Róisín Shortall (Dublin North West, Labour)

The Minister gave some assurances following a discussion on this matter on Committee Stage. I want to revisit the issue because queries have been raised with me concerning the legality of this. Section 2 arises out of two Supreme Court rulings on how EU directives are to be transposed. This deals with the issue in the future. I had a concern about the robustness of previous penalties which were applied. On Committee Stage, the Minister indicated that this section would not have any retrospective effect. I am concerned about the national car test, for example, and in particular the offence of driving without displaying an NCT certificate. This is an offence under Article 5, SI 395 of 1999. Last year, there were nearly 17,000 breaches of this regulation. Similarly, in the Kennedy case, the offences were created as a result of an EU directive. In this case, it was 96/96/EC. It was transposed not by the European Communities Act but by the 1961 Road Traffic Act.

This is similar, if not identical, to what happened in the Kennedy case. In that case, the penalty was considered to be ultra vires. The basis of the ruling was that the regulation arose directly out of EU legislation and, as such, should have been transposed by the European Communities Act or by new primary legislation which conferred authority on the Minister to make regulation for the matter in question.

Given the similarities here, the Minister should explain to the House why he is so confident that previous penalties will stand up. There is a view among some legal people that this is not the case. Previous penalties in respect of the NCT, including the non-display of an NCT certificate, may not have had a sound legal basis. If the Minister is prepared to give me a strong assurance on the matter, that is fine, but there are certainly doubts about this in my mind and other people's minds.

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