Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I take it the amendment is a proposed change to the penalties for driving without a licence. Section 38(1) of the principal Act makes it an offence to drive unlicensed. Under the law as it stands, the penalty for unlicensed drivers is split into two categories as set out in section 38(2) of the principal Act. If a person had a licence that expired in the previous 12 months, the maximum penalty is a fine of €1,000 and in any other case the maximum penalty is a fine of €2,000. Section 38(5), into which the amendment proposes to add a new penalty, currently contains penalties for driving unlicensed in specific circumstances, such as where the driver has been disqualified from driving or penalties for the owner of a vehicle where the owner has hired an unlicensed person to drive.

The amendment, if introduced, would add a new penalty structure for driving without a licence, without apparently removing the existing penalty as set out in section 38(2). It would ignore the split between the different categories of people unlicensed for less than and more than one year, and proposes a maximum penalty in all cases of €1,000 or six months in prison.

The maximum fine at the moment is €2,000.

If we wanted to make the changes proposed, we would need to redraft this amendment. The current penalties are set out in section 38(2) of the principal Act, with additional penalties for specific cases in section 38(5). This amendment would add a new generic penalty for driving unlicensed without removing the existing penalty in section 38(2). Such an amendment should, properly speaking, substitute a new section 38(2). As it stands, the proposed amendment would leave two different sets of penalties in section 38.

However, that is a minor matter. The issue raised by the Senators is important. Driving without a licence is a serious offence, which makes a mockery of all the legislative changes designed to improve driver training and set higher standards for obtaining a licence in the first place. It should, therefore, attract an appropriate penalty.

From a policy perspective, there are two points at issue with the amendment. The first is whether we should retain the existing distinction between unlicensed drivers who have held a licence within the past year and other unlicensed drivers. I am open to being convinced on this point. If someone had been a licensed driver until recently, it means that he cannot have been driving unlicensed for long. Where the person's licence is only a couple of weeks out of date it may even be that he forgot to renew it, an innocent mistake, perhaps. Some allowance probably should be made for recent versus long-term unlicensed status. Whether a year is too long a period is a question open to debate and discussion.

The other question relates to the appropriate level of penalties. Senator Barrett has proposed halving the maximum fine available. It is currently €2,000 for people caught driving after being more than a year unlicensed. At the same time, he proposes adding the option of up to six months imprisonment. We should always be careful about providing for custodial sentences. Section 38 currently provides for a fine of up to €5,000 and up to six months in prison for people driving unlicensed while disqualified, when they should have a certificate of competency or a medical fitness certificate or where they hired an unlicensed driver. Under the new proposal we would be associating a maximum fine of €1,000 with a six month sentence, something which I believe would fail the proportionality test.

I accept that unlicensed driving is a serious matter and should be thoroughly discouraged. We should remember, however, that the penalties already present in section 38, which include fines of up to €5,000 and up to six months in prison in the presence of certain aggravating circumstances, are related to driving unlicensed alone. We should bear in mind that many cases of unlicensed driving come to light following an incident of some kind. In such cases, where the penalty for the incident is more severe than that under section 38, generally there will be prosecutions relating to the incident rather than the unlicensed driving itself. In sum, the current graded penalty structure is appropriate and therefore I call on Senator Barrett to withdraw the amendment.