Wednesday, 7 July 2010
Dáil Éireann Debate
Minister for Transport (Deputy Noel Dempsey): Many of these amendments from the Seanad are small and technical adjustments to the Bill. As road traffic legislation attracts the most litigation, we want to make this Bill as watertight and as accurate as possible.
Deputy Noel Dempsey: This amendment proposes to extend the categories of licence for the definitions of specified persons associated with an offence under sections 4 and 5. I want to add categories C and C1, drivers of rigid trucks, to the other categories defined as “specific persons”, as they were excluded in an oversight.
An Leas-Cheann Comhairle: Amendments Nos. 3 to 5, inclusive, 7, 8, 10, 20 to 23, inclusive, 28 to 31, inclusive, 33, 36 to 38, inclusive, 42 to 44, inclusive, 48 to 51, inclusive, 53, 54, 56 to 63, inclusive, and 65 to 70, inclusive, are related and will be discussed together. That sounded like a bingo card.
An Leas-Cheann Comhairle: We will deal with all these amendments in a collective way but it will not be possible to debate each amendment. However, I will give a little bit of flexibility if Members indicate to me on which amendment they would like to contribute.
Deputy Joe Costello: This amendment proposes to change the racy language of “hired or plied for hire” with “used in the course of business”. What if the vehicle is also used for personal use? An owner of a small public service vehicle will also use it as his or her personal transport vehicle.
Deputy Joe Costello: Should the provisions of this section be confined to vehicles being used in the course of business? Surely a small public service vehicle is likely to be used on occasion as a family car. Many people may drive them for personal purposes as well as for work. Should that not be covered by the section?
Deputy Noel Dempsey: It is. If I understand the Deputy correctly, he is saying that if a specified person is working, a different limit applies to him or her than if he or she was on holidays or otherwise not plying his or her trade. That is not what this is about; rather, it changes an old way of describing——
Deputy Noel Dempsey: This section was the subject of much debate at various Stages in the Dáil and Seanad and a number of suggestions were made, which we have considered and which are reflected in the Bill. At all times we were conscious of the importance of taking legal advice on various aspects of the Bill; if I was not conscious of it before we started discussing the Bill, I certainly became so, because Acts such as these are the subject of the most legal action.
I am committed to the principle of mandatory testing. We tried during the earlier Stages in the Dáil and Seanad to find ways to provide for testing at collision sites where injury has been caused. We obtained advice from Office of the Attorney General at every stage of the Bill on ways to enhance the robustness of section 9. My advice is that simply by deleting the words “the member may then require the person”, we can ensure that the mandatory element of section 9(1)(a)(i) and 9(1)(b) carries through to subparagraph (iii) and the discretionary element of section 9(1)(a)(ii) also carries through to subparagraph (iii).
I am happy with this amendment, which was introduced in the Seanad although the issue was raised in the House by Deputies Broughan and O’Dowd. After the passage of the Bill, when I met people from PARC, they felt we had provided what they had been seeking. As I said, we had a good debate on this during the earlier Stages in the Dáil.
Deputy Simon Coveney: This is the most substantial amendment from the Seanad. Although I am new to this legislation, that is my reading of it. I do not think we will see another amendment later that is more substantial. Essentially, this does away with the option for a garda who does not have a breathalyser when attending a collision of telling the person to go home. It requires the garda to obtain a breathalyser within an hour if possible.
Ironically, this happened to me one night when driving along the canal in Dublin. I was stopped by a garda at about 2.30 a.m. on my way home from a function and for some reason he was convinced I had drink taken, although I had not. He called for an apparatus and it took about 50 minutes to get one from some other part of Dublin. I do not know why I was nervous breathing into it when I had not been drinking, but I was.
I can understand the circumstances covered by this provision. If a garda stops a friend of his in some rural area and does not have a working apparatus in the car, there is a temptation, even if they go back to the Garda station, for the garda to let the driver go. The section provides for mandatory breath testing of a person in control of a car whether or not the garda has an apparatus available at the scene. This removes any ambiguity, which is a good thing.
My only concern is that I do not quite understand why the Minister has not tried to make the section a little clearer. The amendment could simply have deleted the word “may” and replaced it with “shall”. The wording is not as clear when the phrase specified in the amendment is removed, and this may cause some confusion. I assume the Office of the Attorney General has approved the change, but to replace the word “may” with the word “shall” would make a very clear statement that the use of the breathalyser apparatus is not optional even if there is a delay between the arrival of the garda at the scene and the arrival of the apparatus. However, it is a good amendment. I can see why it has been introduced and I support it.
Deputy Joe Costello: The amendment is fine in that respect, but my question is a different one. What is the meaning of the phrase “in the manner indicated by the member”? Has this been defined at any stage? Every garda will have a different instruction for blowing into the apparatus. Is there an agreed manner in which the apparatus should be used? The phrase is mentioned again and again in the Bill. Unless there is agreement on the manner in which the apparatus is to be used, each member of the Garda is likely to tell a driver something different.
Deputy Thomas P. Broughan: I thank the Minister for deleting the phrase indicated in the amendment. We had lengthy discussions about it in the House during earlier Stages of the debate. The removal of the phrase strengthens the Bill and the application of the section, so that it comes as close as we can at this stage to mandatory testing, which I welcome.
Quite a few people in the House have had experience of giving breath samples to members of the Garda Síochána. At the start of the campaign of random checks, gardaí seemed to be requesting breath samples quite frequently, but some slippage has occurred over the last year and a half. The Minister is aware that at a meeting of the Joint Committee on Transport the Garda Commissioner told me that the number of random checks had declined from around 77,000 in 2008 to around 55,000 in 2009, and in 2010 the number has fallen again. There is a problem of enforcement that must be addressed. I thank the Minister for bringing forward this amendment in the Seanad and commend the committee members of the PARC organisation who fought such a tremendous campaign to bring mandatory testing to fruition in this Bill.
Deputy Noel Dempsey: I thank the Deputies for their comments. I concur with Deputy Coveney with regard to the reason this was included as it was. I have mentioned that this is somewhat inelegant in the way it is drafted, but we tried to tidy it up to make it clear. I am told that from the legal perspective we should generally ensure “may” matches “may” and “shall” matches “shall” and so on and so forth. However, the provision meets the requirements of the Deputies and others with regard to mandatory testing. I acknowledge the work done by Deputies on all sides in this regard. We had a good debate on the issues. We made some amendments to the Bill in the Dáil and then took it to the Seanad where it was amended further. It has now returned to the Dáil so we can finish the job.
Deputy Noel Dempsey: What that means is that the person must follow the instruction given by the garda on how to blow into the breathalyser. Due to the litigious nature of this legislation, gardaí are given training and instructions on how to instruct the person how to breathe into the breathalyser. Some Members have had the experience and know that the garda tells the person to breathe into the breathalyser for five seconds or whatever. The provision relates to whatever instructions the gardaí give. They are instructed to give the same instruction to all those being breathalysed. This is in order that people cannot claim they were not told how to do it. If they refused to do it or were obstructive, they could not claim they did not know what to do because the garda would not tell them. Anyone who has been in court and heard the way gardaí must give evidence in breathalyser cases, they will know the provision makes the process mechanical so that there can be no question raised about it. The gardaí have been trained in how to give their evidence because if they make even a slight slip, the lawyers are in like a shot to try and get people off.
Deputy Noel Dempsey: These amendments do not change in any significant way the provisions of the section involved, but I am advised by the Office of the Attorney General that it is better to remain consistent with wording that has been tried and tested over time. Accordingly, these amendments present in a clearer and unambiguous manner the objectives of the section, which is to provide for the option of supplying a urine sample instead of having a doctor or nurse take a blood specimen at a hospital. This amendment also removes the provision in these sections relating to the carrying out of medical examinations for the purposes of obtaining evidence. However, the medical examinations provision is being provided for more appropriately under section 24 of the Bill.
Deputy Simon Coveney: Can the Minister clarify the difference between the new and old wording? Does it concern the medical tests? I have read both wordings and have had to read them a second time to see a difference. I assume it was just a legalistic issue in terms of wording. Is there a substantive difference between the two wordings in the context of the responsibility of a doctor or nurse? Both wordings seem legitimate to me, but I presume there is a reason for the change.
Deputy Thomas P. Broughan: On a similar point, the key point at the end of both amendments is that “the member may make a requirement of the person under the paragraph in relation to the specimen other than that to which the first requirement related”. What are we going back to here if, in fact, the designated doctor and nurse in their opinion have not made provision or are unwilling on medical grounds to take the specimen from the person? Does this mean we must return to breath test evidence? What is the fundamental issue here?
Deputy Joe Costello: On that same point, how can a designated doctor be unwilling on medical grounds to take a specimen? What medical grounds would cause a doctor to be unwilling to take the specimen? Perhaps the person might be unwilling to have the specimen taken, but why would a designated doctor be unwilling to take it?
Deputy Noel Dempsey: On that last point, I do not know. A doctor might make a judgment that the person was not in a condition to give a sample. The default in all of this is the blood test, which is the primary test. However, the option is being left to return to other methods if, for some legitimate reason or other, it is not possible to do the blood test.
On the question raised by Deputy Coveney, he is correct that there is not a significant difference in the wording. However, somebody in the Office of the Attorney General felt that the current wording is clearer than the original wording and is better in order to make the provision as clear and unambiguous as possible. It does not change or alter in any way the intent of the original section of the Bill. It is purely a grammatical clean up of the Bill.
Deputy Noel Dempsey: Section 6 of the Bill provides that a person shall not drive or attempt to drive an animal drawn vehicle or a pedal cycle while under the influence of an intoxicant to such an extent as to be incapable of having proper control, and the penalties are stipulated for that offence. However, the requirement in legislation to undergo a breath test, other than a preliminary test at the roadside, or to provide a specimen of blood or urine, applies only to those found in charge of a mechanically propelled vehicle while under the influence of an intoxicant. The reference to section 6 with regard to the testing of specimens and evidential matters in sections 17, 18, 19, 20, 21 and 22 is, therefore, unnecessary. My amendments propose to delete that reference.
Deputy Noel Dempsey: These are minor amendments that are being made to insert or correct the references in the relevant sections of the Bill. All of the amendments in the group are similar but necessary. In order to take into account the views of all stakeholders, this legislation continued to be amended quite late into the legislative process and throughout all Stages in both Dáil and Seanad. As legislation evolves and is shaped by the views of so many, we can expect to see the emergence of such drafting anomalies. These amendments are a reflection of that evolution and it is a credit to our ongoing examination of the Bill that we have captured them prior to enactment. I am grateful to Deputies and Senators for bringing some of them to our attention.
Deputy Noel Dempsey: I am advised by the Attorney General’s office that the insertion of this new subsection is necessary to clarify that a garda cannot request a medical examination to be carried out on a person admitted to hospital following a road collision unless the doctor treating the person is consulted and the examination would not be prejudicial to the health of that person. This wording is consistent with section 9(2).
Deputy Simon Coveney: I understand where the Minister is coming from in this amendment. We must legislate to require mandatory testing at the scene of an accident, because we owe it to the people who may have been injured in that accident and to the families concerned to ensure that in a subsequent legal case, autopsy or whatever, we are able to establish the facts. The key period following an accident is the hour or two immediately after it when people are in the midst of trauma, frightened and may be injured and in pain. It is a difficult time for a garda to have to insist on a test to establish whether a person has taken too much alcohol. However, we must balance that against the responsibility of the State to ensure we do everything to establish the facts so that as time passes the job of establishing what caused the accident and whether alcohol was involved can be answered with clarity and accuracy.
In that context, I understand the Minister’s objective in this provision. Where a person is seriously injured and where a doctor tells the garda that he or she is trying to save that person’s life and should not be distracted with a blood or breath test, the doctor’s advice must take priority. Nevertheless, the garda must request the doctor or the team of doctors and nurses to facilitate the garda in doing his or her job. This is awkward stuff, as anybody who has been at the scene of an accident will know, but it is an important provision that tightens up the language in this area. It places the primary responsibility with the doctor, which is the correct legal position, but also reaffirms the role of the Garda. I support the amendment.
Deputy Joe Costello: This subsection seems to answer the question I asked the Minister earlier in regard to amendment No. 11 about the circumstances in which a designated doctor would be unwilling on medical grounds to take a sample. Those medical grounds are spelled out here, but I wonder whether it should have been included in the earlier section. The provision indicates that the life of the person is predominant and that the doctor must be consulted to ensure that the taking of a blood sample would not be injurious to the health of the person. This is a reasonable amendment.
Deputy Paul Connaughton: Like my colleagues, I have no difficulty with this sensible amendment. However, we must ensure that the culture is always that there will be mandatory testing of persons involved in road accidents. In other words, that will be the normal procedure to follow except in extenuating circumstances where the life of a person is at stake. I support the provision in the amendment that testing can only be done with the approval of a doctor. However, we must ensure there are no grey areas whereby cuteness might get a person out of these types of situations. For the sake of injured persons and families who have lost loved ones in a road accident, there must be no easy way out for drivers who have consumed alcohol.
In fairness to the Minister, his proposal seems to strike the right balance. Whether there will still be loopholes is difficult to say. The message must go out clearly that in the event of an accident there will be mandatory alcohol testing. That must be done except where there is a clear danger to the life of a person, as indicated by a doctor.
Deputy Noel Dempsey: I thank the Deputies for supporting this amendment which is one of the core provisions in the Bill. A balance must be maintained, as Deputy Coveney said, and I am confident we have that balance right. In regard to the concerns expressed by Deputy Connaughton, if we discover that the balance is not right and that there are loopholes, we will try to plug them. However, this provision is based on the best advice available to us and the best balance we can currently get.
Deputy Noel Dempsey: These provisions relate to fixed-charge notices and serving of those notices in respect of road traffic offences. Section 35 — subsection (3) in particular — provides for the manner in which a notice may be served. That procedure is also reflected in section 29 where a notice is served in respect of drink driving offences. These amendments do not alter the integrity of the relevant subsection as passed in the Dáil but simply adjust the layout of the wording to enhance the comprehensibility of the provisions as well as providing consistency in wording across all related sections.
Deputy Noel Dempsey: Section 29 provides that where a person is alleged to have committed a drink driving offence but the concentration of alcohol levels are within certain limits, that person will be served with a fixed penalty notice. Persons are only eligible to be served with a fixed penalty notice once in a specified time period. On Report Stage in the Dáil Deputy Shane McEntee proposed that under section 29(5), the period of eligibility should be reduced from five to three years and I was satisfied to accept the proposal once the House agreed to the amendment. A subsequent examination of the Bill indicated two related amendments were required to be made under section 29(6) and section 32(1)(a)(3) to make them consistent with the Dáil amendment. These amendments were agreed subsequently by the Seanad.
Deputy Joe Costello: I wish to query the wording. The section refers to “a person not eligible to be served with a fixed penalty notice”. I would have imagined a person would be not liable. I query the use of the word “eligible” or “liable”. Which is it? I realise it is something of a dictionary query.
Deputy Noel Dempsey: “Eligible” is the wording used consistently throughout the Road Traffic Acts. In layman’s terms there does not appear to be a great difference between them but, apparently, in legal parlance this is the correct term.
Deputy Noel Dempsey: This amendment introduces a new section that would give effect to certain provisions in section 65 prior to its commencement. Section 65 repeals section 26 and section 49(1)(i) of the Act of 1994 and the Road Traffic Act 1995 and section 6 of the Act of 2006. It restates the provisions of section 26 related to consequential disqualification orders, to reflect the intoxicating driving provisions of this Bill and to provide for the range of penalties associated with reduced blood alcohol concentration levels and associated levels in breath and urine.
The section also provides for the substitution of the schedule of the Principle Act which sets out the offences under the Road Traffic Acts 1961 to 2009 involving consequential disqualification orders. However, section 65 cannot be commenced until the appropriate evidential breath test instruments are in place to allow for the implementation of the lower drink driving limits being introduced by this Bill. Accordingly, this new section is being introduced to allow for the commencement of provisions relating to consequential disqualification orders associated with careless and dangerous driving. It is vital that these disqualification orders can be applied with immediate effect upon the enactment of the Bill, given the nature of the offences involved.
The proposed section 66(2) will subsequently repeal section 66 on the commencement of section 65(1). There was much discussion in the Dáil regarding the early commencement of various sections of the Bill. Opposition Deputies urged me to proceed with commencement orders within the shortest possible timeframe. Deputy Broughan was especially strong in his views. This provision will assist me in this work by allowing the gradual commencement of certain elements rather than waiting until all aspects of section 65 are ready to be commenced.
Deputy Thomas P. Broughan: I welcome the insertion of this provision by the Minister. The Minister referred to the 1994 Act. Does that incorporate the consequential disqualification sections of the 1961 Act? Does it supersede all the previous legislation? I welcome that it will be in place as soon as possible.
Since the Bill was passed in the Dáil previously, several critical media articles have appeared on the coming into force of the 0.05% blood alcohol limit. When does the Minister expect all the equipment to be in place and when will the provisions of this historic Bill, which we will pass finally tonight, be enforced on the roads of Ireland?
Deputy Noel Dempsey: I refer to the first question raised by the Deputy. This includes the consequential disqualification provisions of all Road Traffic Acts from 1961 to 2009. All future Road Traffic Bills will include all the provisions relating to various aspects in one section and we will update all the sections accordingly. We are doing so in this case and matters related to driving under the influence of an intoxicant are all together in one provision. One feature of the next Bill will involve putting all penalty points offences in one area. To answer the Deputy’s question, the Bill includes changes to the provisions of the Acts from 1961 to 2009.
The situation has not changed in respect of when I expect the provisions of the Bill to come into force. The timescale has not changed. The Medical Bureau of Road Safety is in the procurement process. It expects this will be completed and it will be in a position to test the EBT, evidential breath test, machines over the next six months. Once that testing is carried out the order will be placed. It will take a further period following purchase to test and ensure the machines are okay. This is likely to take six months. They will be rolled out to the Garda stations over the course of a three or four month period and I expect that by September of next year, once the Garda training and everything else is in place, the new sections with lower limits will come into play.
Minister for Transport (Deputy Noel Dempsey): I thank the Leas-Cheann Comhairle and the staff of the House for their work and co-operation in getting the Bill through the Oireachtas. It was greatly appreciated. I acknowledge we put the Bills Office and other staff under pressure with this legislation. I would like, in particular, to thank the Opposition spokespersons, Deputies O’Dowd, Coveney and McEntee from Fine Gael, my old adversary, Deputy Broughan, who left at the tail end of the Bill’s passage but I am glad to see him return, and Deputy Costello for their assistance. We teased out various elements of the legislation and good amendments were tabled. The Bill has been improved as a result of the debate. I also thank my officials and all the groups that briefed Members and made their views known. We might have not agreed with all of them at different times but it is important in a democracy that people should have their say and we, as legislators, should do what we think is best in the interests of the public. That was done in this case.
Deputy Simon Coveney: I am conscious that I have joined the debate towards the end of the passage of significant legislation. I thank my colleague, Deputy McEntee, who cannot be present. He has put a great deal of work into making a constructive contribution to the legislation. There was significant difficult internal debate in my party and in Fianna Fáil on this Bill and there was intense lobbying, particularly by rural publicans, who expressed concerns. However, the House has its priorities right on this issue because we prioritised safety over commerce in regard to road safety, particularly where issues such as the blood alcohol level are concerned. The Minister deserves recognition for his courage in reducing the level. It will not be implemented immediately but it will be implemented in time. That has not been an easy process.
It is sometimes ironic that Bills that generate controversy while they are debated are often passed quietly late at night in the House when people are not watching. However, this is important legislation, particularly for families whose lives have been turned upside down following road traffic accidents. I acknowledge those in the Visitors Gallery. This has been a good night’s work and the legislation has highlighted the positive elements of the House with a constructive opposition and a Minister who has been willing to take on ideas in a sensible way. I thank the departmental officials whom I will hopefully get to know much better in the coming months. I also thank Deputy O’Dowd and, in particular, Deputy McEntee who has strongly held views on this issue. He won the argument in our political party and many of his amendments were accepted.
Deputy Thomas P. Broughan: In my former life as a member of the Labour parliamentary party, I tabled a number of amendments, which the Minister graciously accepted and I thank him for that. I also thank the civil servants for their tremendous hard work. This is intricate legislation, given the challenges that have been mounted against road traffic law over the years. I am grateful to all those who made submissions to the Labour Party on the Bill and, in particular, to Susan Gray of the PARC road safety group, which played a heroic role in getting us to bring forward the legislation on an all-party basis. The group has done great work for our country. I thank the Minister.
Deputy Joe Costello: I compliment the Minister on a good Bill, even though I have also joined the debate at the tail end. I also compliment my colleague, Deputy Broughan, for his Trojan work and the robust manner in which he raised issues in the Chamber, having carried out the lion’s share of the work on behalf of the Labour Party. I look forward to working with the Minister in the months to come and with Deputy Coveney, who is also taking up this portfolio at the same time. I would like to compliment the staff on all the assistance given during the debate.
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