HL Deb 11 June 1974 vol 352 cc433-62

8.15 p.m.

House again in Committee.

BARONESS LLEWELYN-DAVIES OF HASTOE

It may be for the convenience of your Lordships if I were to explain that we hope to continue until the end of Amendment No. 11 on the Committee stage of this Bill, and that we shall then take the Unstarred Question.

Clause 14 [Weighing of motor vehicles]:

LORD LUCAS OF CHILWORTH moved Amendment No. 6: Page 20, line 35, after ("tested") insert ("by static appliance").

The noble Lord said: It may well be that this Amendment is not quite rightly placed in the Bill in front of us. However, it arises from conversations which I had with the Minister at his invitation, and is purely exploratory. It seeks to establish that any weighing of axles or weighing of commercial vehicles is carried out by a piece of machinery which is not part of a vehicle. We have discussed axle-weighing from time to time, and I have suggested to your Lordships that, in the main, those axle weighing devices which are fitted to vehicles have not yet been proved accept- able to most operators and most hauliers. As I read the Bill—for example, in lines 34 and 35—regulations may make provision with respect to, …the manner in which a vehicle or trailer is to be weighed or a weight is to be tested…". The Amendment, by inserting the words "by static appliance" implies that no weighing nor testing of weight may be carried out by any device which is capable of movement on a vehicle. It is my understanding that the regulations are to provide for new and different weighing appliances which are in themselves stationary. I beg to move.

LORD GARNSWORTHY

The effect of the Amendment which the noble Lord, Lord Lucas of Chilworth, has moved would be to ensure that any regulations made by the Secretary of State in pursuance of Clause 14 should apply to the weighing of vehicles by means of static weighbridges, and not by means of self-weighing devices fitted to the vehicle. I think it is clear that the noble Lord considers such devices to be unreliable, and is anxious that they should not receive statutory recognition. We have had discussions about this and I think I have his mind on the matter.

The Amendment is unnecessary, since the proposed regulatory power is to make provision as to the manner in which a weight is to be tested as mentioned in subsection (1) above"; that is to say, as mentioned in Section 160(1) of the 1972 Act. The power provided in that subsection already specifies, in relation to weight testing, and for that purpose to proceed to a weighbridge or other machine for weighing vehicles". Regulations about self-weighing devices would be incompatible with such wording, and indeed the Government have no intention to carry out enforcement weighing by means of such devices. This clause, Clause 14, and the regulations to be made under it, is not concerned with the devices which can be fitted to vehicles to indicate their axle loads. That is a matter to which reference was made during the Second Reading debate. These are generally referred to as self-weighing devices or axle load indicators. They give an indication to the driver in the cab of his vehicle of the load on any axle to which they are fitted.

My right honourable friend the Minister for Transport is examining the development and potential value of these devices, and tests are in hand to determine how reliable existing models are. By their nature, these tests will take some time yet. There are certainly problems of cost involved here; compulsory fitment to all vehicles would indeed be extremely expensive. But, in any case, their fitment could be authorised under existing legislation, and would not require new powers to be taken in this Bill. I hope I have understood what the noble Lord has in mind, and I trust that those assurances, and the way I have been able to put them, will satisfy him, and that he will feel that his Amendment has served its purpose.

VISCOUNT HANWORTH

I should like to make the point that the overloading of heavy vehicles is extremely prevalent and the enforcement is very far from adequate. I hope that serious consideration will be given to developing portable weighing devices which might be used by the Weights and Measures Authority for enforcement. I realise that they cannot probably be as accurate as a weighbridge, but nevertheless with suitable precautions they could be used and if there is an excessive overload it should be possible to obtain a conviction. At the present time, this is a very serious problem indeed and I know that the weights and measures Authorities are not succeeding in producing even a reasonable level of enforcement.

LORD GARNSWORTHY

May I add that I shall draw the attention of my right honourable friend to what the noble Viscount, Lord Hanworth, has just said.

LORD LUCAS OF CHILWORTH

I must confess that I am terribly disappointed that the noble Viscount intervened in these terms, because I was tremendously happy with what the Minister had to say on this point. The industry generally is extremely aware of all that which follows from overloading. That part of the industry which one might describe as being reputable is cognisant of the difficulties of its own job. I outlined one of the instances during Second Reading. They are certainly not averse to those devices, and I think the noble Lord the Minister was talking about the new dynamic weighing device. My understanding is that the industry is perfectly happy about this device, because it is proven. They cannot be happy however about any device, whether it is fitted to a vehicle or whether it is a portable device taken to a roadside. which is capable of misinterpretation and of the continuing need for recalibration. I am reassured by what the noble Lord has told me. I think the industry will be reassured and until such time as these axle weight indicator devices are perfectly acceptable to all sides of the industry—the employer, the employee and the vehicle user—they will be quite happy to go along with those regulations which are in force and the new kind of machinery which is it proposed and which these regulations give the power to use. With the Minister's assurance on this point I am happy and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

8.25 p.m.

LORD HACKING moved Amendment No. 7:

After Clause 14 insert the following new clause:

Offence of driving with blood-alcohol concentration above prescribed limit.

(".In section 6(1) of the 1972 Act (driving with blood alcohol concentration above the prescribed limit) the words from "as ascertained" to "Act" shall be omitted and the words "at the time he provides the specimen" shall be omitted."

The noble Lord said: Against my interests as a practising lawyer and at the risk of being dubbed "the breathalyser Peer", I beg leave to move the first Amendment that stands in my name on the Marshalled List. I am very conscious that I am addressing your Lordships on this subject for the fourth time in the last six months and I apologise to noble Lords who have heard the argument before. But there are some who have not. Hitherto, the noble and learned Lord the Lord Chancellor has been spared and I have therefore re-mustered my arguments in order to present to those who have not heard them hitherto a fresh course in breathalyser law. The only comfort I can give to noble Lords who have heard the earlier speeches that I have addressed to your Lordships upon this subject is that I have resisted, or am resisting, the temptation of reading one of my earlier speeches to you from the OFFICIAL REPORT.

LORD CHAMPION

Hear! hear!

LORD HACKING

Certainly I have some supporting comfort from the noble Lord, Lord Champion, who sits near me. In an earlier debate on December 17 last year, the noble Earl, Lord Mansfield, said in reference to the present state of the breathalyser law, "it is ludicrous." At a later stage in his speech, he said —and again I quote from the OFFICIAL REPORT: It is a part of the law which causes considerable distress and dismay to many thousands, not least because of its uncertainty and unfairness. What is far more important, it tends to bring the law itself, and those who practise it, into disrepute."—[OFFICIAL REPORT, 17th December, 1973, cal. 136.] So it is and so it does. It has caused immense difficulties for all who have to administer the law, whether those persons be judges, lawyers, police officers, or officers in the magistrates' court. It has collected altogether five hearings largely, if not exclusively, at public expense before the Judicial Committee of your Lordships' House. The number of reports in the new edition of the Road Traffic Reports—and it is also significant that there is now a call, and has been a call for the last three years, for an individual set of law reports to cover road traffic law—concerning the breathalyser law must now exceed 60, and that is only the tip of the iceberg. It is difficult to calculate the number of cases that are contested before the magistrates' or Crown Courts because no statistics as such are kept, but I have made certain calculations for the year 1972 based upon a sample at the Bedford Crown Court where I learned that 10 percent. of cases recently have been breathalyser cases.

I have also made calculations upon certain figures produced by the noble Viscount, Lord Colville of Culross, and working on the basis of the sample from the Bedford Crown Court I calculated that there had been no less than 3,700 breathalyser cases brought before Crown Courts in the year 1972. Working upon the figures of the noble Viscount, Lord Colville of Culross, one comes to a different calculation from that of 2,000 cases before the Crown Courts. By any view those are large figures for a new piece of law which was created to bring certainty out of uncertainty. It is small wonder that the present noble and learned Lord, the Lord Chief Justice, in an authority called Darnell v. Portal in 1972—and again it is significant to note that that was two years ago—in a moment of judicial despair perhaps, spoke of yet another case, "coming from the apparently inexhaustible well of the Road Safety Act 1967", which is the parent Act for this legislation.

Hence I come again to put my Amendments before the Committee in an attempt to resolve three areas of major difficulty. With leave, I should like to say a few words about all three areas of difficulty before addressing your Lordships on the first of my two Amendments. It was not an Act which got off to a happy start. It set out to create two offences: driving or attempting to drive with alcohol in the bloodstream over the prescribed limit, and being in charge of a motor car with alcohol in the blood over the prescribed limit. Alas! the Statute only provided the means by which one of those offences could be proved; namely, the offence of driving or attempting to drive. The only means by which the other offence of being in charge can be proved is by taking the back-door route of Section 5 and arresting the accused for being in charge of a motor car while unfit through drink or drugs, and thereafter invoke the breathalyser procedure.

The first area of difficulty concerns Section 1(1) of the original Act. This attempted to set out not only a statement of the offence but also the means by which it could be proved. Alas! in merging the two, they created a confusion between the two concepts. In the result, a motorist can bring the breathalyser enactment to a nullity by taking a drink between the end of the driving and the supplying of the specimen, whether it be a specimen of blood or urine. The second area concerns the point in time by which the breathalyser procedure has to be commenced. That point in time, in cases other than accidents, is when the motorist is still driving or attempting to drive. Hence, if the police are unable to commence the procedure while the motorist is still driving or attempting to drive, the proceedings are brought to a nullity. Consequently, difficulties have been created for the police and the courts; and these difficulties remain considerable.

First, how can the police start the procedure when a motorist in any ordinary sense is still driving or attempting to drive, for example (as I have quoted to your Lordships before), when the car is still in motion and the officer is obliged to start the first part of the procedure, which is the administration of the breath test? Secondly, how can the courts define when a motorist is still driving or attempting to drive, if the meaning is extended beyond the immediate control over steering, brakes and engine?—and of course it has to be extended beyond immediate control over steering, brakes and engine in order to have any efficacy at all. Cases have as a result rained down on both sides of an awkward watershed. Stopping and getting out of a car to buy a newspaper from a street vendor is still driving, while stopping and buying groceries is to cease driving. More than this, it has proved to be manifestly unfair on a citizen who, having consumed alcohol, acts responsibly after being stopped, goes through the prescribed procedure and eventually if he is found to have alcohol in his blood over the prescribed limit, pays the penalty of a 12-month disqualification. That should be compared with the citizen who acts irresponsibly, taking a swig of whisky from a hip flask, breaking away from the car or punching the police officer on the nose and in doing so escaping punishment under the Road Traffic Act 1972, as it now is.

I have quoted to your Lordships before the case of Edkins v. Knowles, and I will not go into details on this occasion. In that case, the motorist drove away at speed and dangerously, followed by a police car manned by detective officers. The man was eventually stopped at a holiday camp, where I believe he lived, and was detained there by detective officers until members of the uniformed branch arrived—but by that time on no view could he be held still to be driving or attempting to drive. Hence he escaped any penalty under the breathalyser procedure.

This area of difficulty also militates against good citizenship, and I would quote a further case to your Lordships: that is the Queen v. Bates. In that case one motorist—in the Birmingham area, if I remember rightly—saw another motorist who was clearly not in proper control of his motor car. As a result, the first motorist, acting in good citizenship, stopped the other motorist from driving any further by, among other things, standing in front of the bonnet of the other man's car. Eventually, some 15 minutes later, help having been summoned, the uniformed police officers arrived; but by the time they arrived the breathalyser procedure could not be invoked—it was invoked, but not successfully— because the second motorist had by then, according to law, ceased driving or attempting to drive. The point has now been reached when a solicitor who has to advise a prominent police authority in our country told me a few days ago in reference to the definition of "driving": I have now ceased to feel that there is any effective advice and guidance I can give to police officers as to what is meant by this word. I move now to the third area of difficulty. The breathalyser procedure can only be invoked if a motorist is arrested either for driving over the limit or for driving when unfit. Hence, if the motorist has been arrested for a more serious offence, for example, escaping in a motor car following the crime of grievous bodily harm in a public-house, then the breathalyser procedure cannot be used.

Hitherto I have not had much success in my attempts to reform the breathalyser law. By and large the last Government thought that the present law was working well enough—certainly well enough not to merit my arguments being included in the then Road Traffic Bill. As your Lordships will have observed, we now have a new Government and it was refreshing to learn from the noble Lord, Lord Garnsworthy, during the Second Reading of the Bill, that the new Government are considering setting up an inquiry into the operation of this law. Further, it was intimated to me last night that the new Government do indeed intend to set up such an inquiry and have taken certain steps in that direction. Therefore I earnestly consider whether I should withdraw all my Amendments and leave it to the committee to take over. Frankly, I have not reached a decision and should much appreciate the assistance of the committee in this direction. Of course, I recognise that the proposal to set up a committee is, as I have just said, a refreshing new approach. I also recognise that the proposal enables leading members of the present Government to escape from a position of some personal dilemma, in having voted for me for the last time on the merits of my argument and now being in receipt of the same instructions as those which the noble Viscount, Lord Colville, received earlier from the Department of State.

I do not suggest, of course, that this has had any influence on the proposal to set up this committee, but I do have reservations in adopting this course, and perhaps I might set them out in order. First, the setting up of this committee does not meet the need for a wider review of road traffic offences—and I referred during my Second Reading speech to the difficult distinction between careless and dangerous driving and the unfairness that imposes upon the motorist who transgresses. Two, the setting up of the committee will cause delay, when immediate assistance is needed—and, of course, the wider the terms of reference of the Committee, the greater the delay. Three, this Chamber is losing a convenient vehicle for such reform. The noble Lord, Lord Garnsworthy, very courteously wrote me a detailed letter (and I believe he did the same to other noble Lords) in which he dealt with various points raised at Second Reading, with which he had not had time to deal in his speech. I should like to express my gratitude to him for being so conscientious and helpful. He wrote as follows: In fact, opportunities to introduce road traffic legislation occur rather infrequently". Hence, I am concerned that we are losing this convenient vehicle for such reform—or we should be losing it if I were to withdraw my Amendments and leave the decisions in the hands of this committee which the Government intend to set up. My fourth point is that the committee is losing the opportunity of using the immense knowledge which is available among your Lordships. I had hoped at this stage in my speech to sweep my hand to my right and behind me, and look towards a number of Law Lords who very kindly agreed to support my Amendments. Alas, as the hours have gone by and the evening has lengthened, one by one my supporters from the Judicial Committee have again disappeared off to other places.

Five, my Amendments, if placed on the Statute Book, would not conflict with the setting up of this committee. Statutory Law should surely be just as much a process of evolution as the Common Law. In our changing society, Statutes which seek to create a solution for all time seldom succeed. Much time and care was lavished—and I recognise this—on the present breathalyser enactment, but it did not wholly work out. I believe that my Amendments will work, or will work better, but we shall know only by experience. That is why I should like to echo the words of the noble Lord, Lord Champion—and I warned him I was going to say this—in his final address to your Lordships when he was speaking on behalf of the then Opposition in the last debate upon Amendments which were, save for very small corrections, identical to the Amendments now before your Lordships. This is what the noble Lord, Lord Champion, said: My Lords, ought we not to deal with anomalies in the law as and when we can, and as and when they are brought to our attention? I believe that that, surely, is our position in relation to this matter because the Bill that is now before us seems to me to be a suitable vehicle for just the kind of Amendment which the noble Lord, Lord Hacking, is proposing."—[OFFICIAL REPORT, 15/1/74; cols. 857–8.] What I am saying now, and I am putting it more in the form of a question than as a proposition, is this. Should not my Amendments be given a try? They do not affect police procedure, and will not create complications for the police in having to learn fresh procedures for the administration of the breathalyser test, and for indeed the subsequent tests that follow from that. It should be much easier for lawyers to tackle the new law coming out in the form of a Statute within this Bill, than for them to tackle the present mountain of authority. Only time will tell and therefore I hesitate over the decision whether to withdraw my Amendments. But if my Amendments were to go through to the Statute Book, the committee would be assisted and not impeded. I have spoken at some length; the length of my speech I know not, because the time clocks do not seem to be functioning.

I shall now deal briefly with the first two Amendments, because they are coupled together and deal with the first area of difficulty. They divide the offence from proof of the offence, and in so doing stop up the defence of the "whisky flask". They also resolve the conflict between giving and refusing to give a specimen, because, ironically, if you give a specimen having consumed alcohol between the ceasing of the driving and the giving of the specimen, then the procedure is brought to a nullity. But if, having consumed a drink within that period after the driving and the giving of a specimen, you refuse to give a specimen you can be penalised and punished.

I recognise that my Amendments will result in the courts having to examine, in some cases, what the noble Viscount, Lord Colville of Culross, has described as the "chemical evidence". They are likely to have to deal only with contested cases in a small area, and in the marginal cases around 80 milligrams, because in the nature of the "whisky flask" defence it is only a small quantity of alcohol that goes into the motorist so that defence will be available only if the motorist is marginally over the 80 milligrams level. In any event, the courts have been forced, albeit reluctantly, into further analysis of the chemical test in the "laced drink" cases, in considering special reasons why motorists found with over 80 milligrams in them should not meet the consequences of twelve months' disqualification. I beg to move.

8.45 p.m.

THE LORD CHANCELLOR

It may be convenient if at this stage, particularly in view of the announcement the noble Lord, Lord Hacking, made of the intention of the Government to set up a committee to investigate the problems, immediate and related, which he has raised in the course of the debate, if I speak now. It may well be that we have reached a decision which will enable the noble Lord to say that success has come his way at last. He has given the state of the law relating to drinking and driving something of what I might have been tempted to call in another place a "bashing". It is undoubtedly the case that the 1967 Act has given rise to a substantial law about which, as a distinguished practitioner he would not for that reason, I suspect, have any real ground for complaint. It has beet much criticised, and quite rightly the noble Lord has pointed to certain technical features of the law which have presented serious difficulties.

But, happily, the consequences of the technical faults have not been grave, and I am advised that in regard to all those which are contained in the series of Amendments Nos. 7 to 11, the omissions may well result in not more than a few hundred cases being dropped or lost each year out of a total of 50,000. A few hundred lost is not satisfactory, and I hope I may not be suspected of taking a complacent view when I put it in that way. But while it is right to consider what loopholes there are that need filling, it is right the Committee should give some recognition to the real success that was achieved by the Road Safety Act of 1967 as a safety measure. Indeed, it was largely responsible for a 10 per cent. reduction of casualties recorded in 1968. Putting it, I hope not over-dramatically, in one year it saved a thousand lives. It is not a bad "product" for a piece of legislation.

The severity of the sanctions contained in the 1967 Act, disqualification for a year, and problems related to establishing the objective proof for which the law provided resulted in a series of skilful efforts by the legal profession—and I make no complaint about it; it may well be I took part in some of them myself—to find loopholes in the Act. Indeed, it went so far that at one time the very credibility of the law seemed in doubt. But their Lordships strengthened themselves, they steeled their nerves, and the outcome of a series of appeal decisions has been that the provisions of the Act have been reaffirmed in all their major particulars.

What is left to be remedied is related to largely unsatisfactory results emanating from circumstances which are both unusual and fortuitous. It may well be that there are some motorists who, having consumed not wisely but too well, prepare themselves with a whisky flask for the contingency of being stopped by the police, and take a quick "swig" in order to defeat the operations of the law; but I suspect that that is a pretty rare "bird". But the matter has to be faced and these omissions have to be rectified. But again I think it is right, without being complacent, that I should say that the police have not found the law as it stands unworkable. The number of breath tests administered increases annually, as indeed does the number of convictions. Both have doubled from 1968 to 1972, and in 1973 there were nearly 140,000 breath tests. So there is neither inactivity nor ineffectiveness in the law and its enforcement.

Of course, the extent to which the Act continues to have an effect on the road safety problem cannot be statistically measured. The initial impact may to some extent have worn off. But I submit that this will have happened not because the law has loopholes—and I submit that substantially they are minor loopholes—but because drivers will have discovered that the police cannot be everywhere, so they may have avoided being stopped, and undoubtedly because the consumption of alcohol in the community has increased rapidly in the last few years, with inevitable repercussions on our roads. For what I have said to the Committee there is some supporting evidence of the diminishing effect of the Act in the sad data which are supplied by coroners on drivers killed in accidents. The proportion who would have been found guilty under the 1967 Act provisions fell from 25 per cent. to 15 per cent. in the period after the 1967 Act. Alas! it had risen again to 25 per cent. in 1971. In the Government's view it is the continuing problem of drinking by drivers which must be considered and upon which the main emphasis must be placed. With respect, it is our view that the defects in the law to which the noble Lord has rightly drawn attention are relatively subsidiary to the main nature of the mischief that the law has sought to deal with.

It is in these circumstances that the, Government have decided to set up an expert inquiry into all aspects of operation of the law, including technical and enforcement aspects and the general consideration which determined the peculiar form of the existing provisions. The Government are considering the terms of reference and other details, and I have no doubt that the matters which the noble Lord has rightly and repeatedly raised will be considered by this committee. It may well be (and I hope I say this without any impertinence to the noble Lord) that this inquiry will come up with proposals which will deal in a more fundamental way than these Amendments have attempted to do, with the features of the law which have given rise to difficulty in the courts. There is a certain danger that any proposals which are not most thoroughly examined in relation to the large body of case law may fail to achieve their object, or even have defects of their own which are not immediately obvious. We have not yet decided the precise form the inquiry should take, but it will be an exercise drawing on practical experience, and, as I have said, it will certainly look at the aspects of the law to which the noble Lord, Lord Hacking, has drawn attention. There is always a faint sense of a sigh when a problem is consigned to a committee, but I assure the Committee that this is not intended as a long burial operation. We take seriously the problem that the community faces. The community itself ought to take it seriously. But at the root of the matter is the increasing amount of alcohol consumption, the increasing amount of alcoholism, and the inevitable impact which, alas! those brutal facts have upon the motoring scene.

To turn to the two Amendments which the noble Lord has rightly invited the Committee to consider together, they deal with what he has so conveniently described as the "whisky glass defence". As I understand it, the new subsection which is proposed by the Amendments is designed to deal with the kind of situation where, after being involved in an accident, a driver takes alcohol—probably in most cases to steady his nerves, although there may be the determined, well-informed, legally minded driver who will take the precaution of having a whisky flask available. He takes alcohol from a pub or wherever he may get it, or from some kindly St. Bernard, animal or human, who may at that critical time come his way. Then, he having consumed for the purpose of strengthening his shattered nerves, the police arrive and they administer a breath test which is positive, as is the ensuing blood specimen. But then, as has been pointed out, in view of the additional alcohol taken after he ceased to drive it is impossible for the prosecution to use the result as proof that when driving he had excess blood alcohol. The subsection that is proposed would place on the defence the onus of proving that the driver's blood alcohol was not excessive before he ceased to drive—as this would for the same reasons as I indicated be difficult to prove, and if this became the law conviction in such a case would be normal.

This is a somewhat controversial change and it is a change designed, as I submit, to catch a very small number of cases, because the course of events which I have described is perhaps somewhat unusual and there are not all those St. Bernards around, after all. If it became the law it could well effect a somewhat unjust and harsh result. It is possible, for instance, for a driver after being stopped by involvement in an accident to take enough of a strengthener then supplied to him to take his blood alcohol above the 80 mg/100 ml and thereby render him guilty. That course of events would result in order to convict apparently also those who perhaps already had had their fill and had 150 mg/100 ml, and the effect of taking the extra "swig" (if I may so put it) would take the level up to, say, 175 mg/100 ml. The outcome of the change in the law would therefore be that the morally innocent would be technically guilty, but we should have the luxury and privilege as a community of saying that we had been surer of catching the morally guilty; and I do not find that an entirely satisfactory outcome of what is proposed.

So the Government are against making this kind of change against the background of the promised comprehensive review of the drinking and driving law. Accordingly, in view of the assurance that I have given and the promise that the matters which he has so persistently raised will be earnestly examined by an expert committee, I hope the noble Lord will not press these Amendments.

9.0 p.m.

LORD FOOT

I am bound to say that I find myself in a difficult and rather mystifying position at this moment because the noble Lord, Lord Hacking, had indicated to me before this debate that the noble and learned Lord the Lord Chancellor was going to tell us that he intended to set up a committee. My first reaction was to say, "Perhaps we are getting somewhere. We have made some progress." It could be regarded, as the noble Lord said just now, as a win. I am afraid, however, that as I listened to him my acceptance of this proposed committee has waned. Indeed, the whole of the argument that the noble and learned Lord has addressed to us appears to be an argument for not setting up a committee, because he has gone to great lengths to defend the state of the law as it stands at the moment. Indeed, so far as I can understand his argument, there is nothing wrong with the breathalyser law except for the objections which are raised by the noble Lord, Lord Hacking.

If it is right that the law is working and has proved useful and beneficial and that it is subject only to minor defects of the kind to which the noble Lord. Lord Hacking, draws attention, why set up a committee at all? Is it not a very odd procedure to set up a committee to investigate the working of a law which in the opinion of the Government is working very satisfactorily at the moment?

My faith in this committee's solution was further undermined by the detail of the argument of the noble and learned Lord in defence of the present measure. He said first of all that the consequences of these defects have not, in his view, been grave. As I understood him, he meant by that that few offenders had got through the net.

THE LORD CHANCELLOR

I am sorry that my advocacy has been so totally ineffective. I had intended to convey the impression that the Government are gravely concerned about the incidence of alcoholism in relation to road accidents and in relation to road safety. It is because we are so seriously concerned about this and because of the diminishing therapeutic effect of the 1967 Act, that we think the whole position now needs to be seriously reappraised and examined in relation to the causes of a deteriorating situation and the various social and legal measures which ought to be used to combat it. I hope that my not excessive facetiousness did not give an impression of complacency. If so, I have gravely failed in my first appearance at this Dispatch Box.

LORD FOOT

If I misunderstood the noble and learned Lord then I apologise, but I understood him to be saying that the Government's general view is that, subject to certain admitted defects in the Act, the Act is working reasonably well and has achieved a certain good, such as saving lives and the like. Could I say to him that I was not impressed by some of the arguments that he used in defence of the present situation. His first argument was that the consequences of these defects to which the noble Lord, Lord Hacking, has drawn attention had not been grave. I understood him to mean by that that a few offenders who ought to be caught were getting through the net, but only a few. If I understand the noble Lord, Lord Hacking, correctly what he has in mind as the grave consequence of the present law is that it brings the law into disrepute when the state of the law is so far removed from Common sense in the eyes of ordinary people. That is the grave consequence which we think stems from these defects in the law.

The noble and learned Lord then used another argument which we have heard before from the Back Bench, although from another Government. It was that these loopholes, so-called, had been discovered by lawyers. These are the invention of lawyers who have got to work upon the Act and have discovered these loopholes. The defects to which the noble Lord, Lord Hacking, draws attention are not the result of the ingenuity of lawyers. For example, the defect in the original Act, which said that you could only be convicted of this offence if you were driving or attempting to drive and all the troubles that that has given rise to, is attributable to the defective wording of the original Act and not to the ingenuity of lawyers. I am therefore left unconvinced that this proposal to set up a committee with its yet unknown remit as to what it is to look at and what its inquiries are to be is, indeed, going to achieve the narrow results which the noble Lord, Lord Hacking, has in mind.

I would say this to the noble and learned Lord. Even if a committee is going to be set up to look at the whole question of alcoholic driving in society, is there any reason why these defects in the existing law should not be remedied by the vehicle of this Bill? Would any harm be done? Would the work of the proposed committee be pre-empted or pre-judged in any way if these Amendments were accepted by the Government at this stage? If they are not accepted and a committee is set up, we have no knowledge when that committee will report.

Far be it from me to look into the future, but it may be that that committee will report to another Government. Nobody will know when these things are going to be put right. We may go on for two, three, four or five years before we get an opportunity of carrying through these Amendments, which are not seriously being disputed as necessary for the improvement of the law. I do not think it becomes the present Government, at any rate, to say that we ought to put on one side the question of the reform of the law while there is a Commission sitting to discuss that very matter. It ill becomes the Government to use that argument, because at the end of this Bill where they are making the changes in the punishments which are available to magistrates' courts for traffic offences they are themselves making a decision about the distribution of work between the magistrates' courts and the Crown Courts which has been specifically referred to the James Commission, whose Report, as I understand it, is still awaited.

Therefore, when we were discussing this Bill on the last occasion with the previous Government, when we advanced the argument that we ought not to prejudge this matter but that we ought to wait for the Report of the James Commission before deciding to take away the punishment powers from the magistrates, and so on, we were told then: "Oh no, there is no need to wait. It is perfectly proper to do this. The James Commission can go on with their work and they will not be prejudged by what we do now". If that is right, then I can see no reason at all why the Government should not set up that Commission and at the same time accept the perfectly reasonable Amendments which have been proposed by the noble Lord, Lord Hacking; and if he is looking towards me as someone to help him out of his dilemma as to whether he should go on orith his Amendments or accept the offer of the committee, I can only say that for my part I cannot see why he should not accept the offer of the committee and at the same time take his own Amendments to a Division.

9.11 p.m.

LORD STOW HILL

The noble Lord, Lord Hacking, made, as he did on both the previous two occasions on which he spoke on this matter, an extremely powerful speech and I am sure my noble and learned friend the Lord Chancellor will agree that that is so. The noble Lord indicated on an earlier occasion that there was considerable disquiet at the Bar and among judges as to the present wording of the litigation. The noble Lord nods his head and I think I have reported him correctly.

I would add this: we are not dealing with something abstruse here. Earlier today we discussed the question as to whether or not we should make the wearing of safety belts compulsory. That was very important, but I should have thought this was even more important. We are dealing here with an aspect of legislation which in many cases means the difference between life and death or mutilation and safety of ordinary road users. Almost everybody drives a car; everybody is at risk of the mismanagement of a car by somebody unfit to drive it. So the legislation one is dealing with here is legislation which directly and immediately affects, in an extremely important sense, every single citizen in this country, young and old, man and woman. Therefore I think the Committee should feel greatly indebted to the noble Lord, Lord Hacking, for again, with considerable courage and determination, directing our attention to this extremely important matter.

Towards the end of his speech, the noble Lord in effect asked for information from my noble and learned friend the Lord Chancellor as to what the intentions of the Government were. If I may have the noble and learned Lord's attention for a short time I will continue. The noble Lord, Lord Hacking, asked for information as to what the intention of the Government was, and I should like now to follow in the footsteps of the noble Lord, Lord Foot, in the speech that he has just made. I hope my noble and learned friend will be able to give us a little more information as to what really is intended.

I myself can see great value in setting up a committee to investigate this extremely important matter. I should have thought it was common ground that the noble Lord, Lord Hacking, has pointed to defects in the language which is at present used. The idea that we have to go through the back door of Section 5 of the 1968 Act to get a conviction of the offence of being in charge of a motor car when you have in your blood more than 80 milligrammes in a thousand millilitres seems to me quite positively absurd and an obvious error in the drafting of the existing legislation. I hope that the noble and learned Lord will be able to tell us a little more on the following lines: what is the general remit which the Government intend that this committee should have? What is the Government's timetable, their programme?

This important Bill started in your Lordships' House. In due course, I suppose in a matter of weeks (or certainly not more than a few months) it will go through its passage in another place. It will be on the Statute Book before so very long. I should have thought it would be of great help to the noble Lord, Lord Hacking, if the noble and learned Lord the Lord Chancellor were able to inform him whether there is any real prospect of the committee reporting in a way which would make it possible for amending legislation, in terms of any recommendation that the committee might make by the time this Bill gets to another House. I should have thought it most unlikely. I suppose it is conceivable, possibly, if it is the intention of the Government that the remit to the committee should be on a very strictly drawn basis. If they are strictly to devote their minds to the narrow issue as to what improvements can be immediately effected in the present legislation affecting breathalysers and alcohol content of the blood, I suppose it might be possible to introduce something to give effect to its recommendations in this Bill by the time it becomes law. I should have thought it most unlikely, but I suppose it is conceivably possible.

If the remit is to be on a rather wider scale to cover the more general question of drink and driving—I rather thought my noble and learned friend was implying this in the language he used—I should have thought it was virtually impossible to contemplate that in this Bill, by the time it reaches the Statute Book, there should be any amending provisions dealing with the breathalyser test and the alcohol intake of a driver. If that is so, I suppose one is faced with the situation that there is always a press of legislation, as we are told over and over again. It is obviously the case, and I suppose we would have to wait one, two, three, four or five years before we can get further amending legislation to deal with this aspect of affairs.

In some branches of legislation, one can afford to wait. The citizen must wait because of the press of business, particularly legislation which perhaps affects a very limited number of persons in a not very serious way. This is not legislation of that type. It affects everybody, and I apologise for repeating myself, in a very terrible way. It may be the difference between life and death, between mutilation and the free use of one's limbs. In those circumstances, I hope that my noble and learned friend the Lord Chancellor will be able to elaborate a little on what he said, in order to give more guidance in answer to the request made by the noble Lord, Lord Hacking. Personally speaking, I would very much like myself to have more guidance so that I can make up my mind on which way to vote. supposing your Lordship's Committee goes to a Division. I hope I am not seeming ungrateful to my noble and learned friend; certainly I am not.

This is important, and the committee is always of the greatest value. I should have thought its recommendations might be extremely important. Personally, I have always taken the view that it would be much better to have random tests rather than tests which could only be made in the event of there being a traffic offence or an accident. Perhaps that is something the committee might wish to investigate. It is my experience that the police have views about that, or at any rate, they had. Therefore, I would ask my noble and learned friend—and I ask this in all friendliness and in no way meaning to be critical of him—to give us a little more information as to precisely what is intended. What is the sort of remit? How wide is it to be? Why cannot these Amendments be accepted in the meantime? What chance is there, if any, of the recommendations made by the committee finding their way into this Bill? If they do not, when can the Government promise further legislation to embody them in this extremely important context? I should be most grateful if my noble and learned friend could give us more information along those lines. It would certainly assist me in making up my mind, and I feel sure it would assist the noble Lord, Lord Hacking, because he has in terms told us so. Those are the observations, therefore, that I would put to my noble and learned friend.

9.20 p.m.

LORD PLATT

I have perhaps only a few qualifications for intervening in this debate at all, but I was a member of the Medical Research Council, which advised the Government as to the level of blood alcohol which the Government might choose to be the level above which driving was a serious offence and licences were to be withdrawn. We did, of course, examine all the statistical evidence of motor accidents at different blood alcohol levels, important statistical evidence largely derived from experiments in the United States. I am grateful to the noble Lord, Lord Hacking, for bringing this matter up, because I am sure that there are serious loopholes in the present law and I do share the view that this brings the law into disrepute.

One of the two points that I might make is that the noble and learned Lord hoped that we would not accuse him of complacency in his kind of defence of the status quo; perhaps that is going a little too far. But I have—this is perhaps another qualification that I have for speaking—a good deal of experience of addicts of various kinds, and whereas he thinks it may be only the very rare case where a man happens to have a bottle of brandy or a flask of whisky in his pocket, if I know the real addict, he will have it every time. I do not know what the statistics are; of course, one cannot find out, because a large number of them get away with it; but it is exactly the behaviour of the addict who says to his pal, "You know, you can get round this quite easily. All you have got to do is have a flask of whisky in your pocket". I have no complacency about that kind of behaviour.

If I had the eloquence of Lord Hacking or Lord Foot or Lord Stow Hill I would have made those very speeches. Therefore, I shall certainly support them in whatever line they take over this. The only other point that I might perhaps make is that, as what you might call a human biologist, I realise the absurdity of fixing a line, at 80 or any other level, because in other countries it is not always the same level, below which you are an innocent man and above which you have your licence taken away for a year, et cetera. I know that lines have to be drawn, but this leads, of course, to the final agreement of a rather higher level than good sense would perhaps require, because it is felt that a person should not be submitted to these rather automatic severe penalties unless his blood alcohol really is high enough to be dangerous. At the level of 80 milligrams, the accident rate, if my memory serves me right, is just about double that of people with no alcohol at all.

My suggestion to the Medical Research Council was that in view of the difficulty of drawing a dividing line, there should be two levels, a level of 50 and a level of 100; above the level of 100 there should be automatic penalties of the kind which are imposed at present, and between 50 and 100 this should be a matter which would be taken into account by the courts who had to decide on culpability and matters of that kind. I do not know that my suggestion was a very practical one; it may be that the lawyers would rule it out as impracticable at once, but I just take this opportunity of restating it, since there is this question of a committee to look into the whole matter. I think that they might, at the same time, look into the question of a sort of grey level, where the alcohol is taken into account but where the penalty is not automatic; or shall I say that the penalty is perhaps rather less than the penalty faced by a man whose blood alcohol is over a level which, I suggest, might be about 100.

LORD FERRIER

I must apologise to the noble Lord, Lord Hacking, for not being here to hear his speech but I was upstairs in the Hansard office. I heard much of what the noble and learned Lord the Lord Chancellor said. Something that the noble Lord, Lord Foot, said makes me emphasise that this trick is not a lawyer's gimmick; it is a well-known manner of frustrating the will of Parliament. A friend of mine and his wife were in a taxi some time ago going to catch a train at Kings Cross. There was a frightful crash when they were driven into from behind. He and his wife were badly shaken and when he got out of the door, which would hardly open, the driver of the other car got out, looked quickly up and down the road and saw a pub, went and had a few nips, and then said, "Now I feel better". So it is not just a question of keeping a flask in your pocket; it can be done anyway so long as you are alive to the fact that this is a way of frustrating the will of Parliament.

9.27 p.m.

THE LORD CHANCELLOR

May I intervene again at this point to dispel any feeling of of any kind about the matters that have been raised in this valuable debate. Least of all am I ever capable of feeling any sense of resentment about anything said by my old friend sitting behind me. The problems that face us, the community, and the Government, as responsible for protecting the public in this field, are difficult and serious. The major problem is the repercussion of the increased consumption of alcohol in our community. The Government feel that the nature of the problem requires a reappraisal of the law relating to drink and driving in its entirety, and that the re-examination must be a radical one because some of the assumptions, some of the basic principles upon which the 1967 Act was passed, may well call for serious reconsideration.

Your Lordships will remember that the nature of the present drinking and driving law really stems, as I recollect it, from three sources. The first was the decision of Parliament, if I remember rightly supported on both sides in each House of Parliament, not to grant power to conduct random tests. As I understand it, my noble and learned friend Lord Stow Hill thinks that that may well have been an error, but it was certainly the strong view of Parliament at the time that it would be an intolerable interference with the liberty of the subject, and an intolerable encouragement to excessive interference by the police in our lives, if random tests were allowed. The decision not to grant power to conduct random tests has meant that a case may fall if the police do not give the right reason for requiring a breath specimen. This is one of the basic difficulties that the will of Parliament presented the enforcement authorities with. The second factor was a need for some safeguards in a law which obliges a driver to furnish the very evidence from which his conviction can automatically follow, especially as that evidence has to be obtained by the uncongenial, time consuming procedures—to describe them at the most generous level—of the breathalyser and the blood test or the urine test.

The third factor was the decision which Parliament came to, which does not appear to be an unreasonable one, to spare the driver who, once he realises he is unfit, parks at the roadside and stops otherwise he would be tempted to rush home in the hope of avoiding detection. Those were the not unreasonable principles, if I may say so, embodied in the corpus of law in the 1967 Act. They are difficult principles and a typical product of our reluctance to give the police too much power and authority and to protect the citizens as much as we can from excessive interference by the police. The price we have had to pay in the attempt to enforce the law within the ambit of those basic considerations has been the existence of some escape routes which have evolved. Clearly we must try to stop those escape routes as best we can, and that is in itself an important operation. My submission to the House is—and we must take the Amendments one by one; we are now dealing with the Amendment embodied in Nos. 7 and 8—that so far as that is an attempt to stop one of the loopholes it is not satisfactory for the reasons which I ventured to give earlier and would effect an inadequate, indeed unjust, result if it became the law. It is not effective, I submit with great respect, to deal with the problem that is raised.

The problems are complex, and in my submission the real answer is a radical re-examination of those basic concepts which I have mentioned as being at the base of the present legal position. In these circumstances, after giving the matter the most responsible thought and taking advice, we think that the best course now is a radical review by a committee. Naturally I cannot give any time limit as to when the committee may be expected to report. I hope, indeed I am quite sure, that the terms of reference will embody the matters that have been raised in your Lordships' Committee to-night. This debate will have been of great value as a guide to the sort of worries that your Lordships have and to the kind of considerations which should guide the Government in determining the terms of reference of the committee. H the view of the committee is strongly that even before this fundamental and radical re-examination of the position is completed there should be some attempt—I hope I am not putting it offensively if I say "a tinkering with the problem"—to deal with that limited problem or another, of course the Government would be prepared to look at the matter again before the Report stage.

I venture with all seriousness to think that the Government are seriously worried about the problem which exists, and are seriously grappling with it, and with the purpose which the noble Lord, Lord Hacking, and the noble Lord, Lord Foot, and others, and my noble friend Lord Stow Hill have raised. Their purpose is very much a purpose in the mind of the Government, and I hope accordingly that they may take the view that it is better now to await the fundamental reappraisal by a body of experts which will cover the whole range of the technical and enforcement aspects of the law and indeed the very assumptions upon which up until now the law has been based. Accordingly, I hope the committee will feel, in view of that undertaking which I give on behalf of the Government, that the purposes which the mover of the Amendment has in mind would be best served by awaiting the outcome of that committee's report.

LORD HACKING

I am still in some uncertainty. Most particularly I am uncertain about the actual terms of reference that the Government have in mind. Although the noble and learned Lord has used fine adjectives such as "radical" and "fundamental", he has not given any clear indication of exactly what will be the terms of reference that the Government contemplate giving to this committee. I accept that he cannot tell your Lordships the precise terms, but I regret that he has not given any clear indication of them.

I said that I was still in a state of some uncertainty, but there are two matters upon which I am certain. First, without the alteration of many commas, and certainly not without the alteration of many sentences, the noble and learned Lord is in receipt of precisely the same instructions as the noble Viscount, Lord Colville of Culross, had when the Conservative Government were in power. Indeed, there were occasions, except for the different enunciation and the different voice, when I wondered as I shut my eyes whether I was listening to the noble Viscount, Lord Colville, and not to the noble and learned Lord—

LORD ABERDARE

If I may interrupt the noble Lord, since the noble Viscount, Lord Colville, is not here, may I say that I am sure my noble friend would never receive "instructions" from anybody. He was a very responsible Minister.

LORD HACKING

He was receiving exactly the same statistical data and other references from the Department of State. I use the term "instructions" because the debate is now centred among advocates and barristers, and barristers of course receive "instructions". That is the first matter upon which I have certainty.

The second matter upon which I have certainty is that when those "instructions" are bad—and I again use that term in inverted commas if it offends the noble Lord—the Department of State or the choice of Government spokesman settles upon the most able advocate on the Front Bench of whichever Government happens to be in power. The noble and learned Lord, as indeed did the noble Viscount, Lord Colville, dwelt heavily and rested heavily upon statistics as a basis for his argument that the breathalyser provisions were working well, Statistics are often misused. Certainly in this context the statistics do not show those who got away. Of course they show all of those who have been caught, but they do not give the other side of the coin. They do not tell us how many times detective officers have seen a driver who would otherwise be pursued and stopped, being left to go on his journey simply because they knew that if they intervened there would be no powers available to them. That is also in the realm of statistics.

It is really a marriage of two matters. It is a marriage of those who drive a motor car and of those who drink. If the statistics go up they prove one of two things; either there are more drivers who are going out and being caught by the police, or there are more drivers who are going out having consumed an excessive quantity of alcohol. I take no comfort from the statistics produced by the noble and learned Lord, any more than I did from the statistics produced by the noble Viscount, Lord Colville. I am very sorry that he has not come back into the Chamber for this debate, because I know he has been in your Lordships' House this evening and intended to come in here.

I am going to divide the Committee for two reasons. Whether I get a quorum will depend upon the final count. The first reason I am going to divide the Committee is that the noble and learned Lord, despite all his skills, did not really point out in clear terms, certainly in terms that I could understand, what was wrong with my Amendment. He spoke of the morally innocent and the guilty, and somehow that the morally innocent would be found guilty under the provisions. Perhaps he also argued the converse. But morals and moral innocence are not involved in the Amendments which I have placed before your Lordships. The point is quite simply this. If a man or woman chooses to consume a drink after he or she has ceased driving, whether done deliberately to frustrate the law, or taken in shock or because of a passing St. Bernard dog, and that motorist subsequently undergoes the examination procedure and is found to be over the prescribed limit of 80 milligrammes, it is for him or her to show that the excess taking him or her over the 80 mark was caused not by the alcohol in him or her when last driving but perhaps by the alcohol subsequently consumed. There is nothing complicated in that. It does not involve morals or innocence and so forth, only a simple process of proof.

A matter that the noble and learned Lord alluded to was that the onus would then be on the defence. But that is not unknown in our criminal law. There are many examples, such as under the Firearms Act, when the prosecution prove a certain set of facts and it is then upon the defence to establish, not discharging the burden of proof beyond reasonable doubt, but on the balance of probabilities, that a person should be acquitted. Indeed one can take as another example the Sexual Offences Act 1956: when a young man who is under the age of 23 has sexual intercourse with a girl who is under the age of 16, if he establishes on the balance of probabilities that, although the basic constituents have been proved by the prosecution, he was genuinely unaware of the girl's age, he is entitled to acquittal. That is not an unusual proposition nor, in my submission, an unfair one.

That is my first reason for dividing the Committee. Despite the erudition of the noble and learned Lord's argument, for the reasons I have hastily put before your Lordships he did not answer the point I was making and did not produce reasoned argument against my Amendments. Secondly, the noble and learned Lord has never answered the point raised by the noble Lord, Lord Foot, when he was following through from a point which I made in my first speech to your Lordships. I suggested to your Lordships that all law was a process of evolution, not tinkering, and that statutory law was too, and should be a process of evolution. I further suggested that far from impeding the committee when it was set up, if the committee had an opportunity of seeing the law applied in a slightly different, but significant and important, manner from the present time, that committee would be better enabled to perform its task. The noble and learned Lord, Lord Stow Hill, also drew to your Lordships' attention the fact that the law would not be in disrepute in

LORD SHEPHERD

I beg to move that the House do now resume. the time the committee was considering its position; and that the unfairness of these various areas would no longer continue to the extent that they have done up to date.

This is the first wholly impromptu speech I have made before your Lordships, and if I have not drawn my sentences or my arguments neatly or conclusively together I apologise to your Lordships; but, for the reasons that 1 have presented to this Committee, I am now going to invite your Lordships to divide upon my Amendment. I have asked both the Government Chief Whips that I should have a free vote. It seems to me particularly important, in the sovereignty of this Chamber, that my request should be heeded by the two Government Chief Whips. What has happened both times when my breathalyser provisions have come up is this. It offends the noble Lord, Lord Aberdare, for me to speak in terms of instruction, but the fact of the matter is that, however much the politicians may protest, the decisions are not being made by the elected representatives of the people but are being made, however meritoriously, by persons who are not elected. It may sound strange for an hereditary Peer to speak about the sovereignty of Parliament, but this is what we are concerned about now; and for that reason I ask your Lordships to divide, and to divide upon a free vote.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 11; Not-Contents, 21.

CONTENTS
Ferrier, L. Lloyd of Kilgerran, L. Seear, B.
Foot, L. [Teller.] Lucas of Chilworth, L. Sharples, B.
Hacking, L. [Teller.] Platt, L. Stow Hill, L.
Kinnoull, E. St. Just, L.
NOT-CONTENTS
Aberdare, L. Garnsworthy, L. [Teller.] Maelor, L.
Birk, B. Goronwy-Roberts, L. Phillips, B.
Brown, L. Harris of Greenwich, L. Sandys, L.
Champion, L. Henderson, L. Shepherd, L. (L. Privy Seal.)
Cowley, E. Jacques, L. Strabolgi, L.
Davies of Leek, L. Kennet, L. Wells-Pestell, L.
Elton, L. Llewelyn-Davies of Hastoe, B. [Teller.]
Elwyn-Jones, L. (L. Chancellor.)

Resolved in the negative, and Amendment disagreed to accordingly.

Moved accordingly and, on Question, Motion agreed to.

House resumed.