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

Sections 1 and 2 agreed to.
SECTION 3

I move amendment No. 1:

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

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

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

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

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

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

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

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

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

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

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

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

I thank the Deputy. With regard to how I view the Deputy's amendments, I am very pleased that I changed the merchant shipping Bill because the Deputy pointed to an issue. As he will recall, I felt at the time that I could not accept the exact amendment he put forward to me but we changed the Bill. To be fair, I know the Deputy still wants a further change in regard to the Bill but the point stands that because the Deputy put forward an amendment in regard to a Bill that was in front of the House that pointed to an area in which it could be strengthened, the Bill was then changed and improved. I am also pleased that, for example, on another piece of road traffic legislation in regard to road clamping and the regulation of that sector, which I took through the Seanad and which will come to the Dáil in the near future, changes were made in the Bill in the Seanad because of amendments and points that were made by the Senators in that Chamber. I just make that point to the Deputy because, leaving aside the time pressure I am operating under because of the urgency of the matter, if I had felt the amendment the Deputy put forward was going to improve and change the nature of the Bill, I would have accepted it. I want the Deputy to be clear on that.

It is an important principle in regard to how we consider legislation, and particularly how we consider amendments that are put forward to me from Members of the Opposition, that they are evaluated on their merits. The only reason I contacted the Deputy earlier today was because I genuinely felt, on foot of the advice I had received, that if I had changed the Bill in the way in which the Deputy wished, it would have meant it could not have achieved the objectives I believe are vital.

With regard to some of the specific points, the Deputy made a point about the penalty actually changing because of this legislation being, I hope, enacted by the Dáil later today. With respect, that is a point of difference I have with the Deputy in terms of my own understanding of how the Bill will operate. It goes back to the debate we had earlier. For me, because there was clarity on the penalty that was going to be accepted by the person when the person accepted that an offence had been committed, and because that penalty has not changed, that is the reason I do not believe the magnitude of penalty has changed in the way the Deputy does. I respect completely where he is coming from.

How this would work in practical terms is that if somebody believed he or she would get three penalty points across the period of greatest concern for the Deputy, he or she would receive three penalty points due to the enactment of this Bill. One of the many things on which we will have clarity due to the enactment of the Bill is that the quantum of the penalty will not change. I ask the Deputy to consider this in the context of the point he has made. I understand the Deputy would be concerned if the level of penalty changed in any way.

In regard to the reference made to the European Court of Human Rights and the role of that body of law in Irish law, as somebody who has had responsibility for European affairs, I wish to make clear my understanding of the importance of that body of law to Irish law, culture and political life. Like the Deputy, I am proud of Ireland's legal and legislative history in that regard. While he would expect it to be the case, it is important I make it explicit to him, given his level of concern, that under no circumstances would I bring forward a Bill if I believed it would in any way contravene the Constitution or any other body of law that we subscribe to.

The Deputy asked for the rationale for the "saver" clause in this Bill. The sole reason this is included and that I ask the support of the House for it is to make explicit that the passage of this law does not in any way affect a matter that is currently before the courts. I say this as somebody who believes strongly in and accords significant value to our liberal values in how we govern ourselves. A cornerstone of all of that is absolute respect for the different spheres of power within public life. They do one thing - and it is the courts that much of this will be tested - and the Oireachtas does something different. The only reason this clause is being introduced is to make clear to the Oireachtas and beyond that the legislation being introduced fundamentally respects the right of an individual to take the law as it was then to the courts. I wish to make that clear in this Bill.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I wish to record my appreciation for the manner in which this Bill has been dealt with by the Dáil. I acknowledge the approach taken by Deputies in regard to its scrutiny and dealing with this challenge. I assure them I do not take this interest or approach for granted and will in the new year continue to engage with the Joint Committee on Transport and Communications on matters they believe are important. I also acknowledge and thank my officials and officials in the Office of the Attorney General for the role they have played in the drafting of this legislation and for the approach taken by all involved.

Question put and agreed to.

A message shall be sent to the Seanad acquainting it accordingly.