The Road Traffic Acts play a daily role in the lives of many people and are some of the most controversial laws in Ireland today. It is frequently argued that the law is unclear in the area and it is widely accepted that keeping up with the law in this area is challenging.
Since the creation of the Road Traffic Act 1961, the law in this area is contained in 22 separate Acts, complemented by others, alongside over 900 Statutory Instruments. In less than six decades, it has developed to rival planning and tax for being the most complex area of law. The main solution put forward is to consolidate all Road Traffic Acts into a new one, but does everyone agree that consolidation is the way forward? It certainly seems to be amongst the legal profession.
The Law Society
The Law Society of Ireland recently used the announcement of a District Court review to call for a complete overhaul in the area. Ken Murphy, Director General of the Law Society of Ireland, stated during an appearance on Clare Byrne Live that ‘such needless complexity in legislation undermines public confidence in the justice system. Too often we read about meritless technicalities being the basis for dismissal of very serious cases. Such loopholes need to be closed off in the public interest.’ The Law Society called on the government to ‘prioritise a new Road Transport Act which would allow for the prosecution of road traffic crimes, such as drunken driving, far more effectively, and with an aim of creating a more efficient and timely system.’
The Law Reform Commission
The Law Reform Commission (LRC) also noted problems in its recent Issues Paper on Consolidation and Online Publication of Legislation. Page 25 of the report covers the Road Traffic Act of 1961, which originally consolidated earlier laws. By 2016, there were 22 separate Acts.
The LRC observed a key problem is how ‘many of these separate Acts are themselves subject to regular amendment. This makes it extremely difficult for a reader to ascertain what the law on road traffic is at any given time.’ Several Acts also have to be read in conjunction with others, ‘like the Road Traffic Act 1933 and the Local Authorities (Traffic Wardens) Acts 1975 and 1987.’ The LRC paper discussed the law on drink-driving, a heavily litigated area due to a conviction leading to an automatic driving ban.
It also mentioned the current total of over 900 statutory instruments which need to be considered. When legislation is created, it may specifically state that a Minister can draft the particulars of a law themselves at a later date. They do this by way of statutory instrument. Once it goes through its formal requirements, it becomes law. There are plenty of instances of provisions within Road Traffic Acts which are yet to be commenced by statutory instrument, despite their respective Acts being in force for years.
A leading example of judicial criticism of the complexity of the law can be found in the late Adrian Hardiman’s judgment in Oates v Browne from 2016. Here, a man convicted of drink driving argued he had been refused a chance to have his expert examine the machine which tested his breath specimen, and was refused requested information about the machine’s history. He claimed the judge offered no reasons for these refusals, so sought judicial review in the High Court. The court found against the man, leading to his appeal to the Supreme Court, where he won.
Hardiman’s judgement on behalf of the court took a tour of the history of road traffic law. He first stated how the ‘statutory provisions about drink driving offences are needlessly complex and confusing. There are a number of reasons for this. One is the tendency to repeal a provision in a statute by a later Act, which later Act however contains elsewhere a provision substantially re-enacting the repealed provision in the same words or in substance.’
He gave the example of the offence in question. The old section 49 of the 1961 Act of being ‘drunk’ or ‘incapable of having proper control’ while driving a mechanically propelled vehicle was repealed by the section 33 2010 Act, yet was effectively modernised and re-introduced by the new section 4 of the Act. The being ‘incapable of having proper control’ test stopped being used with the implementation of breath testing.
Hardiman observed that ‘another reason for needless complexity and confusion is the draftsman’s fondness for introducing an entirely new provision by amendment or substitution of a previous provision rather than starting afresh with a new Section. There is also a tendency to repeal or amend a provision by a later provision, but not to bring the later provision into force. This makes the Statute book positively misleading.’
This leads to a situation whereby statutory provisions are ‘extremely difficult for a layman to access’ when trying to establish the past or present law. Hardiman argued this ‘tends to make a nonsense of the important legal principle that everyone is deemed to know the law.’ He used the specific example of the original section 49 of the 1961 Act. A ‘dedicated’ lay person could work out that section 49, following substitutions, was repealed by the Road Traffic Act 2010. However, following this trail would not tell the person that section 4 of the Act re-enacted the substance of the original section. While his comments represented a detour within his verdict, he certainly felt it a necessary one. Being unaware of the law is no defence, but the complexity of the Road Traffic Acts has left many people clueless as to where they can even find them.
The Road Traffic Act 2016
Robert Pierse, who has published books on Irish road traffic law, wrote in the Law Society Gazette in October 2011 that ‘we should now dispose of all of these bothersome roundabouts and build one coherent highway’ by consolidating the Acts. Six years later, he wrote another piece on the Road Traffic Act 2016, the cover story in the March 2017 Gazette. Pierse noted the 2016 Act dealt with the mutual recognition of driving bans with Britain, ‘puts new obligations on insurers to notify the minister about vehicles that have been written off, introduces a 20km/h speed limit, substantially amends the law as to fixed charges, regulates rickshaws, and introduce a new liability on vehicle owners in relation to learner drivers.’
Those are six significant issues. The Act is most well known for dealing with ‘drug driving’ by altering section 4 of the 2010 Act to include references to drugs, with limits set out. The exception to the rule is where a person holds a medical exemption certificate, signed off by a doctor, which states the substance in question was lawfully prescribed. Pierse observed that the potential legalisation of medicinal cannabis may require a ‘difficult balance’ to be drawn, which will ask hard questions of doctors, lawyers, and the Minister.
Pierse’s points touched on criticisms made when the original Bill, which became the 2016 Act, went through the Oireachtas. Shane Ross, Minister for Transport, Tourism and Sport, set out the basis of the legislation in the Dáil at the time. He explained the lacuna the Bill was drafted to close. Section 4 of the 2010 Act makes it ‘an offence to drive or be in control of a mechanically propelled vehicle while under the influence of an intoxicant to such an extent as to be able to control the vehicle.’ The Act has specific alcohol limits, so a person commits an offence if their blood alcohol limit is above the legal limit. In contrast, it was harder to prove drug driving, since the prosecution needed to show there were drugs in a person’s system and that their ability to control a vehicle had been impaired. While it targets cannabis, cocaine, and heroin, it lists five substances to include where a drug can be detected by the metabolite.
The Road to Consolidation?
The inherent problem with drafting road safety legislation is that the area develops so quickly, yet it takes a considerable amount of time for a bill to go through the bureaucratic process. Road Traffic Bills usually come from the government and tend to enjoy cross-party support, subject to the usual political disagreements. When they decide to do one, a wide variety of issues are thrown in together.
Taking the 2016 Act as the most recent example, the main focus was to amend earlier legislation to incorporate the new tests for drugs, yet it featured at least five other major points and plenty of minor fixes, thus perpetuating the cycle Hardiman called out. While it makes sense to include the drug provisions in the amended section 4 of the 2010 Act, it also required new sections to be added stuck into the 2010 Act, increasing its complexity. However, medical developments make it likely it will need to be revised in the near future, which could lead to further sections and amendments being forced in.
Looking more broadly, technological advances could completely alter the transport industry. For example, self-driving cars is a developing issue. They are currently being tested in some EU countries, but there is no Irish law covering their operation. Their arrival would need to be met with another new set of laws, possibly based on EU ones, but that is for another piece.
Consolidating the 22 Acts into a new one would bring much needed clarity to the law, for both people and practitioners, but the chance that one Act turns into several within a few years is significant, given the potential changes to the sector. However, delaying the issue will only lead to more problems further down the road.
Cian Carton – Editor