§ 'Information held in any form—by the Secretary of State under Part 3 of the Road Traffic Act 1988 (c. 52), or (b) by the Department of the Environment under Part 2 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I.1)), (licensing of drivers of vehicles) may be disclosed for the purposes of the Schengen information systems (within the meaning of section 81)';— [Caroline Flint.]
§ Brought up, and read the First time.3.45 pm
§ The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint)
I beg to move, That the clause be read a Second time.
§ Mr. Speaker
With this it will be convenient to consider amendment No. 33, in clause 57, page 38, line 25, at end insert'or in any other State in which the offender has temporarily resided'.
§ Caroline Flint
As we embark on today's business, I hope that we have all recovered from the party conference season. The insertion of the new clause after clause 81 will provide the necessary statutory authority for the Driver and Vehicle Licensing Agency and Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes on the UK's national section of the Schengen information system. That will ensure that the UK meets the requirements of its Schengen application in relation to the SIS.
The statutory gateway already contained in section 71 of the Criminal Justice and Court Services Act 2000, allowing disclosure of information held by the Secretary of State for the purposes of part 3 of the Road Traffic Act 1988, is not sufficient for the UK's Schengen obligations. It allows information to be disclosed for use by constables only and, in limited circumstances, for further disclosure by them. Furthermore, section 71 does not extend to driving licences issued in Northern Ireland.
§ Mrs. Gwyneth Dunwoody (Crewe and Nantwich)
I would be very interested to know when the decision was taken to include such greatly expanded information, which carries with it considerable implications. Anyone holding a licence for any vehicle in the United Kingdom now runs the very real risk of that information being transmitted to a foreign Government without their permission.
§ Caroline Flint
It is necessary to legislate through insertion of the new clause because the sharing of data on driving licences for the purpose of the SIS is not within the scope of existing legislation. There is no power to disclose information that has been collected under statute—in this case, the 1988 Act—for purposes not covered by statute. Section 71 of the 2000 Act does 26 allow for the disclosure of information held by the Secretary of State for the purpose of part 3 of the 1988 Act, but that is not sufficient for Schengen. That is for use by constables only, with limited provision for further disclosure by constables. Our Schengen obligations are wider than that, encompassing various enforcement agencies in the UK and other states. Furthermore, section 71 does not cover driving licences issued in Northern Ireland. We have therefore drafted a new clause that provides the necessary statutory power to disclose information. Such disclosure is expressly limited to the purposes of the SIS.
§ Caroline Flint
If I may, I should like to finish.
The SIS is defined in clause 81 of the Bill, and these additional arrangements will be subject to the same data protection arrangements as apply to the national section of the SIS in general. The arrangements will allow the office of the Information Commissioner to inspect all data contained on the UK national section of the SIS to ensure that the processing of personal data is in compliance with processing requirements under the existing legislation. It is the right of any individual about whom incorrect information is placed on the SIS to apply for it to be removed or corrected. It has always been the case that such information would be on the SIS; it was realised only at a late stage that existing statutory provisions were not adequate.
§ Mrs. Dunwoody
My hon. Friend is confirming precisely what I said: that this power did not exist and needs to be written into new legislation. At what point was the House of Commons made aware that these commitments under Schengen had been fully accepted? As I understood it, we had not fully accepted them. Is my hon. Friend saying that we now accept all the implications of Schengen? If so, this is a matter of considerable interest. At what point did we decide to ask the House whether this information should be passed on?
§ Caroline Flint
As I said, it was realised at a late stage that existing statutory provision was not adequate. [Interruption.]
§ Caroline Flint
Thank you, Mr. Speaker. It is for that reason that we are introducing the new clause so that we can make good progress in realising the UK's connection to the SIS, which is envisaged for November 2004. Before we receive live data, the UK's implementing of the SIS will undergo a rigorous evaluation, conducted by partner member states. To fulfil the requirements of the evaluation process, we must demonstrate our ability to place the required data on the SIS. It has been clear since the then Home Secretary made a statement in March 1999 that we would opt into those parts of the Schengen information 27 system. By introducing the new clause, we hope to meet our obligations in that regard, and I can add nothing further to that picture.
§ Mr. Bercow
I thank the hon. Lady for giving way with her customary courtesy, albeit on this occasion after a little pressure. Further to the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), I recognise that the Under-Secretary has a departmental brief to which she wishes to adhere, and I intend no discourtesy, but does she understand that if our profession is ever again to regain public respect, we need public understanding? I appeal to her in the context of new clause 1 and amendment No. 33 to make her speech self-contained and intelligible to members of the public who will be interested to know about the impact on them of what she is describing.
§ Caroline Flint
I did try to explain those particular circumstances. As I said, it has always been the case that this sort of information would be on the Schengen information system. As I also said, we realised at a late stage that existing statutory provision did not apply to those circumstances. The aim is to make use of information from the Driver and Vehicle Licensing Agency and from Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes. I have already fully explained that.
Let me now deal with amendment No. 33, which relates to part 3 of the Bill on driving disqualification. Clause 57(2) reflects the requirement in the EU convention on driving disqualifications to take account, when calculating the period to be enforced in the UK, of any period of disqualification already served in the state of the offence. That is to ensure that the total period of disqualification served does not exceed that originally imposed in the state of the offence.
The amendment would require that any period of disqualification served in another member state in which an offender temporarily resided be also taken into account in determining the period of disqualification to be enforced in the UK. I hope that I have explained that clearly.
The amendment is flawed because a disqualification of a non-resident driver by one country does not automatically have effect in another country. Under the EU convention, only the offender's normal state of residence will be notified of a foreign disqualification and be required to enforce it. For the purposes of the convention, the state of residence is the place where the driver is resident for at least 185 days in each calendar year. If an offender is not normally resident in the UK, the authorities here will not be informed of the disqualification. The only consideration, therefore, in determining the unexpired period of a foreign disqualification will be how much of the disqualification the driver served in the state that convicted him.
A driver who is disqualified abroad may lawfully continue driving anywhere outside the state that convicted him until his own state of residence has 28 enforced the disqualification under the EU convention. So the opportunity to serve a period of disqualification as a temporary resident in another state will not arise. Once he has been disqualified by his state of residence, he loses his entitlement to drive anywhere because his licence has been removed. After disqualification takes effect in the UK, the driver will remain disqualified in the UK until the end of the period of disqualification—regardless of whether he resides temporarily in another member state during that period. To that end, I urge support for new clause 1 and oppose the amendment.
§ Mr. James Paice (South-East Cambridgeshire)
First, in response to her welcome to the Opposition, I welcome the hon. Lady back after her party conference. I did indeed enjoy our conference, which was not at all like the one that I read about in the newspapers. Obviously there were, two conferences going on in Blackpool last week.
The new clause clearly undermines, as did the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), the whole thrust of the legislation, which is to reverse into Schengen without proper parliamentary scrutiny of the issues. That was exposed on Second Reading, and the new clause adds a further small element to the Bill. It is not that important on its own, but the overall issue is of great importance. We are adopting a large chunk of the Schengen acquis without the House having proper opportunity to debate it.
The Minister described the intent behind amendment No. 33 clearly, and I have some sympathy for her because the muddle on the issue was not of her making. It was the responsibility of the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), who dealt with the issue in Committee. Instead of clarifying the issue, he confused it even more. He kindly wrote to me and other members of the Committee at the end of June to try to clarify the issue, but the letter served only to complicate it further. The Minister has made a better job today, despite it not being her departmental responsibility, than did the Minister in Committee.
§ Mr. Paice
I am about to tell my hon. Friend. In Committee, the Minister said:I am advised that disqualification cannot be served in the other country—it can be served only in the state of the offence.A few minutes later, he said:I am advised that if a UK resident … was disqualified from driving in France, he would be disqualified everywhere because he would have no UK licence."—[Official Report, Standing Committee A, 17 June 2003; c. 231–21In the letter that the Minister sent to members of the Committee, he said:The driver loses his entitlement to drive elsewhere as a result of being disqualified in his State of residence"—that is clear—and his licence being taken away during his period of disqualification—but he is not disqualified as such in all other Member States.It seems obtuse to make a distinction between not being entitled to drive and being disqualified.
§ Mrs. Dunwoody
That is disingenuous. If someone is disqualified in this country, it is well known that they can visit another European state, buy the requisite papers and reappear on British roads with—for example—an Italian licence.
§ Mr. Paice
I am grateful to the hon. Lady for her intervention. I actually tried to be helpful to her earlier. Inadvertently, she has been helpful to me, because I seek clarification of the confusion.
If we are to adhere to a mutual recognition of disqualification to drive across all the signatory states, an issue of common justice arises. It would receive huge public support if someone who had been disqualified for causing death by dangerous driving in one part of Europe were not allowed to return to this country and drive. That is a valid intellectual argument. If that is to happen, that is what should appear in the legislation, but it does not. If I understood the Minister correctly today, she said that if a British person was disqualified from driving in Germany—I use examples of countries for simplicity's sake and not with any malice aforethought—and then moved to France, the disqualification would not apply because France was not their normal place of residence. However, if that person moved back to Britain—perhaps years later—they would have to serve out that disqualification. The person could be disqualified in Germany for six months, live in Germany for three months, thus serving out three months of the disqualification, then live in France for five years, and then finally move back to Britain—their normal place of residence as a British citizen—and serve out another three months of disqualification. There does not seem to be any justice in that.
§ 4 pm
I gave the example of a disqualified driver moving to France. Disqualification should continue after such a move. Amendment No. 33 contains the phrase "temporarily resided" for that reason. The Minister gave her definition of residence, but she ignored the fact that some disqualifications can last a long time. Some people may choose to move to a country and become normally resident there before they return to the UK and become normally resident here. I think that the Minister said that the required period was 170 days—
§ Mr. Paice
I am grateful to the Minister, but that is still only six months. A person disqualified for three or four years who has stayed only a few weeks in the country of disqualification could fulfil the 185-day requirement in two or three other countries. I do not want to exaggerate, but the Minister seems to be saying that that would not count.
We need to establish mutual recognition of disqualification among all states. The present confusion has not been helped by the contributions of the hon. Member for Plymouth, Devonport. I am sorry that he is not here to try to explain the matter. However, I hope that the Minister understands my point, which is that a disqualified person could cite one of several countries as his country of normal residence during the disqualified period. The amendment would enable the disqualification 30 to run consecutively in whichever country the disqualified person moved to after the offence, and ensure that different approaches are not adopted in different parts of Europe or the signatory states. Otherwise, no one—not the disqualified person, nor any victims—would know the situation with regard to the disqualified person's licence.
Amendment No. 33 is not the lead amendment in this group, and that means that I will not be able to respond to the Minister's reply other than by way of intervention. However, I reserve the right to divide the House on the matter if I am not satisfied with the Minister's response.
§ Mr. David Heath (Somerton and Frome)
The hon. Member for South-East Cambridgeshire (Mr. Paice) was right to say that the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), is not on the Treasury Bench this afternoon, and also to say that that Minister's presence would not have elucidated matters much this afternoon, given his performance in Committee. In parenthesis, it is a pity too that no Scottish Office Minister is here this afternoon, given that we shall be dealing with matters of Scots law later.
I have no objection to what is proposed in the new clause, and that is why I have tabled no amendment to it. However, it is a little extraordinary that one of the prime purposes of the Bill should be covered by a provision that has been introduced so late. Secondly, I am worried that the new clause is effectively a free-standing provision in this Bill, and that there is no move to amend legislation covering road traffic, freedom of information or data protection. The degree of cross-reference is therefore limited. That structural problem in the statutes may come back to haunt us.
Thirdly, I am worried that the information referred to in the new clause is not limited. The new clause covers any information held under the Road Traffic Act 1988, irrespective of what that information is. It is possible that that Act could be amended at some date in the future to include spurious information that could not properly be disclosed for the purposes of the Schengen information system.
§ Dr. Julian Lewis (New Forest, East)
Is it the hon. Gentleman's understanding of the new clause that only bits of driver information shall be disclosed as and when required, or that an entire database shall be fed into the system, to be dipped into as and when the Governments of other countries in Europe decide that it would be convenient for them to do so?
§ Mr. Heath
I am grateful to the hon. Gentleman for that intervention. The latter must clearly be the case. One of the concerns about the Schengen information system is that it grows exponentially; the database is large, with a huge number of points of access, in terms of both input and output, thereby allowing the grave danger that incorrect information may be held, with the individual citizen having only limited access to proper recourse.
§ Sir Robert Smith (West Aberdeenshire and Kincardine)
My question should perhaps be for the Minister rather than my hon. Friend, but can he tell us whether, if someone feels that the wrong information is held on the Schengen database, there is any way that they can seek redress and clarify the information?
§ Caroline Flint
It is the right of any individual who has incorrect information about them placed on the SIS to apply for it to be removed or corrected.
§ Mr. Heath
I thank the Minister for confirming my reply to my hon. Friend the Member for West Aberdeenshire and Kincardine (Sir Robert Smith).
Can the hon. Lady help me with what may be merely a printing matter? The new clause is set out in slightly odd way. I believe that the words(licensing of drivers of vehicles)should be attached to the Road Traffic (Northern Ireland) Order 1981 rather than to the whole new clause. Can the Minister tell me whether that is the case? I assume that the rest of the provision refers to both (a) and (b), whereas the words in parenthesis apply only to (b) as, by definition, they are contained in the Road Traffic Act 1988.
On amendment No. 33, the hon. Member for South-East Cambridgeshire and I tried desperately to get this point across in Committee. On re-reading my contribution to that debate, I think that it was even more confusing than the Minister's, so I shall not repeat what I said on that occasion. However, the hon. Member for South-East Cambridgeshire is on to a good point; surely, if we want disqualifications to be transportable across national borders within the EU, it makes sense that, wherever the individual against whom a disqualification applies is resident, the clock, in terms of natural justice, should still be ticking. It does not make sense for a person to move from one country to another and, at that point, for the term of disqualification to be put on hold—pending—until that person either returns to their country of origin or, curiously, moves to the UK, where the clock would start ticking again. That cannot be the Government's intention, so someone, somewhere, is being obtuse. As many people seem to agree with the hon. Member for South-East Cambridgeshire, while few people agree with the Minister, we may be right.
Our debates have displayed, almost throughout, the desire of the Opposition parties to improve the Bill and to make it work as the Government intend. I hope that 32 we shall not engage in a dialogue of the deaf and that the Minister will accept the fact that we are trying to improve her Bill and to make it workable both practically and in terms of natural justice for those who are affected by it. Simply repeating that the Government disagree is not sufficient to answer the argument. The hon. Member for South-East Cambridgeshire has a good point and it would as well if the Government listened to it.
§ Caroline Flint
To emphasise a point that I made earlier in relation to new clause 1, I wish to say that there have been a series of House of Lords inquiries into the UK's participation in the Schengen arrangements, and the decision to participate was subject to parliamentary scrutiny. The Bill has provided a further chance to discuss the UK's participation in the Schengen arrangements. So there has been full discussion of the Bill's key provisions, including issues such as cross-border surveillance, which we will come to again later.
I have been asked about those who are disqualified in the UK from driving who are then resident in another country. Let us say, for example, that they have British driving licences and that they are disqualified, but that they are living in France, the parameter for which is that they do so for at least 185 days in each calendar year. I understand that, in those circumstances, the clock would be ticking and the disqualification would obviously apply when they are living in France as well.
We are trying to ensure that such things are understood not only where licences are issued and therefore where disqualification comes about, but where, given the days we live in, people reside in another EU country. If someone were temporarily moving around the EU, the disqualification would not apply in the same respect. If someone's UK driving licence is revoked, that will also apply in the country where they are resident. That should prevent them from driving anywhere. Certain procedures have to be gone through to get a licence in another country, and I imagine that that would be quite difficult to achieve. The disqualification will continue to run in the UK if the offender leaves the country to live in another member state. For these purposes, the offender must be resident abroad for at least 185 days in each calendar year.
§ Mr. Paice
I appreciate that the Minister is trying to clarify these provisions, but let me pose an example. I appreciate that, if we go too far into examples, we get to specifics, so I shall stick to the example I used in my earlier remarks. Let us suppose that a British citizen commits an offence in Germany and is disqualified from driving by a German court, that he or she then moves to France to live for 180 days—six months—and then returns to Britain. The Minister seems to suggest that that person can drive in France, but that the disqualification, which started in Germany, will be in a state of hiatus until the offender returns to the UK, when the disqualification will be completed. Is my understanding right? I should not refer to this, but I am getting indications that I am right. If that is the case, is it not unjust that that person can continue to drive in France—it could be any other European country—with a hiatus in the period of disqualification, which then resumes when he or she returns to the UK?
§ Caroline Flint
If people are disqualified from driving and they have a UK licence, it will be revoked. Yes, 33 someone can continue to drive before a foreign disqualification is recognised in the UK, as the disqualification only takes effect 21 days after the DVLA sends its notice of disqualification to the driver concerned. If UK citizens are disqualified in the UK and they move to France and then back to the UK, they are still disqualified in those circumstances.
§ Caroline Flint
My understanding is that if UK citizens are disqualified for offences in Germany, that is notified to the DVLA in this country and their licences are revoked. They are therefore disqualified from using those UK licences in France, as well as if they return to the UK after all, they were UK licences to start with.
Information in relation to drivers' licences is only provided, as for the Schengen convention, for limited purposes. It will only be the information that is on the driving licence. As I said previously, protection exists both in terms of our data commissioner and for individuals if they want to correct information that is there.
§ Caroline Flint
If I may, I shall continue for a moment.
In relation to the point raised about Northern Ireland legislation, separate Northern Ireland legislation exists for holding driving licences, and it must therefore be covered in this new clause.
§ Mr. Heath
I was not querying for one moment the inclusion of Northern Ireland. I was simply dealing with the printed word in front of us, and given that this is the Report stage, it is the last opportunity to correct it if it is typographically challenged. Will the Minister confirm my view that the words(licensing of drivers of vehicles)should immediately follow the previous reference in parentheses, "(S.I. 1981/154 (N.I.1))", without a comma, and that the comma should come afterlicensing of drivers of vehicles)to bring it into order? If I am wrong on that, I have misunderstood the construction of the clause. I think that that is logical, however, and given that it is important that we get it right, it would be good to change it. I do not know what we do about changing it other than doing so by manuscript amendment or simply accepting that it is a typographical error.
§ Caroline Flint
My understanding is that the new clause is sufficient as it stands, and we do not see any reason to change it for the purposes of our debate this afternoon.
To return to the scenario in which the Germans regard an offender as normally resident in the UK, they will notify the UK authorities, who will enforce the 34 disqualification. If the offender is normally resident in France, the French, not the UK, will enforce the disqualification. If a UK driver is disqualified in Germany and the driver stops off in France, he is not disqualified until the UK legislation bites. The convention does not allow Germany to notify France or France to disqualify the driver. What we are trying to introduce is a system that is understood both in the member state where a disqualification occurs and which also applies to countries where the individual is resident. I urge the House to accept the new clause and to resist amendment No. 33 for the reasons outlined.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.