Wednesday, 30 November 2011
Road Transport Bill 2011: Committee and Remaining Stages
I move amendment No. 1:
In page 6, subsection (1), lines 8 and 9, to delete paragraph (d).
I welcome the Minister for what I hope will be a constructive dialogue and all my comments on the amendments will be in that spirit. I thank the Minister for his contribution yesterday.
This amendment would delete the line "an offence under the Non-Fatal Offences against the Person Act 1997". My concern, alluded to yesterday, stems from the fact that offences under that Act typically merit a £1,200 fine or a term of imprisonment of 12 months. As we noted yesterday, the Bill makes provision for a fine of €500,000 and a term of imprisonment of three years. This would be a relatively minor crime. If it was considered any of the crimes under the Non-Fatal Offences against the Person Act 1997 was being treated too leniently, I would support the Government, but it is strange that people can be treated with leniency until the person concerned is a bus driver or road freight operator. It does not apply to other professions, including some which strike me as far more deserving of such fines, as the Minister noted yesterday. Is there not a stage at which we can rank minor offences and remove them after a period? I supported the Government on the abolition of the Thornton Hall project, but we could end up with an extremely harsh attitude towards people who committed relatively minor crimes before reforming. They might just want to be a bus driver or the operator of a truck. For society as a whole, there must be a point at which people do not carry that baggage further into their career.
I was wondering what evidence is available which suggests this provision is required, apart from pressures from the European. It appears there is none. I have read the Farrelly report and the Department was judged to have been right in giving a licence to a gentleman in County Louth to operate a truck. Are there many examples of bus drivers and road freight operators who had a career of involvement in petty crime and became serious criminals after they had received a licence?
On the pressure exerted by the European Union, 99% of our goods are moved by road. Many regret the fact that the rail service has deteriorated so much. Some 20 years ago rail freight would have accounted for 20% of the figure. Of the goods moved by road, 72% are moved by hired haulage operators who developed following liberalisation in 1980s. In the beginning there were 1,000 vehicles, there are now 25,000. Those involved grew by being of good repute and having sound finances while being professionally competent. They knocked on doors and were able to deliver goods better than the rail service or in-house transport fleets. It is vital that we do not obstruct new entrants to the business in Ireland. In that regard, the penalties are draconian as they elevate relatively minor offences to being major offences.
On the pressure being exerted by the European Union, there is a degree of protectionism in countries which still have large rail and waterway systems. There is a view that road haulage operations are inferior and run by the Mafia or gangsters from eastern Europe and that, therefore, they must be controlled. In Ireland we are talking about small family firms which have served the economy well without a subsidy. They have done a good job of persuading people where it counts, in the market. We would need evidence of serious crimes meriting the kind of penalties mooted before we would support that. The low scale of penalties in section 2(1)(d) offences would indicate that perhaps this is escalating unnecessarily into the bus drivers sector and road freight operators sector if it is the case that the crimes are relatively small and people have served the sentence. As Mr. Farrelly indicates in his report, and as the courts have said, people have a constitutional right to make a living. Driving a bus or truck is not exactly a threat to society if the offences are relatively small, as judged by the law, occurred a long time ago, and one has evidence of genuine regret to the Minister that the crime ever took place. Criminalising people beyond the period of the sentence into their career choice afterwards is more likely to lead people back to prison - the university of crime - or to be dependent on social welfare.
In the explanatory memorandum it is stated that the Bill has not been the subject of consultation as it primarily deals with existing provisions, but it would be interesting to hear the views of criminologists given that the courts have been hostile to attempts by previous Ministers to deny people licences. Likewise, what are the views of the Department of Social Protection on banning people from careers in which they might otherwise be able to embark, make money and contribute to society and not be held back by relatively minor offences committed a long time ago?
In general, I agree with Senator Barrett's comments on European attitudes to road haulage in particular. It is very much the view of the core European countries in particular that for environmental and other reasons we should push freight off the road and back onto the railways and canals. That is good policy and it would make sense that we would do that for many reasons, but it may not be a practical policy in this country where we have an undeveloped railway network which we cannot continue to afford to subsidise in the way we do now. We are also an island nation and the policies we may need to apply to road haulage may be different in this country than in the European core. Senator Barrett's general point in that regard is valid.
With regard to the amendment which would remove the reference to the Non-Fatal Offences against the Person Act 1997 from the list of serious convictions or offences which must be notified to the Minister under section 2 in regard to good repute of applicants or licence holders, acceptance of the amendment would mean that I could no longer consider offences under the Non-Fatal Offences against the Person Act 1997. The Act contains offences such as assault, threats to kill, syringe attacks, poisoning, coercion, harassment, endangerment, false imprisonment and child abduction. It is important that the Minister, or the body, in awarding a road transport licence should be aware whether the applicant has been convicted of child abduction, for example. Unfortunately, it is the case that when human trafficking does occur, it very often occurs in the back of trucks. The same applies, unfortunately, in many cases to child abduction. That is the reason for the provision and why I would not like to see it removed.
Let us always bear in mind when it comes to such provisions that it is about notification. The person applying for a licence must notify the Minister of the offences. It does not mean an automatic ban by any means. The Minister just needs to take it into account. If it is a minor offence that occurred a long time ago, I do not think any reasonable Minister would refuse a licence and I do not think the District Court would uphold such a decision. The courts have consistently stood over the right of a person to earn a living. However, in the case of child abduction, they probably would not. They would probably agree with the Minister's view. Perhaps when we carry out a thorough review of the legislation we might refine the offences a bit more and specifically mention such crimes as child abduction rather than the Act in question. However, given the deadline which I am up against, I ask the Senator to withdraw the amendment.
I look forward to our continuing dialogue. The amendment was put forward with that intention. Any measure the Minister would have in mind to make the provisions less draconian would be welcome. It could be one of the best things to happen to a person - that he or she decided to get back into society, back to work and to become a contributor and not be held back by this consideration. I thank the Minister for his consideration.
I move amendment No. 2:
In page 6, subsection (1), line 32, before "the operator" to insert the following:
"excluding politically motivated offences covered by the Good Friday Agreement and which predate the enactment of the agreement,".
We intend to press the amendment. We are hopeful that the Minister has had time to reflect on the serious issues we have raised in the context of the amendment. They are important issues, not just for my party but for people who believe in human rights and the civil rights of all, including ex-prisoners and especially those who were prisoners as part of a conflict. While there was much heat in the Second Stage debate that took place in the Dáil, I hope the Minister will accept the seriousness of error in terms of the amendment.
Under the Good Friday Agreement, which was signed off on by the Government of the State in 1998, which was supported by the vast majority across the island of Ireland, the State recognised the importance of measures to facilitate the reintegration of prisoners into the community by providing support both prior to and after release, including assistance directed towards availing of employment opportunities, retraining and-or re-skilling and further education. That is very clear and explicit. The Good Friday Agreement goes further because it places an obligation on the State to ensure there is proper reintegration of prisoners who were part of a conflict and who were released under the terms of the Good Friday Agreement, which many of them have done.
I gave a number of examples yesterday of where many former prisoners achieved doctorates in prison in a range of areas. Many of them are leaders in their communities. In my own area some former prisoners are members of GAA and soccer clubs, taxi drivers, teachers and lecturers. Two Deputies who contributed to the debate in the Dáil would not be able to hold a licence under the current proposals. The Minister is shaking his head because he says that it is then up to the courts. The point is that what he is doing in refusing to accept the amendment is refusing to accept that political prisoners are just that and that they should be exempt from the provisions of the Bill. That is what we are calling for.
In the St. Andrews Agreement which progressed the peace process and brought about the renewal of power sharing, it states that the Government will work with business, trade unions and ex-prisoner groups to produce guidance for employers which will reduce barriers to employment and enhance reintegration of former prisoners. That was agreed by two sovereign governments, the British Government and the Irish Government, and by all of the parties to the agreement, including the Minister's party. A working group established under the Agreement to focus on the issues arising for prisoners stated that conflict related convictions of politically motivated ex-prisoners or their membership of any organisation should not generally be taken into account in accessing employment facilities, goods or services, provided that the act to which the conviction relates or the membership predates the Agreement. That is what we state in the amendment.
These are internationally recognised agreements to which all parties in the House were party. What is stated in them is clear. However, the Government is disregarding what was agreed and erecting barriers to ex-prisoners from all backgrounds to secure employment. Former political prisoners have found it difficult to secure a place in their communities, North or South. Many have, but others have not. As the Agreement states, there is an onus on the State to guarantee that every opportunity is taken to ensure proper reintegration of all former political prisoners from different traditions, both North and South, back into the community. It is part of the healing process and the process of conflict resolution which I hope all parties in the House support. Many people outside this House support it. Despite the conditions of the Good Friday Agreement, the Hillsborough Agreement and the St. Andrew's Agreement, along with the guidelines published subsequently, political prisoners continue to suffer discrimination. Obstacles continue to be erected in the way of their search for employment or business opportunities. The Bill neglects the plight of these ex-prisoners. It puts in place rules which would make it difficult for them to obtain a road transport operator licence or work in a licence holder's business. There are thousands of former political prisoners in the State, the vast majority of whom are pillars of our society. A small number of people are part of those micro-groups in the State. Former political prisoners have been in the vanguard of defending the peace process. We all know the role they played in making sure, not only that the peace was built but that it was kept and maintained. They are pillars of society.
I mentioned that two Deputies who spoke in favour of this amendment in the Dáil are former political prisoners. Certain Labour Party Deputies who are in government were associated with an armed group, and some of their associates would be affected by the Bill and by the refusal of the Minister to accept the Sinn Féin amendment. There are also many former political prisoners outside the Houses. Many have obtained further education qualifications and include in their number doctors of every subject one can imagine. They are respected in their current fields of activity and have helped to build and keep the peace.
The State has failed to comply with its end of the bargain, in terms of respecting the political context of their imprisonment. The Government must uphold its side of the bargain with all prisoners, many of whom have taken risks for peace and have built that peace. These are people who were sentenced in Diplock courts in Northern Ireland and in non-jury courts in this State. That should be borne in mind when the Minister considers this amendment.
It is 13 years since the Good Friday Agreement was signed and five years since the St. Andrew's Agreement was signed. I was interested to hear some of what the Minister said in his response to my contribution on Second Stage. He introduced red herrings which have nothing to do with the points we are making. This may have been because of the Minister's very narrow political view of this issue, of the world, of this State, of the conflict and of former prisoners, all of which he is entitled to have. However, as Minister he needs to act in the national interest, for the public good and in line with the Good Friday Agreement, the St. Andrew's Agreement and the Hillsborough Agreement, which are international agreements. The Minister has a responsibility to do that.
The Minister spoke about convicted criminals, despite the fact that he knows they are political prisoners. He said confession comes before absolution. I could say torture comes before confession. Many ex-prisoners were tortured in Long Kesh, which led to some of those convictions, of which I am sure the Minister is aware. Perhaps he is not aware of much of what happened and the reasons many people ended up as prisoners in the first place.
This is an important issue for us. We cannot and will not stand over a situation where a Minister with a very narrow view of the world can play games with people's lives and livelihood, as the Minister is doing.
These people have served their sentences. It is extreme to prevent people who were part of a conflict in a conflict resolution process, who were released under international agreements-----
I would have no difficulty in having a debate on the armed struggle outside the Chamber with any Member who wishes. This is not about the justification of armed struggle or otherwise. It is about the rights of people who were released under the terms of the Good Friday Agreement as political prisoners and were involved in politically motivated actions. I have already cited the State's obligations, which the Minister should live up to. The measure runs contrary to the spirit of the Good Friday Agreement.
I will listen to the Minister's response. I was unable to hear his response to the debate on Second Stage. I had to attend a meeting but I read the transcript of the debate and the transcript of his response to the views expressed by Sinn Féin Deputies in the Dáil. The Minister made an outrageous point, which may illustrate his narrow political view of the world and of the conflict.
He said he would consider accepting the amendment if people said certain things. How outrageous is that? It is either right or wrong to accept the amendment. It is right to accept it because it is in keeping with the spirit of the Good Friday Agreement, the St. Andrew's Agreement and the Hillsborough Agreement.
I hope the Minister can put aside his own views and interpretations and do what any Minister should do, which is uphold international agreements signed by Governments on behalf of the people of this island.
The Senator is right to say there was much heat in the Dáil on this issue last week. I do not propose to rehearse those arguments. I will deal with the amendment on its merits and not on any other basis.
Unfortunately, the Senator seems not to understand the Bill. It requires that someone who has been convicted of one of these offences notify the Minister that he or she has such a conviction. Having a conviction does not ban a person from having a licence. If either of the Deputies to which the Senator refers wishes to apply for a road haulage or passenger transport licence, there is no reason they would not get one. They merely have to register the fact that they have been convicted of these crimes. If they wish to do so, they may give the additional information in the licence application that they were released under the terms of the Good Friday Agreement. The Minister is merely obliged to take the matter into consideration. There is no automatic ban on anyone holding a licence.
The Good Friday Agreement was signed by the Government and passed by the people by referendum in 1998. The agreement provides for early release, under licence, of convicted criminals. It does not provide for an amnesty or for convictions to be expunged. It does not say the convictions are spent. It provides for the early release of convicted criminals under licence. That is the fact. It is not my personal agenda or opinion. It is the law and an international agreement, as the Senator has said.
The Senator used the term "political prisoners" and accused me of having a personal agenda. It may be the Senator's view that these crimes were politically motivated, and he is entitled to that view. It may be his view that these people were political prisoners. He is entitled to that view. However, there is a different situation here. The Irish courts, constituted under the Constitution, have said these people are convicted criminals. They have been convicted of crimes by our courts under the terms of our Constitution. I can not change that. It is a fact. These people are convicted criminals. It is the Senator's view that they are not criminals, that they are political prisoners and that what they did was politically motivated. He is entitled to that opinion. However, the fact is that, under our laws and our Constitution, they are convicted criminals. That has not changed and the Good Friday Agreement does not change it either. It provides for early release under licence if they behave themselves. Those are the basic facts.
It is not my proposal to amend the Bill to treat them any differently from other people who have been convicted of similar crimes. When they apply for a licence they may admit to the fact that they had been convicted of these crimes. If they wish to give an explanation as to why they committed the crimes they may do so.
I did not finish. The individuals must notify the Minister, but the Minister then has the power to refuse on the basis of actions which were carried out. In terms of ex-republican prisoners, he would use the word "criminal" acts and crimes. However, we are saying-----
The fact is that the Good Friday Agreement, the St. Andrews Agreement and the Hillsborough Agreement recognised that these individuals were political prisoners who were in prison serving time for politically motivated actions. I agree they were released on licence, but it was recognised that they were political prisoners. The Minister is being disingenuous when he says the passing of this Bill will not prevent former political prisoners from being able to get a licence. It gives the Minister the power to make that decision. What we are saying is very clear, that there should be a clear differentiation between people who were involved in criminal offences and people who were convicted of politically motivated offences and released under the terms of the Good Friday Agreement. We cannot have it both ways. The Minister cannot say he supports the Good Friday Agreement and that he upholds the spirit of that agreement.
To return to the point I made earlier, the words of the Good Friday Agreement refer to "the importance of measures to facilitate the reintegration of prisoners into the community by providing support both prior to and after release, including assistance directed towards availing of employment opportunities, retraining and/or re-skilling, and further education". That is what the agreement states. How is it okay to be a former prisoner and drive a taxi, be a teacher, a doctor, a nurse or anything else but not be permitted to have a licence to operate in the road haulage industry? Why is this Minister the only Minister who is preventing former political prisoners from taking up employment? He wonders then why we think this is some politically motivated agenda on his part.
I see this as a simple amendment which could be accepted. We can disagree about the terminology used with regard to former prisoners. The Minister can use the word "convict" or the words Margaret Thatcher used. He can sit comfortably with those words. That is fine as he is entitled to his opinion. However, he can accept this amendment and, in the spirit of the Good Friday Agreement, differentiate between those criminals who were convicted of offences and people who were convicted of politically motivated offences. There is a difference and it is enshrined in the Good Friday Agreement. It is also enshrined in the agreement that the Government has a legal responsibility to ensure that political prisoners are reintegrated back into society.
It is not good enough that the Minister can wave his power over the heads of former prisoners and say that if he thinks it is okay, he will give them the licence. We are talking about a point of principle and that is the reason we will press the amendment and put it to a vote. I hope that people in this House who voted for the Good Friday Agreement will vote for this amendment. A vote against this amendment is a vote against the spirit of the Good Friday Agreement.
My party supported this amendment in the Dáil and will support it here for the reasons I will outline. That said, I read the report of the Dáil debate and found its tone and content most regrettable. I would caution people to tone down the rhetoric on this issue. We all have ownership of the Good Friday Agreement, which was negotiated by a former leader of my party and others who had the courage to take it on and to include and introduce the paramilitaries at the time. They were brought into the political system and we welcomed them to it. It is good they are part of it.
However, we must remember that there are many people with sensitivities who voted for the Good Friday Agreement but who still suffer a loss as a result of the activities of the paramilitaries on all sides. I speak as someone whose family had a long friendship with the family of the late Jerry McCabe. When I spoke here on Second Stage, I indicated to the Minister that I felt there should be a forgiveness element and an acceptance of rehabilitation across the board, without reference to any agreement and wherever somebody had offended and was guilty of a serious crime. Some of the people to whom Senator Cullinane has referred were guilty of the most heinous crimes. All people who have committed a crime must get the opportunity for rehabilitation and to return to the workforce. It is on that general basis and in that spirit that my party supports the amendment. I caution Senators to tone down the rhetoric as many people are still hurting.
I hope we will get the restraint people have called for. In my professional capacity I used both the Green black taxis in Belfast and the Orange black taxis on the other side and was very impressed by the prisoners who, on release, operated that service. I wrote on this for a professional journal in London in the Institute of Economic Affairs. The service provided by the taxi service was a 24-hour service at 90 second frequency. I wish far more expensive public transport systems to the taxpayer could emulate that service. Let us not carry on with the grudges for too long. The former prisoners have a proven record of being really good at running urban public transport and I am sure they could bring that expertise to other areas.
The previous First Minister, Reverend Ian Paisley, spent some time in jail, as did the current First Minister, Peter Robinson. If we looked at the founding fathers of this State, we would find the same to be true with regard to former Members. People must be given the opportunity to get on with their lives. In my professional capacity I found the former prisoners I met were good, both those on the Shankill Road and in west Belfast, and the work they were doing impressed a UK audience. Let us open up the possibilities to these important developments. As I said on the earlier amendment, people must be allowed to leave their past behind when they want. Having to go to court and take on the Minister in order to get a licence is far different from someone deciding he is good at the business and setting himself up without having to tell anybody what he was doing previously. I support colleagues on this amendment.
I do not believe the Minister has a personal agenda in regard to this. When the Bill was being drafted, the Minister could not have foreseen that we would be discussing the Good Friday Agreement and republican prisoners and so on and that is where the issue has arisen, because once the Bill is drafted, there is difficulty in changing it. I was at a meeting last Saturday in the North and there was a very representative group of people around the table, chamber of commerce people and regeneration committee people, etc. I was sitting beside a Sinn Féin Minister and sitting across from me was the local police commander. The Minister, who spent 14 years in jail, said something which to my mind sums up the peace process and the Good Friday Agreement. She said to the police commander that there was a time when she would not have been sitting there with him because he would have been arresting her. She pointed out that in fact he had arrested her on one occasion but that what had come out of the peace process was that they had all agreed to work together. There is no doubt that there are many hurting and that some people will hurt till they go to their graves. We will not even be aware of many of those hurting because it is so serious, but as we know, that is what comes from conflict. We know that is what comes out of conflict. We need only go back to Terence MacSwiney, Thomas Ashe and all the great figures in Irish history who spent time in prison. We can say at a given time that they were different. In the 1950s when we had troubles in the North of Ireland, people lost their jobs. They lost their jobs as teachers in the vocational schools, in the ESB and in State bodies. When they came out and those troubles stopped, all those people got their jobs back. It was the spirit of it rather than legislation that was required.
If this Bill was being drafted again and if we had considered this issue, it is possible we would have had different wording. We could argue forever about the definition of a political prisoner. I just read a book on the subject by people who were political prisoners in different periods of Irish history. The conflict and the debate was always there. One side, in particular the British side, said these people were common criminals. We could go on forever with this debate. We will not come to a conclusion because we all hold different political views.
The Good Friday Agreement was one of the greatest things to happen on this island for many decades and people are still basking in the sunshine of that agreement. The political prisoners who returned to the community wanted, as the eminent Senator made quite clear, to get on with their lives as we all do. The victims want to get on with their lives as well.
Even though it has arisen in a Road Transport Bill, it is a bigger issue. It is just that the underlying message that goes with it is a pity. I heard the Minister speak and I do not believe there will be a change. It is a pity we cannot get that change. If we could have had consensus, we would endorse what the voters, North and South, did in the Good Friday Agreement. It was the first time since 1919 that we had an all-island vote. We would say to them that we are prepared to bury our differences. There is an issue here which needs to be addressed. We do not need rhetoric or the passion that went with that politics. We are now thinking of a new Ireland and in that context, I would like the Minister to reflect on what has been said. It is not a reflection on him because he is an honourable Minister and I do not believe for a moment that he has a personal agenda. However, the issue has a connotation and will have an echo on the broader issue of the Good Friday Agreement.
I was not going to speak on this amendment but I must reply to some of the points made. Members are missing the point. The Minister pointed out that this does not disqualify anybody from getting a licence. That is the main issue. It gives the Minister the right to say whether he will issue a licence to these people. That is the point of this legislation. It is not about the Good Friday Agreement and politically motivated offences. The Minister makes the call. The legislation does not disqualify anybody from holding a licence.
Senator Cullinane said the Minister was very narrow-minded. The Minister is not narrow-minded. He has brought a good Bill to the House which we must pass before 4 December because of an EU directive. It is very unfair for Senator Cullinane to call the Minister narrow-minded. Does the Senator consider the murder of Garda Jerry McCabe and Ms Jean McConville political offences?
This is about notification. The provision in the legislation does not ban anyone from having a road haulage licence or a passenger transport licence. It requires people to inform the Minister when they fill in their application form that they have been convicted of certain crimes in the past. The opportunity is there for them to explain that those crimes were committed in a particular context, perhaps before the enactment of the Good Friday Agreement.
If I make any decisions on a matter such as this, I will take that into account. I see no reason to consider somebody who applies for a passenger transport licence or a road haulage licence and who committed a crime prior to the Good Friday Agreement but who has moved on since then and has not committed any further crimes not to be of good repute and to refuse a licence. The provisions in the legislation are not new. They are the status quo and are not something I have put into this legislation. I have no personal agenda in this regard.
Senator Ó Murchú was quite right that when we were going through this Bill, which unfortunately is emergency legislation because we are up against a deadline, we did not anticipate this issue arising at all. I assure Members, although they may not believe it, that there is no personal agenda here at all. We keep going back to the Good Friday Agreement which must be the guiding principle and light in this. The Good Friday Agreement provides for early release under licence. It does not expunge convictions and say these crimes were not crimes and did not happen. It just provides for early release. That is what we all signed up to in the referendum. Had the Good Friday Agreement provided for release without condition or said that these crimes were not crimes or these convictions are now expunged, would it have passed with the majority it did, in particular North of the Border where a very large number of Protestants voted "Yes"? I wonder whether they would have voted "Yes" in such large numbers if it had provided for an amnesty for those prisoners.
That is why the former Taoiseach, Mr. Bertie Ahern, and others, in their wisdom, did not agree to that request for an amnesty and have not done so to date. In current circumstances, an amnesty might move us backwards and I will come to that in a second.
If there is a new agreement to follow up on the Good Friday Agreement, the St. Andrew's Agreement and the Hillsborough Agreement, that is fine but it has not happened yet. There is no agreement in favour of an amnesty in this State nor is there a consensus in favour of one. If new legislation is brought in to provide for an amnesty or to consider these convictions to be spent, then so be it but the Road Transport Bill is not the place in which to do that. If we are to decide to provide an amnesty or for these convictions to be spent, we need to have a proper debate about that and not have it in the context of a Road Transport Bill. It is inappropriate to do so.
There has been a great deal of talk about political prisoners and criticisms of individuals, including me, talking about the political prisoners and other people. With the exception of Senator O'Sullivan, nobody mentioned the victims up to now and there are still a many victims out there who are hurting very much. Many of them have not been able to move on in the same way as perhaps some of the political prisoners who have done very well since. They have not been able to move to the point of forgiveness.
Before one can forgive something, there must be apologies and acceptance that crimes were committed. Even if they were politically motivated, they were still wrong. Many people have been involved in struggles from Mr. John Hume to Mr. Austin Curry to Mahatma Gandhi. Their political motivation was very strong but it did not drive them to violence and require them to blow up children in shopping centres. Their political motivation was different and they chose a different course of action. Before the victims can move on, there needs to be an acceptance that political motivation is not a justification for the offences committed. I am glad the word "offences" was used because at least it is progress.
I acknowledge that the start of the Minister's last contribution was a step forward because he said he did not see any reason somebody released under licence under the terms of the Good Friday Agreement and where their offences predated the agreement, could not hold a licence. As he knows, we made a different point. As a principle, that category of prisoner should be excluded from the Bill's provisions. It should not be the Minister's prerogative to make the decision. I accept his comments and he went some of the way towards addressing our concerns before turning to discuss other issues, including victims. While I agree that there are victims on all sides, his other points were made in an attempt to incite Sinn Féin Members. Many former political prisoners saw their family members and comrades die. Conflict resolution is not easy. I am and always will be sympathetic towards the plight of victims on all sides. Healing is being discussed in a broader sense and should not be debated in the context of this Bill under which political prisoners can be excluded from holding a licence if the Minister so wishes. However, he mentioned that he could not see a reason for this. If so, why can he not accept the amendment? He was referring to a larger issue.
Perhaps that larger issue might be addressed, as we will also be dealing with the question of spent convictions. The Minister is considering this matter which is relevant to our debate. Will the many individuals with spent convictions be refused licences? Many issues need to be discussed.
It never ceases to amaze me that some people do not understand the concept of debating. We are having a discussion on an amendment that has been tabled and Standing Orders allow us to engage on it. I can make a point; the Minister can respond; someone else can contribute, and we can thrash out all of the issues involved. That someone does not like the argument being made does not mean the argument should not take place.
I will conclude on a positive note. I acknowledge that the Minister has offered clarification. If a former political prisoner released under the terms of the Good Friday Agreement applies for a licence, will he or she be granted one?
I am not. I am asking the Minister a simple question. If I understand him correctly, he does not see a reason he, as Minister, would refuse a licence application from someone who informs the authorities that he or she has served time as a political prisoner. Have I understood the Minister correctly?
I am loth to answer a hypothetical question. The legislation concerns someone who fills in an application form for a licence to be a haulier or passenger transport operator. On that application form the person concerned is required to provide various pieces of information on, for example, financial standing, establishment in the State and whether he or she is held in good repute. The Minister or, more accurately, officials acting with the Minister's authority must make a decision on the application based on this information. Any reasonable Minister or official adjudicating on such an application would take into account the pre-Good Friday Agreement context in which a crime was committed. If the person concerned has since been of good repute, financial standing and so on, a refusal would be unlikely. However, I cannot answer for definite or on behalf of future Ministers.
Ignoring the heat and leaving aside the history lessons in which we have engaged, there may be a case for offering an amnesty in due course. We could pass legislation or reach an agreement on expunging convictions via an amnesty, but the Road Transport Bill 2011 does not provide the context in which to do so. The issue requires a more detailed debate and further confidence-building measures on the part of those seeking an amnesty. Despite the fact that the conflict ended some time ago, these measures have not yet been forthcoming. That is probably the best way to proceed. Until that happens, however, the Good Friday Agreement stands. Under the agreement, these are considered convictions and early release on licence is provided for.
The Seanad Divided:
For the motion: 16 (Sean Barrett, Thomas Byrne, John Crown, David Cullinane, Terry Leyden, Marc MacSharry, Paschal Mooney, Rónán Mullen, Trevor Ó Clochartaigh, Labhrás Ó Murchú, Darragh O'Brien, Ned O'Sullivan, Feargal Quinn, Kathryn Reilly, Mary White, Diarmuid Wilson)
Against the motion: 24 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Jimmy Harte, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Denis Landy, Mary Moran, Tony Mulcahy, Michael Mullins, Catherine Noone, David Norris, Pat O'Neill, Tom Shehan)
Tellers: Tá, Senators David Cullinane and Kathryn Reilly; Níl, Senators Paul Coghlan and James Heffernan.
Amendment declared lost.
I move amendment No. 3:
In page 8, subsection (2) (b), line 12, after "offences" to insert the following:
"and the time elapsed since the convictions and the maximum fine or term of imprisonment with respect of each offence".
This section deals with a number of factors which the Minister will take into account when considering an offence:
(a) the nature of the offence,
(b) whether the conviction is one of a number of convictions for the same or different offences,
(c) any penalty or sentence suffered on foot of the conviction,
(d) any disqualification or forfeiture imposed on foot of the conviction, and
(e) whether or not the offence was committed in the course of, or connected with, a road transport business[.]
The Minister may consider that the effect of my amendment is implied, that is, the time that has elapsed, for example, where a person is 42 years of age now and he was 16 when the offence was committed. I seek to make provision for that scenario. The Minister has provided for the actual penalty but the maximum penalty gives an indication of how society as a whole and this House thought of the offence in terms of its seriousness. Given that it is, for example, only an X offence and he did it Y years ago, I would hope they would be considerations the Minister would bear in mind in exercising his functions under this section.
In regard to the time elapsed, this section does not require an amendment as it is taken into account as part of the consideration process of any convictions notified or discovered. Serious convictions and others are already provided for in the regulations, such as road safety issues or tachographs. Elapsed time will not necessarily mean that a conviction will be disregarded as it depends on the nature of the conviction and the context of a road haulage or passenger transport business. An example would be convictions for sexual offences and the person wishing to be a passenger operator or driver. In regard to the maximum fine or term, the Bill already provides sufficiently in section 4(2)(c) for any penalty or sentence suffered on foot of the conviction. It is a matter for the courts to determine the penalty bearing in mind all circumstances of the case. The other elements of subsection (2) give sufficient scope to the Minister to make a determination on the implications of a serious conviction for good repute.
The Minister in his earlier comment referred to people who had moved on. I was hoping that people who had moved on would be facilitated so I think we can move on. The Minister has facilitated the third moving on in respect of that section. I accept what the Minister has said and I withdraw the amendment.
The point raised by Senator Barrett is an important one. If a person had been convicted many years ago, I think the Minister said that would be taken into account anyway. Am I correct in saying that if a person committed an offence, say, 40 years ago and the Minister refused him, that he would not be able to take a judicial review on the grounds that the Minister did not consider the length of time? That would not be a ground for him to appeal to the High Court against an adverse consideration or decision of the Minister.
I hope I am not incorrect on this but if so I will correspond with the Senator. I understand that if the conviction was 40 years ago the Minister is already empowered to take that into account in the issuing of a licence. Nothing prevents a person from appealing to the District Court or seeking a judicial review subsequently.
I move amendment No. 4:
In page 8, lines 40 to 42, to delete subsection (3).
Section 5(3) states:
A decision to suspend or withdraw a licensing document has effect pending an appeal under this section unless the judge of the District Court before whom the appeal is brought directs otherwise.
There should be a chance for the person to mount a defence. In transport, if the licence is withdrawn, that is the end of the income source for the person who is in the transport business. Therefore, it is somewhat draconian to suspend the penalty pending the appeal. While I have not got legal training, it has arisen in some of the other issues which have been referred to obliquely here that priests, against whom allegations are made, are suspended. It is a development that was not in the original formulation of the Bill which is the reason my next amendment seeks to keep section 6 of the Road Transport Act 1986. To suspend a person's livelihood, pending his appeal, is a very strong penalty. This is a business where one has to be with one's customers. They will find somebody else very quickly if one is suspended, even if one is subsequently exonerated in court.
While this is a difficult issue, I can understand where the Senator is coming from. Where this takes effect is if a person has a new conviction. It is not something that would be done arbitrarily. If a person who already has a licence is convicted of human trafficking, a serious sexual offence, murder or money laundering, the Minister is then empowered to withdraw or suspend the licence right away. If the amendment, as proposed by the Senator, was accepted by me, that would allow that person to appeal to the District Court and, effectively, retain the licence for months while the appeal is being held. In a different circumstance I could accept the amendment on the basis that one wants to give a person the right of appeal to the District Court any time a licence is suspended. People have the right to a stay on the withdrawal of the licence in such circumstances, but this will arise in different circumstances where someone has been convicted of one of these serious offences. That is when the licence will be withdrawn or suspended.
I understand the legal provision is that the withdrawal or suspension occurs on conviction but that the District Court, even in these circumstances, could still allow a stay.
I move amendment No. 5:
In page 9, line 7, to delete subsection (6) and substitute the following:
"(6) Where the Minister has not decided on an application within three months the applicant may within 21 days of the expiry of that period appeal to the District Court seeking a decision on the application.".
Senator James Heffernan informed me yesterday that the period of 21 days was included in the legislation, but I want to be sure. Perhaps through an oversight I could not find the relevant section. I am concerned to ensure Ministers reply quickly because there has been experience of long delays; Mr. Justice Brian McMahon remarked in the Swords Express case that the delay had been so long, the favoured applicants, Dublin Bus and CIE, gained an advantage over the other applicant, Swords Express. If we are imposing duties on members of the general public involved in the transport business to be swift in their response to the Minister, Ministers should also respond quickly. If the provision is already included in the Bill and I have missed it through an oversight, I will be glad to accept this, but I would like an undertaking that the Department will respond quickly to applications.
I thank the Senator for spending so much time in going through the Bill and tabling amendments. I am sorry I am in the position of having to put through legislation so quickly because it does not allow me to accept amendments that might be accepted on Committee Stage in the normal process. That speaks to the Senator's comments yesterday about why we should not bring forward legislation so late in this way.
This amendment is not required because the EU regulations have direct effect. When they come into force on 4 December, they will have direct effect and require member states to decide on applications within three months under Article 11.4 of EU Regulations 1071/2009. The average length of time taken to decide on a licence is two weeks, but from 4 December there will be a legal requirement to decide on applications within three months.
I move amendment No. 6:
In page 9, subsection (3), lines 38 and 39, to delete "Minister and where" and substitute "Minister. Where".
There is a mistake in how we submitted this amendment in the typed version and I hope it did not cause confusion. I do not know if it renders it void. We were seeking to delete the line-----
Our mistake is that the Bill reads "Minister and where" and we are seeking to substitute this phrase with "Minister. Where". The word "Minister" is redundant and the word "where" should be capitalised on line 38 in order that the sentence would read "Where an operator's licence is withdrawn or suspended, the operator shall...". The wording to be deleted is "an operator's licence is the property of the Minister". We apologise for our clumsiness.
I table the amendment because we do not know, in fact, if the operator's licence is the property of the Minister. Haulage, taxi and pub licences are sold. I appreciate they become the property of the Minister on conviction, but normally there is a market. This is to clear up the matter lest we cause consternation and people now think haulage licences cannot be sold. They have a resale value. They are of interest to economists in that if a licence had a very high value, it meant the Minister was restricting competition too much in order that people paid a super-normal price for the licence to make super-normal profits. We have always been interested in the sale of licences but thought they were the property of the persons whose names were on them rather than the Minister. If there is confusion, we start the sentence with the phrase, "Where the operator's licence is withdrawn or suspended", in other words, it becomes the Minister's property as a result of some offence believed to have been committed, but ab initio the licence belongs to the person who holds it. There has traditionally been a market in licences.
The issue raised is slightly different from that raised in the amendments. The licence belongs to the Minister, as the legislation states; it is issued to an operator and cannot be sold or transferred. It can happen that the business to which it is attached will be sold or transferred. Legally, however, the licence remains the property of the Minister.
The amendment is not necessary. Currently, the Bill states an operator's licence is the property of the Minister and where an operator's licence is withdrawn or suspended, the operator shall, on request in writing from the Minister, return it to the Minister. The Senator proposes to include the words, "an operator's licence is the property of the Minister." and in a separate sentence, "Where an operator's licence is withdrawn or suspended, the operator shall, upon request in writing, return the licence to the Minister." I do not see the amendment as being necessary.
I move amendment No. 7:
In page 10, subsection (2), line 20, after "licence" to insert the following:
"or that the vehicle has been hired from the holder of an operator's licence".
This amendment seeks to deal with the road passenger side. There has been a custom where a business is doing well and a person needs extra capacity, to lease or hire. In the passenger business they are called auxiliaries, a strange use of the word, given the history of auxiliaries in Ireland. As our Sinn Féin colleagues have left, they cannot enlighten us.
We see buses around the country displaying a sign indicating they are "on hire". It is a private sector service that leases vehicles at times when extra capacity is needed.
The section refers to the vehicle being for the time being "authorised" on the operator's licence. There has been a provision in the bus business to hire in capacity at times of peak demand and those vehicles would not be on the operator's licence, because they would be extra vehicles and hired from somebody else. However, practice has been that where the route is doing well, auxiliary services are brought in so that the vehicle gets home on time. I do not know what legal provision is made for auxiliary services in other contexts or how they came to be termed such, but they exist and are important, particularly for CIE companies which bring in significant capacity at times of peak demand. They are not their vehicles nor are they on their licences, but they are a significant and necessary part of bus business.
As far as I understand it, the amendment would allow an operator to hire a vehicle from another operator and to operate it as part of his or her transport business, even while the vehicle in question was still authorised on another operator's licence. We are concerned that the amendment would create a loophole in the law, thereby creating legal uncertainty about who should be prosecuted if such a vehicle was involved in an accident or if the vehicle was in breach of safety or other rules. Currently, if an operator hires a vehicle from another operator, the vehicle must be insured in the name of the new operator and authorised on his or her licence. There is no need to have the vehicle registered or taxed again. The hire agreement is sufficient for the Department to show the standing of the vehicle. The vehicle is simultaneously removed from the licence of the first operator. This ensures legal certainty so that enforcement officers can know that any vehicle being operated by a licensed operator will be authorised on that operator's licence only. All the licensing documentation will be in that operator's name only.
If an operator was allowed to hire a vehicle from another licensed operator, but was not then required to have that vehicle authorised on his or her own licence, this would create considerable enforcement difficulties as well as potential liability difficulties in the case of accidents. The Department is not aware of either the haulage or passenger sectors having looked for this provision. Certainly, where operators hire vehicles from each other, the transfer of one licence to another in the Department typically takes one or two days.
I welcome the Minister's explanation. I just want to ensure an anomaly is not created whereby CIE would be entitled to have auxiliary services between, for example, Dublin and Galway, but its private sector competitors would not, because those vehicles would not be on their licence. I would be obliged if the Minister could clarify that.
I have a question with regard to a vehicle that has been hired from the holder of an operator's licence for use in the agricultural area, such as tractors that draw grain or where a plant operator must tow a JCB or a HI-MAC on a low loader. What is the position in that regard? Do these people need licences to travel on the public road? Will the Minister clarify that, please?
With regard to Senator Barrett's query, if a vehicle is hired or leased without a driver, it must be authorised on the operator's licence. However, if the vehicle is hired with a driver, which happens commonly with CIE and with school buses, that is considered to be sub-contracting, which is allowed. In that case, the vehicle remains on the licence of the operator who owns the vehicle. In the other circumstances there is a hire agreement.
I will need to consult my officials on Senator O'Neill's question. I understand that it depends on a number of factors, including the speed of the vehicle, the load and so on. Vehicles of people who operate services for hire and reward require a licence, but others do not. It is a grey area and there are exemptions in some cases. I will not go through the list of exemptions now. In general, if the goods are being carried for hire or reward, the operator must have a licence. If the goods are not those of the operator and if he is being paid to carry them and they are being carried as part of a contract with somebody, a licence is required. For example, if somebody is carrying goods on a low loader for somebody and receiving payment for that, a licence is required. However, there is a proposal for a permit system for some vehicles. There is a large number of exemptions in and around agriculture and farming and if the Senator has specifics on which he wants more detail, we can come back to him on those.
I move amendment No. 8:
In page 10, subsection (3), line 26, to delete "without" and substitute "with".
These are important documents which affect people's livelihood and they are offered "without proof of the signature of the person purporting to sign the certificate or that he or she was an officer of the Minister". Is there larger proof that the documents are authentic, were properly signed and the person was an officer of the Minister. This seems a strange exemption in a matter where we have paid so much attention to the importance of ensuring everything is correct with regard to access to the profession. It seems strange to me that one does not have to validate the signature or prove the person was an officer of the Minister. Why are the exemptions in this regard in the legislation?
Amendment No. 8 would require that any certificate issued by the Department certifying that a particular operator was or was not licensed on a particular date would have to be accompanied by actual proof of the signature of the person in the Department who signed it. Currently, subsection (3) uses the standard wording for the provision in these kinds of certificates and legislation generally. These certificates are typically only provided by the Department to the Garda or the RSA when they are prosecuting somebody for operating without a licence. The certificate would state that on a particular date, the date the garda stopped the operator at a road side check, the person in question did or did not have a licence. The certificate is signed by the official dealing with the certificate. If the certificate states that the operator did not have a licence, it is then presented to the court as evidence. The certificate is taken at face value by the courts since the current legislation providing for them states: "The certificate shall, without proof of the signature of the person purporting to sign the certificate, be evidence of the matter certified by the certificate." The amendment would require proof of the signature to be presented to the court. This could involve the official having to travel to the court every time any such certificate was presented. Such a provision would be very unusual and would make enforcement very difficult. In addition, it would be extremely time-consuming and inefficient.
I move amendment No. 10:
In page 10, lines 36 to 42, to delete subsection (5).
The point of this amendment is that the Bill makes it an offence for the customer, bringing draconian penalties of €500,000 and imprisonment for three years. If I get a person to bring my milk to the creamery why should I merit that degree of penalty? I do not know whether it is normal for customers who engage in transactions in good faith to be thus treated. If somebody calls to one's door and says he would like to do some haulage on one's behalf, as the customer one becomes liable for an extremely large fine and a lengthy prison sentence. All that was being done was sending milk to the creamery, nothing more heinous was taking place. The imposition of a penalty is on the customer rather than on the person engaging in the illegal act. That and its extent makes this a very heavy penalty for people who act in good faith in trying to conduct their business at the most competitive prices they can get.
We could substitute another commodity but if a person carries it from my business or farm I will get a bill for €500,000 and an invitation to spend three years in Mountjoy Prison because I have engaged in a transport transaction. I will leave milk out in deference to the Senator but this penalty for a relatively innocent act by a member of the Barrett family seems out of all proportion.
The maximum fine is €500,000. I cannot see anybody being fined that amount. The current penalty for this offence is only €1,905 which is very low considering the savings that can be made by a person using unscrupulous or illegal operators. The intention of this provision is not to catch people out but to allow us to prosecute customers who willingly and knowingly hire illegal operators. This is a significant problem in the road haulage industry at present and the industry has lobbied for a change, taking the view, probably rightly, that customers who knowingly hire an unlicensed operator are damaging legitimate business and are complicit in many ways in the offence, though tax evasion and, in some cases, evasion of safety regulations. This measure will only be employed if a person knowingly hires an unlicensed operator. It is not designed to catch people out who make an honest mistake nor does it require the average person or business to check that the person hired is licensed.
I move amendment No. 14:
22. Carriage of passengers by undertakings engaged in the occupation of road transport using vehicles with a speed not exceeding 40 km/h in accordance with Regulation (EC) No. 1071/2009.".
This amendment refers to a formulation contained in an EU document which does not apply to undertakings engaged in the occupation of road transport operators using vehicles with a speed not exceeding 40km/h. This did not feature in the Bill as presented to the House. I believe it would have certain attractions in rural areas, perhaps also in urban areas. If the EU allows this exemption it gives us scope to have competition in a field where many would say it is needed. It is referred to in the summary on page 2 of the very helpful document provided by the Oireachtas Library and Research Service. I submit this for the Minister's consideration as it was contained in the EU regulation and did not feature in the Bill.
The Senator is correct that EU regulations governing this area allow member states to exempt types of slow vehicles from the licensing requirements. As I understand it, the central amendment would only apply to passenger vehicles that travel at speeds under 40km/h and the Senator's amendment would exempt them from the licensing process.
I have two issues with this. First, it has never arisen; nobody has ever applied for a licence for a vehicle with such a low operating speed and I am not sure anybody would want to travel in a vehicle that could travel only at speeds under 40km/h. Even in rural areas people need to get around more quickly than that.
Do the vehicles jarveys drive count as passenger vehicles? That is a good question. It would not be a good idea to allow vehicles that travel at speeds under 40km/h to be exempt. From a competition point of view it would be unfair. One would be saying that this entire class of vehicle that can travel very slowly does not need a licence but that anybody who has a modern bus or coach or mini-bus must apply for a licence. One would create a category of slow vehicles which could be operated without a licence and this would be unfair to the existing industry.
In addition, other issues apply. If we state that a person must be licensed to drive a bus because we do not want to give a bus licence to a person who has been convicted of kidnapping, for example, and we do not believe that person should be allowed to drive children around in a bus, we cannot then say it is all right if the vehicle moves slowly. I do not see the logic of that.
I must take that request under advisement. I cannot really give such an undertaking because I seek a well-regulated, competitive road haulage industry. One cannot put in place all these licensing criteria, regulations, safety requirements and requirements of good repute and state that while they apply to hauliers, if one uses agricultural vehicles it does not matter and one can do whatever one wishes without a licence. That would not be fair.
The majority of those concerned would have single-vehicle operations. It is not as though fleets of agricultural vehicles would go on the road drawing material and I note not much construction is going on at present. It pertains to self-operators and so on and I acknowledge that certain exemptions exist. However, the Minister should consider this because people are not aware one requires a transport licence to, for example, haul grain for hire or even in respect of plant hire and of JCBs, HYMACs or things like that. This knowledge is not in the public domain. People always have considered that agricultural vehicles were exempt. People thought they were exempt if they were hauling animals to the factory or the local mart in a cattle trailer if they did it for hire. However, under this legislation, it appears as though this is not the case. If one takes something for hire, that means one is not exempt and one therefore needs a haulage licence. This matter must be clarified.
There are a number of exceptions. For example, there are exemptions if one is operating on one's own account. Moreover, there are exemptions for a wide range of things, encompassing everything from mail to corpses to milk and various other items. However, it would not be appropriate to have a blanket exemption for agricultural vehicles. It would be really unfair to the haulage industry to insist that it must jump through all these hoops, namely, to have a licence, be of good repute, be established in the State and have a good financial standing but then tell someone who uses a tractor or other agricultural vehicle that none of these standards apply.
I will give the matter some consideration. The RSA already has done some work in this regard. For example, European regulations allow exemptions for vehicles that travel at less than 40 km/h. Some work is being done by the RSA on allowing an exemption for such vehicles if they are not going to use the motorway. While someone operating within his or her own immediate area and who is not going onto the motorway, etc., could have an exemption, there are potential problems and potential downsides in this regard. One obvious downside is that most modern agricultural vehicles now can travel at speeds greater than 40 km/h.
I accept the Minister's points. As he stated, the majority of agricultural vehicles, especially those which would be involved in hire work, travel at more than 50km/h. While the Minister has stated he cannot make exceptions in respect of this legislation, he should give consideration to this issue in the context of the more comprehensive transport Bill he intends to bring through the Oireachtas next year. In addition, I ask them to put into the public domain the present exemptions to make people aware of them. His Department could outline, through advertisements or similar means, what is exempt from the requirement to have a haulage licence, particularly in respect of the agricultural and plant hire sectors.
Amendment, by leave, withdrawn.
Schedule agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.