator Paddy Burke has indicated, if a person is disqualified for six months, a year or two years, and most people assume drivers would be disqualified for two years, these drivers are not, in practice, disqualified. Why are we deliberately creating a regime where the period of disqualification is shortened? It does not seem to be a logical or sensible action to take. On the one hand we are increasing the period of disqualification but we are at the same time acknowledging that a licence can be returned early for no particular reason.
This section deals with the removal of disqualification orders in cases where a person has been disqualified from holding a licence for a period of more than two years and where the order is the first such order made in respect of that person within a period of ten years. The Bill provides that a person to whom this section applies may at any time, following the completion of half the period specified and taking into consideration the previous conditions mentioned, apply to the court which made the order for the removal of the disqualification.
Senator Paddy Burke's amendment proposes that those making an application for the removal of a disqualification would be subject to a proviso that "there are extraordinary and exceptional circumstances to justify such an application". It would be inappropriate to insert a provision such as this in legislation. It is a matter for the courts to decide the appropriate circumstances in which the disqualification may be reduced. They would decide any extraordinary and exceptional circumstances of the case.
There has been a practice over the years that after a period, a person who has been disqualified may apply to the court which handed down the disqualification to apply again for the licence. In general, the licence may be returned. The judges did not take such decisions lightly, and it would have depended on the case made by the lawyer in question. The interpretation should be left to the courts and the discretion of the judges.