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Lords amendment: No. 9, in page 9, line 44, at end insert new Clause B—
("B. In section 96 of the 1968 Act (restrictions on drivers' hours), after subsection (11A) (added by the European Communities Act 1972, with a view to penalising contraventions of the applicable Community rules), there shall be inserted—
(11B) But a person shall not be liable to be convicted under subsection (11A) if—
§ Mr. HoramI beg to move, That this House doth agree with the Lords in the said amendment.
The amendment makes available to drivers and employers operating within the scope of the EEC rules on drivers' hours the same statutory defences against contravention of those rules as are available to drivers and employers operating entirely under part VI of the Transport Act 1968. Thus the clause inserted by the amendment has the effect of bringing the enforcement provisions of the EEC on regulated work into line with those for work regulated by domestic regulation under the Act of 1968.
59 We brought forward this amendment in the Lords following representations from the Freight Transport Association. I think that it meets the approval of the trade unions and the employers.
§ Mr. Peter Fry (Wellingborough)My hon. Friend the Member for Eastbourne (Mr. Gow) made an important point earlier when he paid credit to the other House and its value in relation to the Bill. The whole House owes a debt of gratitude to my noble Friend Lord Lucas of Chilworth for moving the amendment. Although one would have liked the Government to make it, we must give them credit for having accepted it.
We think that a very important point of principle has been recognised in the amendment, simply because the statutory defences which have been recognised in our transport legislation for over 40 years would have ceased to apply where vehicles were being driven under the new Community rules if the amendment had not been made.
Here I would add a word of criticism. The Government have known full well that the whole question of the implementation of the drivers' hours legislation, which we shall talk about later tonight, would give rise to a whole series of anomalies. On Second Reading I criticised the way in which the Bill had been drafted and the considerable lack of thought, in view of the enormous amount of time there had been before the Bill came before the House. Although we give the Government credit for having accepted the amendment, they should have foreseen the situation that has arisen.
§ Mr. John EllisOn a point of order, Mr. Deputy Speaker. I am not being discourteous to the hon. Member for Wellingborough (Mr. Fry) when I say that the amendment is tightly drafted. There is talk in the rules of "unforeseen circumstances" and certain accommodations that can be made. I shall express some views on the general subject of the complexity of licensing and the response of the Government and the Opposition. If the debate is to be allowed to run wide, I hope that all hon. Members taking part will be able to range widely. However, it seems to me that we are discussing a matter that is fairly restricted.
§ Mr. Deputy SpeakerWith all respect to the hon. Gentleman, the Chair must see how hon. Members develop their arguments. As long as they keep within the rules of order and within the scope of the amendment, all will be well. Otherwise, the Chair will intervene.
§ Mr. FryI have no wish to extend this debate much wider. I think that we shall have the opportunity later this evening, perhaps much later, to go into these matters in much greater detail. I wanted only to make the point that an important question of principle had been decided, that in my view the Government should have taken the initiative and that it should not have been left to an outside body to see the inevitable consequences of their legislation.
Having said that, on behalf of the Opposition I welcome the amendment and am very pleased that the Government have accepted it.
§ Mr. John EllisI bear your ruling in mind, Mr. Speaker.
The criticism we have just heard from the hon. Member for Wellingborough (Mr. Fry) about the late stage at which the amendment was made comes ill from a member of a party that is a part-felon on the matter of how we come to be involved in these extremely complicated regulations dealing with drivers' hours and what is and what is not permitted. The whole sin in the present position is the Common Market legislation, and the Opposition Front Bench must take its share of the blame for getting us into this ball game.
Important as the concessions are—and I do not wish to oppose them—we come on to dangerous ground when we allow excuses such as unavoidable delay in completing a journey due to unforeseen circumstances. That paints matters with a broad brush in an area where the law is specific.
We often face the necessity for such an amendment because the EEC regulaticns are so embracing. For an employer charged with causing or permitting his driver to breach the rules, the breach arises because the driver has carried out periods of driving on duty otherwise than in his employment of which he—the employer—was not aware or could not reasonably have become aware.
61 How far down the line do we go with that argument? It seems unexceptionable at first thought, but if somebody is responsible under regulations covering what somebody in his employment does, he has some responsibility in the matter—whether it is in a nationalised undertaking, the Civil Service or anywhere else. For example, it is part of the doctrine of the House that if the sin is committed in a Minister's Department the Minister accepts responsibility.
§ Mrs. Elaine Kellett-Bowman (Lancaster)Not in this Government.
§ Mr. EllisThat is the doctrine of the House. If I were an employer of somebody charged with serving the public, and if he were fiddling the public or conning them, I should take it as part of my responsibility.
I have no rooted objection to the proposal, but the question of dealing with drivers' hours and the legislation must be a full-time job. It is no longer sufficient to be interested in transport generally. Employers need to understand the ramifications of drivers' hours and conditions and everything emanating from the Common Market. I should imagine that each firm or nationalised enterprise will need a full-time adviser on the domestic legislation and the EEC regulations.
The procedure is unsatisfactory. I do not see how any employer or employee can have the necessary knowledge to allow him to work in the unsatisfactory position into which we have got ourselves on legislation concerning drivers' hours and what drivers are permitted to do.
It ill becomes the Opposition Front Bench to offer criticisms. When Conservative Members wax lyrical about the Government's deficiencies, they should think of where they stood on the Common Market and all its works. Criticism should come only from those who took a stand similar to mine and that of some of my hon. Friends and some notable exceptions on the Opposition Benches. The Opposition must share the burden of blame with my right hon. and hon. Friends. I am harsher with my right hon. Friend the Secretary of State and my hon. Friend the Under-Secretary than I am with other 62 Ministers, because my right hon. Friend and my hon. Friend played a murky part in their eagerness to get us into the Common Market.
§ Mr. LeeI endorse all that my hon. Friend the Member for Brigg and Scunthorpe (Mr. Ellis) has said. Absolute offences are a part of the law that one frequently encounters. One tends to regard this as the type of offence connected with the food and drug regulations whereby, for various reasons, if a breach is committed that is sufficient for the purposes of a conviction and, whatever the mitigation, the offence is made out.
I infer from the blurb which has been obligingly provided that a different defence may be available for a breach of the European Community drivers' regulations as opposed to a breach of the domestic law. If I am wrong about that, the Minister will no doubt put me right. It is odd that there should be two criteria by which proof of a criminal offence may be supported depending on whether the legislation is of a domestic kind emanating from this House or imposed on us by our Common Market masters.
5.0 p.m.
The defences seem to be somewhat loose. It may be that the proof of the pudding is in the eating. One would like to see what a court would regard as "unforeseeable circumstances". That phrase is as difficult to define as it is to define "reasonableness". The terms "reasonable man" or "reasonable circumstance" or "reasonable defence" are among the most tautologous phrases that a lawyer can use. We use them, I suppose, because we give up the attempt to define what is often almost indefinable. This is an invitation to vagueness, to an evasion of the law, to a whittling down of its impact.
I should be interested to know how an employer who properly plans his work programme will avail himself of the defence which allows him to say that he was not aware or could not have been aware that the journey was not likely to have been achieved except by a breach of the hours limitation. It may well be that where a genuinely meritorious instance occurs there is a case for the court imposing a conditional or absolute discharge. That is a not infrequent device 63 resorted to in cases where an offence has been made out but where it is clear that it is not made out in a moral sense.
I share the concern that has already been expressed about the intention of the Government, bearing in mind the wide and imprecise nature of the offences. I find it all the more unsatisfactory when such offences are made referable to Common Market law rather than domestic law. I know that the Secretary of State is a Common Marketeer and may be inhibited from making an objective assessment of the situation. I am hoping for the best.
§ Mr. Robert Adley (Christchurch and Lymington)The Prime Minister is much given to quoting poets. I shall misquote slightly. Kipling it was who wrote:
If you can keep your head when all about youAre losing theirs and blaming it on you,".It seems that certain hon. Members have revised that slightly so that it now reads:If you can keep your seat when all about youAre losing theirs and blaming it on you,".There is a constant attempt to blame the European Community for all our problems. That carries little weight with many Opposition Members and members of the public.I feel sorry for the Secretary of State. He is faced with overt hostility from such Cabinet colleagues as his right hon. Friends the Minister of Agriculture and the Secretary of State for the Environment. Their hostility to the European Community is known because they never stop promoting it. No one should be surprised if, as a result, the Secretary of State for Transport finds it difficult if not impossible to negotiate happily with the Community. We are always giving the impression that the majority of the members of the Government have as their overriding priority the destruction of the EEC and the damnification of all its works. No wonder they do not help as much as they might.
§ Mr. HoramBy leave of the House, in reply to my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), may I say that we are providing the same defence for the EEC regulation offence as is already available for Transport Act offences. The Opposition, when in Gov- 64 ernment, did not include the offences as amendments to the Transport Act in the European Communities Act 1972.
§ Question put and agreed to.