Penalty points loophole

plodder

Does anyone know what the loophole in the penalty points legislation actually is?

Also, what are the chances that the legislation to close the loophole retrospectively will survive challenge?

I'm not an expert, but could you not argue that someone accepted the penalty knowing that the points couldn't be applied to their license, and retrospectively changing that situation, is contrary to their constitutional rights?

Pat Mustard

Just from looking at the Irish Times, it looks like the Minister for Transport failed to commence certain legislation. Therefore, it seems that legislation has no effect at the moment.

The failure to properly commence certain relevant legislation of 2010 has the effect of rendering the endorsement and penalty points null annd void, it is submitted.

Counsel said the loophole has been accepted and in the coming days the Minister for Transport is to take steps to retrospectively correct the issue.

Beano

can the minister retrospectively commence legislation?

plodder

The retrospective angle though seems to be something like - drivers who accepted the penalty have not been convicted of anything, and therefore retrospectivity doesn't apply because it is some kind of administrative charge (plus application of points to license) rather than a fine imposed by a court. But, how can you even change the terms of a charge retrospectively? Sounds dodgy to me, unless I've picked it up wrong ...

Happdog

Not 100% sure but I think the problem is the non-production of Driving Licenses in court. This has been a problem for years. The case currently running is probably an attempt to have the points expunged due to the fact that no licence was produced in court on the day. I am unsure how the Department of transport actually apply points to a license if the court order states no license.

plodder

Beano wrote: »

can the minister retrospectively commence legislation?

No.

Pat Mustard

plodder wrote: »

No.

Maybe it would be unconstitutional to do so in this case, but it's not as simple as an outright no in all cases, plodder.

It may very well be the case that legislation with retrospective effect would be found to be unconstitutional but that would depend on the type and effect of that legislation.

As matters stand, I don't know for certain which sections are in question.

See tax article re constitutionality or otherwise of legislation with retrospective effect:

http://www.taxandlegal.ie/articled.html

schemingbohemia

The Mustard wrote: »

Just from looking at the Irish Times, it looks like the Minister for Transport failed to commence certain legislation. Therefore, it seems that legislation has no effect at the moment.

From that particular case it would seem important that the driver does get banned, I mean how stupid can one person be to get done twice in the one day, particularly as she already had 6 points. I'm sure it will only be a matter of time before she gets a ban anyway but she obviously didn't learn her lesson from being caught the first 3 times! It's not like it was a dual carriageway with a temporary speed limit she was on, it was the M6!

Happdog

Just reading the recent amendment put forward last week to amend the 2014 Road traffic act.


It attempts to make that that section 8 1(b)(i) never came into effect. This section states:

(b) in section 2—

(i) in subsection (1), by substituting “under section 37 or 44 of the Road Traffic Act 2010 ” for “under section 103 (as inserted by this Act) of the Principal Act”, and

It seems to be making changes to section 37 – 47 of the 2010 Act which deals with endorsement of penalty points. These sections never commenced. Would imagine this is the legislation refered to in the Times article.
Seems complex and technical.

plodder

The Mustard wrote: »

Maybe it would be unconstitutional to do so in this case, but it's not as simple as an outright no in all cases, plodder.

It may very well be the case that legislation with retrospective effect would be found to be unconstitutional but that would depend on the type and effect of that legislation.

As matters stand, I don't know for certain which sections are in question.

See tax article re constitutionality or otherwise of legislation with retrospective effect:

http://www.taxandlegal.ie/articled.html

it's an interesting question. My understanding is that some kinds of administrative law (eg taxation) could be retrospective in nature. But, even that is controversial as the article you quote shows:

Taxation is generally speaking an obligation on individuals, and that can and does change from year to year. But, criminal sanctions are a different thing. I understand that penalty points are technically not a criminal sanction, and they aren't from some points of view, but not necessarily all imo.

Being banned from driving for six months, is far worse than getting an 80 euro fine in a court. So, the distinction is not on very solid ground in my (unqualified) opinion.