Michael McNamara (Clare, Labour) | Oireachtas source

I am grateful for the opportunity to speak on this and I am sorry that I was not in the House a couple of minutes ago.

I declare to the House that I have four penalty points on my driving licence. The last two were received in respect of a speeding offence in June. As I paid the fine in July, I do not think I am one of the people affected. It is important to state that the fine was paid in July. Section 3(3) states: "Where, at any time during the period from 1 August 2014 until the passing of this Act, a payment was made by a person..." So I do not think I am caught by that.

I am sure everyone in the House agrees on the need for road safety and we have to make our roads as safe as possible. Better than most, I know what it is like to lose a loved one suddenly in an accident and the jarring effect that has. Many families are facing into this Christmas without a loved one for the first time. Some of them lost that loved one in a road accident. We have a moral duty to do everything we can to make the roads safe. However, at the same time regardless of what we do, there will be a certain amount of road accidents. It is a matter of reducing them to the greatest extent possible.

We have to balance that with a sense of fairness and we need to ensure that all our legislation is fair. We do not want to have a police state. We want to allow people freedom to the greatest extent possible. We want to ensure that not alone is our whole system fair, but it is seen to be fair and felt to be fair. I heard many contributions, mainly from the Opposition benches about the perceived unfairness of the system.

On my way up here on Tuesday I called into a shop in Killaloe, just before crossing the bridge and continuing to Dublin. If the Minister is ever in County Clare I would like to bring him to meet that shopkeeper. He is a very ordinary man who goes about his business, earns a livelihood and pays his staff. He was saying that penalty points are having a very detrimental effect. He was talking in particular about the idea of penalty points for cars without NCT certification. I asked him what he meant. He said, "I've people coming in here and they are saying things like, 'I'd have nothing to do with the guards; I wouldn't give them the time of day now.'" This is Ireland where we have always had regard for the Garda and there have always been good relations between the community and the Garda.

Whether we like it or we do not, whether it is right or not, there is an increasing perception of unfairness. I accept that some GoSafe vans are put in accident black spots. However, many GoSafe vans are parked in places where they are more likely than not to catch somebody speeding - breaking the law admittedly - while hidden behind a humpback bridge, around a bend or other places where drivers will not see them. The Lissycasey Road in County Clare is quite famous for GoSafe vans because they can hide. People do not really appreciate that.

I will give another example. I am from Scariff, a small town in east County Clare. It has a Garda station - it was one of the towns that retained a Garda station. Most people are glad of that; it gives them an additional feeling of security even though the nature of crime has, of course, changed considerably. Some weeks ago there was a spate of robberies. A van was robbed in the main estate and a car was robbed from the main square.

The car's owner had the pleasure of seeing on YouTube the perpetrators driving his car at over 100 mph and burning it out. It is on YouTube for the world to see. The crime has not been solved and there are no leads. However, the following week in Scariff gardaí were out issuing penalty points in the 500 m between the town and the school. They were issuing penalty points at school time because when mothers are driving their children to school, there is an issue with regard to safety belts and penalty points. Those women who were driving their children to school were breaking the law and presumably they have been issued with penalty points. They may be among those affected by this Bill.

I do not condone them breaking the law; the law is there for a reason. However, there is a perception in the community that they are able to go out and give penalty points to women and men driving their children to school, but nothing is being done about the criminals who stole a car, filmed it being driven and filmed it being burnt out. It seems they are sort of immune and we always go after the easy targets. That perception may not be correct but it is there and it is very damaging.

I return to the specifics of the Bill. The first I heard of this was last week when the Minister spoke on radio saying that a loophole had emerged. I completely support him in closing the loophole. Of course, we should close the loophole and move forward. However, I do not understand how we propose to apply legislation retrospectively because that is a very unusual thing to do. The Constitution contains some provisions about it - I will not go into it.

The Minister has been advised that the Bill is constitutional and yet there are real doubts. Deputy Dooley has said that his legal advice was that it is at risk and maybe we will find out. However, we will only find out if somebody wants to challenge the legislation. That would have to be somebody who either has a huge amount of money so it does not really matter to them how much it costs, or they have no money at all so they have nothing to lose because that is how out system works. A judicial review is incredibly expensive. A person would either have to have an infinite amount of money or no money.

An ordinary mother or father bringing children to school, or even a Deputy driving to Dublin, does not have that kind of money for a constitutional challenge. How our system works is inherently unfair because the State will meet this with an army of lawyers. I appreciate the State has to defend its position. However, an ordinary person will not be in a position to challenge this.

I completely support the Minister in his endeavours to make the roads safer from now on and to close the loophole from now on. However, regardless of what we in this Chamber do today or tomorrow, there is nothing we can do to make the roads safer a week ago, three weeks ago or five months ago. So why are we legislating for three weeks ago or five months ago? I accept the State made a mistake but the State comprises individuals. The Minister is a human being and the Department is staffed by human beings who make mistakes. Human beings drive cars too fast - they make mistakes. However, when people drive their cars too fast we expect them to hold up their hands, admit to making a mistake, pay the fine, take the penalty points and move forward.

Judge Durcan in Ennis District Court threw out approximately 100 summonses one day because the proofs were not in order, as people say in legalese. The evidence was not there. He was not clear who was there to give evidence on behalf of GoSafe. He was not happy they were authorised to do so under the Act. So all those cases were thrown out because the Sate made a mistake. That is the very nature of our justice system. When the State makes a mistake, it puts up its hand and admits it, and then goes about fixing the mistake for the future to ensure it does not happen again.

However, this legislation indicates we made a mistake but we are not going to admit we made a mistake. It is like saying, "When you make a mistake, you pay; but when we make a mistake, you still pay." I do not mean to denigrate this, but it is almost like a Bart Simpson approach to legislation, "I didn't do it. Nobody saw me do it. You can't prove anything." That is no way to run a country and no way to run a justice system because it is unfair. I accept it is not good that people who were caught speeding between 1 August and now do not get penalty points endorsed on their licence.

Of course, it is not good but a mistake was made. It also is not good that some people had their cases thrown out. As people are entitled to the presumption of innocence we have to presume all the people involved were innocent, but we will never know if that is the case. I am assuming they were innocent, as is the State. When a mistake is made by the State it is usually acknowledged. I do not understand why we do not, to use a phrase used previously by the Taoiseach, "man-up" and admit the State is not perfect and it made a mistake. The alternative is to look like a tyrannical State that legislates retrospectively because it cannot admit when it is wrong. That is far worse than people having their penalty points for a defined period written off.

A loophole has been identified. I am happy to support the Minister in closing that loophole from this day onwards. Every Bill I have had the pleasure to support, and those I have had the displeasure to have to support, have applied from a particular day onwards. That is how we usually legislate. It is logical to say that we cannot change the past. Much as we would like to, we cannot change it and we should not be seeking to do so. I am not sure if this legislation is constitutionally sound. Whether it is in compliance with the European Convention on Human Rights is even more doubtful, in my view. On my proposed amendment, I accept that it is not appropriate because the remedy is a declaration of incompatibility. Are we actually saying that we know that this legislation is contrary to the European Convention on Human Rights but we do not care because we are the State and we do what we like? Is that the approach we are taking? I hope not because that would be an appalling vista. I know what we are speaking about are only road traffic offences but speeding is nevertheless a criminal offence, as are most offences under the penalty points system, albeit minor ones. I look forward to hearing the Minister's response on that point.

I support the Minister in making our roads safer and in closing off loopholes but I have a difficulty with retrospective legislation. I am concerned about the legality and constitutionality of such legislation and about whether it is in compliance with the European Convention on Human Rights. More fundamentally, I am concerned about the morality of such legislation. Law must have a moral quality and the State must be above pettiness and vindictiveness. It must not when it makes a mistake seek to deny it. The commencement order in respect of the Road Traffic Act 2014 states:

Given under my Official Seal,

20 of March 2014,

LEO VARADKAR,

Minister for Transport, Tourism and Sport.

Are we saying that legislation is deemed not to have been commenced? That legislation was commenced, as the Minister and I well know. Every punter affected by it will know by now that it was commenced. Why then are we pretending to the contrary? Why are we engaging in this "Alice in Wonderland" fiction? Why not put our hands up and admit that it is unfortunate but a mistake was made and we will remedy it? I do not believe anybody in this House has not committed to supporting the Minister in remedying this problem from this day onwards.

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