OFFENCES, ETC. (Hansard, 28 July 1982)

§ Mr. Allan Stewart
I beg to move amendment No. 40, in page 5, line 45, leave out `that is to say an order'.

Mr. Deputy Speaker
With this it will convenient to take Government amendment No. 101.

§ Mr. Stewart
These are purely drafting amendments which remove unnecessary words.

§ Mr. Allan Stewart
I beg to move amendment No. 41, in page 6, line 7, at end insert—

Mr. Deputy Speaker
With this it will be convenient to take Government amendment No. 102.

§ Mr. Stewart
The first part of the amendment makes provision for an appeal against an order revoking a licence or disqualifying the licence holder. The second part meets a commitment given in Committee to enable a disqualified person to apply to the court for removal of a disqualification. Government amendment No. 102 effects for schedule 2 what we are effecting for clause 7.

§ Mr. Dewar
The Minister has been doing so well that I feel a heel to rise with a small although serious point.
I welome amendment No. 41. I pushed for it, but I did not have to push hard. The Minister speedily conceded that it was right to introduce a provision similar to that in the Road Traffic Act. If under the Road Traffic Act a person is disqualified from driving for a lengthy period, after a certain period has passed he can return to court to ask for the disqualification to be lifted, normally on grounds of hardship and if there has been good conduct in the interim.
Under clause 7(8), apart from fining for a number of offences, the courts can disqualify a person from holding a licence for a period not exceeding five years. Often a driving licence is a basic requirement to earn a livelihood in the way to which a person has been accustomed and it is right to make provision for the courts to review the situation on application.
The provision in subsection (9)(b) is more generous than that in the Road Traffic Act 1972. Application can be made on the expiry of the first year of disqualification. Even if it is only a two-year disqualification, presumably application can be made after the first year. Will the Minister confirm that my understanding is right?
The point that is of some moment is that at the end of new subsection (9B) appear the following words: and, in either case, may order the applicant to pay the whole or any part of the expenses of such application. That is an interesting inhibition.
Some hon. Members may think that I exhaustively refer to the Road Traffic Act parallel. If I appear for a client in Glasgow sheriff court and succeed in persuading the court that his driving licence should be restored because he has served three and a half years of a five-year ban, that is splendid. But I am not aware that the court can tell the applicant to pay a proportion of the prosecution costs, for instance, for getting the police to see whether there have been convictions or any other problems in the intervening period. An important innovation appears to be proposed almost surreptitiously.
We are dealing with a disqualification that is not a civil procedure in the normal sense. It is a disqualification based on a criminal conviction. Having fined the person £100 or £150, the sheriff may ban him for five years from holding a licence of the sort involved in the offence. It is against the background of that criminal process that the appeal for the removal of the ban would be made. Is it right that there should be an award of costs, and what would they consist of?

§ Mr. Allan Stewart
The provision for claiming the expenses of the application is in precisely the same terms as that in the Road Traffic Act. Subsection (9B) ensures that a person who has been disqualified by an order of the court can make an application to the court to have the disqualification removed. That meets the undertaking that we gave in Committee.
When we considered the proposed provision, we had regard to the provisions for lifting disqualifications under the Road Traffic Act which narrate the circumstances that 1123 the court may take into account, specify a minimum period of one year or one half of the period of disqualification, whichever is the longer, before the application can be made and prohibit repeated applications within a specified period if the first application is unsuccessful. But we felt that in this instance such elaborate provisions were not required.
The court may take any relevant considerations into account. The period of one year's disqualification before the application can be made seems sufficient. Common prudence would normally discourage an applicant from repeating early applications if the first is refused, as the court would be unlikely to reverse its earlier decision until a reasonable time had elapsed and the cost of a repeated unsuccessful application would fall on the applicant.

§ Mr. Dewar
If there is a similar provision in the Road Traffic Act for costs it is seldom used. I am curious which costs they would be. Would they be the procurator fiscal's costs or the costs of the police in searching to see whether there were convictions during the period of the ban or in making a character search? I am totally unaware of such machinery having been used.

§ Mr. Stewart
I confirm that the provisions are in the same terms as those in the Road Traffic Act. Court costs would be covered. If the hon. Gentleman wishes to write to me for particular definitions, I shall happily respond.