Wednesday, 10 May 1967
Dáil Eireann Debate
Mr. T.J. Fitzpatrick: (Cavan): This really deals with a sizeable list of repeals which is set out in the Schedule to the Bill and I take it that individual repeals might be more appropriately referred to and dealt with when dealing with the Schedule. Am I correct in thinking that we shall be at liberty to deal with them then?
Mr. T.J. Fitzpatrick: (Cavan): Section 9 (2) (a) gives the Minister power to make regulations prohibiting the importation either absolutely or save under licence which may contain conditions issued by the Minister, or by specified persons. The object of amendment No. 1 is to confine the Minister's power to making regulations prohibiting importation of these parts. The Minister can achieve his object in preventing importation of faulty parts or parts which he considers unsafe and I do not consider it necessary that he should take power in the section to allow these parts to be imported under licence. In my opinion, the parts are either faulty or safe; either they are of such a type as should be fitted to motor vehicles or they should not. The object of the amendment is to give the Minister power to prohibit the importation of the parts but to take away from him the right to say that certain people may import these articles provided they secure a licence from him. I should like to hear the Minister's views.
Minister for Local Government (Mr. Boland): The whole purpose of this section is to give us an effective means of controlling the quality of certain articles, the quality of which it is felt necessary to control. The power to confine importation and supply of certain vehicle parts to persons holding a licence is intended to deal only with exceptional items of equipment such as safety helmets and safety belts and recut tyres, where quality control at the point of origin is all-important and where subsequent assessment by everyday practical methods is valueless.
There has been considerable amount of pressure for this form of control of these items. The licensing procedure which is proposed is not intended to give any one person or class of persons a monopoly but simply to ensure that, when we are allowing items such as recut tyres to be imported and when we allow tyres to be recut here, there will be effective means of control so as to ensure that the items will comply with the appropriate standards and will be supplied for use only on vehicles that can use them safely. Licensing will be introduced only for exceptional items of equipment. It is not intended to have licences for all items of equipment. At the import stage, it is envisaged that this will enable control over standards and quality to be introduced while at the supply stage, it will enable standards to be prescribed for suppliers of recut and remoulded tyres. In my opinion, it would not be wise to confine the powers to specific items for which it is known to be necessary to have these powers now because experience has shown that road traffic throws up new problems as time goes on. In my opinion, this is the only practical way of ensuring that we will be able to control the quality of these items.
Mr. Ryan: We can appreciate the wisdom of not setting up an elaborate procedure for the multitude of parts that go into motor cars but from what the Minister says, it seems that he has in mind to deal only with a very I do not want to have a long discussion on this but I should like to know what  limited number of parts of motor cars, those which he thinks have a direct bearing upon the safety of the vehicle. It occurs to me that there are parts like door parts and window parts that may be affected. There have been cases of people who spent a considerable amount of money in purchasing new cars finding, for months afterwards, that as they proceeded along the highway, doors flew open. Notwithstanding repeated requests to the manufacturers to repair the doors, they still found the doors flying open as they were travelling. Apart from the fact that this might be dangerous to other users of the road, there is the danger of the driver or passengers falling out or the vexation involved might well cause the driver of the car to move erratically.
I think the section as originally drafted is not such as to confine the Minister's power to what might be considered directly to be safety factors and I hope the Minister would use these powers in relation to all cases of parts of cars if they were likely to cause vexation to the driver or interfere with the movement of the vehicle. It is not sufficient to say that we should confine the power to brakes and lights and tyres because there are a great many other things which go into cars and which can cause as much vexation and danger in driving. If the Minister finds ground for complaint in relation to other parts of cars, I should hope he would control their importation also.
Mr. T.J. Fitzpatrick: (Cavan): I understand the object of this section. I understand that the Minister wants to maintain a high standard of safety in regard to motor vehicles. With that object in view, he wants to ensure that only parts of a high standard are imported into this country for use in motorcars. I am all with him there, but I think he can attain that object by taking in this section the power to prohibit the importation of these parts. I am quite prepared to give him that power. What I cannot understand is how importation under licence is going to help the matter. The Minister has not told us in what circumstances he visualises it might be necessary to allow parts to be imported under  licence only. I do not think he told us that when replying to my opening remarks. He did not say it was intended to use the licence provisions of this section only on very rare occasions.
I would like to hear from him what sort of occasion he has in mind for the use of this licensing section. I am not at all happy about it: I do not think it is necessary. It is part of a trend in legislation at present, and has been for some time past, once a Bill is passed, to make it wide enough to let the Minister and the Department virtually do what they like under it. I do not think that is necessary. If the object of this section, as I believe it to be, is to secure a high standard of safety in motor vehicles by ensuring that only parts of a high standard and parts which have been well and truly tested are used, the Minister can attain that by taking power to prohibit the importation of any undesirable parts. I think it should stop there unless the Minister has some very clear case in mind and some good reasons for supporting it.
Mr. Boland: It might be desirable to allow the importation of certain items for very limited use: for instance, recut tyres. It might be desirable to allow them in for certain use but possibly not for use on motor vehicles. It also might be desirable to allow in certain items for test purposes and for use by the police: for instance, radar meters. In regard to the fact that this may give scope for wider application, as I said, that may happen. It may be as times goes on that the need for this provision in regard to items other than those we have in mind at present may arise. I think it desirable to have that power in such an event.
Mr. Treacy: It deals with the granting of licences for the importation of certain car parts. I am questioning the effectiveness of such an amendment in the light of the movement towards freer trade when the barriers of protection are being lowered.
Mr. Boland: Of course. If any attempt were made to use this section for protection purposes, it would contravene free trade, but there is no such intention. I am quite sure it will not in any way contravene free trade or other trade agreements to have this power to control importation of items for the reasons I have given.
In this subsection the Minister seeks powers to prohibit “either absolutely or save under a licence (which may contain conditions)” persons from supplying or offering to supply specified goods and classes of goods. This deals with the sale of motor parts within the country. As I see it, under this provision the Minister is giving himself the right to say that firm A  may sell these parts but firm B may not. These parts are already in the country at this stage. The Minister is going to differentiate between one trader and another.
There is a very big question of principle here. It is very undesirable that any Minister of State should be able to say that a firm in the motor business is to be allowed sell a certain type of tyre but that their competitors in the same town will not be allowed to do so. That type of legislation should not be passed by this House. I suppose the Minister will again hang his hat on the words “which may contain conditions”. In other words, certain persons may sell these goods for certain purposes. If that is to be the case, the conditions should be attached to the importation of the goods, so that when they are in the country, they may be sold by anybody for certain purposes only.
I am not prepared to place in the hands of the Minister, and I do not think this House should be asked to do so, a section which will allow him— and I do not say this in any offensive way—to confer benefits on one trader as against another within the country. I do not think the argument the Minister made in regard to the previous subsection is valid at all. I would like the Minister to tell the House what exactly he has in mind in this particular subsection and how he proposes to operate, and for what purpose, the powers which he is seeking.
Mr. Boland: As I have explained to the Deputy, it is not intended to use this to provide any person or class of persons with a monopoly. As Deputy Fitzpatrick has said, this will only apply after the goods are imported but the point is that all these goods may not be imported and the section would not cover goods manufactured in the country. It may be necessary to make a regulation that recut tyres only be used with a particular type of vehicle or that only safety belts sold with instructions as to their use and fitting will be allowed. It is necessary to have the same powers with regard to the supply of goods as for the importation of goods.
Mr. Booth: I must say that I would be worried if Deputy Fitzpatrick's fears were justified but it seems to me that these regulations are not intended to cover the issue of licences to specific firms. As I read the section, there will be general regulations binding on everybody and everybody in the business will be bound by them. I do not see any danger of any preference being given. There is a danger of goods coming on the market and being advertised as cut-price safety equipment and it would be far too expensive in human life if equipment, alleged to be safety equipment, were below standard. A licence would be a general licence to have for sale certain goods in certain conditions, not a licence to Messrs. So-and-so to do it.
Mr. T.J. Fitzpatrick: (Cavan): If I were satisfied that Deputy Booth's interpretation was the correct interpretation and that a court would so interpret it, I would be quite happy. However, I think the paragraph is wide enough to permit the Minister to issue licences to certain persons.
Mr. T.J. Fitzpatrick: (Cavan): I would be happy if the section read: “Prohibiting either absolutely or save under a general licence which may contain conditions”. The Minister wants to be able to impose conditions and in that he has a valid argument. It might be a condition that safety devices be fitted by the people who sell them but we should make certain that it is a general licence and not issued to one motor company as against another.
Mr. T.J. Fitzpatrick: (Cavan): In regard to this amendment and to all others I may put down, I merely want to convey my intention. I do not suggest that the drafting of these amendments is perfect, and if the Minister were to accept any of them, he would have the draftsmen of his Department vet them and redraft them. The effect  of my amendment is to prohibit the sale of certain goods which the Minister might think would not be safe or of sufficiently high standard. I would be satisfied to give the Minister power to issue a general licence which would contain conditions.
Mr. Boland: I have pointed out that the intention is to issue the licences to everybody who would be dealing with the same type of article. It may be necessary to specify certain firms. I cannot see any other way in which it can be done except by the way proposed here. It might be necessary that the licences for certain firms should be confined to certain goods or that conditions would be different for different firms providing the same article but of different standards. In relation to recut tyres, for instance, it is necessary to have this type of control, to be able to specify on the licence conditions in regard to the use of it.
Mr. T.J. Fitzpatrick: (Cavan): The Minister says it might be necessary to specify certain firms. That is what I am against. I want the Minister to say that if a firm maintains the standard required by the Minister's Department in order to maintain a high standard of safety, then any such firm should be at liberty to sell such goods.
Mr. T.J. Fitzpatrick: (Cavan): There is power in this section for a Minister to say that only A shall be at liberty to sell certain goods. The argument in support of that might be that if too many firms were selling the goods, it would be difficult to check up on them and see that they were observing the terms of the licence. When the Bill leaves the Oireachtas, is signed by the President and becomes an Act, we have no further control over it and the courts will define it strictly within the terms of the section.
If any Minister acts as this Minister says he should not and his regulations are brought to court in order to have them set aside as ultra vires we may be told that the section enacted by the Oireachtas gives the Minister  power to do that and that there is nothing the court can do about it. The Minister should have another look at this subsection with a view to redrafting it in order to make sure that the licences will be general licences, as Deputy Booth thinks they will be.
Mr. Treacy: I would ask the Minister if he would say whether the interpretation placed on subsection (b) by Deputy Booth is correct. This would clear a great deal of ambiguity about the implications of the subsection.
Mr. Boland: That, as I have said, is the intention. It will be for only a very limited number of items that this power will be used. The only item which I can think of at the moment is recut tyres and these are only safe for use in certain circumstances.
Mr. Boland: It is considered that they are safe in normal circumstances only for use off the road and on buses where the tyres are a special type which are specially treated. This involves ensuring that the firm concerned is doing the job properly and also that it is controlling the sales of the recut tyres properly. I do not mind undertaking to see if it is possible to put in any safeguards of the type Deputy Fitzpatrick is looking for. Certainly, I would welcome such safeguards if it is possible to put them in but I cannot guarantee that I will find it possible to introduce any other safeguards. I can only say what the intention is and I feel sure that it is only for the purposes I have mentioned that this will be used. I will examine whether it is possible to introduce any safeguard.
Mr. T.J. Fitzpatrick: (Cavan): I would be happy about that. For example, about the recut tyres, if they are only suitable for use on slow-moving vehicles, such as tractors or  vans or only suitable for use on land off the roads, surely it would be necessary then to make it illegal for anybody to use them on vehicles other than vehicles on which they are suitable? It will not solve the difficulty to say that only a certain firm can sell them, because once they leave that firm, the man who buys them can use them for any purpose he likes, unless it is made illegal for him to do so. I would be happy if the Minister would make that suggestion to the parliamentary draftsman.
Mr. T.J. Fitzpatrick: (Cavan): I think the Revenue Commissioners do. If it is only going to be legal to sell certain parts for certain purposes but if the people who buy them can use them for any purpose afterwards, the whole thing is defeated.
 the Minister means. This Bill is saturated with provisions for making regulations. Practically every section from beginning to end provides for the making of regulations. I know that of the nature of the Bill it is necessary that the Minister should take power to make regulations but this Bill seems to operate section by section through regulations.
Mr. Boland: This is required to enable different procedures and requirements to be laid down in different circumstances, if that should prove necessary. For example, it might be necessary to make different provision for equipment imported for use by vehicle assemblers, or for instance, to restrict the sale of recut tyres to those designed for use on tractors, or to allow in certain equipment for experimental use or for police use. Different circumstances may arise.
In subsection (5), page 7, line 44, after “vehicle” to insert “and any device which is capable of being used to indicate the existence of, or to frustrate the operation of, electronic or other apparatus being used to give indications from which the speed at which a person was driving can be inferred.”
Mr. Boland: Yes. Section 9 was designed to deal, inter alia, with the importation, supply and fitting of devices which could be used to jam radar meters or to give warning of their operation. The use of such meters by the Garda is sanctioned by section 105 (b) of the 1961 Act. The most recent information available in relation to these devices suggests that some types of them cannot be made or adapted primarily for use on road vehicles and, of course, these would not then come within the definition of “vehicle part” in section 9, subsection (5). In these circumstances, it is necessary to amend that definition so as to enable regulations under section 9 to control or prohibit the supply and fitting in road vehicles of such devices whether they are made or adapted for use in these vehicles or not. That is in connection with amendment No. 4.
|Section 11.||The insertion after `towing gear' in subsection (6) of `and any device which is capable of being used to indicate the existence of, or to frustrate the operation of, electronic or other apparatus being used to give indications from which the speed at which a person was driving can be inferred'.|
Section 11 of the 1961 Act enables the Minister to make regulations in relation to the use of vehicles in public places and regulations under the section may make provision in relation to vehicle equipment, its use and misuse. Vehicle equipment is defined in subsection (6) of the section. It may be considered necessary to make regulations banning the use in mechanically-propelled vehicles used on the roads of radar jamming or warning devices, that is, devices which either interfere with or give warning of  radar equipment used by the Garda in the enforcement of speed limits. So as to ensure that regulations could be made under section 11 of the 1961 Act, it is necessary to amend the definition of “vehicle equipment” contained in that section.
In this section “vehicle equipment” includes all equipment, fittings and instruments fitted to a vehicle or carried on it and, without prejudice to the generality of the foregoing, lights, reflectors and towing gear and any device which is capable of being used to indicate the existence of, or to frustrate the operation of, electronic or other apparatus being used to give indications from which the speed at which a person was driving can be inferred.
Mr. T.J. Fitzpatrick: (Cavan): As I understand the Minister's amendments, he is merely seeking the authority to prohibit the importation or manufacture or sale of devices which would enable a person to dodge speed traps. I am prepared to accept that, but I should like to say, and I am not saying it in any critical fashion about the Minister's amendments, which I received only when I came into the House today, that some of them are very complicated. As far as I know they were only circulated today.
Mr. N. Lemass: On Second Stage, I expressed serious concern about the apparent doing away with the principle of being innocent until proven guilty, and I feel that it is in this section this objection arises in the first place. Subsection (5) of section 10 reads:
In a prosecution for an offence under this section in which a licence under regulations under this section is material, it shall be presumed, until the contrary is shown by the defendant, that at the material time, such a licence, then having effect, was not held.
It is my contention that it is up to the State to prove that such a licence was not held. The machinery is there for it to do that. It would not cause any great difficulty and it would help us to uphold this principle of being innocent until proven guilty. I should like the Minister to rephrase this section on the lines I have indicated.
Mr. Boland: I think this is a ridiculous suggestion. It has always been the case that a person was required to produce his driving licence. The effect of removing that requirement would be to make it very difficult indeed for the State to investigate whether or not a person had received a driving licence. It is a completely justifiable thing to require people to have driving licences and to show that they have them.
Mr. N. Lemass: There is only one other thing. In the event of a person saying his driving licence has been lost, I take it he will be given time to have it traced and a suitable copy issued? It is my contention that the  State could establish for itself quite easily that the person had a licence. The records would enable the State to do this.
Mr. Boland: It is an unreasonable requirement to put on the State. Of course, a person is always given reasonable time to produce a licence or evidence that he has a licence. In the case where a licence has been lost, such person can always get evidence that a licence had been issued.
A person who contravenes a regulation under this section which is stated to be a penal regulation shall be guilty of an offence and, in such cases involving a vehicle as may be prescribed and where that person is not the owner of the vehicle, the owner shall also be guilty of an offence.
The Minister seems to be given power here to create offences by regulation. Apparently the Minister may make regulations which it will not be an offence to violate, but he may term some of them penal regulations. If this is a new departure, it is an undesirable one.
Mr. Boland: This is similar to the formula used in section 11 of the 1961 Act. It is not proposed, and it will not be necessary, to make all regulations penal but a person who contravenes a regulation under this section which is stated to be a penal regulation shall be guilty of an offence, and it is only in particular cases that this will apply.
Mr. T.J. Fitzpatrick: (Cavan): I would be in favour of giving the Minister power to make regulations for certain objects and to say that a person who is guilty of a breach of those regulations shall be guilty of an offence and shall be liable on summary conviction to a penalty, but I do not like the idea, if I am right in my reading of the section, of giving the Minister power to create offences by regulation and to create different sorts of offences with different penalties for them.
Question proposed: “That section 12 stand part of the Bill.”
Mr. T.J. Fitzpatrick: (Cavan): This is a section giving power to officers of the Department and the Garda, I think, to make special checks. Some motoring associations are worried about this section. It is the intention to proceed with arrangements for regular vehicle checks and vehicle fitness certificates under section 18 of the 1961 Act. In view of that, the powers proposed in this section are considered far too wide. Section 60 of the 1961 Act makes it clear that there must be some suspicion of a defect before a spot check is called for.
If a regular check is to be brought  into operation, then a spot check, without any reasonable grounds for suspecting a defect, seems to be unwarranted. It is for that reason the section is opposed. I am, I think, correct in saying that it is the intention of the Minister to proceed in the not too distant future with regular checks of all motor vehicles and to make it necessary for owners of motor vehicles to obtain certificates of roadworthiness or fitness. If that is to be the position, it is difficult to see why we should have spot checks where there is no suspicion of vehicles being defective.
Mr. Boland: There is a reason for this. It is necessary because of the purposes this section is meant to fulfil. One such purpose is to determine, by taking sample checks, the incidence of vehicle defects as a guide to the kind of testing scheme to be introduced under section 18 of the 1961 Act and as a check on the effectiveness of that scheme, when introduced, as well as on the operation of section 13 of the Bill. Another purpose of the section would be to provide, in effect, an advisory service for drivers. In the early stages, it is intended that the section will be implemented purely for the purpose of providing an advisory service. While, at a later stage, more rigid enforcement will be introduced, the advisory element will never completely disappear. In other words, it is felt necessary to make these checks even where there is no reason to suspect defects in the cars.
Mr. T.J. Fitzpatrick: (Cavan): I take it the Minister will agree that, under the provisions of this section, a motorist could be held up for a regular check by some specially qualified officer of the Department and that motorist could be held up for hours while a check was being carried out. I hope the Minister will ensure that that will not happen.
Mr. Boland: There, again, this is something we will have to provide for by regulation.
Mr. T.J. Fitzpatrick: (Cavan): We might as well hand the whole Bill  over to the Minister and say we hereby authorise him to make provision for road safety, and do whatever he likes. If there are to be guinea pigs, I hope their selection will not impose unreasonable hardship on private motorists going about their business; perhaps a doctor might be seriously inconvenienced or a Member of this House coming up for a meeting of the Dáil might be held up by somebody who wanted to carry out a check.
Mr. Boland: It will only be the garda who will do this.
Mr. T.J. Fitzpatrick: (Cavan): I think there is provision made for some individual to do this.
Mr. Boland: Not to stop: only a garda can stop.
Mr. T.J. Fitzpatrick: (Cavan): The garda stops and the officer checks. I am in favour of regular checks and certificates of fitness. I am in favour of the Garda having power to stop a vehicle they suspect is defective, check it and prevent it being driven any further if it is not roadworthy. If, however, a garda is to be given power to stop any car, in order to compile statistics, and perhaps delay the owner for half a day or a couple of hours while the car is being tested, that, in my opinion, would be unreasonable.
Mr. Boland: We have to assume in this case, as we assume in many other cases, that the Garda will act reasonably. One of the reasons why it is desirable to deal with this by way of regulation is that it will be possible to discuss the modus operandi with the interests involved, with the motoring associations and so on. It is intended to have consultations before the regulations are made.
Mr. T.J. Fitzpatrick: (Cavan): Because the regulations will be so far-reaching and will affect so many people it is only reasonable to give recognised motoring associations an opportunity for consultation before the regulations are finally drafted. I gather from the Minister that these tests are largely necessary in order to get information for the Department.
Mr. Boland: Yes, and for drivers, too.
Mr. T.J. Fitzpatrick: (Cavan): Exactly. I can see a garda being sent out to test a particular make of car. The only car of that make on the road may be driven by someone in a hurry, such as a doctor. That may be an extreme example. It may be driven by someone going to a race meeting who wants to get there in time; he may find himself held up because he is driving a car scheduled for testing on that day. That would not be reasonable.
Mr. Boland: In such cases arrangements can be made to have the check postponed to a time suitable to the driver.
Mr. N. Lemass: Would subsection (2) not do in that case without subsection (1) at all?
Mr. Boland: It is intended to consult interested organisations and I think such consultation will be more exhaustive than anything we have here.
Mr. T.J. Fitzpatrick: (Cavan): Exactly. I am making this case at the request of an association that is interested in motoring. If the Minister tells me that, before the first crop of regulations is signed by him or becomes law, he will consult these associations, I shall be satisfied as far as this particular association is concerned.
Mr. Boland: They will be consulted.
Mr. Booth: I would hope the Minister, in drafting regulations, would not be too influenced by questions of convenience of individual road users. I know it could be very inconvenient and most frustrating to be stopped and to have one's vehicle tested. I think the whole purpose of this section, in particular, is one of preservation of safety rather than preservation of convenience. If one is held up on a flight from Dublin to London, for instance, by the fact that certain checks have to be carried out on the plane before take-off, I should certainly much prefer to be delayed in the interests of safety than take a chance in the hope that I  shall get there on time. I hope the Minister will not be unduly influenced by protests he may receive about the inconvenience of vehicle testing. Possibly the best way of putting it is that it is better to arrive late than to arrive dead on time. Safety is the prime object. If we have to put up with a certain amount of inconvenience in isolated cases, it is well worth it.
In subsection (4) (f), reference is made to “the authorising of persons (whether officers of the Minister or not) to be authorised persons for the purposes of this section”. I would ask the Minister to look into that very carefully. I certainly believe it would be most undesirable that persons should be authorised who are not officers of the Department properly appointed. There has been a practice in Great Britain of appointing garages to issue certificates of roadworthiness. This has led to a lot of trouble because some garages have been found to have been issuing certificates improperly simply in order to cut the costs for a customer. There is an obvious temptation to do that. I would hope that the only people who would be authorised persons to carry out inspections and testing would be officers of the Minister, as such. It would be highly undesirable to put it in the hands of ordinary garages, however honest they may be—and most of them are, I am glad to say—because it is putting them in an impossible position. If they are too strict, they will arouse resentment amongst members of the public; if they are too lenient, they are not doing their job right. It would be far better that this should be a civil servant, a person who has no vested interest one way or another.
Mr. Briscoe: I do not think Deputy Fitzpatrick, or anyone else, will have any objection in a case where a vehicle on the road is obviously a danger— with perhaps a bumper hanging off or some part of the vehicle hanging down —and where an officer of the Minister's Department believes the vehicle to be a danger that he should be enabled to act immediately instead of allowing the driver to drive off with a vehicle that could be extremely dangerous. I should like to see something kept in that  connection where the officers of the Department had the right, on sighting that there was something wrong——
Mr. T.J. Fitzpatrick: (Cavan): That is there already.
Mr. Boland: Section 20 of the 1961 Act.
Mr. T.J. Fitzpatrick: (Cavan): I do not want to be misunderstood or misrepresented by Deputy Briscoe or Deputy Booth. I am quite prepared to give the Minister and the Garda the right, if they have a suspicion that a vehicle is defective, to stop the vehicle and, if necessary, to prohibit the driver from continuing. However, I think they have that power. What we are giving them here is power to stop Deputy Briscoe, if he is driving down the street in his brand new Rolls Royce, and to look at the engine or to check it or to make an examination of it and to find out information about it for their own knowledge and for the purpose of drafting regulations. I think that that would be going too far and I think Deputy Briscoe would agree that that is so. I think we have the power within the 1961 Act to deal with vehicles which are suspected of being dangerously defective. However, the Minister will implement sections of the 1961 Act which will require persons to produce their vehicles at stated intervals for examination and to make good such defects as are found and will make it obligatory on them, I think, to carry a certificate of fitness. I agree with all that.
I am not here as an advocate of the owners of defective vehicles. I believe that people going about their ordinary business or their ordinary leisure in vehicles that are obviously roadworthy should not be held up for hours in order to get information for the Department or anybody else. If a person could say: “I am in a hurry now but if you want to see the car within a week or so...”, I would be satisfied with acceptance of that.
Mr. Boland: That is the manner in which this would operate. At the same time, I quite agree with Deputy Booth that we cannot take convenience completely  as an excuse to prevent a check. Obviously, in the case Deputy Fitzpatrick cited, of a doctor, a Deputy or anybody else like that in a hurry, I think it is quite reasonable, as is intended, to provide in a case of that kind to postpone the test to a more suitable time. I cannot visualise gardaí or officers stopping cars that are in a hurry to race meetings, and so on, for this purpose. I think that would create a hazard. I think, also, with Deputy Booth, that, generally speaking, it is unsatisfactory that people who are not officers of the Minister should be authorised persons for the purpose of this section. I can undertake that that will be utilised as sparingly as possible, and, in fact, may not be utilised at all.
Mr. Treacy: I agree very largely with the sentiments of Deputy Fitzpatrick about the restrictions that can arise from the implementation of a section of this kind. I should not like to think the Minister will apply this regulation very soon and that it would rather be a process of education. It seems to me that the drivers of vehicles of all kinds in this country are in for a very great shock when they realise that, under this section, they may be stopped by an officer of the Minister or a member of the Garda and their vehicle subjected to a test. That is something new, something radical, probably something very desirable also as we have too many inferior vehicles on our roads, which tends towards accidents. At the same time, we are concerned about the rights of individual drivers.
I was rather pleased to hear the Minister say that, in the initial stages, this would be for the purpose of assisting drivers of vehicles in locating defects in their vehicles rather than of penalising them under the law straight away. It is desirable that over a gradual period of time we should educate the drivers of all vehicles that this is a kind of law they may expect in the future, but in the initial stages it should be by way of helping and aiding them in regard to eliminating any defects which their vehicles may have.
I am also concerned that a responsible driver in a roadworthy vehicle  now stands the risk of being held up interminably by an officer of the Minister while the test is being carried out. This could not only cause inconvenience but could cause financial loss to many people. We should be very slow to give such wide powers to the Garda or to anybody else who might apply this regulation in an indiscriminate manner. Before an officer of the Minister stops anyone on the road and forces him to undergo the test, he should at least be able to prove reasonable suspicion that the vehicle was not roadworthy. I am enamoured of the idea put forward here that where a driver feels he is suffering undue hardship by being stopped and asked to accept the test, if he indicates that his vehicle will be available for inspection within a reasonable time, that should be sufficient. I appreciate that this is only a step forward towards the full implementation of section 18 of the 1961 Act. Perhaps the Minister could say how long the process of being helpful will continue before the regulation will be enforced more rigidly.
Mr. Boland: The process of being helpful will be there all the time. Of course this regulation will not apply on a widespread scale immediately, as Deputy Treacy fears. It will come into operation gradually. Similar fears were expressed about section 20 of the 1961 Act, but if anything, the complaint now is that there is not sufficient activity under that section. I explained earlier why it is necessary that these spot checks be carried out without the official concerned necessarily having suspicions. The need for the section is fairly obvious. If defective vehicles of all classes are to be effectively dealt with, all possible methods will have to be used.
There is no doubt that many accidents are caused by defective vehicles in one way or another and it is our duty to try to ensure that all vehicles using the roads will be roadworthy. Most people can see even from casual observation that all vehicles are not entirely roadworthy. In many cases we have other evidence available. The Dublin Mobile Check Unit during the December, 1966 road safety campaign,  checked 724 cars and only 63 of these, or 8.7 per cent, were fully free of fault. These were cars which had been voluntarily presented for checking and we can assume that it was only the more responsible and conscientious type of owner who presented his car for such checking. In Britain, where roadside checks have been in operation for a number of years, some 46 per cent of 139,000 goods vehicles examined in the 12 months to the 30th December, 1965, were found to be defective in some respect. It is clear that there is a great need to do something effective to ensure that vehicles will be kept in a roadworthy condition. It is necessary in the interests of road safety and people driving vehicles will have to accept this responsibility to ensure that their vehicles are in a roadworthy condition before they take them on to the road.
Mr. N. Lemass: I am familiar with the problems commercial travellers experience on the road and one of the greatest hazards is defective lighting on motorcars. While the bulk of commercial travellers will agree that it is necessary to toughen the legislation we have in this matter of checking defective cars, there is the problem of the commercial traveller who is working to a fixed set of calls which he must complete within a day. It is unfair to hold up unduly a man who is going about his business in this way. The solution is to bring in a provision whereby a certificate of roadworthiness would be recognised. This should be done on a mileage basis, say, every 2,500 miles or after a maximum of 5,000 miles, a car should be checked and certified as roadworthy. If this were done and if the man in a hurry were stopped, then he would be able to present his certificate and show that the car complied with the requirements of the legislation. Subsection (1) may be necessary in certain cases, as Deputy Treacy said, such as when a police officer sees a car which is obviously defective. For that exceptional case subsection (1) has to remain in the Act. I am glad the Minister says he intends to operate this in a more liberal way. I should like to see him examining the possibility of  enabling drivers to secure from a recognised garage some form of certificate to show that their cars were roadworthy.
Mr. Boland: We have a conflict of opinion here. Obviously some Deputies believe that a certificate of roadworthiness would not be sufficient and in all cases it may not be sufficient. This is an essential power to have. As I told Deputy Treacy it is not likely that it will be utilised immediately on a widespread scale because we will not have the scope for doing so. However, it is essential that the power to have these spot checks at any particular time should be there so that vehicle owners will know that they must keep their vehicles in a roadworthy condition. I think we are all clear that there will be no question of holding up people for long periods but where people are in a hurry, arrangements can be made to carry out the check at a more convenient time.
Question put and agreed to.
Question proposed: “That section 13 stand part of the Bill.”
Mr. T.J. Fitzpatrick: (Cavan): What companies exactly are covered by this section? Is it State companies which are covered?
Mr. Boland: All companies are covered.
Mr. T.J. Fitzpatrick: (Cavan): That is what I thought. I wondered if I was wrong. I thought it extended to all companies. This means then that certain concessions are being conferred on statutory bodies. I can understand that they would, by and large, be people like CIE and large fleet owners... “and to every company (within the meaning of subsection (1) of section 2 of the Companies Act, 1963) which owns or operates not less than the prescribed number of mechanically propelled vehicles (being vehicles exceeding 2 tons in weight unladen and used in public places) and is designated for the purposes of this  section in regulations made thereunder”. The section makes special provision for State bodies and companies incorporated under the Companies Act, 1963, but no similar facilities are extended to private individuals. Am I right in that?
Mr. Boland: Yes, companies.
Mr. Booth: This is an obligation which the Minister is putting on the companies. The Minister may make regulations requiring the company periodically to inspect and keep certain records and submit them to the Minister or his officers. I do not see that as a concession but an obligation on owners of vehicles.
Mr. T.J. Fitzpatrick: (Cavan): It makes special provision for State companies and companies registered under the Companies Act, 1963. I am puzzled as to why a distinction should be made between a limited liability company owning vehicles and John Brown who owns vehicles.
Mr. Boland: The requirements of the section are not necessarily intended to be in substitution for the testing under the regular testing scheme under section 18 of the 1961 Act. Regular testing will still continue, but, as Deputy Booth said, it is also intended that the Minister may make regulations requiring a company specifically to operate its own scheme of inspection and examination which will have to be approved by me.
Mr. T.J. Fitzpatrick: (Cavan): If Deputy Booth will look at the explanatory memorandum, he will see:
Section 13 is designed to supplement the provisions of section 18 of the 1961 Act under which the regular testing of mechanically propelled vehicles may be introduced by regulations. Under the new section, statutory bodies and companies with large fleets of heavy vehicles may be required to undertake their own inspection and examination procedures.
Mr. Boland: It is to supplement  section 18 and is not in substitution for it. It is an addition.
Mr. T.J. Fitzpatrick: (Cavan): It will mean that arrangements for inspection and examination of the vehicles must be made and action taken to remedy any defects discovered and records will have to be kept and produced to the officers of the Department. Anybody reading this section would get the impression that large fleet owners will, under the regulations, be permitted to make their own examination and will have to keep records and make good any defects that are found, admittedly, but if it means anything, it means that if they do that, it is unlikely—to put it at the worst—that they will be subject to the other test. I shall let the Minister interpret it, but whatever it means, whether it imposes a further obligation or whether it is in relief of the fleet owners—and I think it is in relief—I cannot see why a distinction should be drawn between a limited company and a private individual.
Mr. Boland: I agree; I shall look into that.
Mr. T.J. Fitzpatrick: (Cavan): Between now and Report Stage?
Mr. Boland: Yes.
Question put and agreed to.
Sections 13 and 14 agreed to.
Mr. T.J. Fitzpatrick: (Cavan): I move amendment No. 5:
In subsection (1) (a), page 12, line 42, to delete “seventeen” and substitute “twenty”.
This is a section dealing with heavy commercial vehicles having a weight of 17 tons unladen, and over. It provides that in addition to certain penalties which may be imposed by the courts for carrying more than the prescribed tonnage, the owner may have to contribute, I think, to the road authority a sum of so much per ton in excess of the prescribed load. I understand the Minister has already  received representations on this section and the object of my amendment is to increase the weight at which the section will come into operation from 17 tons laden to 20 tons laden. Without going into technical matters with which Deputy Booth may be much better qualified to deal than I am, I understand that the requested weight of 20 tons is reasonable and that the weight of 17 tons in the section is unduly harsh and unnecessary. I know that the Minister has already had representations either in writing or by deputation.
Mr. Boland: The fixing of the 16 tons limit was based on several factors, on road authority requirements, manufacturers' recommendations, on British and European standards, and this has been fixed by regulation under the 1961 Act. It could also be altered by regulation although there is no intention of changing it in the light of current conditions, but if the limit of 16 tons is changed, then paragraph (c) of subsection (1) of section 15 will automatically ensure that only vehicles over the new limit will come within the section. I do not see any reason for increasing this limit at present. Of course, a tolerance of one ton is allowed.
Mr. T.J. Fitzpatrick: (Cavan): I am told that the present maximum weight regulations are based on the number of axles. For one front axle and one rear axled lorry, 16 tons are allowed laden. For two-axled lorries weighing five and a half tons unladen, such as a Dodge, Leyland, AEC or Guy, the weight is 14 tons. Therefore, a two-axled lorry paying an annual road tax of not less than £120 should be permitted a weight of not less than 20 tons and pro rata for lorries with more than two axles. However, these people would agree if the amendment I have requested, that the weight be increased to 20 tons, were accepted by the Minister.
I do not know if the Minister and his advisers have considered the technical arguments that have been put forward or whether he would be prepared further to consider them before the Bill leaves the Oireachtas.
Mr. Boland: It was pointed out to this deputation that they were under a misapprehension regarding the terms of the section. Firstly, offences under the 1961 Act, section 12, must be proved. Then the penalty will operate according to the table set out in the section for excess weight carried above the permitted maximum laden weight; that is, in the case of a three axle truck with a permitted laden weight of 22 tons, the terms of section 15 would not apply unless the gross weight was 23 tons or more. The 17 tons referred to in the section is the minimum weight at which the terms of the section would apply. Therefore, in the case of a three axle truck which has a permitted laden weight of 22 tons, the terms of section 15 will not apply until the gross weight is one ton more.
Mr. Treacy: Was this conveyed to the organisations concerned?
Mr. Boland: Yes, a deputation was received.
Mr. Treacy: Are they satisfied?
Mr. Boland: As far as I know, they are.
Mr. T.J. Fitzpatrick: (Cavan): Unless the Minister received them since February, they were not satisfied then.
Mr. Boland: It was since the Second Reading they were received.
Amendment, by leave, withdrawn.
Section 15 agreed to.
Question proposed: “That section 16 stand part of the Bill.”
Mr. N. Lemass: Is the power of arrest without warrant necessary here?
Mr. T.J. Fitzpatrick: (Cavan): I agree with Deputy Lemass that it seems to be going very far to give a member of the Garda Síochána the right to arrest without warrant on such a charge. One would think that a summons to appear before a court of summary jurisdiction would adequately meet the position.
Mr. Boland: This is required to deal with certain serious types of cases, such as the case which occurred recently in Roscommon where some three and a half miles of road were extensively damaged by an excavator driven on its crawler tracks which weighed nearly 75 tons. As a result of the damage in this case, the council had to close the road to traffic. The cost of the damage was estimated at about £8,000 and this does not take into account the inconvenience caused by the necessity to close the road. No permission was sought to use the vehicle on the road. Although the officers of the road authority requested the driver not to persist in doing it, he insisted. Surely in such a serious case——
Mr. T.J. Fitzpatrick: (Cavan): He needed to be taken into protection not by a member of the Garda Síochána but by some other officer.
Mr. Boland: It is only in extreme cases.
Mr. T.J. Fitzpatrick: (Cavan): Extreme cases make bad law.
Question put and agreed to.
Section 17 agreed to.
Mr. Boland: I move amendment No. 6:
In subsection (2) (g), page 15, line 4, before “respect” to insert “in”.
This is just a minor error that was made—to insert “in” before “respect” to make it read “in respect of”.
Amendment agreed to.
Mr. T.J. Fitzpatrick: (Cavan): I move amendment No. 7:
In page 15, line 40, to add the following to subsection (6): “unless the instructor is a parent, child, brother, sister, uncle, aunt, nephew, niece, grandparent or grandchild of such holder”.
As it stands, this subsection reads:
Whenever a person (in this subsection referred to as the instructor) is accompanying the holder of a provisional  licence (within the meaning of section 35 of the Principal Act) while such holder is driving a mechanically propelled vehicle in a public place, the instructor shall be deemed, in any prosecution for an offence under this section, to be giving for reward instruction in or in respect of the driving of that vehicle until the contrary is shown by the instructor.
As that subsection stands at the moment, if a father is seated in a car with his son or daughter who is the holder of a provisional driving licence, the father will be deemed to be giving the child instruction for reward until he comes into court and proves the contrary. He does not have to be a licensed instructor. If anybody who is the holder of a full licence is seated in a motor car being driven by a person who is the holder of a provisional licence, then the former person is deemed to be giving instruction for reward. I want to provide that that presumption will not apply where the instructor is a parent, child, brother, sister, uncle, aunt, nephew, niece, grandparent or grandchild of the holder of the provisional licence. I am sure it is not the intention of the Minister that a parent giving his child driving instruction should be presumed to be acting contrary to the law until he proves the contrary. I would like to know if the Minister agrees with my interpretation and, if so, what he thinks of my statement.
Mr. Boland: I agree with the Deputy's interpretation of the subsection. It is not intended to prevent relatives such as the Deputy has specified from giving such instruction. It is not intended to question such people, but I think such people would not have any difficulty in showing they were not giving instruction for reward. At the same time, there could be cases of people in the categories mentioned who would in fact be giving instruction for reward. It would be difficult to cover those cases except in the manner in which it is proposed here. In practice, I am sure there would be no difficulty in the persons concerned  showing they were not giving instruction for reward.
Mr. Briscoe: As I understand it, the idea is to ensure that no driving schools will be established where the instructors are not themselves licensed. I cannot see any objection even to a friend teaching a friend, as long as he is not doing it for reward. What we seek to prevent are cars with the name of a driving school on them in which the drivers are not registered. It is the unqualified instructors we are interested in seeing caught.
Mr. N. Lemass: I should like to support Deputy Briscoe on this. There is some concern about some of these schools. There is provision for the licensing of driving instructors. Against that, I am worried about this business of being deemed to be giving lessons for reward. I am thinking of a 17-year-old lad getting his first provisional licence to drive a car. His pal, six or seven months older, has a full licence. I am quite sure that no matter what parental instructions are given, one pal will start taking the other out to drive the car. I think the subsection could be drafted in some other way and I would suggest that we add to it:
Or a person who has been authorised by a parent or guardian of such person.
There is a danger here of unnecessary prosecutions.
Mr. T.J. Fitzpatrick: (Cavan): I intend to hold to the amendment because the section is unreasonable. This is an onus of proof subsection which is necessary in a lot of Acts under which it is difficult to prove certain things. The Legislature gets over that by throwing the onus of proof on the defendant. Under this Bill it will still be permissible for any Tom, Dick and Harry to give driving lessons to any other Tom, Dick and Harry as long as he does not charge for it. Under the subsection we are saying that the law presumes that a father who has given a driving lesson to his daughter is charging his daughter for that lesson. It is not reasonable or sensible that this should be written into the Act.
Mr. Boland: The amendment would leave it to the law to assume that the husband had charged his wife.
Mr. T.J. Fitzpatrick: (Cavan): I do not pretend that any of my amendments are perfectly drafted. The parliamentary draftsman could quite easily draft a simple addition to this section which will excuse a father, a child, a brother, a sister or any other near relative from being dragged into court to prove that he is not getting money from a relative for a driving lesson. I am sure the whole House will be with me in this.
Mr. Booth: I am not one of those who are with Deputy Fitzpatrick, although I can see what is in his mind. I am not with Deputy Lemass either. I think there is a danger of young persons, having eventually got a licence, holding themselves out as driving instructors in an unofficial sort of way, even as a matter of convenience. I can imagine a young lad who has got his licence taking out a friend who has got a provisional licence and who says: “I want to go out tonight. I cannot drive on my own. Will you come with me.” Whether money passes or not, such a situation would be dangerous. It would mean the setting up of unofficial driving schools and the practice of youngsters going out with other youngsters would be highly undesirable.
Mr. T.J. Fitzpatrick: (Cavan): I agree.
Mr. Booth: I cannot see any way around it. If there were a subsequent investigation, a fairly convincing story could be told that no money had passed. It is far better to say that a relationship must be proved between instructor and learner which makes the passing of money unnecessary. I think the relationship of father and mother and father and child would be acceptable to any court.
Mr. T.J. Fitzpatrick: (Cavan): That is what I want to put in, a near relative.
Mr. Booth: The whole thing could get out of control and for that reason  I think it better to leave it to the courts. If it is said that there is a close family relationship between the driver and the instructor, the court will accept it. I am frightened that if we were more liberal we would open the door to unofficial instructors so I will back the Minister in this.
Mr. N. Lemass: Take the case where I might have undertaken to give a person a driving lesson. Something turns up to prevent me from doing so and I say to a friend of mine: “I have not the time; will you take him out and give him a free lesson?” That person could be dragged into court for doing me a favour. Could it not be done in a more simple way?
Mr. T.J. Fitzpatrick: (Cavan): I am surprised at Deputy Booth because, to some extent, we should speak the same language. I have no desire to encourage the illegal giving of instruction for reward. If my amendment is accepted and a father takes his son for a driving lesson and charges the son, he will be guilty and can be convicted. It is unreasonable to presume that a father, giving his child a driving lesson, is charging that child but that is what we are doing in this section. It is unreasonable to expose the father to the risk of being brought to court, put into the witness box and having to take the Testament to swear that he did not receive any money from his son for the driving lesson. That is going much too far. If the father takes money, he will still be guilty of an offence and all the talk about one young person taking another young person out and giving driving lessons for reward does not arise. When this Bill becomes an Act, a young person of 18 will be at liberty to bring another young person of 18 out for a driving lesson, if he does not charge for it.
There are seven subsections in section 18 and the comprehensive effect of all of them is to prohibit the giving of driving lessons by unlicensed instructors for reward. I am with all that. The sum total of my amendment is an amendment to what I would call the onus of proof section, section 6. I am asking the Minister to exclude  from that such relationships as father and child. If the State want to bring a prosecution against a father for giving a driving lesson for reward to his child, it will have to prove that he got money but if the State want to take a prosecution against strangers in blood, the onus of proof will be on the instructor to prove that he was not paid. I am prepared to go that far with the Minister because I concede that if that shifting of the onus of proof were not there, it would be impossible to get a conviction. There is no use in saying that there would be all sorts of unofficial driving schools being set up. There will be no such thing. This is a very limited argument that I am putting up, confined to a very limited relationship. I think it should go as far as parent and child, husband and wife, brother and sister, and a bit further, if you like.
Mr. Briscoe: We are losing sight of something. I think Deputy Fitzpatrick's amendment should go further. The object of this section is to prevent these charlatan driving schools mushrooming up all over the place and that the public who are paying their money for driving lessons should know that the people they go to for instruction are qualified to give driving lessons. I can see no objection to a person who is a qualified driver and who has a licence giving instruction to a friend in the Phoenix Park. The section is simply to protect the public against charlatan driving schools.
Mr. T.J. Fitzpatrick: (Cavan): He can do that and will be able to do that when the Bill is passed, as long as he does not charge for it.
Mr. N. Lemass: He is presumed to have charged for it.
Mr. Briscoe: That is the objection.
Mr. Boland: I cannot conceive of any garda prosecuting a father or attempting to prove that a father got money from his son for teaching him to drive, or, indeed, doing that in the case of these other close relatives Deputy Fitzpatrick has mentioned.
Mr. T.J. Fitzpatrick: (Cavan): What is to be lost by excluding them?
Mr. Boland: The difficulty is that if you set out to exclude some relatives specifically, you may create the impression that, automatically, everybody else must be suspected of this. I can visualise in cases of close friends such as Deputy Briscoe mentioned, gardaí accepting the fact that these people were not giving the instruction for reward, but the danger is that if we specify that certain classes of persons are excluded, it may appear to create the position in which everybody else must be considered to be doing it for reward. As far as I am concerned, it is purely and simply a question of the difficulty in doing what Deputy Fitzpatrick wants done. It is practically inconceivable that persons such as he has specified here would be treated as giving instruction for reward. However, it would be feasible to deal with this under regulations to be made under subsection (3) and I am prepared to consider doing that. The only difficulty I see is that by specifying certain persons, you may create the position that it will be understood that everybody else must be treated as giving instruction for reward.
Mr. T.J. Fitzpatrick: (Cavan): I honestly do not think there is the slightest danger.
Mr. Boland: Surely there is no danger of a garda prosecuting a father for giving lessons to his son?
Mr. T.J. Fitzpatrick: (Cavan): There should not be, but this unnecessary presumtion should not be held over the head of a parent. This shifting of the onus of proof is really an invasion of the rights of the individual but it is a necessary invasion in certain types of cases, such as the customs code—you would never get a prosecution otherwise—and the Road Transport Act. I am prepared to give it there but I am against extending it indiscriminately into the homes of the people. This is what you are doing here. The Minister says it is inconceivable that a garda would think of  prosecuting a parent for giving a driving lesson to his son. Then, why not simply write it in? These few words I have suggested will make the position perfectly clear.
I am convinced that when Deputies realise what is in this subsection and, certainly, when the people of the country realise it, they will be dead against it. Furthermore, I am confident that if the Minister gives it a little thought between now and Report Stage, as I think he said he intends to do, he will probably come around to agreeing that my request is not unreasonable. I am against the argument that we get put up here in this House on Bill after Bill, that there is no danger of such and such a thing happening, that it will never be done. We should not legislate on that basis unless it is absolutely necessary, and it is not necessary here. If the Minister tells me now that he is prepared to think about it, I will be satisfied for the time being.
Mr. Boland: I am prepared to think about it, providing that Deputy Fitzpatrick sees the difficulty that by specifying certain classes of persons, you may be taken as automatically specifying that everybody else must be considered to be doing it for reward. I quite appreciate that Deputy Fitzpatrick probably has not got the time to go very thoroughly into this but it is a fact that in putting down his amendment he left out persons such as husbands and wives.
Mr. T.J. Fitzpatrick: (Cavan): Yes, but I was putting down amendments only in order to put across my case.
Mr. Boland: Yes, but at the same time, when you put in an exemption like this, it seems to be desirable to make it as comprehensive as possible and by leaving out certain categories, it may come to be the practice that it would be felt in all cases that persons who are not excluded should be assumed to be doing it for reward. However, I certainly agree that this type of person should not be treated as doing it for reward. I am quite  satisfied that in practice that is what would happen but I agree to look into it between now and Report Stage. I imagine that the best way to do it would be in the regulations which are provided for in subsection (3) rather than by an amendment of subsection (6). However, I agree with the principle Deputy Fitzpatrick has in mind.
Mr. Briscoe: Is there no possibility of drafting a subsection so as to provide that where a person or persons set themselves up as a driving school, they shall have to be licensed?
Mr. Boland: That is fairly clear, that people could give instructions for reward without setting themselves up as a driving school, and, in fact, the people who set themselves up as a driving school will be much more easily dealt with than the people who do it as a side line or just do it now and again when they get the opportunity.
Amendment, by leave, withdrawn.
Section 18, as amended, agreed to.
Mr. Boland: I move amendment No. 8:
In page 15, before section 19, to insert the following new section:
“Section 29 of the Principal Act (which relates to the removal of disqualification under consequential or ancillary disqualification orders) is hereby amended—
(a) by the substitution of the following subsection for subsection (1):
`(1) (a) A person in respect of whom a consequential disqualification order has been made may, at any time and (save as is hereinafter mentioned) from time to time after the expiration of three months from the beginning of the period of disqualification and before the expiration of that period, apply, to the court which made the order, for the removal of the disqualification, and that court, if it considers that circumstances exist which justify such a course, may by order remove the disqualification as from a specified  date not earlier than six months after the beginning of the period of disqualification.
(b) A person in respect of whom an ancillary disqualification order specifying a period of disqualification exceeding three months has been made may, at any time and (save as is hereinafter mentioned) from time to time after the expiration of two months from the beginning of the period of disqualification and before the expiration of that period, apply, to the court which made the order, for the removal of the disqualification, and that court, if it considers that circumstances exist which justify such a course, may by order remove the disqualification as from a specified date not earlier than three months after the beginning of the period of disqualification.', and
(b) by the insertion after subsection (7) of the following subsection:
`(8) A person intending to make an application under this section shall give fourteen days' notice in writing of his intention to the Superintendent of the Garda Síochána for the district in which the person ordinarily resides.”'
An Ceann Comhairle: Amendments Nos. 8, 9, 11, 32 and 34 may be taken together.
Mr. Boland: Yes, and the deletion of sections 21 and 22 under the 1961 Act is involved.
Mr. T.J. Fitzpatrick: (Cavan): The acceptance of these amendments means the deletion of sections 21 and 22?
Mr. Boland: Yes. Section 22 of the Bill provides for the restoration to the Minister for Justice of the power to remit ancillary disqualifications. Under the 1961 Act, these disqualifications may be imposed by a court, at its discretion, where a person is convicted of any offence under the Act, except, of course, those to which consequential disqualification applies, or a person who is convicted of any other offence in relation to a mechanically propelled vehicle or a crime or offence in the  commission of which such a vehicle was used. It was considered necessary to give the courts this wide power because the circumstances of the case, however minor the charge, may indicate the wisdom of disqualifying the offender for a while. As I said in my Second Reading speech, the courts have, on the whole, exercised sensibly the power to impose ancillary disqualification but there have been cases where a court has imposed disqualification for a very minor offence with no exacerbating circumstances; this can operate very harshly when the court also decided, as it is entitled to do under the present Act, not to suspend the operation of the disqualification order pending appeal and when the livelihood of the person concerned depends on his being permitted to drive. Although the present law provides for an appeal to a higher court against an ancillary disqualification, whether or not the conviction is being appealed, the appeal can take a long time to come to hearing and the period of disqualification may well have been “served” before the appeal is heard. Again under section 29 of the 1961 Act the disqualified person can, after three months, go back to the court which made the disqualification order and seek to have the disqualification removed, but this provision does not apply to disqualifications for periods of less than six months and, in any event, the court has power to remove the disqualification only after it has operated for six months.
It is important that there should be some machinery for dealing quickly with harsh court decisions, relatively rare though they may be and, when the present Bill was being framed, it was decided that the best course to follow would be to restore to the Minister for Justice the power to remit ancillary disqualifications which was provided for in section 23 of the Criminal Justice Act, 1951 but which was completely abrogated by section 124 of the Road Traffic Act, 1961.
Many of the Deputies who spoke on the Second Stage of the Bill criticised the decision to restore the power to remit and, in replying to the debate, I undertook to reconsider the matter  before the Committee Stage. I have given the matter a considerable amount of thought since then and have come to the conclusion that, despite the disadvantage involved, we should introduce alternative arrangements to what was proposed in section 22 of the Bill.
Two changes are proposed. First, it is proposed to reduce from six months to three months, the minimum period to which an ancillary disqualification may be reduced on subsequent application under section 29 of the 1961 Act. The six months period is being retained for all consequential disqualifications. Acceptance of the amendment of section 29 of the 1961 Act will mean that a person in respect of whom an ancillary disqualification order, specifying a period of disqualification exceeding three months, is made will be free, two months after the beginning of the period of disqualification, to go back to the court and apply for the removal of the disqualification; the court, if it considers that circumstances exist which would justify such a course may remove the disqualification as from a date not earlier than three months after the beginning of the period.
The second change, which will be effected by the amendment of section 30 of the 1961 Act, is that in future, the operation of a disqualification order will be suspended pending appeal.
Mr. T.J. Fitzpatrick: (Cavan): Does that apply to consequential as well as to ancillary disqualification?
Mr. Boland: Yes.
Mr. P. O'Donnell: That is a very good thing.
Mr. Boland: The operation of a disqualification order will be suspended pending appeal, but the suspension will be conditional on the convicted person entering into a recognisance to prosecute the appeal. These two changes will provide adequate safeguards against harsh court decisions. To give effect to them, two new sections are being inserted in the Bill before section 19, and section 22 of the Bill is being deleted. An amendment of section 29 of the 1961 Act, which  was provided for in the Schedule to the Bill, is now included in the first of the new sections and the amendment in the Schedule is, therefore, being dropped. Section 21 of the Bill is also being dropped and, instead, its provisions are being inserted in the second of the new sections. The second amendment of section 36 contained in the Schedule to the Bill is bound up with the restoration of the power to remit and is, therefore, also being dropped but a new amendment, which is consequential on the changes being made in section 30 of the 1961 Act, is being substituted.
Mr. T.J. Fitzpatrick: (Cavan): I accept the Minister's amendments in principle and subject to the necessity, perhaps, for giving them some consideration in detail between now and Report Stage. The Minister's amendments were circulated only comparatively recently and I did not have an opportunity of studying them fully. When this Bill was first circulated and when it became apparent that the Minister proposed to confer on himself——
Mr. Boland: The Minister for Justice.
Mr. T.J. Fitzpatrick: (Cavan):——to confer on the Minister for Justice the right to overrule the court in relation to ancillary disqualification orders, there was considerable disquiet in the country. It was generally accepted, I think, that the 1961 Act, which provided that licences could only be restored by a court, was sound. I put down an amendment for the deletion of the provision giving the Minister power to restore licences. That amendment provided that, in order to avoid hardship, service of notice of appeal would automatically lift the suspension. The Minister's amendments meet my arguments substantially. I am glad the Minister has gone a bit further because, all down the years, when a district justice convicted a person of drunken driving, a consequential disqualification order was imposed and some district justices refused to suspend that consequential disqualification order, pending appeal to the Circuit Court. In some cases the  conviction in the District Court was upset on appeal but, in the meantime, these people had been deprived of their driving licences for three or six months. I am glad the Minister is now making it obligatory on a district justice to suspend disqualification, whether it be ancillary or consequential, once a bona fide notice of appeal has been lodged and proper recognisances have been entered into to prosecute the appeal.
The 1961 Act, in my opinion, worked an injustice and I welcome the decision of the Minister to drop section 22 of the present Bill. The argument in favour of the Minister having power to restore a licence was that a hardship could be imposed on a person convicted in the District Court because, before he could either appeal to the Circuit Court or go back to the District Court, his term of suspension might have been served. I pointed out on that occasion that that danger could be overcome by lifting the ancillary disqualification on notice of appeal. I am glad the Minister has accepted that suggestion now. This is something to be welcomed. It is something of which we do not see enough in either House of the Oireachtas. It is unfortunate that so many measures introduced here should be regarded as political measures: if a Minister yields on any matter of principle it is believed he is suffering a blow to his prestige. Measures such as this are the concern of every Member of the Oireachtas and it is the desire of Deputies to produce the best possible legislation and to ensure that provisions made here are capable of implementation. I trust this will be a precedent for other Ministers in the future.
Mr. Treacy: I welcome the deletion of section 22. The section caused some anxiety to some of us here and also in the country generally. To some extent it made a mockery of a Bill designed to make our roads safe and to keep death off them. If we are serious about putting down drunken driving, for example, then the due process of the law should be allowed to take place without interference from any Minister. If that is not the case, then we can never hope to secure the respect and  co-operation of the people for legislation passed by this House. We are glad the Minister has had second thoughts on this. I agree with the Minister that some court decisions can be harsh; some can even be unfair. There have been quite serious repercussions in the past because in some instances disqualification from driving has meant the denial of a livelihood. Under the Minister's amendment the suspension order will be suspended in future, pending appeal. That is only right and proper. This will be done without recourse to the Minister, or anyone else, for the purpose of getting the order of the court set aside. The lifting of the suspension will be automatic on notice of appeal.
Mr. P. O'Donnell: I congratulate the Minister on his courage in deleting section 22. Sometimes I prayed for such a section. That may sound somewhat paradoxical but I have come across many cases in which a district justice has suspended a driver's licence and refused to refrain from imposing that suspension, pending the hearing of an appeal. When I first read this section, I thought that now one could appeal to the Minister to remove the suspension but, on reconsideration, I found that would apply only when an appeal was pending. The Minister has now abolished the necessity for this because he has provided for the automatic lifting of the suspension, pending the hearing of the appeal. Under the 1961 Act a district justice might suspend the operation of an endorsement on a licence pending the hearing of an appeal. In my practical experience—I have counted it up—out of 98 cases, in only two that I know of did a district justice exercise the discretion which he had under the 1961 Act and which, as I said before, was the wish of the legislature in passing the Act in giving the justice that discretion.
Many a time I have heard a district justice say, when one appealed to him to refrain from imposing suspension pending hearing of an appeal: “I shall not allow the defendant to go around the country with a machine-gun in his hands pending an appeal.” which was a ridiculous argument to put forward.  Under the amendment of the Bill, it is now obligatory on the district justice to refrain from suspending the licence until an appeal is heard. The hearing of an appeal is a complete de novo hearing of the facts of a case. I always thought it was an injustice and that no penalty should be inflicted pending the hearing of the entire facts by an appeal judge.
I remember the case of a commercial traveller whose driving licence was suspended. The district justice refused to remove the suspension pending the hearing of an appeal. He had to employ a driver for almost ten weeks and, when the appeal was heard, it was allowed. The summons against him was dismissed. Naturally, there was no suspension of his driver's licence. Observe, however, the penalty he suffered from the time of the original verdict to the time of the decision on appeal in having to employ a driver during all that period.
The Minister has taken his courage in his hands. I think he has done a very democratic act. He has upheld the rule of law—many of his colleagues could take a leaf out of his book in that respect—in that he is leaving entirely to the courts the discretion as to when an endorsement should be made. If a Circuit Court judge, after hearing the facts, decides that the district justice should be upheld, I do not think any person could take exception to that.
I congratulate the Minister, again, on his upholding of the rule of law in so far as this is concerned.
Amendment agreed to.
Mr. Boland: I move amendment No. 9:
In page 15, before section 19, to insert the following new section:
“The Principal Act is hereby amended by the substitution of the following section for section 30:
`Operation of disqualification order.
30. (1) A person in respect of whom a consequential, ancillary or special disqualification order is made shall stand disqualified in  accordance with the order for holding a driving licence, and a driving licence held by him at the date of the order shall stand suspended correspondingly.
(2) Where a disqualification is removed under section 29 of this Act, subsection (1) of this section shall cease to have effect as and from the date from which the disqualification is so removed.
(3) (a) Save as provided by paragraphs (b) to (e) of this subsection—
(i) a special disqualification order shall come into operation immediately it is made and a consequential or ancillary disqualification order shall come into operation on the fifteenth day after it is made,
(ii) the operation of a special, ancillary or consequential disqualification order shall not be suspended or postponed.
(b) Where an appeal is being brought against a special disqualification order, the court making the order may direct the suspension of the operation of the order pending the appeal.
(c) Where a consequential or ancillary disqualification order (or, where the order is related to a conviction, that conviction) is the subject of an appeal, notice of which is lodged within fourteen days of the making of the order, and the convicted person has duly entered into a recognisance to prosecute the appeal, the operation of the order shall stand suspended pending the appeal.
(d) When making, confirming or varying a consequential or ancillary disqualification order the court may, at its discretion but subject to paragraph (e) of this subsection, postpone the operation of the order for a period not exceeding six months.
(e) A Court shall not postpone under paragraph (d) of this subsection the operation of a consequential or ancillary disqualification  order unless it is satisfied that a special reason (which it shall specify when postponing the operation of the order) relating to his personal circumstances (including the nature of his employment) has been proved by the convicted person to exist in his particular case.
(a) a notice of appeal has been lodged in a case in which a consequential, ancillary or special disqualification order has been made,
(b) the operation of the order stands suspended pending the appeal, and
(c) the appellant has given notification in writing that he wishes to withdraw the appeal,
the suspension of the operation of the order shall be regarded as having terminated immediately before the day on which the notification was given and the period if disqualification shall begin on that day.
(a) a consequential or ancillary disqualification order (or, where the order is related to a conviction, that conviction) is the subject of an appeal,
(b) the operation of the order stands suspended pending the appeal, and
(c) the appeal is not prosecuted or the order is confirmed or varied by the appellate court,
the period of disqualification shall begin on the day on which the appropriate order of the appellate court is made, save in a case where the operation of the consequential or ancillary disqualification order is postponed under paragraph (d) of subsection (3) of this section.
(a) a consequential, ancillary or special disqualification order operates until the person concerned produces to the appropriate licensing authority a certificate of competency or fitness, and
(b) such person produces to that authority such certificate, the authority shall, where appropriate,  note the production of such certificate on the relevant driving licence.”'
Amendment agreed to.
Question proposed: “That section 19 stand part of the Bill.”
Mr. T.J. Fitzpatrick: (Cavan): As I understand it, this section proposes to change the law regarding the carrying out of tests for driving licences. Before the tester carries out the driving test, he must satisfy himself that the person's eyesight is reasonably good. I cannot do better than quote the explanatory memorandum:
Section 19 provides that, before a driving test under section 33 of the 1961 Act is carried out, the issuing authority (i.e., the driver tester to whom the functions of the Minister for Local Government as issuing authority have been delegated) must satisfy himself in the prescribed manner that the applicant's eyesight (with the aid of spectacles, if these are worn) complies with the prescribed standard. The nature and scope of the eyesight test will be determined by regulations. It is envisaged that, for the present, the test will be a simple acuity test, for example, by use of Snellen cards or by reading a number plate of normal size at a specified distance, but a more sophisticated and extensive test may be introduced later. As in the case of the driving test itself, there will be a right of appeal to the District Court.
This proposes to confer on the driver tester, who presumably is a mechanic or somebody qualified in the art of driving a motor car, an obligation to carry out something that is really a medical function, the duty of an eye specialist, and of deciding whether or not the applicant for the driving licence has proper eyesight. This House should not agree to that. This is why I oppose the section. I do not think it is necessary either, because the 1961 Act provides that the driver tester may postpone the issue of a certificate until the applicant gets a certificate of fitness. If the applicant has only one arm, or some other  infirmity, he may be called upon to have himself examined and to produce a certificate of fitness. If the tester has any doubts about an applicant's eyesight, he should require that person to produce a certificate from a properly qualified medical practitioner to show that his eyesight is adequate.
I am completely against the introduction of a system whereby unqualified persons will be entrusted with carrying out tests which come within the sphere of a specialist. I oppose the section strongly on those grounds, and also because there is within the 1961 Act sufficient protective provisions to ensure in the case of a person about whose eyesight he is in doubt, the driver tester can call for a certificate of fitness.
Mr. Briscoe: If Deputy Fitzpatrick's suggestion were put into effect, it would cost the applicant undergoing a driving test a lot of money before he finally passed his test. I underwent a driving test in England and one part of the test was an eyesight test. The tester simply asked me to read the number of a car which was 25 feet away. He just said: “Read that number”, and I did. I would imagine that this is simply what the Minister has in mind in regard to an eye test. It is suggested in the explanatory memorandum that this is the type of thing which will be done. If they can carry out these tests successfully in England without a problem, I do not see why we should create a problem here by putting people to the expense of going to eye specialists. If anyone cannot read the number plate of a car which is 25 feet away, he should not be driving his car.
Dr. Gibbons: It would be possible for a driver tester to have some training in simple acuity tests or the use of Snellen cards. If an applicant is turned down on the ground that his eyesight is not up to standard, I presume that before his appeal in the District Court, he would get medical advice. That matter might be decided in his favour but the point I want to make is that if it is not decided in his favour, he has no right of appeal from  the decision of the District Court which shall be final. If a situation arises whereby as a result of new medical treatment such a person is able to have his eye condition treated within six or 12 months of being in the District Court, what is his position? I feel that he should be given the opportunity of returning and having his application put before the court again. I do not think it is the intention of the Bill to keep such people from driving in those circumstances.
Mr. Boland: While the possibility of a full-scale eye test being introduced at some time in the future is not ruled out, that is not what is intended here. Such a full scale test would, as Deputy Briscoe said, involve the applicant in a certain amount of expense. Our intention here is to have a simple acuity test carried out by reading a chart or a number plate at a certain distance. There is no reason why there should be any objection to this test being carried out by the driver tester as has been done in other countries for a number of years. It will also be provided in the regulations, as an alternative, that the applicant may be free to submit a certificate from a doctor or an optician which would be acceptable. These regulations will be made only after consultation with all interested bodies, as has been the practice in regard to other regulations. In the case of a person such as the one mentioned by Deputy Gibbons, who undergoes some treatment and has his eyesight improved, there is no need for him to go back to the court. All he has to do is apply for another test.
Mr. T.J. Fitzpatrick: (Cavan): He could appeal again.
Mr. Boland: If he were turned down, he could appeal again. It is not a question of his being prohibited from going back to the court. It would hardly be necessary for him to go to court again unless he were turned down again in a new test.
Mr. T.J. Fitzpatrick: (Cavan): What the Minister has said puts a different complexion on the situation. He proposes to write into the regulations that the applicant for a licence may get a certificate from a medical  practitioner that his eyesight is in order and not defective. In such an event I understand he will not then be subjected to a test by the driver tester?
Mr. Boland: Yes.
Mr. T.J. Fitzpatrick: (Cavan): That is largely what I was advocating.
Mr. Treacy: Are driver testers at present obliged to have regard to the eyesight of an applicant for a driving licence?
Mr. Boland: There is no specific provision in that regard at present, but I hope no driver tester would pass anybody who is blind.
Mr. Treacy: This convinces me of the importance of including a section of this kind. In the initial stages, the eyesight test would be a rather simple one, I imagine, to ascertain whether one can see a number plate approximately 25 yards away or something like that. This is reasonable. If one's sight is impaired, one should not be entrusted with a vehicle of any kind. Good eyesight is a prerequisite for driving. I understand it is envisaged that more rigid tests will apply in the long term in regard to eyesight. I am glad the fears expressed by Deputy Fitzpatrick have been somewhat allayed. He was right in pointing out that the driver tester, who is basically a mechanic or mechanical engineer, is not a competent person to decide whether one's eyesight is good or bad. That is the function of a specialist in that field.
Major de Valera: In regard to an offhand test like this and eye defects, I should like to say that because of a mere myopia a man might fail to read a number plate at a certain distance. That would be a relatively small defect whereas a man whose field of vision would be completely impaired might still read the number plate and get by. That might be a very serious defect from the driving point of view. Therefore, I wonder whether a provision of this nature will be effective at all.
Mr. Boland: I agree that a more extensive test might be desirable and  it is not ruled out but it could not possibly be carried out by a driver tester. I do not think we are in a position to have an extensive eyesight test carried out at present.
Question put and agreed to.
Section 20 agreed to.
Mr. Boland: I move amendment No. 10:
In page 16, before section 21, to insert the following new section:
(1) A person who undergoes or attempts to undergo a test arranged under section 33 of the Principal Act in the name of some other person shall be guilty of an offence.
(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
(3) Where a certificate of competency is issued on completion of a test in relation to which an offence under this section has been committed, such certificate and any driving licence granted in pursuance of an application accompanied by such certificate shall be void and of no effect.
For some time I have had to consider the problem of persons seeking a driving test who do not, as required by law, make application themselves personally for the test. In the great majority of cases, I am sure that nothing underhand is intended and I have, in fact, arranged that the administrative procedure will be such that where a genuine mistake like this is made, an applicant will be facilitated in making a proper application and not have to face applying for a further test. I consider it is necessary, however, to deal firmly with any attempt to defeat a test by having a substitute attend for the applicant. This amendment is accordingly designed. Section 115 of the 1961 Act dealt generally with such matters as false declarations but is not wide enough to cover  specifically the case of substitution for a driving test. The amendment proposes a specific statutory offence for a person who substitutes. The law on aiding and abetting will deal with the applicant himself in such cases.
Mr. M.J. O'Higgins: Can the Minister say, in regard to the present procedure, if it is governed by regulation? Is it not statutory as regards the signature of the applicant? I take it that when the Minister says he is making arrangement to deal administratively with such cases, it is a question of regulations, once this safeguard is inserted.
Mr. Boland: It is partly statutory. Where, in such a case, a person has just signed a form for somebody else, we allow that person to complete an application form himself.
Mr. M.J. O'Higgins: But without having to do a further test, if you are satisfied with the identity?
Mr. Boland: Yes. Prior to this we had a number of cases of people— whoever happened to be available in the house—filling up the form and completing the signature.
Mr. M.J. O'Higgins: I have made representations for some of them.
Mr. Boland: The majority of them make genuine mistakes.
Mr. M.J. O'Higgins: I think in my case it was a husband who signed for a wife where the wife was ill or in hospital.
Mr. Boland: I have had cases of people who happened to be away in England when the form came and the mother or someone signed it. At the same time, there is a danger of people substituting for others.
Mr. M.J. O'Higgins: I agree. This does provide a safeguard.
Mr. T.J. Fitzpatrick: (Cavan): I accept the Minister's amendment and welcome the announcement that he is changing this regulation in regard to a person who gets somebody else to sign a form, so that he can avoid undergoing  another test and paying another £1. I do not approve of people signing other people's names to documents but it is a notoriously common habit in this country when people cannot conveniently sign themselves.
Amendment agreed to.
Question proposed: “That section 21 stand part of the Bill.”
Question put and declared lost.
Section 21 deleted.
Amendment No. 11 not moved.
Question proposed: “That section 22 stand part of the Bill.”
Question put and declared lost.
Section 22 deleted.
Progress reported; Committee to sit again.
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