Michael McNamara (Clare, Labour) | Oireachtas source

I move amendment No. 1:

In page 4, line 25, after "person" to insert "or with the State's obligations under the European Convention on Human Rights Act 2003".

I greatly appreciate the Minister providing an explanation, as not every Minister goes to the trouble of addressing all of the points made in the House. I acknowledge that he addressed many of the points raised by Deputies, including some who were not present, but I am sure they were following the debate in their offices. I have often been unable to come to the Chamber for debates. I do not wish to engage in platitudes, but the Minister engages in debate, which is healthy in a democracy. Not every Minister engages, which is unfortunate, especially as the Government promised to do things differently and have more open debates.

I know that the Minister is not proposing to create a new offence because the offences are already established. Having examined the law in this area, the legislation is probably lawful, but we will not find out in this Chamber whether it is because a separate branch of government will determine what is the position. I am sure someone with a little or a great deal of money will engage lawyers and test that point. It is unfortunate that the justice system is such that those whom I would describe as "in-betweeners", by which I do not mean the four comedy characters on television but ordinary, run of the mill citizens, do not have meaningful access to it. Legislation amending the roads Act is not the place in which to address that problem.

The Bill includes a constitutional saver, the purpose of which I understand because someone is testing the law and his or her right cannot, should not and will not be interfered with. The Minister contends that this is not a criminal matter. That contention will be the crux of the matter in any case taken. The Minister is correct that the so-called loophole applies only in cases where someone admits to having committed an offence and penalty points are being applied to his or her licence. It does not, therefore, apply to cases that come before the courts.

I wonder if, just because it does not go to court, it is a civil matter. I am not convinced by that because the reason it does not go to court is the fear of greater sanction. It is an admission. One is admitting one carried out an offence - a criminal offence, albeit a minor one. Fines are frequently levied as punishment in such criminal cases, and if one goes to court there is a bigger fine, so there is a fear of a bigger sanction.

The Irish Constitution has provisions with regard to retrospection and these have been litigated, although this is not the place for that. The European Convention on Human Rights was quasi-incorporated into Irish law. At the time, there was a body of thought that this did not really create much change and that there were no new rights created, given we have a written Constitution with very detailed rights provisions, and the Attorney General of the Minister for Justice, Equality and Law Reform of the time, an eminent senior counsel, Michael McDowell, was of a similar view. However, there were differences in the contours and the protections in some areas, and one of those is with regard to retrospection.

Article 7 of the European Convention on Human Rights states: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed." I am not suggesting the Minister is creating a new offence and we are all agreed on that. However, the second part of Article 7 states: "Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

What the Minister is doing is creating a heavier penalty. Not alone is the penalty the fine which people have had to pay when they admit their offence, but the question is whether penalty points are part of the penalty. I am sure that, at some point, counsel for the State will say that penalty points are not a penalty, and if they are a penalty, they are not a criminal penalty. It will be open to them to say that and, as there is Irish case law to support that proposition, they might well win. However, equally, there is European case law which might argue against that - it might, although I do not know. We are increasing the penalty that is applicable at the time. While we thought the endorsement of penalty points was applicable at the time, we now know it was not. That is the nub of the issue on retrospection.

I thank the Minister's officials. My first amendment concerned how far the Bill is incompatible with the constitutional rights of any person or the convention provisions. The Minister's office sought the advice of the Attorney General, who came back to say the effect of that would be to incorporate the European Convention on Human Rights in a way that was not envisaged in the relevant Act. There are huge deficiencies in how the European Convention on Human Rights is incorporated into Irish law. The courts have said in the past, in the case of Dublin Corporation, that what it was doing was contrary to the European Convention on Human Rights Act, and Dublin Corporation said, "thanks a million for that but we are going to do it anyway", because the Act is clear and it does not invalidate the statute under which it was doing it. While that is a very big issue, it is not an issue for a road traffic Bill.

I then sought to amend the Bill so it would refer just to the Act, and I sent in a very late amendment last night. Again, I thank the Minister and his officials for having looked at that. The Attorney General's office came back and said the amendment is ill conceived because, of course, under the Act, a declaration of incompatibility could be granted but it would not invalidate the operation of the Act until such time as this Legislature did something about it. That is true, so those in the Attorney General's office said my amendment is ill conceived, and they are right, therefore I will not be pressing the amendment. However, it does beg a very fundamental question.

Deputy Dooley clearly thinks this Act is suspect while I am not sure one way or the other. If this could be contrary to the European Convention on Human Rights Act, why does it matter? Maybe it does not matter and we can plough on anyway. I am sure the Russian Government knew the ban on homosexuality was contrary to the European Convention on Human Rights but it decided it would plough on anyway. As a country, we like to think we are better and that we respect human rights. We pride ourselves on that, given we are a small country which was one of the first to sign the convention and the first to take an inter-state case. We take human rights seriously, or we like to think we do. I wonder if there is a question here. Perhaps we should not worry about it and, on the off chance that someone with either enough money or no money takes a case, and they win, they might even have to go to Strasbourg and then come back, and all of that. It just seems like an outrageous waste of money. That is my fundamental concern, given I have no problem fixing the loophole prospectively, moving forward. It is just the question of retrospection.

There always has to be a doubt about retrospective legislation because it offends our sense of justice. We have to know what is allowed and not allowed, and what the consequences are. In the case of penalty points, people knew they could not be speeding or doing whatever else they were caught doing. However, while they knew the consequences were penalty points, they did not know the law was deficient. Now we know it is deficient, I have questions. Nonetheless, I accept there is a logic to the Minister's argument. I worry that the only people who are going to benefit from this are my erstwhile colleagues down at the Law Library, and I am not sure that is a good way to spend taxpayers' money. As a matter of fact, I am sure it is not a good way to spend taxpayers' money, with the greatest of respect to them.

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