Seanad debates

Tuesday, 16 December 2014

Road Traffic (No. 2) Bill 2014: Committee and Remaining Stages

 

Sections 1 and 2 agreed to.

SECTION 3

Government amendment No. 1: In page 4, between lines 23 and 24, to insert the following:“(4) If this section would, but for this subsection, conflict with a constitutional right of any person, the operation of this section shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.”.

5:15 pm

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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This amendment is to amend section 3 in page 4, between lines 23 and 24. Its purpose is to insert a new subsection in section 3 to clarify that this section is not intended to infringe the constitutional rights of any individual. This is to make provision in regard to the judicial review proceedings which were granted by the High Court yesterday, 15 December, in which the applicant has challenged the endorsement of six penalty points on her driving licence in November resulting in her disqualification. The constitutional separation of powers prohibits legislative interference in proceedings before the courts. This provision will ensure that the section cannot be interpreted in a manner that would interfere with proceedings pending in the courts.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I hear the Minister's explanation but it does not actually explain the section. This section seems to imply that if the legislation is unconstitutional, we do not mean it to be such. It is like a just-in-case clause. If one were attempting to do what the Minister is attempting, one would state this section is not intended to affect any cases currently before the courts, or something like that. However, the amendment seems to point to possible unconstitutionality. It is almost an admission of this by the Government. I have mentioned this on Twitter and a few barristers have reverted to me on the possibility of its being unconstitutional.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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We do not interpret the law; we make the law.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Yes, but we do not make unconstitutional laws. We are already interpreting the law through this Government amendment. I was thinking of calling a vote on this but have decided not to as we do not want to stand in the way of the passage of the legislation in the interest of road safety. I have serious concerns that the Government or somebody in the Attorney General's office has suggested the provision might be unconstitutional, yet we are going ahead with passing the Bill. It is just very strange and seems to conflict with the established principles of constitutional interpretation and what we do here. As I said on Second Stage, we do not pass unconstitutional laws. Despite this, the amendment refers to a possible conflict with a constitutional right. What if we implemented a law allowing torture and included a provision stating that if it conflicted with a constitutional right, it would not be affected? What if we made a law to bring everyone into custody without trial and said that if it conflicted with the constitutional right of any person, it would be subject to such limitation as is necessary to ensure it did not conflict. The provision strikes me as really strange. It strikes me that somebody believes it is unconstitutional. At the last minute - this seems to have come up at the last minute - it was it was suggested that this amendment be tabled just in case. I do not know what effect it will have in the courts. If the section is unconstitutional, it is unconstitutional.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I share the concerns that Senator Byrne articulated. I do not wish to delay the Bill or the Minister. I take a different view from that of Senator Byrne in that I believe that although we are trying to pass this legislation, which I acknowledge is very well-intended on the part of the Government-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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If the Senator pushes this to a vote, I will go with him.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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There are concerns about the section being constitutionally tested. I sure that, as day follows night, it will be. I understand that the error is one of administration rather than one involving the introduction of new legislation. Since it is so serious, it is important that we test this. When the time comes, I will press this to a vote. Not doing so would leave me, Senator Byrne and others, and even Senator Colm Burke on the other side of the House, red-faced in four, five or 12 months if the legislation were challenged and overturned on a point of law in the Supreme Court. It would be asked whether we were doing our job in opposition. The least we can do is push this to a vote.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I hear what Senators Byrne and O'Donovan are saying, but as I said on Second Stage, we are here as legislators and not interpreting law. If somebody challenges this in the High Court or Supreme Court, so be it. If he is successful, that will reflect what the court has decided. The Minister has to bring this legislation before the House. There are commencement orders from 2010 that were not signed so we have a flaw in the legislation we passed in 2014. That is why we had to bring this to the House. While I accept what the Senators are saying, we cannot have this tested before we make the law. We have got to make the law and let somebody test it in the courts later if he wishes. We cannot wait until next January, February, March or April to do this; it must be done now. Legislation was needed immediately. I acknowledge that the Senators have concerns but it is important that we pass this legislation today. Let somebody make a constitutional challenge if he wishes.

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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I thank the Senators, on whose comments I have two points. First, in presenting this Bill for Senators' consideration, I am absolutely confident that it is constitutional and meets all the requirements and constraints that the Constitution confers on it. Second, the amendment is making explicit that nothing in the Bill shall in any way seek to interfere with a matter that is currently before the courts. We are seeking to recognise very explicitly the fact that there is separation of powers with independent judges and, within that system, appellants who can make any decisions they see fit on new or existing law. The purpose of this is to make clear that what is in this section does not in any way seek to impede any matter currently before the courts.

I suggest to Senators O'Donovan and Byrne that while I appreciate and accept totally the principled manner in which they address this, we seek via this amendment to make very clear this section does not in any way seek to become involved in or interfere with the separation of powers which is embedded in the Constitution, from which the Bill ultimately flows.

5:25 pm

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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A plain reading of the amendment does not support the Minister's argument on its interpretation. It simply does not. It is strange.

Photo of Averil PowerAveril Power (Fianna Fail)
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I take the point the Minister is trying to make, which is that while the courts are dealing with the proceedings of a case, legislation cannot be changed to affect the outcome of the case. It is a genuine point and I would certainly support it, but I wonder whether the Minister might consider that what he has put forward is incredibly broad. I did not realise this is what it meant. It is with regard to the operation of the section conflicting with a constitutional right. How it is written is very broad. It is fair enough to say the legislation will not in any way impact on cases currently subject to the judicial process, as this has been a standard aspect of Irish law all the way back to the Sinn Féin funds case. The Legislature cannot introduce legislation to affect court cases which have already started. However, this is not the what the amendment states. Perhaps the Minister will consider being more specific on Report Stage, because a section on interfering in any way with any constitutional rights in an unspecified manner would be extraordinarily broad. It could fall foul of the rules on vagueness as it is not clear what is intended by the wording.

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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The challenge I have is this regard is that by definition the constitutional rights of people are very broad. If I were to introduce anything to specify what aspect of their rights we are looking to protect, it would leave me open to the accusation that I am weakening other aspects by not specifying them. The very nature of the amendment I am introducing is to make explicit that the rights people have under our Constitution are not in any way impeded or interfered with by the Bill, which is obvious. I am also looking to make very clear that any matter which could be considered by the courts is separate to the courts and a matter for them, and nothing in the Bill seeks to interfere with this in any way.

Photo of Averil PowerAveril Power (Fianna Fail)
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I understand this, but the Minister has explained the purpose of the amendment is to deal with court cases. He also stated there are things he has not thought of which we have not thought of that could be covered by it. This gives me the same concern as Senator Byrne as to whether there is an issue with regard to the legislation which is not clear to us, and the Minister or his officials have concerns that it could potentially be unconstitutional. The specifics the Minister has mentioned are fair enough, but the case he has argued could be made with regard to any legislation, that if it has unforeseen consequences which interfere with constitutional rights the people's rights will be upheld. The Minister's point would involve such a provision being included in every piece of legislation, when the only difficulty the Minister can think of is court cases. A specific issue with regard to a court case would be fair enough. Of course I want to see language which protects people's constitutional's rights but I am concerned, as is Senator Byrne, as to why it is necessary, whether we have been given the full story and why the Minister thinks it is a concern.

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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I want to make clear again I am absolutely certain the Bill has been drafted to be constitutional. As I stated when I introduced the amendment, it flows from a recent appeal on a number of penalty points, and the person absolutely had the right to make the appeal. In this amendment I seek to make very explicit the rights the person has and the independence of the courts. I assure the Senator there is absolutely no other motive or rationale behind the amendment.

Amendment put:

The Committee divided: Tá, 23; Níl, 12.


Tellers: Tá, Senators Ivana Bacik and Paul Coghlan; Níl, Senators Paschal Mooney and Diarmuid Wilson.

Amendment declared carried.

Section 3, as amended, agreed to.

NEW SECTION

5:30 pm

Photo of Averil PowerAveril Power (Fianna Fail)
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I move amendment No. 2:


In page 4, between lines 23 and 24, to insert the following:“4. The Minister shall, by 15 January 2015, lay a report before both Houses of the Oireachtas setting out his proposals to address the backlog in NCT testing to ensure that people are not unfairly penalised with penalty points because they could not get an appointment for an NCT test within a reasonable timeframe.”
This amendment is intended to deal with the delay in NCT testing. In some test centres, people are currently waiting up to four months for an appointment. This is bad enough if they want to get their cars tested, but with the new regulations that have come into play they are also liable for penalty points. If they do not know there is a four-month delay they may book the test two months in advance, thinking they are well in time for an appointment. It is incredibly unfair that somebody in that situation would be hit with penalty points. When this was questioned last week, it emerged that it does not even matter that people can show a garda evidence that they have booked a test once they have missed the deadline.
This amendment provides for the Minister to lay a report before both Houses by the middle of January indicating how he intends to deal with that unfair situation and ensure the centres are adequately staffed. The new penalty points offence should not have come into place at all until that situation was addressed. It is fair enough that cars need to be roadworthy but it is unfair to bring the points in when there are huge delays for testing.

Everybody is entitled to get their car tested within three or four weeks of applying for a test. One should not have to wait months for a test. My amendment seeks a review of the situation and for the Minister to report to the Houses on how he intends to address the matter so that people are not unfairly penalised. People want to obey the law but for reasons outside of their control such as the staffing in centres they are unable to do so.

5:35 pm

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I was quite reassured by what the Minister said on this point earlier when I raised the matter first. He should reiterate his commitment that nobody will wait more than 28 days for a test. Unfortunately, people have had to wait for longer. As mentioned, it is crazy set up that people whose NCTs are lapsed since 2013 are looking for tests. When I applied for my test I thought I was doing things correct by applying three months prior to its expiration and I corrected the matter on the record since I raised the point. I hope my comment did not act as a catalyst in this case.

Nobody should have to wait for a test. I ask the Minister to reiterate his commitment, and that of the RSA, made in response to the very valid points made by myself, Senator Power and others and we might be reassured about this issue. We do not want to be frivolous, vexatious or pushing votes on issues. The Minister gave a lot of information in the past hour that I was unaware of. I thought that when people in my area were waiting for between three to five months that it was a general waiting time. He made the point and I am inclined to accept the commitment he gave to the House.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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This amendment should not have been tabled as being part of the Road Traffic Bill 2014. It is a matter more suited to the Order of Business and I ask Senator Power to withdraw her amendment.

The Minister pointed out the average waiting times. We have also experienced waiting. I have gone online and tried to book an NCT only to see a waiting time of between four and six weeks. The Minister did say that if one rings a centre more than likely it will facilitate an applicant with a test. This problem is also the result of the Irish psyche because we leave everything until the last minute. The onus is on a person to make sure that his or her car has its NCT just the same as the onus is on a person to have his or her road tax in order. The Minister cannot help it if somebody only applies for the NCT the day before it is due to expire. The Irish psyche is at play. I compliment the RSA on its advertisements for the past few weeks which highlight the fact that NCT centres will be very busy in December and January because a lot of cars are sold in January and its a busy time for testing. I compliment the RSA for pointing out this fact to people.

I ask Senator Power to withdraw her amendment. The Minister can give a report to this House on the Order of Business or as an Adjournment matter. I do not think the motion should be included in a serious Bill that calls on the Minister, by 15 January, to lay a report before the House. He has pointed out that he has carried out surveys, through his Department, on waiting times at different test centres for the NCT. I do not think this matter should be put into legislation.

Photo of Martin ConwayMartin Conway (Fine Gael)
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I would be inclined to agree with Senator O'Neill. Having said that, I totally understand Senator Power's motivation for tabling her amendment, especially given the recent history of NCTs. If the Minister was to commit, at a date in January, to issue a report to the media or even lay it before the Houses, not requiring this as an amendment in the legislation, it would be welcome not just by Members of the House but by people in general.

When the Minister responds I hope he will tell me what is the story with people who do an NCT but believe they have not been fairly treated and their car should have passed. Perhaps there is some reason or whatever----

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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That is definitely an Adjournment matter.

Photo of Martin ConwayMartin Conway (Fine Gael)
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Please bear with me because I wish to mention a couple of instances. I know of two different individuals who feel there is some sort of a personal vendetta against them by an individual who works in an NCT centre. Is there a mechanism for appeal in such an instance? Can people appeal a decision or highlight something that they believe is not right? Perhaps there is a solution available or structures already in place and I ask the Minister to advise me accordingly.

Photo of Averil PowerAveril Power (Fianna Fail)
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In response to Senator O'Neill I wish to state that my amendment is most definitely appropriate for this legislation. Given that it was a Road Traffic Act that introduced penalty points for not having an NCT, it would also be remiss to miss the opportunity-----

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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The legislation did not bring that in the three penalty points.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Senator Power please, without interruption.

Photo of Averil PowerAveril Power (Fianna Fail)
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-----of asking questions when the Minister for Transport, Tourism and Sport is in the House.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I shall reply in a moment.

Photo of Averil PowerAveril Power (Fianna Fail)
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I do not understand why Senator O'Neill does not want to debate this issue. Perhaps he is in a rush for his dinner or something else.

Photo of Averil PowerAveril Power (Fianna Fail)
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I do not understand his reluctance. I did not hear the Minister's response to this issue on Second Stage and look forward to hearing his reply. I hope there is a fair way of addressing the matter.

I wish to say to Senator O'Neill that I was not referring to people only applying for a test the day beforehand. As I said, there is a four month delay. There are people who try to book an NCT test two months in advance but cannot get an appointment before their test which is unfair. By any objective measure that is unfair. I appreciate if the Minister is taking measures to address the problem. My difficulty was that if someone shows the Garda that he or she booked a month or two ago would they still have to wait another three or four weeks. It should count for something but under the existing system it does not which is unfair. I am not suggesting that people should be able to get a test at two or three days notice.

Senator O'Neill gave the examples of road tax and road insurance but one does not have to pay either four months in advance or pick a particular date a month in advance that is suits one's work schedule and everything else. We need to provide people with a decent and efficient NCT service. People pay for it at the end of the day and it is a commercial service. Therefore, people are entitled to a service that is fair and consistent.

We have all received complains which are more than anecdotal about inconsistencies between centres and individual testers. In the same centre people are often failed for things they think are insignificant. People must have faith in the system, feel that the job is done right and that it is effective. People pay for this service but there is no other service where one expects to wait four months for a service. That is the reason this issue is worth discussing. I welcome the opportunity to hear the Minister's response about his efforts to reduce the delay.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I started off by saying we would not put this amendment to a vote but we will if we hear more of Senator O'Neill's ill advised comments even though the Minister reassured me. We will put this to a vote because what Senator O'Neill has said, with all due respect, is nonsense. I outlined a situation which applied to myself. My NCT is not due until 1 March. When I telephoned my local centre two weeks ago to the start of this month I was told the earliest appointment I could get would be 18 March. That meant I would be in the serious position of not being able to drive for 18 days from 1 March and if I did I would get three penalty points. I was very reassured by the Minister saying nobody should have to wait for more than 28 days. He has talked a lot of sense but Senator O'Neill seems to want us to call another vote.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I am delighted to hear the Minister say that if one waits over 28 days-----

Photo of Martin ConwayMartin Conway (Fine Gael)
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Enough time to go hurling.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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-----that an applicant should get a free test. I waited over 28 days for a test at one stage.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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Did the Senator get a free test?

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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No and I did not know the law existed.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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Did Senator O'Neill drive without an NCT?

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Does the Senator have a question for the Minister?

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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Yes. In reply to Senator Power, she said that-----

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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The Minister will reply to her.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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She referred to motor tax and motor insurance. One can pay motor tax five weeks in advance.

Photo of Averil PowerAveril Power (Fianna Fail)
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One is not required to pay it four months in advance. One must pick a particular day for a month in advance when one will pay.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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No crossfire.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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There is nobody in this country waiting four months for an NCT test. The Minister said to telephone a centre and one will get a test.

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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I thank Senators Power and Byrne for tabling the matter.

I wish to clarify a point made about the nature of this offence and that it was a new one. This has always been an offence. Prior to the change earlier in the year it was five penalty points and direct to court but that has now been changed so that people have the option of a fixed notice payment and three penalty points. The whole objective has been to take things out of the courts system which we do not believe should have to deal with this matter. The big change that was made here was not the introduction of a new offence; it was the bringing in of a new phase of a lower penalty point sanction and giving people the option of settling it before it got to court.

The more significant change that has happened in respect of this, and this is a point that Senator O'Donovan and I were discussing earlier, is the sheer amount of advertising that took place in the run-up to the change. The Road Safety Authority was very proactive in communicating this and it has led to a significant increase in the number of people seeking to book their NCT.

I will again go through the figures I received that led me to support the course of action as it stood then as hopefully they will indicate the scale of the challenge we face in this area. In the last week of November, 25,000 NCTs were done. Some 9,000 of those 25,000 were either late or very late. Of those 9,000, 1,450 were for NCT certificates that were due in 2013. That shows the scale of the challenge that motivated this change in the penalty points regime. As the Senator has said, this is a matter of road safety. It is all about making vehicles safer. That is why this change was brought in.

We have made a number of changes to deal with the spike in demand. The first is that an additional 50 staff have been deployed to carry out the testing. In NCT centres that currently have a particular waiting list, changes have been made to matters like opening hours and the number of services provided. Those two changes took place.

I obtained figures about current waiting times myself, because I have been getting the same level of contact from constituents as Senators have. The average national waiting time is 11 days. I then looked for the regional centre breakdown. This showed that most centres were well inside that 11-day period. The challenge at the moment is that because so much of the booking is done via the Internet, when people go onto the website and see the next available slot, they understandably assume that it is the only available slot. The Road Safety Authority has been saying, and I have been aiding it in its efforts, that the best thing for people to do is to ring up and look for an appointment, for the reasons the Senator has described, namely, the need for their cars to be legal. In the vast majority of cases, the Road Safety Authority is able to facilitate that. Why do I believe that? There has been a great deal of contact about this matter. The reason I believe it is that, as we said a moment ago, if a test cannot be given within 28 days, it must be given for free, and only 2% of recent tests have been given for free. This shows that the vast majority of them have been delivered within 28 days.

I am not in a position to accept Senator Power's amendment because the matter could be tackled in other ways and, given the importance of this legislation, it is not appropriate that this particular issue resides within the Bill. However, if the Leader is amenable to it, I will return to the House in the middle of January, and perhaps in the context of a debate on road safety, transport policy or some such matter, I could give the House a specific update on where we stand by the middle of January on this point.

5:45 pm

Photo of Averil PowerAveril Power (Fianna Fail)
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I will opt to ignore Senator O'Neill and welcome the Minister's assurance. On that basis I will withdraw the amendment. I welcome the Minister's commitment to come to the House in January. We all want to see that the system is effective. I was coming from the perspective that if someone could at least show that they had booked the test over a month ago, it should be waived. I appreciate the Minister saying that the NCT would be free, but one would still be stuck with the three penalty points. I welcome his assurance that he will come back and brief us on this topic in a month's time.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I thank the Minister for his openness in this regard. It is a helpful debate. With regard to Senator O'Neill, I wish him well, as he knows. He is not quite ready yet to fill the Minister's shoes.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Title agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I thank the Minister for having the patience to deal with the issues today. We were prudent on the issue concerned and put it to a vote. We said at the outset that we support the general thrust of the legislation. The days of penalty points are here to stay.

Regrettably, too many people are still dying on our roads and I wish everyone safe driving from here to the new year. It is very sad to lose anybody in a road traffic accident, but for somebody to be involved in a fatal accident or to be killed in or around Christmas time is far more poignant and regrettable, not that it is ever easy. The RSA is doing a good job. By and large, all the NCT centres are doing a very good job.

Many years ago, when the NCT first came out, I had a four or five year old Mercedes. I went for an NCT and it failed, even though I thought it was a pretty good car and I have not been able to afford one since, a Mercedes anyway. They pointed out that there was a small hose pipe, which, I presume, forced the brake pads to work against the hub of the wheel when one pressed the brakes. I had never noticed it leaking, but I was not annoyed and it was a very wise thing to do, because they said that if that brake fluid kept leaking, I would have no brake in an emergency. I was very glad that they pointed it out. I had to get it fixed and came back and it was passed. They do an excellent job and must be complimented. I hope that by raising this issue here, nobody will get a belt of a stick down in west Cork, but it is important to have these debates.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I thank the Minister for bringing this Bill to the House. It was very important that this would be dealt with immediately when the Minister realised last Wednesday that there was a problem with the previous legislation, and I commend him on that. We had a bit of banter here today, but I remind Senator O'Donovan that he might be able to get the Mercedes when he gets back to the other House. I am not trying to fill the Minister's shoes. Agriculture would be more suited to me.

Photo of Paschal DonohoePaschal Donohoe (Dublin Central, Fine Gael)
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I thank all Senators for their contributions and for the way this Bill was dealt with. I need to bring in this legislation promptly to deal with the issues we described earlier, and Senators have been exceptionally considerate of that. The issues that were raised about the amendment were raised on the grounds of prudence rather than on the grounds of opposition. Senators O'Neill and O'Donovan spoke about road safety at Christmas and how it is so difficult to lose someone in a road accident. There is more traffic on our roads at this time of year, so there is a need for people to be safer. Bringing this Bill through the Oireachtas, as I aim to do this week, will ensure that a very important part of how we keep our roads safe, namely, the integrity of our penalty points system and how it is implemented, will be maintained across this period. I thank all Senators for their support in that.

Question put and agreed to.

5:55 pm

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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When is it proposed to sit again?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Ag leathuair tar éis a deich maidin amárach.