Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

I welcome the opportunity to make a contribution to the debate on this Bill. We are all aware of why it became necessary to introduce this measure to amend the Road Traffic Act 2002 and the Road Traffic Act 2014 in respect of penalty points. It is a loophole or a lacuna which has arisen as a result of the implementation of the Road Traffic Act 2014. Two significant issues emerged. These matters would not arise if we had consolidated legislation. I said the same in respect of the companies legislation. It is a nightmare. Legislation should be clear and implementable, and everybody should know the consequences. It is not fair when individuals find themselves with consequences visited upon them. We all have a duty in this regard.

One of the issues relates to section 2(1) of the Road Traffic Act 2002, which facilitates the endorsement of penalty points on a licence record following the payment of a fixed charge. Section 2(1) expressly exempted from its effects a list of offences that are subject to penalty points but not fixed charges. On 8 December last, a fixed charge penalty was imposed for the offences of using a vehicle without a valid NCT certificate and parking a vehicle in a dangerous position, with the penalty points consequent on payment of a fixed charge. The NCT issue is causing mayhem in some areas. I am due to have my NCT in February and I will probably get the test on time in Mullingar, but that is not the case in other areas. One can make an application for the test, but under the legislation one can make all the applications one wishes to make, but one must have an NCT certificate. If I could not get the test in February, it would mean I had to sit at home from that date and not travel to the Dáil. It is so stupid as to be unbelievable. I endorse what Deputy Mulherin said. What should happen is that when one makes the application one is given a receipt confirming that the application has been made, and that should cover the motorist in the event that he or she is stopped by a garda. It is unbelievably simple.

Common sense is worth all the doctorates that everyone in the world can muster. I was a postgraduate student, but I have a brother who is a far sharper lad altogether. Let us be clear about this and not deprecate people or run them down. People who only came through national school could write this Bill without any errors. I salute all the people who are honed in the school of common sense and reality and who had to work their bones off in rural Ireland. There are probably people of the same type in urban areas as well. However, I am speaking unashamedly as a rural advocate and I am sick to the teeth of some of this.

It was all right when a garda could have some discretion. Now, you cannot say “hello” to a garda without it being written down. Gardaí have to implement penalty points because it is in the law. Apart from the risk of disqualification, penalty points can increase people's insurance costs. The Minister is putting people off the road, although it is not his intention. From what the Minister of State, Deputy Ring, says, the Minister has a fair lot of commonsense in his head, notwithstanding that he has a very high level of education, and I appeal to him to use it.

The Bill seeks to amend section 2(1) of the 2002 Act so as to delete references to the two offences that have been exempt, namely, failing to display a valid NCT certificate and parking in a dangerous position. The second issue is more important and significant. It appears to have arisen from the application of section 2(1) of the 2002 Act and how it coexists with section 8 of the original Act of 2014. It contains a number of provisions relating to the endorsement of penalty points and appears to have its genesis in the failure to commence sections 37 and 44 of the 2010 Act, which specifically refer to section 8(b)(i) as the means of endorsing penalty points on a person’s licence after payment of fixed charge notices.

This is all gobbledygook, and I am a barrister. Ordinary people should be able to work this out without paying a barrister or solicitor. It should be clear. This is part of the problem. Laws are constructed in such a way that the negative always applies in order to achieve the positive and for someone to understand it. It is time it was all cleared up. Let us leave behind our colonial past and bring laws back into language the plain people understand.

It is clear that there is a problem with the fact that section 8 of the 2014 Act commenced on 1 August and brought into being a legislative error in so far as sections 37 and 34 of the Road Traffic Act 2010 had not yet been commenced. While the legislation did not provide for endorsement of penalty points within a fixed notice system in which a person has paid a fixed charge, section 103 of the 1961 Act remains valid. It was inserted by means of section 11 of the 2002 Act. Mother of divine institution. While the Bill will address a number of these problems on a prospective basis, clarity will no doubt be sought by way of judicial determination as to the lawfulness of the penalty points endorsed between 1 August and the day the Bill is passed, in respect the payment of a fixed charge. The question of retrospectivity must be addressed and considered within the ambit of the constitutional provisions, especially Article 15.5.1° of the 1937 Constitution. It is important that retrospective legislation does not conflict with the constitutional provisions.

The question which arises in this case, and which appears to have been considered by the Attorney General, is whether Article 15.5.1° of the Constitution applies to procedural or remedial matters. In the case of the Minister for Social Affairs v.Scanlon [2001] 1 IR 64, the Supreme Court held that the Social Welfare Acts could provide for the recovery of wrongly paid entitlements on a retrospective basis. However, I think this is a little more, and while I will not go into the ring with the Attorney General, who is very competent, I would not mind arguing from the far side of the fence. In this instance, the question that will arise for consideration is whether the retrospective operation of a criminal procedure ruling infringes the constitutional provisions. It appears that some court decisions indicate that it might not, and the Minister, the Government and the Attorney General are clinging to this.

We are bound by legal provisions, the Constitution, the European Court of Human Rights and European conventions. We must take a whole corpus of law into account. It will be interesting and a challenge, but it will be judicially determined. The cohort of cases between 1 August and now are critical. Hard cases make bad law, as they say. The Minister is trying to remedy something and I salute him because we all subscribe to road safety. The Minister of State, Deputy Ring, outlined, as only he can, the frightening statistics from the 1980s and the 1990s and the progress we have made. The previous Government played a major role in it and I salute it.

I turn to road traffic law and the application of penalty points to improve driver behaviour and to reduce the numbers of deaths and serious injuries on our roads. There has been a major extension of the number of offences which attract the imposition of points and other penalties. In August 2014, a lower threshold of points leading to the disqualification of learner and novice drivers was introduced and in recent weeks, penalty points were introduced for learners driving unaccompanied and learner and novice drivers failing to display L plates and N plates. There was confusion about the novice drivers who have passed their tests, and I accept the Minister's clarification of it. The lower threshold of seven points leading to disqualification applies to drivers who took out learner permits on or after 1 August 2014 while they are driving under a learner permit and for the first two years they drive under a full driving licence. Young people in urban areas may be able to leave the car if they do not have a qualified driver to accompany them, and still be able to go about their tasks by travelling on a bus, Luas or taxi in their immediate environment. However, those facilities or resources are not available to people where I live, in rural Ireland, or in Belmullet, the Aran Islands or some of the places whose names the Minister of State, Deputy Ring, used to resonate across the Dáil in his heyday.

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