Michael McNamara (Clare, Independent) | Oireachtas source

I concur with Deputy Ward regarding the necessity to regulate scramblers, etc. When his Bill, or at least a Sinn Féin Bill, was being debated in the House previously I raised the issue of regulating jet skis. I appreciate that the regulation of jet skis is not something that belongs in a road traffic Bill, but nevertheless it is something that must be regulated because of the nuisance and the danger they can cause to humans and to livestock, especially when they are being used in areas not accustomed to them. I raised this matter previously and it is something on which I would like the Government to bring forward legislation.

Regarding talking about what does not belong in a road traffic Bill, I concur with the previous contributor who spoke about how impenetrable our road traffic laws typically are. They are impenetrable and that can be seen if we look at the consolidated legislation. I know it is possible to look at the consolidated legislation on the website of the Law Reform Commission, LRC, but not everybody does. Even as someone who has had the benefit of legal education and training, and many would say it was wasted on me, but nevertheless I had the benefit of it, I find it hard to read some of the legislation. It is completely impenetrable to ordinary people and it is almost Byzantine in how it is put together. There are amendments to amendments to amendments going all the way back to the Road Traffic Act 1961. I am not sure that it is fit for purpose anymore. When is all of this going to end?

Here is another amending Bill, which I think has 12 Parts, with 12 completely different amendments to the existing legislation. They are completely disparate and unrelated, except in that they all relate to road traffic. We must start to see consolidated legislation in this area at some stage. There is a discussion concerning consolidated legislation in respect of the Health Act, but that is only by necessity because Ministers gave commitments that things would not be rolled over and now those things will be rolled over, so there must be consolidated legislation. That is one reason to bring in consolidated legislation. There is a better reason to do that than to help a Minister to keep his word in circumstances where he meant what he said but did not mean that the effect of the legislation would not be rolled over. In that instance, the Minister meant that it would not be section 4 of the 2020 Act, for example, but section 8 of the 2021 Act, but it will do the same thing. More importantly, however, the general point is that legislation must be coherent and accessible and our road traffic legislation is not. That must be remedied.

I turn now to one specific Part, which I was surprised to see in the Bill. I refer to Part 5, which regulates licences for driving instructors. Section 18 in the Road Traffic Act 1968 provides for that. Part 5 of this legislation, however, brings in a whole new grouping of persons who are automatically disqualified from holding a licence and a grouping of persons who are automatically disqualified for a period from holding a licence. In that context, anybody who has committed murder or rape is disqualified for life from holding a licence to be a driving instructor. I commend and praise anything that makes it safer for the public to receive driving instruction. That goes without saying and I think we all do. Murder and rape are heinous offences, and that also goes without saying, and I abhor and condemn such offences, and whatever other similar words one might want to use to describe such crimes.

There is a sense, however, that people do the crime, do the time and then perhaps carry on with their lives afterwards. Now, I do not know how many convicted murderers are driving instructors. I suspect very few. Convicted murderers are released on licence, and not just released after 12 years, and one of the conditions attached is that they never cannot enter a licensed premises thereafter. I do not know whether that condition is policed. The more important point in this respect, though, is that although there are many recidivist offenders in our criminal justice system and in our society, there is a very low incidence of people convicted of murder reoffending. That fact should be borne in mind.

I am not making a cheap political point, but are some of the people released under the terms of the Good Friday Agreement, GFA, now driving instructors and, if so, have those people committed any offences since? If they have not, then I would question the danger that people like them - just anybody else who has done their time and not committed any offences since - pose to society. I dare say it is relatively low and perhaps lower than that posed by many others, yet these people are being automatically disqualified from doing anything. It is a novel step in our criminal justice system. This measure is contained in a Road Traffic Act, but it is effectively a consequence of a criminal offence and something we should think about and tease out regarding whether we want it.

To take an example from abroad, the Lebanese criminal code is full of things that one cannot do for life or for a certain period, and I suppose that comes from the legacy of the Ottoman legal system. That is not the way our system operated. I am sure that the Minister of State will have seen Les Misérables, and I appreciate that as a singer she may even have sung it, but the central debate within that work of artistic fiction centres on whether somebody can be rehabilitated and be trusted after committing an offence or whether they are forever damned by the mark of the offence committed.

It is a serious question and one that should not, with respect, be thrown in as an addendum to an item of road traffic legislation. It should be fully debated.

There are a number of offences for which one receives a three-year disqualification from holding a driving instructor's licence. In the event that a prison sentence is imposed, the three years run from when the prison sentence ends. These are serious offences which I abhor and condemn. People who commit them should be tried and punished if found guilty. However, I wonder about the coherence of the disqualification period. Manslaughter is included, for example. I am not for a moment suggesting that manslaughter is not a very serious offence that should be punished but a number of other offences are included. Any offence under the Non-Fatal Offences against the Person Act, other than section 2 or section 6, attracts an automatic three-year disqualification period. Section 2 is an assault and section 6 is a syringe attack. Piercing somebody's skin, or threatening to pierce somebody's skin, with a syringe is a very serious offence, perhaps as serious as any other offence. That is my subjective opinion on offences. Threatening somebody with a syringe or piercing their skin with a syringe happens in circumstances where the fear the perpetrator wishes to instil is that the victim is going to contract HIV. To me, that is a very serious offence and one which displays a particular amount of forethought. If offences that attract a particular disqualification are to be included in the legislation, why not that offence? Will the Minister of State explain to this House why she thinks persons guilty of that offence should be excluded if some offences are going to attract a disqualification. I have a philosophical question about this part of the legislation. We should be asking whether people pose a risk to society because they may reoffend If they do, certain measures must be taken to protect the public but if they do not, why are we tarring everybody with the same brush and presuming that anybody who has committed a particular offence is a risk to society or to those they instruct when others are not? For example, somebody who has committed a syringe attack is not a risk, nor is somebody who has committed an assault, but somebody who has committed assault causing harm is a risk. Someone who has committed a syringe attack is not a risk. I have a question mark about that.

Several offences under the Criminal Law (Sexual Offences) Act are listed among those offences that attract automatic disqualifications. Offences under sections 3, 4, 5, 6, 7, 8 and 22 of the Criminal Law (Sexual Offences) Act are included. Those are all very serious offences that I condemn and abhor, particularly as the father of a young daughter. I shudder to think of some of these offences, but why are these offences listed whereas section 18 of the same Act is not? Perhaps it is not on the Statute Book anymore. I think it is, but I am open to correction. Section 18 of the Criminal Law (Sexual Offences) Act is an offence committed by a person in authority. Someone who committed all of the offences listed under other sections of that Act cannot be a driving instructor but a person who committed an offence while in a position of authority can be a driving instructor. What is the coherence of that? Whose personal morality informed this legislative provision? How is it coherent with the objectives of the legislation? Surely one of the risks with a driving instructor is that they will abuse their authority and yet section 18 of the Criminal Law (Sexual Offences) Act 2017 is not among the scheduled offences.

More importantly, given the debate we have just had, section 21 of the Criminal Law (Sexual Offences) Act refers to a sexual act with a protected person and is not among the offences listed in the legislation we are considering. I meant to print the definition of "a sexual act" and bring it to the House but I did not. In any event, a sexual act with a protected person is committing a sexual act with somebody who does not have the capacity to consent and who does not understand the nature of the act involved because of their lack of capacity. That is not an offence that requires a disqualification but, for example, having been involved in a riot does require a disqualification. I abhor riots and political violence of any type. Riots can sometimes be political. Involvement in a riot does involve a disqualification but having committed a sexual act with a protected person who is unable to consent to the act because they do not understand what is going on does not require a disqualification. Where is the coherence to that?

I question the coherence of the Schedule. More fundamentally, we need to look at the risk posed to the public by persons who have been convicted and have served a sentence. I would like to think we live in a society where people can be rehabilitated. I would like to think that is the purpose of our criminal justice system. Even though I sometimes suspect to the contrary and that our criminal justice system, in particular our jails, are about brutalising people, I would like to think perhaps they could be about rehabilitating people. This legislation is one of the first I am aware of, although there may be may others, that assumes that because a person has been convicted, they remain a danger to society once they come out of jail having served their time. The legislation covers a whole raft of offences and, philosophically, I would question that. Is the Minister of State telling these people if they have committed an act, been convicted by their peers and served their time, they will thereafter always be a danger to society in the case of some offences, or for at least three years in the case of others? If that is the case, I would at least ask the Minister of State to ensure the approach is coherent and serves its objectives. I presume those objectives are not to punish people further because if that was the case, it would be part of criminal justice legislation that would go before the justice committee for debate, rather than a part of road safety legislation as it is.

I would welcome any contribution, discussion or point the Minister of State would like to make in response to my points about Part 5 and the licensing of instructors before the Bill proceeds to Committee Stage. I am aware this Bill was pulled at the last minute last week and may not have received as much attention from the parliamentary draftsman as might otherwise have been the case. That is not a reason to advance legislation which is incoherent or legislation which introduces a new philosophical departure for how we deal with the punishment of criminal offences in this State.

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