Clause 27

HC Deb 26 October 1982 vol 29 cc933-43

FIXED PENALTY NOTICES GIVEN AT A POLICE STATION.

Lords amendment: No. 23 in page 29, line 12, after "notice" insert (being a police station chosen by the person concerned)

Mrs. Chalker

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this we shall take Lords amendment No. 24 and amendments (a) and (b) to the Lords amendment, which stand in the name of the right hon. Member for Barrow-in-Furness (Mr. Booth).

Mrs. Chalker

I understand that the right hon. Member for Barrow-in-Furness (Mr. Booth) would like me to put it on record that the purpose of Lords amendment No. 23 is to ensure that the police station specified in the notice as the station at which the driver must present his driving licence and preliminary notice in order to receive a fixed penalty notice is one chosen by the driver rather than by the constable.

The purpose of Lords amendment No. 24 is to exclude Scotland entirely from the operation of clause 27, which allows fixed penalty notices to be given at police stations. Clause 27 does not apply in Scotland and it might be helpful to remind the House why. Scotland and England have two very different legal systems. From time to time the reason for that baffles us all, but it is historic and we maintain it.

When the Scottish provisions of the Bill were drawn up following the recommendations of the Stewart committee, the Government had it in mind that they wanted to offer the Scottish motorist the widest possible range of opportunities to have his offence dealt with, if he so chose, by fixed penalty. Therefore, we accepted the Stewart committee's recommendation that fixed penalties should be available to the police, and for a wider range of offences to the procurator fiscal, the Scottish public prosecutor. The fiscal will be able to offer a fixed penalty in cases in which the police have been unable to do so including cases in which they had not done so because the driver was not carrying his driving licence at the time of the event. There is, therefore, no need to have a fixed penalty available at a police station in Scotland, as provided in clause 27 for England and Wales.

Clause 27 does not apply to offences committed in Scotland and that was the position when the Bill left the House. However, after further consideration of the matter, and strong representations from the Scottish police, the Government decided that one further amendment was necessary to exclude Scotland entirely from the operation of clause 27. As the clause is presently drafted, without the amendment made in another place, it would be possible for a Scottish driver stopped by the police in England or Wales to nominate, under clause 27, a police station in Scotland at which he would present his driving licence, and, all being well, get a fixed penalty.

That would mean that all Scottish police stations would have to be equipped, trained and manned to issue fixed penalty notices to those drivers, despite the fact that there would be few of them, and despite the fact that Scottish police would not be issuing such fixed penalty notices for offences committed in Scotland.

6.30 pm

That would represent a substantial administrative burden, because every Scottish police station would have to be prepared for that, even though in practice they would only issue such a fixed penalty notice occasionally. The Scottish police have represented strongly to us that that would be an unnecessary and undue administrative burden. The Government accept that point, as we seek always to minimise the administrative burdens on the police so that they can get on with their primary job of preventing and detecting crime.

The amendment provides that a police station in Scotland may not be specified by a motorist in England or Wales for getting a fixed penalty notice. It has been suggested that that would be a disadvantage to Scottish motorists travelling in England and Wales who are not carrying their driving licences, as they will be deprived of the benefits of the fixed penalty system. [Interruption.] I respond to the noise made by the Opposition by saying that if drivers do not break the law when they come to England or Wales they will not need that provision. There must be Scottish drivers in England or Wales without their driving licences who are stopped by the police for an endorseable fixed penalty offence.

The offence must be one which in the opinion of the constable merits a fixed penalty—not so trivial as to require merely a warning, and not so serious as to demand prosecution. The driver must be willing to accept a fixed penalty and the endorsement of his driving licence. He must not dispute that he is guilty of the offence or he must go to court. He must not be liable to disqualification on the totting up system. Those preconditions will mean that only a few drivers will be affected. There will not be many Scottish drivers who break the law south of the border. The disadvantage that they are held to suffer will not be that great.

If a Scottish driver commits an offence in England or Wales he will have the opportunity to plead guilty by letter. If he is prosecuted, his driving licence will be endorsed with the same number of points as it would have been following the fixed penalty. The size of any fine imposed will be a matter for the court to decide. It will be open to the motorist to explain to the court that he was unable to get a fixed penalty at a police station because his home was in Scotland. The court will be able to take that into account when deciding on the penalty. If hon. Members consider that it would be of help, I should be happy to draw the matter to the attention of the Magistrates Association whose members will be dealing with those few cases that are likely to arise.

The Government have sought to offer the Scottish motorist the maximum number of opportunities to get a fixed penalty notwithstanding the system of criminal procedure north of the border. In so doing, we have found it necessary to exclude a few Scottish motorists from that benefit. The disadvantage that that group will suffer will not be great.

In our assessment, and that of the Scottish police, the administrative burden necessary to allow that small group to get fixed penalties would outweigh the benefits it would be likely to obtain. That is why the Government sought, and continue to support, the amendment.

Mr. Robert Hughes (Aberdeen, North)

I wish to refer to Lords amendment No. 24 and amendments (a) and (b) thereto, in my name and the names of my right hon. and hon. Friends.

It is, perhaps, not right for me to introduce a discordant note into proceedings which can be described as having been comradely so far. The Solicitor-General for Scotland informed me courteously that he would be in Brussels. In my view, he should be in the House to deal with essential Scottish legislation. The Under-Secretary of State for Scotland is sitting on the Government Benches. He should deal with matters affecting the Scottish police. However, I do not cast any aspersions on the Minister who has so charmingly and mistakenly dealt with Lords amendment No. 24.

When the Brill was originally published it was understood that a fixed penalty notice could not be given to an alleged offender if he or she did not have his driving licence with him at the time of the commission of the alleged offence. It became clear that in Scotland, because of our separate legal systems, the procurator fiscal could make an additional offer under clause 40, which had the effect of a fixed penalty.

Motorists were being treated differently north and south of the border. Motorists north of the border had a wider option than those south of the border. If one had one's licence one took a fixed penalty, but otherwise the offence was fed into the court system. In Committee and on the Floor of the House we persuaded the Government to build on section 161 of Road Traffic Act 1972. That section empowers a constable to direct a driver who does not have his driving licence with him and is stopped for an offence—whether or not he is charged or cautioned—to take his driving licence to a police station of his or her choice within five days so that that licence can be examined as to its validity. The Government accepted what is called the five-day option, which requires a motorist who is stopped for whatever reason and who does not have his licence with him to produce that licence for examination.

Clause 27, which we accepted in its entirety when it was proposed by the Government, provides that a motorist who is stopped and does not have his licence with him may receive a notice from the constable. He then takes that notice and his licence to a police station of his choice. Provided that all the other factors appply, and it is an appropriate case for a fixed penalty notice, he will be given such a fixed penalty notice.

When the Bill left the House to go to the other place drivers in England and Scotland or Wales were being treated similarly under a different legal system. We all believed that everything was fine. We understood that Scotland was excluded from. the provisions of clause 27 because the provision was enacted differently under clause 40.

As a result of Lords amendment No. 24 a driver from Scotland travelling in England who does not have his licence with him does not have the option of the five days to accept the fixed penalty notice, nor does he have the option of being dealt with under the procurator fiscal system because that can only be used for offences committed in Scotland. It has been argued in another place—I accept the argument to some extent—and by to Minister today that every police station in Scotland would need to have an English fixed penalty form, and police officers trained in its procedures. We have the police station at Auchtermuchty trotted out, as being the sort of place where those things could not apply.

The principle that has been advanced today, that a good law is not needed for a few cases only, is a bad legal principle. If a few cases deserve good treatment they should get it. Amendments (a) and (b) can get round the difficulty of training and of keeping masses of forms.

Under amendment (b) the police station can be specified, and the driver could take the notice that he had under section 27 with his licence to that police station in Scotland. He would probably have another document to say that his licence should be examined for validity. The police station would then return the documents to the issuing authority in England. It could be described as fixed penalty by post.

A police officer would require no special training. According to the Minister, every policeman in Scotland should be trained to operate section 161 of the Road Traffic Act 1972. It would be using well-tried procedures to send the documents by post. Instead of putting one document in an envelope the policeman would merely have to put three.

The amendments would restore parity between drivers in England and in Scotland. Each would benefit from the other's system. Although it is not a major issue, the situation could irritate Scottish drivers who would wonder why they were treated differently. The hon. Lady argues that the difference is negligible, as a driver could plead guilty by letter and could in mitigation state that he would have taken the fixed penalty had he had his driving licence with him. The average motorist is not skilled in the law. I believe that my proposal is reasonable, workable and practical. It demands no more training or resources.

Mr. Michael Ancram (Edinburgh, South)

The hon. Member for Aberdeen, North (Mr. Hughes) would appear to suggest that Scottish motorists are coming out worse as a result of the clause. Its operation in Scotland, by using the process of the procurator fiscal, will give Scottish motorists in Scotland more opportunities to have fixed penalties than their English counterparts. Schedule 2 lists a number of fixed penalties additional to those that will be available in England. The provision puts the Scottish motorist in Scotland in a more favourable position than his English counterpart and in no way does him down.

The hon. Gentleman rightly pointed out the discrepancy for Scottish motorists motoring in England. The fact that we have two legal systems is important, particularly to Scottish lawyers. We expect our police forces to operate within our individual system. I can think of no occasion other than the one that he mentioned where the Scottish police would be asked to operate an exclusively English procedure. Effectively that is what he is asking them to do.

Mr. Hughes

Amendments (a) and (b) do not require the Scottish police to do that; they simply require them to operate a parallel system, which they already do under section 161 of the 1972 Act.

Mr. Ancram

The police would be asked to operate a procedure, however simple, exclusively within the remit of the English rather than the Scottish law. In a similar Scottish case the matter would go to the procurator fiscal. In many ways the Scottish system is easier. It does not require a visit by the driver. The procurator fiscal gives the option of the fixed penalty.

To follow through the logic of his argument, the hon. Gentleman would argue for uniformity between the two systems, but then the Scottish motorist would come off worst. The majority of them motor in Scotland and will benefit by the way that the clause is drafted. The interests of the majority should prevail.

6.45 pm

Mr. Donald Dewar (Glasgow, Garscadden)

I am slightly puzzled by the argument of the hon. Member for Edinburgh, South (Mr. Ancram). We are not arguing about whether clause 27 should be in the Bill. It is common ground that the proposal is helpful. But the provision is there because an attempt is being made towards uniformity in the systems of England and Scotland. It would give the English an option that is already available to the Scots because of the existence of the procurator fiscal system. The uniformity cannot be achieved administratively. The administrative procedures are different north and south of the border. But we have been reaching for uniformity.

We are talking not about what happens to Scottish motorists who may have offended in Scotland but about the not necessarily large, but not unimportant category, of Scottish motorists who may get into trouble south of the border. Constituents of my hon. Friend the Member for Berwick and East Lothian (Mr. Home Robertson) may do more mileage in England than in Scotland. Berwick is their main centre for shopping and other activities.

The Minister's arguments are puzzling. If a Scot has offended in a minor way against the Road Traffic Act 1972 and normally would have been liable to a fixed penalty, because of the way in which clause 27 was amended in the other place, he will be the subject of proceedings in the magistrates court south of the border. I have been a jobbing solicitor in Scotland and I know that nothing causes more confusion than the arrival on a Scottish breakfast table of a summons from an English magistrates court. It is an alien document. People do not understand what it is about. It is an illusion to believe that the average Scot could write the appropriate plea of guilty, if he so wished, and succinctly explain that he was in that position only because of the Government's drafting of section 27 of the Transport Act 1982, as it would then be. He will come rolling round to a Scottish solicitor clutching the extraordinary collection of papers to ask what on earth to do. Some of my colleagues may not see that as a cause for complaint. He will be told that, fortunately, there is the legal aid advice and assistance scheme and the solicitor can expend a substantial sum on giving him advice and guidance on his rights. Then the Under-Secretary of State for Scotland, the hon. Member for Renfrewshire, East (Mr. Stewart), who is sitting on the Front Bench, will whine and complain to the House about the rise in expenditure on the legal aid fund.

The proposal is clumsy, unfortunate and will cause great administrative inconvenience. The hon. Lady said that we must do everything that we can to cut down the administration that falls on the police service. I do not dissent from that general principle. We should avoid unnecessary complications, which only increase the administrative burden.

The hon. Lady also said that there had been a great deal of pressure from the police. I do not know whether it came from the Scottish Police Federation, from chief constables or where. No representations have been made to me. I do not know whether other hon. Members have received representations. I believe that the hon. Lady was taking an exaggerated view of the problem when, slightly dramatically, she said that every police station in Scotland would have to be equipped, trained and manned to deal with the work. All those caught under section 161 of the 1972 Act will bring their driving documents for clarification.

We suggest that the police should not carry out the English procedures in Scotland but that they should send the necessary documents to the police force in whose area the offence occurred. That simple procedure will reduce the complications that may result, not just for the offender but for the magistrates courts and those in the Department of Transport who must draft a circular to magistrates drawing their attention to the complication. We all have the same objective, but many of the difficulties that have been erected to buttress the Government's approach to the problem are greatly exaggerated. The suggestion of my hon. Friend the Member for Aberdeen, North is simple, workable and infinitely preferable.

Mr. Gordon Wilson (Dundee, East)

I support the amendment tabled by the hon. Member for Aberdeen, North (Mr. Hughes). I am glad that the hon. Member for Glasgow, Garscadden (Mr. Dewar) ended by talking about simplicity. The suggestion made by the hon. Member for Aberdeen, North is essentially simple and would be of great help to unfortunate motorists who are accused of having committed a motoring offence in England and who are pulled before the magistrates courts simply because a gap in the law does not allow them to exhibit their licences. The forms that are required could be sent back to the prosecuting police force by the Scottish police in an envelope that should be provided by the prosecuting police force. The Minister's explanation is fatuous. I am not convinced about the alleged administrative load that will be placed on the police. The hon. Member for Aberdeen, North said that the police are already well equipped to carry out the required action.

I shall not mention the acceptance of clauses 27 and 40. Clause 40 is much more preferable than clause 27. I shall direct my remarks to the motorist from Scotland who is driving in England and who becomes involved with the police. The Minister said that the motorist could write to the magistrates court to explain the position. The hon. Member for Garscadden said that many motorists will not know about the opportunity with which the Minister has provided them. They do not know about the law or the details that may be given in litigation.

The Minister also said that she would bring the problem to the attention of English magistrates. For up to five months there may be a vestige of recollection by the magistrates of such ministerial advice, but the legislation is intended to last for many years. The Minister's advice will be forgotten quickly and Scots in that position may have to pay additional penalties because they have not invoked the opportunity open to them.

Would a Scottish motorist who is driving in England be required to pay expenses arising from a prosecution in the magistrates court? Expenses are not paid in criminal cases in Scotland. If one appears before a magistrates court, the motoring offence will be placed on one's record of convictions. That fate cannot be escaped, but the suggestion of the hon. Member for Aberdeen, North is reasonable and acceptable to me. Much expense will be incurred if a prosecution is brought in the magistrates court.

Mr. John Home Robertson (Berwick and East Lothian)

It is rather strange to hear two Scottish lawyers in succession referring to the benefits of simplicity. My hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) implied that a Scottish legal document might be more easily understood than its English counterpart. In my experience, Scottish legal documents tend to be in Latin, whereas English legal documents are at least in English. [Interruption.] That seems to have set the Scottish lawyers tutting.

The Minister said that she was baffled by the history of Scotland and wet she might be. Sometimes when, in her sleep, she is chased through the Lobbies by her Whips in order to legislate for Scotland, she is taking part in a process from which Scotland has suffered for many years. Many hon. Members believe that legislation that affects Scotland specifically should be dealt with in a Scottish Assembly.

Either we are talking about a reasonable privilege for motorists in both England and Scotland or we are not. The Minister suggested that few Scottish motorists were likely to be caught in such a predicament. However, week alter week in my local press I see long lists of English motorists who have been prosecuted in Scottish courts for speeding offences in Scotland. I have no reason to doubt that my constituents do not reciprocate the offences when they travel in England. Many drivers, especially from my constituency and from the Borders, are involved.

The Minister said—it seemed to be confirmed by vigorous nodding by the Under-Secretary of State for Scotland with responsibility for home affairs—that I he police have asked for the reduction of the legal privileges available to Scottish citizens. Such representations should be rejected by the House now. We are told that the police must be equipped, trained and manned to examine a driving licence. That is not a reasonable argument. The Lords amendment that the House is asked to accept is absurd and discriminatory and I wholeheartedly support the amendment of my hon. Friend the Member for Aberdeen, North (Mr. Hughes).

Mrs. Chalker

I must now try to put the matter in context. I was at pains to point out to hon. Members why only a few Scottish motorists are likely to be affected.

Mr. Robert Hughes

They are better drivers.

Mrs. Chalker

They may be better drivers. I do not wish to see the better driver infringe the law, so" Scottish drivers in England may not find themselves in the difficulties described by Labour Members.

We must examine what happens to the Scottish driver in England and Wales that causes him to fall foul of the law. He must have come south without his driving licence and been stopped by the police for an endorsable fixed penalty offence. The offence must, in the opinion of the constable, merit the fixed penalty. The offence must not be trivial, which would receive a warning, and not so serious as to demand prosecution. The driver must be willing to accept the fixed penalty when he is stopped by the English policeman and he must not dispute the fact that he is guilty. When he is stopped, he must be willing to accept the endorsement of his driving licence. If that is so, he will plead guilty by post anyway. In addition, that driver, south of the border, must not be liable to disqualification on a totting-up basis. That is a fairly hefty list of preconditions which whittles down the number of Scottish drivers south of the border who are likely to be caught by this provision.

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The hon. Member for Aberdeen, North (Mr. Hughes) made the point, although not directly, that the Bill does not affect the Home Office road traffic procedures. If a motorist is stopped south of the border he is still required to show his licence. It only affects the fixed penalty notice system and in this way we are trying to ensure that it is absolutely clear how the system will be enacted.

I turn now to amendment (b), on which we are at variance. I was surprised to hear the hon. Member for Glasgow, Garscadden (Mr. Dewar) and the hon. Member for Dundee, East (Mr. Wilson) say that it was a simple matter. The amendment states: and the notice under section (1) above"— that notice is a fixed penalty notice— together with the person's licence, shall be returned by the specified police station to the issuing authority, to be dealt with in accordance with this Part of this Act. That is the fixed penalty notice and that is why I must tell the hon. Member for Aberdeen, North that his Scottish police stations cannot act simply as a post box. The amendment requires them actually to issue the fixed penalty notice. That is why I have been at pains to explain to the House that it would involve developing procedures to ensure that Scottish police stations were properly organised, trained and manned to carry the matter out.

Mr. Home Robertson

They would need extra manpower.

Mrs. Chalker

I am sure that there will be so few Scots who are going to break the law south of the border that it would not be necessary, but it means that a man must be on duty north of the border who knows the English law when the Scottish citizen comes in with his licence.

The attitude of the Scottish police has been questioned by the Opposition. The Association of Chief Police Officers in Scotland has made strong representations to be excluded from the operation of clause 27. Comments were made to me personally on a recent visit to Scotland and comments have also been made to the Scottish Office and to the Home Office. The association has said that the provision would cause police officers work which would prevent them from concentrating on their prime duty of preventing and detecting crime.

We must accept those comments on this matter. That is why I have said that the motorist cannot benefit from the hon. Gentleman's proposal in the way that he would like. In Scotland the motorist would walk away from the police station without his fixed penalty notice and he would have to have another served on him. That could lead to additional difficulties which no hon. Member would want.

The hon. Member for Aberdeen, North also asked me about costs. Costs can be ordered in English courts, as I am sure they can in Scottish courts. [HON. MEMBERS: "No."] I am in error and I beg the House's pardon. It is entirely up to the magistrates whether costs are ordered.

The fixed penalty notice system is being introduced to ease the system and not to make it more complicated. Yet here we are debating amendments to the Lords amendment which would complicate matters for the police in Scotland.

Mr. Gordon Wilson

Is the Minister saying that there is no guarantee that a Scot in the position described will be able to escape costs but that it is to be left to the discretion of magistrates, who may not know and may care less about the differences between the legal systems?

Mrs. Chalker

Of course the magistrates will know. They will be advised by the clerks. Perhaps the hon. Gentleman does not know our system south of the border. The clerks will advise the magistrates and when they see a Scottish address—or even hear a Scottish voice if the person decides to go in person to plead guilty—they will be in no doubt that they are dealing with a Scot who has come south and offended against the law.

If the suggestions by the hon. Member for Aberdeen, North were further developed, what would be missing would be the face-to-face confrontation or meeting between the driver and the policemen who should serve the driver with the fixed penalty notice. We had many discussions in Committee as to how this would best be done. It would mean two separate policemen being involved. If the five-day option is taken up south of the border, that is likely to happen. The fixed penalty by post idea, which was finding favour on the Opposition Benches, would not do because the notice must be personally served and that is better done in the way we have described.

The hon. Member for Berwick and East Lothian (Mr. Home Robertson) was concerned about cross-border motorists. If someone from his lovely constituency offends south of the border, Berwick police station is not terribly far to have to go to sort the matter out, but I understand that there are others further north who would have more difficulty. That point was made by the hon. Member for Garscadden.

I believe that we are making a mountain out of a molehill. The amendment would not do what the hon. Member for Aberdeen, North wants it to do. Scottish police stations cannot simply act as post offices. They would have to issue the fixed penalty notice. The police are firmly against that. Indeed, all the remarks of my hon. Friend the Member for Edinburgh, South (Mr. Ancram) were spot on. In fact, I do not know why I bothered to reply except that Opposition Members wanted me to do so.

Mr. Robert Hughes (Aberdeen, North)

With the leave of the House, Mr. Deputy Speaker. Many red herrings have been drawn across the debate, and the largest one came from the hon. Member for Edinburgh, South (Mr. Ancram). He said that the Opposition were trying to make both legal systems the same and to operate uniformly. The hon. Gentleman should be aware that, with regard to the fixed penalty system, comparable offences are treated in exactly the same way north and south of the border. That is uniformity in my language, and no one would want it differently.

We could not have a system—even my hon. Friend the Member for Berwick and East Lothian (Mr. Home Robertson) would not argue the contrary—whereby someone guilty speeding in Scotland receives a two-point penalty whereas someone guilty of speeding in England receives a six-point penalty. We are not talking about uniformity. We were able to persuade the Government to allow the five-day option period so as to extend the privilege that we have in Scotland because of the different legal system. Unfortunately, in doing that we have now built in a disadvantage, however small, to a Scottish motorist who commits an offence in England.

A Scottish motorist who commits an offence in England or Wales will now be treated differently. If he is stopped at the roadside outside Newcastle, the policeman is likely to say to him "Under section 161 of the Road Traffic Act 1972 you must take your licence to a Scottish police station, but you cannot take it to a police station for a fixed penalty offence." I do not see how the ordinary motorist will understand that.

The Government proceeded with the fixed penalty system against the wishes of the police in the United Kingdom who simply did not want to do it. I believe that the chief constables in Scotland who are said to be objecting strongly to taking over this minor duty—I do not understand how they have all been consulted since my amendment was tabled on Friday—are operating under the misapprehension that they have to fill out all the forms. My amendment should be accepted by the Government, although there may be a technical problem involved.

There are two notices under clause 27. There is one notice stating that within five days the motorist must take his licence to a police station. The second notice is the fixed penalty notice.

In view of the time and in view of the total intransigence of the Government, I shall not press the amendment to Lords amendment No. 24.

Lords amendment agreed to.

Lords amendment No. 24 agreed to.