Lords Sitting of 8 June 1981

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Scotland: Grants to Youth Organisations
The Marquess of Ailsa: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether and when they propose to make offers of grants under the Education (Scotland) Acts to voluntary youth organisations in Scotland.
Lord Lyell: My Lords, letters containing offers of recurrent grant were issued on 4th June.
The Marquess of Ailsa: My Lords, while thanking the Minister for that very welcome reply, may I ask whether Her Majesty's Government are aware that the voluntary youth organisations in Scotland were urged to put in, and did, their bids to the Minister for these grants at a very early date especially to avoid such a delay and that this delay has caused hardship and made future planning exceedingly difficult indeed?
Lord Lyell: My Lords, the Government sympathise with and appreciate the concern that has been expressed at the uncertainty which has been caused by the delay to which my noble friend referred. I would stress, however, that the department has treated very sympathetically any cases of hardship caused by the delay.

Gibraltar: Access Agreement with Spain
2.38 p.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether any steps have yet been taken by the Spanish Government to implement their undertaking given in April 1980 to cease interference with access to Gibraltar by land, sea and air.
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): My Lords, when my noble friend the Foreign Secretary met the Spanish Foreign Minister in Brussels on 16th March he was assured of the Spanish Government's continuing commitment to the agreement of 10th April 1980, which provided for the restoration of direct communications between Gibraltar and Spain and the opening of negotiations.
Lord Boyd-Carpenter: My Lords, as it was indicated at the time of the agreement of April last year that it was the intention to raise the restrictions in June of last year, and as a year has now passed, may I ask my noble friend whether there is any reason to believe that the Spanish Government intend to honour their obligations? If they do not do so, does it not raise questions as to their reliability in other contexts?
Lord Trefgarne: My Lords, we believe the Spanish Government intend to honour their obligations and, as I said in the main Answer, they re-affirmed that intention as recently as 16th March.
Lord Boothby: My Lords, would the Minister give an assurance that so long as the Spanish Government continue to wage war against Gibraltar—because that is what it amounts to—Her Majesty's Government will

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veto the application of Spain to join the Common Market?
Lord Trefgarne: My Lords, we do not make any connection between Spanish accession to the European Community and the Gibraltar question, but, as has been said on many occasions, Spanish accession with the restrictions still in place is inconceivable.

Animal Experiments: Advisory Committee Report
3.40 p.m.
Lord Houghton of Sowerby: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will place in the Library of the House a copy of the recent report of the Advisory Committee on Animal Experiments.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, my right honourable friend has decided that it would be right to publish this report and has set in hand arrangements for this purpose. These will take a little time and it would not be right to anticipate publication by putting a copy in the Library. On behalf of my right honourable friend the Home Secretary, I should like to take this opportunity of thanking Mrs. Warnock and members of the advisory committee for their valuable work.
Lord Houghton of Sowerby: My Lords, I am grateful to the noble Lord for that reply. He is aware that we in this House are awaiting the Third Reading of the Laboratory Animals Protection Bill, which may take place later this month. As I am given to understand that the advisory committee devoted a great deal of its report to the Bill and the report of the Select Committee that preceded it, may I ask if we are likely to have access to the report before the Third Reading of the Bill?
Lord Belstead: No, my Lords; I very much doubt it.

Mobile Radio Frequencies
2.42 p.m.
Lord Morris: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
To ask Her Majesty's Government which frequencies they intend to allot to private mobile radio transmissions.
Lord Belstead: My Lords, the Home Secretary's Mobile Radio Committee is at present engaged in a review of the spectrum requirements of private land mobile radio services until the end of the century and the scope for meeting them, in the light of the outcome of the recent World Administrative Radio Conference.
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The allocation of additional spectrum to any service has to be considered against a wide variety of national and international factors, but the committee's report will be a vital contribution to this process.
Lord Morris: My Lords, while thanking my noble friend for that Answer, may I ask whether he is aware that, if the frequencies which are recommended in the draft report are taken up, they will be completely out of step with the rest of Europe? Is he, in addition, aware that the vast majority of users believe on technical and political grounds that if these frequency allocations are taken up, Her Majesty's Goverment will be making a rod for their own backs?
Lord Belstead: Well, my Lords, I am not aware of the point that my noble friend has mentioned, because I have not seen the draft report. We are talking about a committee which does valuable work and which is an advisory committee to my right honourable friend the Home Secretary. I think that we should wait to see what the committee has to say before I state on behalf of the Government any conclusions that we may reach.

The Civil Service Dispute
2.43 p.m.
The Lord President of the Council (Lord Soames): My Lords, I regret to inform the House that the talks we have been holding with the Civil Service unions, aimed at resolving the present pay dispute, broke down on Friday. The talks had been concerned both with future arrangements for determining Civil Service pay and this year's increase, in response to the union's anxiety about arrangements for settling Civil Service pay in the future. I told them that we were ready to set up an independent outside inquiry to advise on the best up-to-date arrangements. Furthermore, since this was unlikely to report in time for the 1982 pay settlement, the Government would not set their cash limit for Civil Service pay next year in advance of negotiations with the unions. But the Government were not prepared to agree to the unions' further demand that they should be guaranteed access to arbitration for 1982 should agreement not be reached in negotiation.
As to this year's increase, the Government originally offered 6 per cent., and that was subsequently raised in the course of negotiation to 7 per cent., to be financed within the 6 per cent. cash limit by savings in staff and administrative costs. But the unions insisted that they would not settle at this figure. They wanted more money this year.
The Government are satisfied that the 7 per cent. offer for this year, together with the assurances we have given for the future, are both fair and reasonable. Indeed, over 2 million workers in other public services have already settled at around this figure, and, faced with the economic facts of life, many in the private sector, with less security of employment, have settled for less.
The unions have now announced their intention to take further disruptive action and to extend it into the social security and unemployment fields. The Govern-

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ment deplore this decision. They will of course do all within their power to minimise the damage and hardship which is caused to individuals and the country. To continue this dispute can only do damage to individuals, to the country and to the Civil Service—it can be of benefit to no one.
Lord Peart: My Lords, I have taken careful note of what the noble Lord has said, and we regret that no settlement has yet been reached. This is the important point. I should like to know whether the noble Lord is still pursuing the matter with the unions; after all, we all want to avoid an all-out strike. I wish to ask the noble Lord, as I have done on a previous occasion, whether the Government are to think in terms of a new and ordered agreement system for determining Civil Service pay. This is vital. I had all this difficulty myself. I appreciate and understand the problems that the noble Lord is facing, but I wonder whether he cannot give something to the unions regarding the machinery and the possibility of other machinery beyond it.
Baroness Seear:My Lords, we on these Benches also wish to thank the Minister for repeating the Statement—
Several noble Lords: For making the Statement.
Baroness Seear: For making the Statement; one gets into the bad habit of saying," Repeating the Statement ". We are glad that he has not given way to pressure to increase the amount of money to be paid to the civil servants. We believe that it is extremely important that public opinion should be fully informed about what is really involved. Therefore I would ask him once more to repeat what the civil servants have received in the last three years, which I consider ought to be very widely understood. After all, there is nothing sacrosanct about the period of one year.
I should also like the noble Lord to tell us what would be involved in cash terms if the civil servants' demand for 15 per cent. were to be met. I believe that the public as a whole perhaps understand sums of money better than they understand percentage increases, since it is then easier for people to translate the sums of money into terms of hospitals not being built, nursery schools being closed, and school dinners not being paid for. This I think is the way in which the public would be enabled to understand why the Government are taking the stand that they are taking.
I should also like to ask the Government whether, however, it is not possible to speed up the report of the inquiry into future methods for settling civil servants' pay. It is, I think, disappointing—and it must be disappointing to the unions—to be told that it is unlikely that the report will be ready by 1982. I fully realise that it involves much work, though I believe also that they are matters of principle rather than of detail that have to be gone into. If it were regarded as a matter of the greatest urgency, would it really be impossible for the Government to bring it forward, so that it could influence the 1982 settlement?
Lord Soames: My Lords, I am grateful to the noble Lord and the noble Baroness for the questions that they
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have asked. The noble Lord, Lord Peart, asked whether we were pursuing the matter with the unions. Alas! the unions have made clear to me that they do not intend to come to talk with us any more, in view of the fact that on Friday I told them that we could not agree to their request for arbitration for 1982—they asked for an immediate decision on that aspect—and that we could not increase the offer of 7 per cent.
The noble Lord next asked whether we were seeking the new and ordered arrangement, and this point was also taken up by the noble Baroness, Lady Seear, in her question. Yes, of course; this is what the inquiry is going to be into. We have not had an inquiry into these matters since Priestley, which was 25 years ago and which came up with arrangements that have lasted us more or less satisfactorily since, though in recent years the pay agreements have more often not been implemented than they have been implemented. Certainly the present sort of circumstances of levels of inflation and the like were never foreseen when the Priestley Report was made—I am glad to see the noble Lord, Lord Shepherd, who knows so much about these matters, nodding in agreement—and we need something new and up-to-date.
In answer to the noble Baroness about the timing—and I am most grateful for her support in this, because there are few Members of your Lordships' House who have a greater experience of pay in the public services and the public sector as a whole than Lady Seear, with her experiences on the TSRB, for which we are most grateful—she will appreciate that this takes some time. Of course, we start thinking and talking about the 1982 pay settlement, which is meant to come into effect on 1st April 1982, some time in advance of that —in other words, in the latter part of 1981—and as we are already in June 1981 I think it unlikely that we could come up with it in time.
I was grateful to the noble Baroness for her question about what has happened over the past three years; that is, 1979, 1980 and 1981. As to 1979 and 1980—the two years since this Government have been in office—in the first year we inherited from the previous Government, and implemented, the decision that they had taken to make a 25 per cent. increase on average for the Civil Service; and in 1980 there was an 18½ percent. increase on top of that 25 per cent., which was staged. That made an increase of the order of 50 percent.—just under 50 per cent., in fact it was—over two years. Granted that this was a catching up exercise—I have always said that; they had fallen behind before—the 1980 settlement brought them right up to date and the 7 per cent. on top of that which we are now offering is well in line with what others are getting, considering what has happened in relation to their salaries and the salaries of others over the last three years.
There might be room for some argument—this perhaps one could accept; there is always room for argument and discussion—but that that should be the kind of situation which calls for this sort of industrial disruption is something of a totally different order, and in my view and in the Government's view it is not warranted in any way at all. As to the cost of this, to grant 7 per cent. will cost £320 million, and to give the full 15 per cent., for which the unions have asked, would cost a further £370 million. In other words, it is of the order of £46 million per percentage point to

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the Civil Service as a whole; and, of course, the industrial Civil Service is affected to some extent by the non-industrial Civil Service.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that those who, like myself, have at one time been concerned with the responsibility for the Civil Service find the present attitude of the Civil Service unions inexplicable and depressing? Is he further aware that public opinion would be outraged if the civil servants, in pursuit of their own claim, were deliberately to damage the interests of the least fortunate section of our population, the unemployed and the old, and that in those circumstances, were such action to take place, public opinion would begin to wonder whether the 7 per cent. offer could continue open indefinitely?
Lord Soames: My Lords, I am grateful to my noble friend for what he has said. As to future plans and where we go from here, the Government will of course be giving thought to this when considering what action the unions in fact take from now on.
Baroness Wootton of Abinger: My Lords, can the noble Lord the Minister explain what is the ground for this Government's resolute opposition to arbitration in this case, the more so inasmuch as the arrangements which were made under the Priestley Commission are now considered to be out of date? Why are the Government not willing to allow this dispute to be sent to arbitration?
Lord Soames: My Lords, I made it clear as long ago as August of last year, 1980. I said to the unions at a meeting we had together that for the 1981 settlement cash limits as opposed to pay research had to be the dominant factor because of the overwhelming need in the national interest, in view of inflation rates and the like, for the Government to keep a firm hold of the increases in pay of those for whose pay they themselves were responsible. In August 1980 I said that it would have to be the major feature, and as time went on I then said that it had to be the determining feature; and because cash limits are the determining feature and only the Government can judge what they can give within those cash limits, and that cannot be judged by arbitration, it was decided that this year, in those circumstances, it could not go to arbitration.
Lord Shinwell: My Lords, the noble Lord the Leader of the House referred in his Statement to the comparison between the attitude of the Civil Service unions and that of what might be described as the grass-roots unions. In view of the reasonable attitude of the grass-roots unions, who have accepted the Government's declaration about wage policy, at any rate for the time being, is it possible to arrange for Mr. Prior, who deals with such matters, to withdraw the threats about encroaching further on the immunities of the trade union movement? Surely these grass-roots unions, because of their reasonable attitude, deserve some credit and ought to be left alone.
Lord Soames: My Lords, the noble Lord, Lord Shinwell, has referred to two totally different factors. What I think have had their effect on outside pay settlements are the economic facts of life of today. These are what have had their effect upon decisions by unions and individuals outside on what is a reasonable pay settlement for this year. As to whether or not further steps are to be taken by the Government in other matters, in terms of relationship between the trade unions and management, this is a totally different question.
Lord Peart: My Lords, may I ask the noble Lord a further question? Will he say what contingency arrangements the Government have made to deal with the escalating strikes? Also, what are we going to do to make sure that social benefits are definitely paid to sections of our community? These are important matters.
Lord Soames: My Lords, they are indeed most important matters. I can assure noble Lords that the Government have taken all steps possible within their power in the way of contingency planning, in the way of arrangements that have been made, to ensure that the minimum of damage is done to individuals as individuals or to the country as a whole. As to the details, perhaps the noble Lord will understand if I do not go into them. It would take rather a long time.
Lord Mishcon: My Lords, will the noble Lord the Leader of the House take it for granted that this question is meant only to be helpful? Reverting to the point that was made by the noble Baroness, Lady Wootton, does he not know that a refusal of arbitration, whether by a union or an employer, is taken by the public to be a sign of weakness by those who refuse an arbitration? Would he not accept that most employers, when they do go to arbitration, make the point that, as a result of either their lack of profits or the size of them, they cannot afford to make any higher offer? Could it not be a term of reference to any arbitrator that the Government's point about inability to afford more in the national interest is a matter which should be looked into by the arbitrator perfectly fairly?
Lord Soames: My Lords, I do not believe that one can put that in the terms of reference. The Government must decide what the cash limits will be. No arbitrator can decide such a thing; that can be decided only by the Government if they wish so to do. They cannot hand that over to any other body. Once they have decided what the cash limit is, then, again, only the Government can work out what can be afforded within that cash limit.

Business
Lord Denham: My Lords, it may be for the convenience of your Lordships if I announce that dinners will be available at the usual time. The Committee stage of the Transport Bill will be adjourned at approximately 7 o'clock for a short period and during this adjournment the Employment Protection (Employment in Aided Schools) Order 1981 will be taken.

Betting and Gaming Duties Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that this Bill be now read a second time. It is a consolidation Bill bringing together a variety of enactments concerning the duties of excise relating to betting and gambling which have been made over the past decade. It takes into account changes made by the Finance Bill currently going through Parliament. Unless any noble Lord objects, the Bill will, in the usual way, go to the Joint Committee on Consolidation Bills for consideration. I be to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

Food and Drugs (Amendment) Bill
Report received.

Transport Bill
3.14 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bellwin.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE EARL OF LISTOWEL in the Chair.]
Schedule 6 [Amendments of the Harbours Act 1964]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 44:
Page 60, line 43, after ("charge") insert ("previously incurred or incurred").
The noble Lord said: In moving this amendment, I should like to speak to Amendment No. 45. These two amendments make technical, but important, corrections to paragraph 8 of Schedule 6, which provides for a new Section 27A in the Harbours Act 1964 dealing with port charges. They deal with two separate points, but I hope you will agree that it will be for your Lordships' convenience to discuss them together as they arise on the same paragraph of the Bill.
The first amendment puts right the possibility, pointed out to us by the Port of London Authority, to whom I am most grateful, that in certain circumstances a port user might be able to avoid paying any ship, passenger or goods due for the use of certain harbour facilities. As your Lordships know, the new Section 27A provides that port users may object to a port authority's practice of levying what is called a combined charge, comprising both ship, passenger and goods dues and other charges. In that event the authority would have to quote separately for dues and for other charges, thus enabling the user to identify the
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"dues" element and object to that in accordance with the provisions of Section 31 of the Harbours Act 1964.
Under Section 30 of the 1964 Act a due can be imposed only if it is already included in a port authority's published list of ship, passenger and goods dues. But there may be circumstances where, if a user objects to paying a combined charge, the authority will not already have an appropriate due included in their published list. In such circumstances they would therefore be prevented from collecting it; and since they could not impose a combined charge as a result of the objection, the user would not have to pay at all for the use of the harbour. This would clearly be wrong, and the amendment seeks to ensure that a user cannot object to paying a combined charge made in respect of the use of a harbour or the provision of services which he has already enjoyed. He will therefore only be able to object to paying it in the future, and this will give the harbour authority time to include an appropriate due in their published list.
Although the amendment will prevent users from objecting to dues that they have already agreed to pay, I can assure your Lordships that this will in no way prejudice users in so far as their right of objection against dues under Section 31 is concerned. This is simply because a decision by the appellate authority under that section cannot be retrospective, so that an appeal cannot be lodged in order to secure a reduction in dues that a user has already agreed to pay. It can affect only the future payment of dues.
The other amendment is, I am pleased to say, a little less complex. It concerns the definition of the port authorities who are subject to the provisions of the new Section 27A. By virtue of the definition of "harbour authority" in the section as it stands, the authorities subject to it are those who are also subject to the provisions of Section 26 of the Harbours Act 1964, which in 1964 gave most port authorities freedom from statutory limitation on their charges. This definition therefore covers most port authorities but it does not cover the "boards"; namely, the British Transport Docks Board, the British Waterways Board and the British Railways Board, who own and operate a number of harbours. Most of the charging provisions of these nationalised boards are at present governed by the Transport Act 1962 rather than by the Harbours Act 1964, although the substance of the provisions is the same. But the transport boards are not subject to the new provisions of the new Section 27A as currently drafted, and the effect of the amendment is to make them subject to the new section. The amendment deletes the present definition of "harbour authority" from the section. As a result, references in the new section to a harbour authority will attract the general and wider definition in Section 57(1) of the Harbours Act. This definition covers all port authorities, including the transport boards.
We are anxious that the new provision on combined charges, which is a most useful clarification of the law governing the right of appeal against dues, should be as widely applicable as possible. It was always our intention that the new section should apply to the boards and the amendment achieves this intention. I beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 45:
Page 61, line 5, leave out from ("harbour") to end of line 7.
On Question, amendment agreed to.
3.8 p.m.
Lord Underhill Lord Underhill moved Amendment No. 46:
Page 61, line 18, leave out from ("inserted") to end of line 22 and insert (""and all other charges imposed by a harbour authority as provided in section 27A"").
The noble Lord said: I would draw the attention of the Committee to the widespread support that there is for this amendment. At present, there is opportunity for objections to be made to the National Ports Council against charges for ship, passenger and goods dues imposed by a harbour authority. That provision is laid down in Section 1 of the Harbours Act 1964 to which reference was made by the noble Lord on the previous amendments. Paragraph 10 of Schedule 5 provides that with the abolition of the Ports Council, as is proposed in the Bill, the determination upon these objections will be transferred in future to the Secretary of State. On this side of the Committee—and my noble friends have supported my amendment—we are pleased that this provision has been included in the Bill, so that there is this opportunity for appeal; but we regret the limitations placed upon it by subsection (3) of this particular paragraph.
At the time of the 1964 Act in most ports there were a number of employers of labour providing stevedoring and associated services in competition one with another. Since then there have been considerable changes with regard to employment and charging arrangements. These facts were supported by the Under-Secretary of State when at Report stage in another place he moved an amendment to insert the present paragraph 8 of this schedule. Mr. Kenneth Clarke, the Minister, agreed that since 1964 port authorities have themselves become major employers of stevedores, they have acquired a lot of warehousing facilities and, with the growth of containerisation and with technical changes in the industry, the practice has arisen of port users looking to the port owner for cargo handling charges as well as the traditional port dues.
The number of employers has rapidly declined and in some ports the authority is the only employer of registered dock labour. This is one of the factors which has led to the financial difficulties of the PLA and the Mersey Docks, a matter before the House only a short while ago. This means that there is a tendency for there to be a monopoly situation in respect of the charging of dues to cover all aspects of port operations, and because of the changed conditions there is provision in paragraph 8—as has been explained by the Minister—that in certain circumstances there may be a combined charge to cover ship, passenger and goods dues and also these other charges.
Despite these changed conditions, a provision is proposed in subsection (3) that Section 1 of the 1964 Act shall exclude the opportunity of an objection against a combined charge. The Inland Waterways Association, which aims to secure the maximum use of the freight waterways, has expressed concern about this tendency towards monopoly charging. Similar concern has been expressed by the National Water
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Transport Association, which represents the commercial and industrial waterway interests. That is, the private undertaking that engages in waterways freight activities.
Although the Minister is in full agreement with the changed conditions in many ports, he stated in the other place that the Government resisted the idea of extending the power of appeal to cover cargo handling largely because it would be inconsistent with the policy of the Bill. Frankly, I find it difficult to understand. Mr. Clarke continued—and I am quoting from column 232 of Commons Hansard for 14th April:
"The Government believe that there is a limit to the extent of useful Government involvement…in the ports".
But the amendment is in no way seeking that. The amendment proposes that there should be fair treatment for port users in the light of the changed conditions.
These conditions are illustrated in one example affecting the Humber Estuary and the lower River Trent. The British Transport Docks Board acts as navigation authority for that area. When Associated British Ports takes over, as is provided in the Bill, as a private company, as well as functioning as a harbour authority it will be responsible also for access to private wharves on their waterways and also to the wharves on the waterways of other operators. It could be understood that as a private company British Ports would hope to encourage traffic to use their dock facilities, and as a navigation authority they will be in a strong position to do so.
I must remind the Committee that the Government have provided finance for the improvement of the Sheffield and South Yorkshire navigation to enable larger craft to proceed as far as Rotherham. It would be wrong to imperil that national investment by arbitrary charging and at the same time not to allow appeals against such charging. The amendment proposes that subsection (3) be changed to provide for insertion in Section 31 of the 1964 Act so that there may be provision for objections to all charges levelled by a port authority and they now be confined only to the ship, passenger and goods dues. This, I think the Committee will agree, is a very reasonable amendment.
It surely is equitable that where charges are made in a monopoly or near-monopoly situation, there must be opportunity for appeal and the objections would be to the Secretary of State. It would be the Secretary of State who would determine upon the objections. That makes the amendment even more reasonable and I hope that the Government accept it as something which is equitable. I beg to move.
3.15 p.m.
Viscount Hanworth: As one who is interested in the waterways and who is also interested in trying to promote the greater handling of cargo, I think that this is an important amendment and I should like to support it. If the Government do not like to be involved in any way, there is of course another alternative which has been suggested: to put into the Bill some provision for independent arbitration. Unless one or two of those suggestions are accepted, the situation is highly unsatisfactory. The Government—who I

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know do not like monopolies any more than anybody else does—should not allow one to occur in this case.
The Countess of Loudoun: I, too, should like to support this amendment. There is concern about the increasing emergence of monopoly situations within the port industry, and the measures proposed in the Bill will hasten this process. Did not the National Ports Council in their report to the Secretary of State in 1978 recommend that the two functions of harbour authorities relating to dock operations and conservancy should be separated? The conservancy functions would be taken over by a non-commercial organisation, thus ensuring that unfair biases against estuarial and inland waterway transport are not introduced by the provisions of the Bill.
Lord Skelmersdale: We are grateful to the noble Lord, Lord Underhill, and the other members of the Committee who have spoken. We know that there has been wide concern among port users on this particular subject. Port charging is an important subject and the Government have therefore given careful consideration to the many requests to extend the present right of objection against ship, passenger and goods "dues" to cover all port charges. It is important to recognise first the important distinction between ship, passenger and goods "dues" on the one hand and other port charges on the other hand. The "dues" are levied on all port users in respect of the use of the basic or essential port and harbour, and reflect the authority's costs in the provision of the harbour infrastructure and the maintenance of approach channels, lights, buoys and beacons. They are essentually in the nature of a tax, an amount payable by a user, but not necessarily directly related to the services he receives. Were we dealing with another Bill, we might equate them with rates.
Other port charges, on the other hand, are levied for specific services provided to users—for example, for loading or unloading a ship or for the storage of goods—and they are related to the kind of services provided. I ask the Committee to bear these distinctions carefully in mind because of what I am going on to say.
Port users, and the noble Lord, Lord Underhill, have argued that, as port authorities are now in many cases the sole employers of stevedore services, they exercise a monopoly over these services, thus justifying the extending of the appeals procedure. The noble Viscount, Lord Hanworth, argued the same point. While it is certainly true that port authorities are now the main employers of registered dock labour, we do not accept that they are in a monopoly position. After his kind remarks, I am sure that the noble Viscount would be the first to concede that the Government would be the first to recognise a monopoly situation should it exist.
The ports industry is a fiercely competitive one and there is no basis on which monopoly can effectively be exercised by an individual port authority. Charges for stevedore services are in any event a specific charge for a specific service provided to users. But the same cannot be said of ship, passenger and goods "dues". These are, as I have already said, essentially a tax paid simply for the use of a port, not directly related to the
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services provided. Because of the nature of these "dues" we recognise that there is a continuing need for the right of objection against them to be retained, and paragraph 10 of Schedule 5 therefore transfers the National Ports Council's appellate function to the Secretary of State. But, for the reasons that I have mentioned, we do not believe that the right of appeal should be extended to cover all port charges. It is, furthermore, central to the Government's policy that the ports industry should be given as much responsibility as possible for its own affairs. This would be seriously damaged by an extension of Government control over the ports' pricing policies.
During the passage of the Bill in another place, and indeed here, it has been clear that much of the criticism of the present appeals procedures lies in the fact that it is very difficult for users to identify the "dues" element in the combined charges which port authorities are increasingly imposing. As I have just explained, we are amending the Harbours Act 1964 to put a clear obligation on authorities to specify the dues element of any combined charge, where the users require them to do so. I think we all recognise that this is a helpful improvement to the present appeals procedure, but I hope I have explained to your Lordships' satisfaction why we do not believe that an extension of Section 31 to cover all port charges is either necessary or desirable.
The navigation charges which will be levied by the Trent and Humberside Harbour Association of British Ports will be subject to appeal under Section 31—that is one of the points mentioned by the noble Lord—just as at present, where they are made by the British Transport Docks Board. As I say, I am afraid there is no way the Government can accept this so reasonably moved amendment.
Lord Underhill: I am very disappointed with the Minister's reply, charming though was his turning down of the amendment. To suggest that the Government do not accept a monopoly situation is surely not accepting the position that was agreed by the Under-Secretary of State for Transport in another place, where he as good as agreed that this situation is now growing. It is not a question of asking the Government to interfere in charging policy: we are not asking for that. What the amendment says is that if a port user believes that charges other than those for ships, passengers and goods, stevedoring and other charges, are excessive, he ought to have a fair opportunity of appeal. That is all we are asking for—not interfering with or laying down of charging policy.
I am very disappointed and I am wondering whether the Government would accept the proposal made by the noble Viscount, Lord Hanworth, that if the Secretary of State does not want this responsibility the Government themselves might bring forward an amendment to provide for some independent arbitration body to make a decision. If the Government would make such a statement I would readily withdraw the amendment; but otherwise this is such an important question of equity and decent treatment for commercial users of the port that we would have to stand by the amendment.
Viscount Simon: Before the noble Lord replies, I wonder whether I could ask the noble Lord, Lord

15
Underhill, to explain one thing to me. Is he suggesting that the charges for cargo handling, loading, discharging and storage should be appealed against only when those services are provided by the port authority and not when they are provided by other people?
Lord Underhill: The amendment provides that there can be an appeal by any person. It does not stipulate where it is only provided by the port authority. I think the wording of the amendment would cover the circumstances outlined by the noble Viscount, Lord Simon.
Viscount Simon: I am sorry that I evidently did not make myself clear because the noble Lord, Lord Underhill, has misunderstood me. It is where the services are provided by the port authority. It has been mentioned that in some cases these services are supplied on a practically monopoly basis. But of course in a lot of other cases they are not supplied on anything like a monopoly basis, particularly as regards storage. There are many independent companies offering storage. Is it only the port authorities whose charges are to be subject to appeal?
Lord Underhill: I must withdraw what I said previously. The wording is—
"and all other charges imposed by a harbour authority…".
Therefore it could only deal with those imposed by a harbour authority. The reason for that is, of course, where they are not imposed there is no question of monopoly arising. It is only where this other work is carried out by the harbour authority that you get this near-monopoly situation. The noble Lord the Minister said the Government do not accept that there is a monopoly situation because ports are competitive. But if one takes the Sheffield and South Yorkshire Navigation to which I referred, what other port could the users there go to? They would have to use the port at the end of their waterway, and therefore they would be in the position of having to go to a monopoly.
Lord Skelmersdale: Much, as I thought, has been made of this word "monopoly "—I thought it would be. The point about it is this: if you have a monopoly in one situation are you justified in legislating for the whole range of port authorities? The Government feel strongly that the answer is, no. Were we satisfied that there was a monopoly I am sure we would look very carefully with regard to considering the suggestion of the noble Viscount, Lord Hanworth. But since we are not, I am afraid there is no hope of that.
3.26 p.m.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 91.

CONTENTS

Airedale, L.

Birk, B.

Amulree, L.

Bishopston, L.

Bacon, B.

Blyton, L.

Banks, L.

Briginshaw, L.

16

Bruce of Donington, L.

MacLeod of Fuinary, L.

Byers, L.

Mishcon, L.

Clancarty, E.

Oram, L.

Collison, L.

Peart, L.

Crook, L.

Phillips, B.

Cudlipp, L.

Plant, L.

David, B. [Teller.]

Porritt, L.

Denington, B.

Roberthall, L.

Donaldson of Kingsbridge, L.

Rugby, L.

Ewart-Biggs, B.

Sainsbury, L.

Flowers, L.

St. Davids, V.

Gaitskell, B.

Seear, B.

Goronwy-Roberts, L.

Shinwell, L.

Hampton, L.

Sligo, M.

Hanworth, V.

Spens, L.

Henderson, L.

Stamp, L.

Houghton of Sowerby, L.

Stedman, B.

Ilchester, E.

Stewart of Alvechurch, B.

Jacques, L.

Stewart of Fulham, L.

Janner, L.

Stone, L.

John-Mackie, L.

Strauss, L.

Kearton, L.

Taylor of Mansfield, L.

Kilmarnock, L.

Underhill, L.

Leatherland, L.

Wallace of Coslany, L.

Listowel, E.

White, B.

Llewelyn-Davies of Hastoe, B.

Wigoder, L.

Lloyd of Hampstead, L.

Wootton of Abinger, B.

Loudoun, C. [Teller.]

NOT-CONTENTS

Adeane, L.

Hives, L.

Ailsa, M.

Home of the Hirsel, L.

Alexander of Tunis, E.

Howe, E.

Alport, L.

Hylton-Foster, B.

Ampthill, L.

Jessel, L.

Auckland, L.

Killearn, L.

Avon, E.

Kinnaird, L.

Barnby, L.

Lauderdale, E.

Bellwin, L.

Long, V. [Teller.]

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Lyell, L.

Boyd-Carpenter, L.

McAlpine of Moffat, L.

Brougham and Vaux, L.

Mackay of Clashfern, L.

Caccia, L.

Macleod of Borve, B.

Cairns, E.

Mansfield, E.

Campbell of Croy, L.

Mar, C.

Clwyd, L.

Marley, L.

Cockfield, L.

Milverton, L.

Cottesloe, L.

Monk Bretton, L.

Cross, V.

Mottistone, L.

Cullen of Ashbourne, L.

Mountgarret, V.

Daventry, V.

Mowbray and Stourton, L.

Davidson, V.

Murton of Lindisfarne, L.

De Freyne, L.

Northchurch, B.

Denham, L. [Teller.]

Nunburnholme, L.

Derwent, L.

O'Neill of the Maine, L.

Donegall, M.

Orkney, E.

Duncan-Sandys, L.

Rankeillour L.

Dundee, E.

Rawlinson of Ewell, L.

Ebbisham, L.

Reay, L.

Eccles, V.

Rochdale, V.

Effingham, E.

Saint Oswald, L.

Ellenborough, L.

Sandford, L.

Elliot of Harwood, B.

Sharpies, B.

Fortescue, E.

Skelmersdale, L.

Gainford, L.

Soames, L.

Gibson-Watt, L.

Strathcarron, L.

Glenkinglas, L.

Sudeley, L.

Gormanston, V.

Trefgarne, L.

Grantchester, L.

Vaux of Harroden, L.

Gray, L.

Vivian, L.

Gridley, L.

Wakefield of Kendal, L.

Grimston of Westbury, L.

Waldegrave, E.

Hailsham of Saint Marylegone, L.

Ward of Witley, V.

Willoughby de Broke, L.

Hawke, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.34 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 47:
Page 63, line 19, leave out ("this section ") and insert ("subsection (7) or (9) above ").
The noble Lord said: In moving Amendment No. 47 I should like also to speak to Amendment No. 48. Both amendments will enable regulations to be made to exempt certain classes of statutory harbour undertakers from the new version of Section 42 of the Harbours Act, 1964, which is provided for by paragraph 10 of Schedule 6 to the Bill. This section applies the accounts provisions of the Companies Acts to statutory harbour undertakings, subject to such modifications and additions as the Secretary of State may prescribe by regulations, and requires copies of the accounts of statutory harbour undertakings to be sent to the Secretary of State.
The intention of these amendments is to limit the application of the new provision (and of the regulations) to harbour undertakers from whom the Secretary of State needs to have information in connection with his overall responsibilities for the ports industry—namely, those undertakers operating a port as their main business. If these amendments are approved, we propose to use the exemption power to exclude from the regulations what are called "own account under-takers ". These are undertakers who operate a harbour facility which is ancillary to their main business and used wholly or mainly for handling raw materials or goods which they manufacture for the purposes of their own business. Typical examples of "own account undertakers "are oil companies, the British Steel Corporation and the Central Electricity Generating Board. We do not consider it necessary for the Secretary of State to receive separate accounting information on these organisations' ancillary harbour operations. The accounts of the organisations concerned are, of course, already governed by the Companies Acts or by other specific legislation, and I believe—or at least I hope—your Lordships will agree that to make such organisations produce a further set of accounts dealing purely with their harbour operations would be to impose upon them an unnecessary burden.
The exemption provision may also be used to exempt very small harbour undertakers, who are already excluded from the present regulations under the existing Section 42. Again, the Secretary of State does not need detailed information under the provisions of Section 42 on these undertakings. They will of course remain subject to the requirements of their existing local enactments. I hope your Lordships will agree that these are helpful amendments, which will ensure that we do not impose unnecessary burdens on industry at a time when we are withdrawing from unnecessary and detailed involvement in the ports' affairs. I beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 48:
Page 63, line 27, at end insert—
("(c) a statutory harbour undertaker of a class exempted from this section by regulations made by the Secretary of State.").
On Question, amendment agreed to.
On Question, Whether Schedule 6, as amended, shall stand part of the Bill?
3.38 p.m.
Viscount Simon: I should like to draw to your Lordships' attention a very small point on paragraph 5 of Schedule 6, which appears on page 57 of the Bill and which states:
"Each of the Ministers may, subject to subsection (2) of this section, by order vary the constitution of a harbour authority so far as it provides for the appointment by him of any member or members of the authority—

(a) so as to abolish the power of appointment (except where the power is to appoint the chairman of the authority); or

(b) so as to provide for the power of appointment to be exercised by such other person or persons as may be specified in the order".

An amendment to delate this paragraph was put down and discussed in the other place, but it was defeated in Committee. However, I thought it was worth drawing to your Lordships' attention because it creates a rather peculiar situation. As I understand it, the Minister already has the power under that part of the Act to produce what is called a harbour revision order to provide for an alteration in the composition of the authority controlling the harbour. In such a case there are provisions for an objection to be lodged and, if an objection is lodged and not withdrawn, for an inquiry to take place. Under paragraph 5 the Minister can alter the composition of the port authority with no provision for any objection or appeal. To the British Ports Association, which has written to me on the matter, it seems that this could be rather dangerous, because very often the body controlling the port is carefully balanced between a number of interests. If the Minister withdrew his appointments—or, still more, if he handed over his appointments to somebody else—the balance could be easily upset. One might feel that, in those circumstances, there should still be provision for objections to be made and considered and, if necessary, for an inquiry. This could be done at present without this clause by a harbour revision order under the Harbours Act.
Lord Skelmersdale: The noble Viscount, Lord Simon, referred to the appointments system and I shall try to clarify both his mind and my own mind, because I too find this a complicated subject. In fact we seem to be going through a whole series of complicated subjects, but doubtless we shall win through in the end.
The Secretary of State, together with the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales, has a variety of powers to make appointments to the boards of a number of harbour authorities in accordance with the constitutions of those authorities; so the noble Viscount was quite right. In the light of our policy to withdraw from involvement in the ports industry wherever possible, paragraph 5 of this schedule provides Ministers with the opportunity—no more than that—of withdrawing, if they so wish, from making a number of these appointments.
I should first explain the limited extent of this power. Subsection (2) of the new Section 15A of the Harbours Act 1964 excludes from its application those port authorities to which the Secretary of State appoints

19
all the board members, excluding ex officio or co-opted members. In practice, this means that the Secretary of State's powers of appointment to the major public trust ports, such as Dover, London, Forth and Tyne, are unaffected by the new power.
During the last decade, the major public trust ports have undergone a major programme of reconstitution, with the Secretary of State appointing board members on an independent and unbiased basis, for their personal qualities and expertise, rather than as, prior to reconstitution, representatives of sectional interests.
This programme of reconstitution is generally accepted as having led to a much improved quality of board membership and of improved port performance. The Secretary of State recognises the value of these appointments and will, of course, continue to make appointments to the major commercial public trust ports, so that the independent and "non-representative "nature of the board membership is maintained.
The appointments covered by the power are, on the other hand, either those to the smaller public trust ports, to which the Secretary of State appoints, or those made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales to a number of fishery harbours. I know that the British Ports Association believe that ministerial appointments provide a means of ensuring a proper balance and an element of independence in the composition of authorities. We accept, as I have already said, that this is certainly true in the case of the major public trust ports. But at the ports covered by the power, although the proportion of ministerial appointments varies from port to port, the maximum number is only four and the number is usually only one or two.
This is, in our view, too small a number in practice to have any significant balancing effect. For example, the Secretary of State appoints only two of the 27 members of the Teignmouth Harbour Commission and only one of the 19 members of the Cowes Harbour Commission. At harbours such as these, with localised interests, the kind of board member required is somebody with local knowledge of the area and the harbour, and the harbour authorities themselves are in a much better position than a Minister to identify potential members. I hope that, with those explanations and assurances, the noble Viscount will now be happy with the schedule.
Viscount Simon: I am greatly obliged to the noble Lord. I think I am fairly happy with the schedule, but this objection was brought to my notice by the British Ports Association, who know much more about it than I do, and they are not happy. But I shall have to leave it there.
Schedule 6, as amended, agreed to.
Clause 19 [Disqualification for repeated offences]:
3.44 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 49:
Page 14, line 29, after first ("of") insert ("penalty").
The noble Lord said: We now come to Part IV of the Bill which deals with road safety. Your Lordships
20
will remember that on Second Reading I suggested that the Government had lost a valuable opportunity of making a big impact on the question of road safety, by putting all these proposals in a Bill that has got mixed up with harbour authorities and various other institutions. The amendment which I now move follows up that criticism, which was not only in general but in particular, regarding the psychology of the points system. I move Amendment No. 49 to insert the word "penalty" before the word "points" and this follows in Amendments Nos. 50, 51, 52, 53, 55, 58 and, in the schedule, 60 and 61.
"Penalty" all along the line is what I have set out to have. It is short, it is simple and it is serious. If we are going to use the points system—and I shall not indulge in any major criticism of it in this amendment—we ought to introduce a suitable note of statutory displeasure in respect of people convicted of certain serious offences and not disqualified on account of them alone, but who accumulate penalties which, when they reach the prescribed total, lead to automatic disqualification. So these are serious matters.
The word "points" is used in many different connections, most of them meritorious, It is strange, and probably unsuitable, to use the word "points" in connection with serious road and related motoring offences, when we want these points to be shown and understood to be a black mark. I made the suggestion on Second Reading that instead of "points" we ought to call them "black marks ". But I do not want to go too close to the classroom; Clause 19 is close enough, anyway. So I thought that a better idea was to make them penalty points, which made it much easier for the compositor to amend the Bill and would probably be more suitable than what I suggested earlier.
It is true that, in Clause 19 and in Schedule 7 on page 65, there is reference to "points to be endorsed" rather than "awarded". That is one up, if they are to be endorsed. But, although I concede that, I feel that the whole idea of the points system introduces the technique of the flower show, the kind of score board where you get the cup for the best in the show, if you have enough points. As I say, points are usually meritorious; you win them or gain them and you are given prizes for them. But in this context you go down the Swanee in due season if you get too many points. That seems to be the mistaken psychology of this system. That is why I think the only way in which we can rescue this subject from a certain amount of flippancy and insignificance is to put the word "penalty" there.
I sincerely hope that your Lordships will take this matter—I nearly said "point"—seriously. I believe that the totting up system, by itself, is evidence of our leniency towards offences in this varied field of delinquency. Indeed, on this subject nearly all Governments are more or less wet—they really are. We have not set out to control the motor-car as many other countries have. Why? I believe that there are probably three reasons why. The first is that the history, the invention and the development of the motor vehicle in this country has been associated with wealth, class, aristocratic position and bearing.
The car began in this country not so much as a utility vehicle but as a pleasure vehicle; it was what you got pleasure out of. You did not need it in the same

21
way as motor transport across the prairies of the United States was needed. We had a very good railway system, the best in the world at the time, so the motor-car was not invented to cover wide open spaces and long distances. You went out for little joy rides on a Sunday afternoon. Of course, all that has been lost over the years, though I believe that in this country the motor-car is still associated with a degree of arrogance and privilege.
If I were to sit down on a stool in the middle of the highway I should soon be removed; the police would gather around and carry me bodily away. But if I were to walk along the pavement and I saw a huge lorry which wanted to park in a place where parking is forbidden, which mounted the pavement a few yards, and in some cases only a few feet away from me, and claimed the right to remain on the footwalk and restrict the passage of pedestrians while the driver got out of the lorry and went across to a neighbouring café for a meal, that would be overlooked. That is how you are treated by the motor vehicle. No pedestrian dare treat a motorist in that way. Traffic wardens are resented. There is hostility towards the police. Pedestrians are regarded as a nuisance, especially when crossing at their appointed places. Motor drivers and crowds are the two menacing indications of over-population and we do not know what to do about either of them. They are both hard to control.
I admit the difficulties. I was not born yesterday. We see all these problems around us and we must admit that the number and variety of motoring offences provide a baffling problem of enforcement and treatment. Schedule 7 lists nearly 30 of them, from being drunk when driving to carrying a passenger on a motorcycle. The sheer numbers involved, the size of the problem of enforcement, is obvious both in terms of police manpower and the capacity of the courts to cope. This suggested system of penalties, points, will reduce to some extent the congestion in the courts, but at the same time I believe that it will reduce the significance of the offence from the point of view of social judgment. The motorist is almost ungovernable; he is the nation's most dangerous killer, but we treat him all the time with a velvet glove.
Another reason, probably, why we are lenient, is because, not to put too fine a point upon it, we are legislating for ourselves. We are all motorists now. When making laws about burglars and footpads and the purveyors of pornography we do not say to our-selves, "But for the grace of God, there go I ". But when a motoring offence is involved we realise that within a couple of hours from now we might be deeply and personally involved. I wonder whether we are a little more lighthanded when dealing with the motoring offence because we are all in it?
It is time for us to ignore the fact that we ourselves are likely to fall into error, and to lay down the law for ourselves as firmly as we should if we were all pedestrians, non-motorists, and regarded the motor-car as one of the enemies of society, as I do. What other explanation can we find for our indulgence towards motoring offenders? When we are lenient in fixing penalties the courts are often lenient in imposing them. We read quite frequently of unbelievably light sentences on motorists who have been convicted of some
22
very grave offences. I know that the points system is of itself an attempt to get greater uniformity in the treatment of cases by the courts, to get some kind of national discipline incorporated into the law. I think this is to the good. Benches are notoriously unreliable when dealing with motoring offences.
We ought to be ready to do a simple job like this, to put the word "penalty" in front of "points". So far as this amendment is concerned it does not propose to amend anything else. I have gone rather wider than the terms of the amendment because it is part of the huge social problem of how to keep life tolerably free from the enslavement and the tyranny of the motor-car. So my simple case is that when trying to weave the many strands of misbehaviour on the road into an acceptable schedule of penalties, we should call them penalties and should never let people forget it. These points in the clause and the schedule are penalty points, and I move that we say so in the Bill.
Viscount Hanworth: I should like to support this amendment, but if I had listened to most of the speech of the noble Lord, Lord Houghton of Sowerby, I should have taken a completely different point of view. No, the motorist is persecuted. There is still the red flag mentality. Many of us think that the penalties are far too great for relatively innocent offences which are not in any way deliberate but purely accidental. Yes, punish those who drive deliberately dangerously. However, to make the allegations which have just been made about the motorist is the greatest mistake. The tendency has been far otherwise. Governments, faced with high accident rates, have tended to produce more and more legislation as the cheapest way of dealing with the situation and showing that they were doing something. We really must set the offences of the motorist, which sometimes are purely technical, against the punishment handed out to other people. If you hit an old lady over the head, very often you will simply be told not to do it again, or you will be put on probation. I know that the points system is probation, but there are other cases where motorists are punished far more harshly than those who have deliberately committed violence.
Baroness Phillips: I should like to support the noble Viscount who has just spoken. I can assure my noble friend that I shall support his amendment but, equally, not for the reasons which he advanced. I am a non-motorist and a magistrate. I resent the constant suggestion which is made in this House, that magistrates are ill-informed and irresponsible. Today we are told that they are unreliable. I think we have made the motorist the villain in our society. First we persuade this unfortunate person to buy a car because it helps the economy, and then we tell him every time he uses it either that he is polluting the atmosphere or that he is using energy, despite the fact that he is paying for it. Let him park on a double yellow line and you will see what a villain he is.
I say to my noble friend Lord Houghton of Sowerby, that if he were to sit in a London court for a day he would find that it is far cheaper to hit somebody over the head than to park on a double yellow line. This does not make sense to me. I think that we are very harsh on the motorist in this country. But that does

23
not mean that I think this amendment is not right. We should state exactly what these marks are. They are penalties, they are not points. So I say to the noble Lord, Lord Houghton, that I think, far from being easy on the motorist in society, we tend to be rather harsh on him—and I speak as a non-motorist. There is merit in this amendment, however, and I should like to support my noble friend in it.
Earl Howe: I always thought that the noble Lord, Lord Houghton, whom I respect very much, was a peaceful man, going to present his prizes at the flower shows. Instead of that, to see him bouncing about in fury against the poor harassed motorist has really worried me. Does he not realise that from time to time a pedestrian is just as responsible for the death or injury of a motorist as the motorist himself?
Lord Underhill: Just before the Minister replies, if I may speak on the amendment that is on the Marshalled List, what my noble friend Lord Houghton of Sowerby has moved is surely something that we ought all to accept. Anything that draws attention to the seriousness of this problem is well worthy of our support, and I would ask your Lordships to support it on the word that he wants inserted and nothing else.
Lord Bellwin: When the noble Lord, Lord Houghton, was speaking he managed almost to convince me that I was wrong in wanting to support him, too. It seemed to me that he was doing fine with the amendment; then he nearly, but not quite, talked me out of it. In what I say now I am sure the noble Lord will agree with me that we are also talking about Amendments Nos. 50, 51, 52, 53, 55, 58, 60 and 61.
There is merit in the noble Lord's argument about the point. I think we would accept what seems to be the feeling of the Committee, that we should accept this amendment. It is arguable and there will be minor matters that will have to be rectified in so switching. We shall have to make one or two changes in other places, but I think we can easily do that on Report. So I say again, I refuse to be talked out of accepting what the noble Lord suggested. We accept his amendment.
Lord Houghton of Sowerby: I am covered with shame. I introduced a little drama into the matter in the hope of alerting your Lordships to the gravity of the situation, but I see that I should have done better to stick to the simple word "penalty" without enlarging on the whole of the background. So I accept the rebuke of the noble Earl, Lord Howe, and of my noble friend Lady Phillips, and, while full of contrition, I am grateful to the noble Lord, Lord Bellwin.
On Question, amendment agreed to.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 50:
Page 14, line 34, after first ("of") insert ("penalty").
On Question, amendment agreed to.
4.4 p.m.
Baroness Stedman Baroness Stedman moved Amendment No. 50A:
Page 14, line 35, leave out from ("be") to end of line 37 and
24
insert ("shown, and any excess points shall be carried forward when the licence is returned after disqualification").
The noble Baroness said: I should like to move this amendment and at the same time speak to Amendments Nos. 51A and 55A, which are in a sense consequential upon the first one. I had assumed that the provisions in this part of the Bill were to apply sanctions to drivers who were guilty of repeated serious traffic offences, but in my view the Bill is not as effective as it should be if my assumption about what it is intended to do is the correct one. Clause 19(1) as it stands proposes that, once a period of disqualification has been imposed under the points system, the points cannot be counted again, but surely the purpose of the points system is to influence and perhaps to deter the persistent offender. In my view—and, in this sense at least, my view is shared by the AA—to wipe the slate clean appears to be quite contrary to that objective. The amendment would enable a licence to be returned after a disqualification, showing on it the number of valid points equal to the balance, if any, over the 12 which caused the disqualification. I believe that this retention of excess points after a disqualification would be a simple way of applying a sanction to the persistent offender.
I know that the AA believe that a case can be made for not wiping the slate clean of points once a disqualification has been imposed. Amendments 51A and 55A follow the same line of thought. The court is allowed discretion to mitigate the normal consequences on reaching 12 points by not ordering a disqualification in certain exceptions, but surely if a driver accumulates the maximum permitted number of points in three years, it must indicate a persistently careless or anti-social driver. In my view, the points system will only be fully effective in influencing driving behaviour if, when the maximum permitted level is reached, disqualification for a minimum period is automatically imposed by the court. Again, this view is also shared by the AA.
Part IV of this Bill is about road safety. It is about people's obligations to each other when they are driving motor vehicles. Persistent offenders must be given a salutary lesson, and that can best be achieved by carrying over the excess points accrued as a consequence of previous convictions.
I shall no doubt be told that my amendments are defective in their drafting, and I happily accept that that may well be so, but I contend that the disqualification should stand for the 12 points with no discretion, and, in the same vein, I suggest that if this is accepted there will then be no need for subsection (6). I beg to move.
Lord Underhill: It will be noticed that Amendment No. 50A, which has been moved by the noble Baroness, Lady Stedman, is on the same principle as Amendment No. 54, which is in my name. There is a difference, in so far as Amendment No. 54 proposes that, where any points are in excess of 12, they should be carried forward and added to the points in respect of any other offence committed within a period of three years from the date when the court first considered the original offence. There is that difference from the amendment moved by the noble Baroness, but I support the general principle in this amendment.
It may be argued by some noble Lords that wiping

25
the slate clean is in accord with a generally accepted principle on other matters that once an offender has paid the price of his misdemeanour that should finish the matter, but surely this cannot hold true in the case of a number of serious motoring offences with which we are dealing in this particular clause. One of the points of the points system is surely, as the noble Baroness, Lady Stedman, said,—and not only the points system but the whole complex of road safety measures—is surely to have some influence, if at all possible, on the habitual offender, and, if the residue of points over and above the 12 is wiped clean, then surely we are diminishing the possible effect upon the habitual offender.
Perhaps I may give a possible example. A motorist has accumulated 10 points and is then convicted of an offence of, say, reckless driving, which would give a penalty of another 10 points. Surely it cannot be justified that, with a total of 20 points when that motorist is given a period of disqualification, the eight points in excess of the 12 required shall be wiped clean. Surely that cannot possibly be justified.
I find unconvincing the reasons given by the Secretary of State for not following the principle of not wiping the slate clean. These were, first, that the courts will take into consideration the number of points over 12 when determining the period of disqualification to be imposed, and, secondly, that the persistent offender will also be deterred by subsection (4), which provides that a motorist disqualified twice in three years would get a minimum of 12 months instead of six, and that if that happens more than twice the minimum would be two years. I appreciate these arguments, but they in no way invalidate the amendment put forward by the noble Baroness or my amendment. What both amendments are seeking to do is to say that following disqualification any points above 12 shall not be expunged but shall be carried forward and added to any other offence. That, I believe, is in the spirit of what the public would request. It is not a vindicative proposal; it is a common sense proposal, that a person should not get away with additional points that shoul be added to any subsequent offence he may be convicted of.
Lord Lucas a Chilworth: One has a certain amount of sympathy with both these amendments and I suppose to some extent they impinge a little on my Amendment No. 52A. But it would seem on the face of it grossly unfair that a person should be punished twice, and perhaps twice for a minimal offence. If one had, say, 9 to 10 points already amassed, and then one commits a purely technical offence—that of failing to report an accident, carrying, I think, three points—then you are over and disqualification may apply. Suppose you are disqualified for X period, you start off again with a small number of points, one point in this instance for what is, after all, a technical offence rather than the kind of offence the noble Baroness was speaking about, persistent anti-social behaviour such as speeding and so on. I am not totally satisfied that were an offender to go over, to, say, 16 or 18 points, magistrates through-out the country would necessarily come to the same conclusion as to the degree of severity of the disqualification; so in some cases although one magistrate may go for a six months' disqualification because you are
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eight points over, or something of that nature, another may go for 12 months. It would seem unfair that in some parts of the country a residue of past misbehaviour is left behind.
On the other hand, surely if one has a record of minor infringements all of which make a fair accumulation towards the latter end, and one has a conviction for, let us say reckless driving or driving under the influence of drink, which in itself would carry 10 points, and one goes all the way then perhaps to 20 points, it would be wrong that the most serious offence should be penalised in a similar manner to that of a technical offence.
I am not quite sure at this stage whether it would be prudent for me to move my Amendment No. 52A, because it is in a way concerning the same thing, although in the reverse; I am suggesting in my amendment, on the one hand, that a disqualification should not mean a benefit. So having given these views on the general idea of totting up and carrying forward, I think I should say to your Lordships that I may well not move my own amendment in the light of what my noble and learned friend has to say in response to this amendment.
Viscount Cross: If I may, I should like to say a few words about Amendment No. 54 in the name of the noble Lord, Lord Underhill, and I should also like to speak to the amendment moved by the noble Baroness, Lady Stedman. I do not agree with either of these amendments. I do not agree with them because I think they do, to a degree, tend to perpetuate the present system. I do not know of any other sphere of life where the offender is punished for an offence in the first instance and then continues to be punished for many years after that for the same offence. I think the present system is rather unfair. I think the public think it unfair, and I hope to show quite briefly why it is unfair.
May I take the case of a driver who incurs two 30 miles-an-hour speed limit convictions and one 40 miles-an-hour speed limit conviction in a period of three years. That sounds extremely reprehensible, and of course it is, but in the pace and density of modern traffic it is quite an easy thing to do, and to call such a driver a persistent offender, as if he were some sort of criminal, is, I believe, totally wrong. At any rate, such a driver is fined, quite rightly, on each occasion, his licence is endorsed on each occasion, and after the third conviction he is disqualified. Disqualification is a very dire penalty indeed, especially for someone living in the country where buses are few and far between.
Furthermore, drivers are proud to have a clean licence, but under the present system many years must pass before the driver can get back to a clean licence. Let us suppose after a period of four years have elapsed the driver in question manages to get his original endorsement, for the first 30 miles-an-hour offence, removed from his licence; if he should at that point incur one further endorsement penalty, with two endorsements still on his licence he would be immediately disqualified again. To carry points over, as proposed in the amendment, is perpetuating the present, I think, very unsatisfactory system. I welcome the new points penalty system and the Secretary of

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State's new clean sheet proposals. I believe they are fair and just and that the public will respond to them.
Earl Fortescue: I would also like to oppose this amendment. It is considerably more severe than the present totting up procedure, and to my way of thinking far too severe. At present, if a driver commits a number of endorsable offences as part of one incident, for totting up purposes all those offences only count as one endorsement. Under this Amendment, No. 50A, which I only saw this afternoon, each endorsable offence which is part of one incident would count, and all the points for those offences in the one incident would be added together. For this reason it might well be that because of one incident the driver would be either disqualified under the new totting up procedure, or he would be within a point or two of being so disqualified.
I, too, am very much in favour of wiping the slate clean after a period of disqualification. If the points that would be carried forward are very numerous, I suggest that the court dealing with the case under the totting up procedure might well consider disqualifying for more than the minimum period. But please let the driver start off again, after his disqualification, with a clean slate.
Lord Mishcon: There have been at least two speeches made against the amendment and I should like to intervene briefly in order that the arguments for the amendment should not be forgotten. I do not intend to repeat those arguments. I want to answer, if I may, from my point of view the arguments that have been put forward. Always one hears the case of the person who may be suffering an injustice—the case of the driver, very properly and fairly put, who has three endorsable offences connected with one really substantial offence. Since there will have to be points awarded in respect of each one, the point is made that it would be unjust for the carry-forward to take place when, indeed, at present the law is that if there be but one incident and there is more than one endorsable offence connected with it, it counts only as one conviction for the purpose of the totting-up procedure.
The argument is a logical one. If one puts it another way and says that there are bad cases where it is only just that a man who has totted up an extraordinarily unsocial number of points, if I may put it that way, should suffer for it, and if one says that there are cases where the person has had a great deal of misfortune in totting up a number of points, one is left with the situation, if one is trying to safeguard the public and at the same time do justice, that there should be a carry-over of points, but that the discretion of the court when disqualification is to be dealt with should be a very complete discretion without—and we shall be talking about this later when we deal with subsection (6)—imposing unrealistic and not very complimentary restrictions on that discretion.
So is not the logical thing to say that there should be a carry-over, but that when disqualification is dealt with the magistrates should always have a very full note of what applications there are for disqualification and why it is they have allowed them or have not allowed them so that any court thereafter may take a proper
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and complete view of the whole situation and may say in one case, "Although there has been a carry-over here we can see that there has been hardship and we can see that from the magistrates' own reasoning and in those circumstances we shall not disqualify" or "We shall disqualify for a short period".
On the other hand, the courts may say, "we have seen the totting up of points and the excess carry-over. This is a very bad case and we are looking at the whole situation in regard to the previous disqualification. We have seen the magistrates' reasons for it and what points were advanced on behalf of the driver. We have come to the conclusion in this case that it is very proper to take into account the excess that there was on the previous disqualification and that ought to be carried forward".
It is wrong to legislate for the special case. It is wrong to legislate for hardship. It is equally wrong to legislate so that one excludes hardship. Therefore, the scene ought to be kept open in my submission with magistrates keeping a very clear note as to why they have ordered a disqualification and of the factors that they have taken into account. There should be the carry-over, but the magistrates should have the right, on reviewing the whole of the circumstances, to say, "We shall ignore part of this carry-over" or "all of this carry-over", or "none of this carry-over, because on the facts and in the circumstances it would be right" or "wrong for us to do so".
Lord Harmar-Nicholls: I think that that raises a point that we ought to take into account. I believe that these two amendments are legislating for special cases—the very opposite to what the noble Lord has said he does not want to happen. I think that he is right: we ought not to legislate for special cases. I do not think that we ought here to concern ourselves too much with how the magistrates who hear all of the case and all the details connected with it ought to fulfilltheir functions. I have sat as a magistrate for 30 years and in these sorts of cases the magistrates have all the powers they need to deal with what they think are cases that ought to be hardly dealt with and they also have the discretion to be lenient where they think the circumstances are such that it warrants it.
I believe that we should approach this part of the Bill not from the point of view of how we can punish or fine but on the basis of how we can deter motorists from becoming a danger to the general public. I rather feel that, at the end of the day, these two amendments concentrate on making certain that somebody can be fined or be more hardly dealt with by carrying forward past misdemeanours.
The point that I should like to put to your Lordships from the point of view of the ordinary motorist is the following: which is the greatest urge to be a careful driver? I should have thought that the greatest urge was to keep a clean licence. I believe that one thing that causes people to take special care, with all of the problems that one has to face when driving a motor car, is that they do not want their clean licence interfered with. I believe that if we are—as I hope we shall—to get to the point where, after a certain period, a motorist can have again his clean licence, I believe that he is more likely to be a better driver in order to keep it a clean licence; whereas if we have the carry-over where

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we carry over the besmirchment (if you like?) of not having been a 100 per cent. conscientious citizen as a driver, I believe that it is more likely to cause him not to take the same amount of care. The noble Lord shows a little astonishment at that. In recent years we have made so many things law-breaking that used not to be law-breaking and we have seen people who used to be citizens of some high repute brought in front of the magistrates for some technical offence. I have circumstances in mind to do with the rationing period when people who would not have thought of doing anything that would bring them within the purview of the magistrates court have been found guilty of a technical matter to do with this or that. Once that has happened all of the things that cause people not to want to appear in front of magistrates somehow disappear. The same considerations are here. The maintenance of a clean licence is perhaps the greatest deterrent to people taking risks that will make them unpleasant as far as the rest of the public are concerned.
The Lord Advocate (Lord Mackay of Clashfern): We have had a fairly full discussion of matters which have perhaps not been entirely covered by the first amendment which the noble Baroness, Lady Stedman, moved. It might be useful if I explained that in our understanding the purpose of the existing totting up system and the way in which we are now seeking to improve it, is to discourage repeat offences. In other words, the emphasis is on acting as a deterrent, as my noble friend Lord Harmar-Nicholls pointed out. If an offence or a group of offences committed on the same occasion are not serious enough to result in immediate disqualification, then the licence is endorsed as a warning.
I think that it is important to remember that the endorsement of penalty points—if I can take up the results of what has gone before—is only to occur if disqualification is not itself imposed in respect of that offence. If the court decides that this is not a case for disqualification immediately, then it will endorse penalty points on the accused's licence as a warning to him and he will know that if he continues to flout the safety laws he will sooner or later be disqualified.
This is why at present, even though a number of offences may have been committed on the same occasion—for example, a person may have been speeding and then be found to have a defective tyre on his car—only one offence will count for totting-up purposes. Clause 19(1) therefore specifies that only points for this most serious offence of any committed on the same occasion will be endorsed on the licence. It would be wrong to make the penalty all the points that could be given for one occasion, which may indeed be more than 12. I can appreciate that it may be that the offence, or series of offences occurring as part of the one incident, will be such that the court thinks that it should not pass on that basis. Of course, in that case the court has the remedy of disqualification. Perhaps I may take up the point raised by the noble Lord, Lord Mishcon. It certainly seems to me that it is far better that that should he discussed and diposed of by a court which is in full knowledge of these facts, rather than some years later a court should try to read a record, however accurate, to obtain a sense of what occurred.
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This brings me to the second matter; namely, that of restricting the "wipe clean" provisions. In future, if a person is disqualified on the basis of what we propose because he has accumulated more than 12 points, then the number in excess of 12 will be reflected by an increased period of disqualification. Surely, if one reaches a stage where disqualification is to be imposed, one should take account of all the circumstances, including all the points that might have been awarded or endorsed at that stage. Surely it is much better to do it now, to do it fully, and to do it when the facts are fresh, than to try to store a record for some time, carrying it over to the future.
Therefore, with the greatest respect for the argument which the noble Baroness and those who support her have advanced, we would strongly submit that what we propose is better, even from the point of view that they have put forward; of course, the point that my noble friend made about having the restored incentive of a clean licence and trying to keep it clean is an important additional argument for dealing with the whole matter at the first stage. Carry-over is just a postponement of, we would say, true dealing with the position.
There are, of course, other provisions, and I would remind your Lordships of the provisions of Clause 19(4) to discourage persistent offenders; that is completely apart from the point that the court will have a record of what has occurred to the accused driver and of the nature of other parts of the penalty which have been imposed, because of course the fine that is imposed will also reflect the seriousness of the matter. Therefore, in our view—and I should like to express my appreciation of the support which has come from my noble friends Lord Cross and Lord Fortescue—I submit to your Lordships that, on balance, our proposals meet the problem better than those suggested in this amendment. I hope that the noble Baroness, Lady Stedman, will feel persuaded to accept that position.
Baroness Stedman: I am grateful to the noble and learned Lord for the very full reply that he has given. The noble Lord, Lord Harmar-Nicholls, and I have been on opposite sides of the fence for something like 30 years. We are on opposite sides again today because, while he says that the incentive to keep a clean licence would be a deterrent, I would argue that it might be an even greater deterrent if, after disqualification, one had back a licence which had a few points on it, in order not to build up to another disqualification from that situation. I think that one can argue both ways, as the noble Lord and I have done for many years on many subjects.
I am grateful to the noble Lord, Lord Underhill, who spoke to his amendment, to which we shall come later. I should be happy to withdraw my set of amendments at this stage, but will give my support to the noble Lord, Lord Underhill, if he presses his. I beg to leave withdraw the amendment.
Amendment, by leave, withdrawn.
4.35 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 51:
Page 14, line 39, after ("the") insert ("penalty").
On Question, amendment agreed to.
[Amendment No. 51A not, moved.]
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 52:
Page 15, line 7, after first ("The") insert ("penalty").
On Question, amendment agreed to.
Lord Lucas of Chilworthhad given notice of his intention to move Amendment No. 52A:
Page 15, leave out lines 15 and 16 and insert ("under sub-section (2)").
The noble Lord said: In view of the earlier discussions, I take it that at this stage my noble and learned friend on the Front Bench is more inclined to the view of one punishment and one punishment alone, with no carry-over. I think that, having heard him, I would subscribe to that view. Therefore, although I had something of a reverse position in this amendment to that of the noble Baroness, Lady Stedman, and also the reverse position to that contained in the amendment of the noble Lord, Lord Underhill, which he will probably move, I think that it would be better if I were not to move my amendment at this stage.
[Amendment No 52A not moved.]
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 53:
Page 15, line 18, after ("the") insert ("penalty").
On Question, amendment agreed to.
Lord Underhill Lord Underhill moved Amendment No. 54:
Page 15, line 19, at end insert—
("( ) Where the position of a person has been considered by a court in accordance with the provisions of subsection (2) hereof, any points which are in excess of twelve shall be carried forward and added to the points in respect of any other offence committed within a period of three years from the date of the consideration of the case by the court.").
The noble Lord said: I did, in effect, speak on this amendment when I spoke on the previous amendment, but perhaps I could say just a few further words in support of it. From listening to some of the speeches, one would imagine that this amendment sought to be harsh on motorists. In fact my amendment has the fullest support of the Automobile Association, which believes that we should not have a policy of wiping the slate clean. I would echo what has already been said by the noble Baroness, Lady Stedman, that what surely would affect a motorist, and what surely would affect me, is the fear of another disqualification. That is what would worry me most of all.
Therefore, Amendment No. 54 is really aimed at trying to influence the habitual offender. That is what the amendment seeks to do. The difference between this amendment and the amendment moved by the noble Baroness, Lady Stedman—Amendment No. 50A—is that my amendment seeks to limit the carry-over for a period of three years. I am wondering whether that has any effect on the Government, and whether or not they will accept that we are trying to deal with the habitual offender, and that we are putting forward an amendment which has the fullest support of the large motoring organisation, the Automobile Association. I beg to move.
Lord Mishcon: I rise only so that, for the convenience of the Committee, all the arguments can be dealt with at once, instead of us popping up one after the
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other to put forward, with great pride, our separate arguments. I listened to the noble and learned Lord the Lord Advocate with the care that one always listens to him, because he speaks most carefully and he has behind him a very substantial reputation in my own profession. I failed on this occasion to catch the full forcefulness of his argument by virtue of the very position that the Government are taking up in regard to what can be considered when there is an application for disqualification. I make the point now so that I do not bore the Committee with too much repetition when we come to consider subsection (6).
Your Lordships will remember that the main point made by the noble and learned Lord was that the time to consider the whole question of how points have been awarded in the past, and so on, is when the application for disqualification is dealt with. I could not agree with him more. But, if your Lordships will look at subsection (6), this is what the Bill as it now reads says. It says in subsection (2):
"unless the court is satisfied,—
—that is, on the question of disqualification—
"having regard to all the circumstances not excluded by sub-section (6), that there are grounds for mitigating the normal consequences of the conviction".
So it is pertinent to look at what is excluded at the moment from the magistrates' mind and withdrawn from their discretion. If you look at subsection (6):
"No account is to be taken under subsection (2) of—

(a) any circumstances that are alleged to make the offence or any of the offences not a serious one;

(b) hardship, other than exceptional hardship; or

(c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a short period or not ordering him to be disqualified".

That means that the Bill as drawn does not allow the court, when dealing with the question of disqualification, to take into account whether any offence which previously carried some points that go to make up the 12 was, or was not, a serious offence; was, or was not, one occasioned by hardship—and you can only take into account serious hardship. I am not going to take your Lordships into the debate on that—that will follow hereafter. However, the logic of what the noble and learned Lord said escapes me completely, for he made an answer to the previous debate the whole basis of which was; "Don't worry. Surely the court that ought to be considering all this is the court which deals with the disqualification. They will have all the facts before them. They will be able to ascertain whether really the accumulation of points previously amounted to something serious or not serious, or whether hardship was involved or not involved ".
I repeat, these matters are excluded as the Bill now stands—in my judgment quite wrongly—from the whole vision of the magistrates when they are looking at the record in front of them. So, because of the illogical situation—most unusually for him—put before the Committee by the noble and learned Lord I must, of necessity, bring this to the Committee's attention because, obviously, if a vote is to be taken and your Lordships have no politics in your minds on this—anybody who finds politics in the points system and whether or not a driver is, or is not, to be disqualified

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must belong to an extreme group which is not represented, by the grace of God, in your Lordships' House—I say that, exercising proper judgment as legislators, either subsection (6) has to go or the noble and learned Lord's argument has to go. We cannot have both.
4.45 p.m.
Lord Mackay of Clashfern: My noble friend Lord Bellwin is going to deal with this amendment in accordance with the allotment we arranged before, but I cannot allow what the noble Lord, Lord Mishcon, has said to pass without some comment. What I was talking about on the last occasion was the question of whether a residue of points should be held over for the totting up business. The subsection to which the noble Lord referred deals with the question of whether at a certain stage one is bound to disqualify. My argument dealt with a situation in which the court, having disqualified, felt they should wipe the slate clean. Of course, in connection with the amount of disqualification, the length and period of disqualification, the matter is different. Subsection (6) relates to the obligation on the court to order disqualification—unless a very limited exception is made out—compulsorily once the 12 points have been reached.
Lord Mishcon: I will not weary the Committee, and I promise not to repeat this point again, but could the noble and learned Lord deal with this point to save me repeating it? On the application for disqualification, the noble and learned Lord is saying that that is the time when the court has all the facts before it and it should take into account the whole history of how the 12, or excess of 12, points have been accumulated. I am saying—and the noble and learned Lord has not answered this—that his argument is wrong, false, and misleading, but through no intention of his whatsoever because nobody would ever accuse the noble and learned Lord of any such behaviour; it is purely inadvertent. However, the Committee is being misled because the court under the wording of subsection (6) cannot go into the question of whether previous points have accumulated through a serious or a not serious offence; or whether a previous disqualification has taken place by virtue of serious or not serious offences; or whether or not hardship has been involved at all. If the noble and learned Lord can show that I am wrong on that I shall wear a penitent's gown of white and apologise to him, but if I am not wrong would he please deal with the argument.
Lord Mackay of Clashfern: In anticipation of that brilliant prospect, may I point out that the noble Lord is treating subsection (6) as if it covers the whole scope of what is open to the court to do once the 12 points have been arrived at. What subsection (2) does is to limit the grounds on which the court could disqualify for less than the minimum period, or not at all. What I am pointing out is that if the total number of points is more than 12 that might well be a ground for making the disqualification more than the minimum, and that is the issue about carry-over as I see it. I do not know whether I am going to see the white or not.
Lord Bellwin: I am tempted to say, "Can anyone join in?" But having listened carefully I do not think that I particularly wish to do so. May I say first to the noble Lord, Lord Underhill, that this amendment is not, as he claims, different from that of the noble Baroness, Lady Stedman, in that it would apply only for three years. This is already the case by virtue of Clause 19(3). I think we have heard this matter debated at some length. I want to say first that it is not the intention under the proposed system that a convicted driver should escape any more lightly than hitherto. Courts will be able to, and should, take account of all the circumstances in deciding whether to impose more than the statutory minimum period of disqualification. And the fact that a driver might have more than 12 points would of course be a very material factor to take into account.
The real question is not whether a driver is to get off more lightly under one system or the other. It is whether to get his punishment over all in one go or whether to keep a part of it hanging over him in the future. We believe that the former is the better not only in itself but as an encouragement for a person to improve his standard of driving in the future. The present system, which the noble Lord's amendment is designed to perpetuate, could induce a feeling of some hopelessness. It is rather like a treadmill from which it is virtually impossible to get off at any time. There is always a discretion to disqualify. I myself, like many other noble Lords, have been involved for many years in making decisions of that kind from time to time. We believe that the new system is both more equitable and an encouragement to better driving. It is for these reasons, plus those expressed by my noble and learned friend the Lord Advocate that I say that we would not want to accept this amendment.
Lord Underhill: It was because we were looking to the future that we proposed the amendment. There is obviously a complete difference of approach between the two sides of the Committee on this issue. One view is that one should get the punishment over with straight away and that that will stop the person committing another offence later. The other, our view, is that if some points are carried over, that will tend to make the person look to the future. In view of the statements made by the two Ministers, the best thing I can do is to study carefully in Hansard what they said to see whether the matter should be raised, either in its present form or in another way, on Report; and meantime I beg leave to withdraw amendment.
Amendment, by leave, withdrawn.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 55:
Page 15, line 28, after ("which") insert ("penalty").
On Question, amendment agreed to.
[Amendment No. 55A not moved.]
4.52 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 46:
Page 15, line 41, leave out paragraph (a).
The noble Lord said: We return to the fray, I hope at not too great a length. Much has been made of the

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discretion that should be left to magistrates and the experience which they undoubtedly have. I recognise that one good reason for the points system is that we should have a degree of uniformity. But we must not forget that injustices could be perpetrated as a result of the fixed points system. I shall not in any way argue against such a system; that is not the purpose of my addressing the Committee at this stage. My purpose is to draw your Lordships' attention to the fact that the points system will be fixed and that, except in a couple of cases, if one looks at Schedule 7, no discretion will be left to magistrates.
This is a very serious position and before noble Lords indulge, if I may say so with respect, in a more holy than thou attitude, I would remind the Committee that most of us are drivers on the road and that most of us therefore, whether we acknowledge it it not, have been guilty at some time of breaches of the Road Traffic Act. Therefore, without pointing a finger at the other person on the road, let us for a moment think in terms which might selfishly be in protection of each and every one of us, or possibly (if your Lordships care to be more objective and unselfish) in protection of those who are using the road day in and day out, and often night in and night out, because it is their calling or profession to be drivers.
I draw the Committee's attention to Schedule 7, and I will go through an example of how unjustly the exclusions might operate, apart from the fact that I have a principle which says, "Do not remove from the courts by statute the full discretion that you give them. Do not give them half a discretion, because if you do in the end you will either have courts which will somehow or other worm their way into the half you have not allowed them or you will stultify more honest or strict courts into perpetrating an injustice". I beg noble Lords to bear that thought in mind when looking at the first item in Part II of Schedule 7, which says, "Reckless driving".
The enforced number of points is 10. I am sure your Lordships will immediately say, without possibly the opportunity of further reflection, that anybody who is guilty of the offence of reckless driving should have 10 points and, without any question of doubt, be on the road to a compulsory disqualification unless the court, within a limited discretion, says he should not be. In fact, under the provision it is not just reckless driving, for Section II of the Road Traffic Act says:
"If a person drives a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case"—
it is having regard to all the circumstances of the case in regard to danger to the public, not in regard to the offence itself—
"including the nature and condition and use of the road and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be guilty of an offence ".
The court has no discretion. I wonder if the Committee realises that. It has discretion in regard to the fine it may impose, but it has no discretion otherwise. If you or I happen to have a child dangerously ill and the doctor cannot come or the doctor says, "Bring the child to the hospital as fast as you can", and we drive—it is very human to do this in the circumstances—
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at a speed which is reckless and dangerous and we are stopped by the police (and we may be allowed to go on and take the child to the hospital) the offence will have been committed. The plea in mitigation will obviously be one which the court can and will consider, but the court cannot say, if it acts honestly, that the offence has not been committed. It can only say, "We will show how we feel about it by imposing a nominal fine or no fine at all". Nevertheless, the 10 points will be there obligatorily because the offence is compulsorily endorsable, and 10 points are duly awarded.
If that example is not sufficient for the Committee's purpose, perhaps your Lordships will consider the third offence, another 10-pointer:
"Being in charge of a motor vehicle when unfit through drink or drugs ".
At once the Committee will think of the serious case—the one all of us would wish to condemn—of the motorist who gets into his car, starts up the engine and drives while under the influence of drink, and we say, "No pity for him at all ". But what about the person who has been to the doctor, has been given drugs and drives home—possibly wrongly because he has been warned that the drugs may have a soporific effect—and straight into a lamp post as a result, or is found to be driving his car in a zig-zag fashion? Again, the mitigation will be there, I have no doubt, in regard to the fine, but 10 points will have to be awarded against him.
One finds there are a number of offences, once one has 10 points, which can put one over 12 with the greatest of ease, and if any one of us can put our hands on our hearts and say, "This is an offence which we individually could not commit", then I ask the Committee to look at the two three-pointers which appear under "22" and "24" in the first column of Part II relating to the section of the 1972 Act, the first being failing to comply with traffic directions. That means merely that one does not see a policeman; or it might mean that one does not see a traffic sign. It is possible for any one of us to go the wrong way down a one way street, to observe a policeman, but not to notice that he is directing us in a certain way, or is holding us up. Then you have 10 points, and three points—13 points.
In those circumstances I ask your Lordships' Committee immediately to look at subsections (2) and (6). Let us suppose that Members of your Lordships' Committee, or rather myself—I am perfectly content to take myself as an example—is the unfortunate victim of an accumulation of 13 points in one or other of the ways that I have indicated. I am before the court and the question of disqualification is to be considered. I ask Members of the Committee to look at the bottom of page 14 of the Bill and the top of page 15. Subsection (2) provides that if the person convicted has 12 points or more
"the court shall order him to be disqualified for not less than the minimum period defined in subsection 4 unless the court is satisfied, having regard to all the circumstances not excluded by subsection (6), that there are grounds for mitigating the normal consequences of the conviction…".
A fetter has been placed on the discretion of the magistrates. In the example that I have given they cannot take into account what is contained in sub-

37
section (6). I now ask Members of the Committee to turn to subsection (6), which states:
"No account is to be taken under subsection (2) of—
(a) any circumstances that are alleged to make the offence or any of the offences not a serious one…".
Let us suppose that I am before the court and I ask my advocate to plead with the court that, although there are l0 points against me, I should like the court to look at the fine that had been imposed and to note that it was a nominal fine. I ask the court please to take account of the reason why the fine was a nominal one; it was because it was not a serious offence. It was not a serious offence because of the circumstances that I have outlined to your Lordships' Committee. The court cannot take that into account. We have taken away the court's discretion. We have said to the court, "You are not capable of dealing with this. You are not capable of dealing with it, it might be argued, because it would be misleading if you were to deal with it. It has already been dealt with by the previous court." That situation would be just in previous circumstances, but not when there is an obligatory points system. As I said earlier, the courts must keep notes of what happens in cases where there is a plea in mitigation.
I turn now to the second provision of the subsection. In the circumstances that I have outlined the court cannot take account of hardship, other than serious hardship. I ask the Committee to consider the case of a doctor who appears before the court, having accumulated 13 points. He tells the court of the hardship that he might experience if he cannot use his car to visit patients who are too sick to go to his surgery; or there may be other reasons why a doctor has to use his car. From the reading of an Act, will someone tell me whether that is serious hardship, of merely hardship?
I ask the Committee to consider another case, not of a learned doctor, but of a lorry driver, who has accumulated 13 points and tells the court that he will lose his job if it takes away his licence. Is that a hardship, or a serious hardship? Who is to decide? Is it to be a soft-hearted court, which says that in the circumstances it regards the pleas of the doctor and the lorry driver as relating to a serious hardship? is it to be the hard-hearted court, which says that the House of Lords, let alone the other place, has agreed to the wording of the provision and therefore it must be taken that the wording has been very seriously considered and has been given their Lordships' meticulous attention? The court might then say, "We have been told that we must not look at a serious hardship. We think it is a quite normal hardship if a person with 13 points might lose his job or, if he is a doctor, would be unable to visit his patients. It is not a serious hardship, but rather one that the doctor and the lorry driver ought to have taken into account".
What is the clerk of a court to do in advising the magistrates? Has he to say, "Magistrates, will you kindly retire? The learned advocate has tried to put before you circumstances which he says amount to a serious hardship. Will you kindly retire in order to see whether you find it a serious hardship or a hardship? If it is a hardship, you can't take it into account; if it is a serious hardship, you can".
The subsection is not only an injustice but, with great respect, it is a nonsense, and in those circumstances I am asking the Committee to consider the deletion of paragraphs (a) and (b). I do not ask—in the same way that I believe that the noble Baroness, Lady Stedman, was asking—for the deletion of paragraph (c), since that paragraph provides that the court cannot take into account
"any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a shorter period or not ordering him to be disqualified".
I pleaded earlier that magistrates, when disqualifying a motorist, should take a very full note of the matters that they have taken into account, and I can well see the justice of saying that the court cannot twice take the same factors into account. The factors have already been taken into account by the court in ordering disqualification for a shorter period, or, as the case may be, they have been discounted and the court has found no reason for ordering a shorter disqualification. One cannot try to go back to a more merciful court and say, "South Western Magistrates' Court said that that was not a reason for mitigating the penalty, but I hope that Lambeth Magistrates' Court will be rather more sympathetic". That is an obvious point and I take it immediately. Therefore I would not delete paragraph (c).
However, I ask your Lordships Committee, with responsibility as legislators, most earnestly to consider paragraphs (a) and (b) as well as subsection (6) along with the two paragraphs, and to decide that in the circumstances they ought to be deleted. I beg to move.
5.8 p.m.
Baroness Phillips: I am sorry constantly to have to take issue with my noble friends on this side of the Committee, but listening to my noble friend I felt that I was sitting in court listening to a plea in mitigation. I am very sorry that he used the example of drink and drugs, because this is used all too frequently in relation to criminal offences. It seems to me that if the law says "Drink and/or drugs" that is exactly what it means. Surely if the individual concerned is foolish enough to take a drug, assuming that it has been administered on the spot at the doctor's surgery (which is unusual) he must accept that his position is no different from that of an individual who has taken a quantity of alcohol. I feel that that example was an unfortunate one to advance.
I consider that my noble friend's other example—that of a doctor—was also unfortunate. If there is a law, it seems reasonable to say that it is there to protect other people against the misuse of a vehicle on the road. During the many years that I have sat in court I have listened to pleas in mitigation for almost every offence under the sun, and they are usually of this nature. If an offence has been committed, surely the doctor can deal with the situation in some other way. Perhaps he has gone through a red light. It seems to me very dangerous to suggest that arguments such as have been mentioned should be used in mitigation in relation to our traffic laws, which, on the whole, I think we would all agree, are reasonably fair; and certainly traffic courts take all these matters into

39
consideration. In my experience, in the case of anyone accused of reckless driving certainly evidence has been presented which shows that there has been reckless driving and that it is not merely that they have exceeded the speed limit for one-tenth of a mile. So while I would not say that I will not support my noble friend, I felt, again, that some of his arguments were a little unfortunate in relation to pleas of mitigation.
Lord Mishcon: Before my noble friend sits down, the example I gave of reckless driving was not that of the doctor; it was the case that could happen, unfortunately, to any one of us—that of a child of ours who was dangerously ill and we then exceeded the speed limit in a dangerous way, by really going it in our motor vehicle, in order to get the child to a hospital or to a doctor. That is what I said; and I said that we now have an obligatory points system which will make the court, whatever the circumstances, order 10 points.
Lord Mackay of Clashfern: I had understood the noble Lord, Lord Mishcon, earlier to advise us that it was dangerous to legislate for special cases, but his argument on this occasion rather suggests to me that it is based on rather special cases. Certainly, so far as the first one is concerned, I think I am right in saying that the section as he read it out has been modified by the Criminal Law Act 1977, so that the section now reads:
"A person who drives a motor vehicle on a road recklessly"
shall be guilty of an offence; and the bit about dangerous, and so on, has been amended. The other example, of driving under the influence of drugs in rather exceptional circumstances, I should have thought would not be relevant either, because if it is an offence which is proved to have been committed then it will be an obligatory disqualification unless there are special reasons in the circumstances of the offence. It is also important, I think, to remember that before there is any question of points in relation to any particular offence the offence must be one which has led to endorsement; that is to say, the court has ordered particulars of the conviction to be endorsed under Section 101 of the 1972 Act.
The purpose of the provisions in Clause 19(2) is to narrow the circumstances in which the minimum disqualification will not be imposed when the total number of points, 12, has been reached. This appears to me, at least, to be in line with what the noble Baroness, Lady Stedman, was arguing for earlier. The reason why she did not want (6)(c) to stand was because she did not want (6)(a), (b) or (c); in other words, she did not want any exception to the obligation to disqualify. So far as we are concerned, we go a good deal along the road in that direction, thinking that if a driver has accumulated this number of points then the disqualification should be something that is highly likely to occur, and that the discretion not to impose this disqualification should be very closely limited. We suggest that the limitation should include paragraphs (a) and the (b), which the noble Lord's amendments seek to delete.
I think that in the course of speaking to his amendment the noble Lord referred several times to "serious "hardship. I have no doubt the word he had in mind
40
was "exceptional" hardship, which is the word in paragraph (b); and, of course, I accept what he said about "serious" as applying to that. The application of the words to the particular circumstances would be a matter for the court, but basically what we are seeking to do is to limit very substantially the circumstances in which, once the total is reached, the minimum period of disqualification is not imposed. What we say is that where you have a points system like this, which reflects to a considerable extent the nature of the offences which have led to the total, then it is right to make it a very narrow exception to the obligation on the court to disqualify.
We would strongly submit that if paragraphs (a) and (b) are deleted then the result is to leave the matter completely open to the court; and, surely, this is really quite opposite to the spirit for which the noble Lords, Lord Underhill and Lord Mishcon, were arguing earlier in speaking about the effect of the points. If the points which you have accumulated have a very strong likelihood of producing the minimum disqualification when they get to 12, then surely that is the best situation. Accordingly, we would strongly advise the Committee that this amendment is not acceptable, and I hope that perhaps on consideration of the situation the noble Lord who moved it may feel able not to press it.
Viscount Simon: Before the noble and learned Lord sits down, would it be possible for him to explain to a layman what is meant by "exceptional hardship"?
Lord Mackay of Clashfern: The intention in using the word "exceptional" is that it would require of the court that they should be satisfied that there had been some hardship quite out of the ordinary, quite different from what one would get in any ordinary case—because in almost every case a disqualification will give rise to hardship. What the court has to look at is something which could be regarded as exceptional; that is to say, not to be expected in any ordinary case. I think the word is a word of common usage, and therefore a word which the court would be able to apply wisely to particular cases.
Lord Underhill: Before the noble and learned Lord the Lord Advocate sits down, my noble friend referred to the position of the heavy goods vehicle driver. Would the noble and learned Lord agree that exceptional hardship might be held to cover the position of a heavy goods vehicle driver who not only has his licence taken away, and therefore his HGV licence as well, but will have very great difficulty in having it restored at the end of the period of disqualification because the licensing authorities are usually very strict on restoration?
Lord Mackay of Clashfern: The answer to the question would have to be for the court in a particular case, but one has to have in mind that the driver of a heavy goods vehicle is driving a piece of equipment which can be a very serious danger to other people. Personally, I would doubt whether merely to be able to say that one would put one's employment at risk by a disqualification would be an exceptional hardship, because there are many in that situation. For example,

41
the doctor to whom the noble Lord, Lord Mishcon, referred might well put his occupation at risk if he lived in a district where it was very difficult to get anyone to drive for him. But that is as much as I think it would be right for me to say.
Lord Mishcon: The noble and learned Lord says that this is really the limit of what he can say, and that to say any more would not be right. He is saying by inference that it is impossible to define what hardship is and what exceptional hardship is. It will be for each and every magistrates' court to decide it; and we get back to the uniformity which, quite frankly, is what we are trying awfully hard to get in regard to the justice that the court administers and the penalties in regard to which we are trying to get uniformity if we possibly can, especially when we are dealing with serious penalties.
The points about this are the following—and the noble and learned Lord, with great respect, has not answered either of them. Is it sensible to say to any set of magistrates, "You are trying to adjudicate upon whether a driver, be he Lord X or be he Dr. Y, or be he plain Mr. Smith, is going to lose his licence", when the court, this subsection states, cannot take into account whether or not any of the offences making up the accumulation were or were not serious offences? This is in spite of the fact that you have an obligatory point system which says "ten" here and "five" there, and there are no exceptions to that rule in most of the offences which are contained in Schedule 7.
Is it right, is it proper, to exclude a submission from the court, to silence the advocate for that driver, to say that you cannot make a submission that the magistrates can listen to, as to whether any of the offences which made up the 13 were serious or not; that you cannot listen to it; and, worse than that, thinking of uniformity, to leave it to the discretion of each and every court as to what that court would regard in the circumstances as hardship or exceptional hardship? Once the court thinks it is only hardship, and not exceptional hardship, then the advocate is silenced and the court has to expunge from its mind in coming to its decision every submission that has been made about the hardship. If the court is a merciful court and takes exactly the same facts which may make another court say that it was not exceptional and the merciful court says that it was exceptional, then that driver is very fortunate to appear before it. I repeat that it is purely by coincidence that these amendments come forward from the Opposition. It is only because the Opposition looks with great care at every word of a Bill and tries hard to see that a Bill comes before the public in the best possible way and especially when dealing with a non-political point. This is a non-political point and nobody could ever make it one.
But when we divide (as I am afraid I must ask the Committee to divide) on (a) and (b), may I ask your Lordships seriously to take into account the fact that not one of us can wear a white sheet and say that we will never be in a position where we would want to say to the court, "Do not disqualify us. We want to tell you that the accumulation of points arose at least in respect of one offence which was not a serious one"? Or, would we not want to say, "Please listen to us. This is a case of hardships"—and not have a gamble as to
42
whether the court will decide what we are submitting is or is not an exceptional hardship, because if it is only a hardship, they cannot take it into account if we legislate in this ambiguous and vague way? I regret I cannot accede to the invitation of the noble and learned Lord because I think I would be letting the public down if I did so. It is not a question of letting down a political party, but of letting down the public and every one of us. So that I am afraid I must press the amendment.
5.24 p.m.
On Question, Whether the said amendment (No. 56) shall be agreed to?
Their Lordships divided: Contents; 61; Not-Contents, 101.

CONTENTS

Amherst, E.

Loudoun, C.

Ardwick, L.

Lovell-Davis, L.

Bacon, B.

Melchett, L.

Beaumont of Whitley, L.

Mishcon, L. [Teller.]

Bernstein, L.

Molloy, L.

Bishopston, L.

Mowbray and Stourton, L.

Boston of Faversham, L.

Newall, L.

Bruce of Donington, L.

Ogmore, L.

Byers, L.

Oram, L.

Chelmsford, Bp.

Ross of Marnock, L.

Chitnis, L.

Seear, B.

Collison, L.

Sefton of Garston, L.

Cross, V.

Shannon, E.

Denington, B.

Shepherd, L.

Donaldson of Kingsbridge, L.

Shinwell, L.

Elwyn-Jones, L.

Simon, V.

Ewart-Biggs, B.

Stamp, L.

Gaitskell, B.

Stedman, B.

Granville of Eye, L.

Stewart of Alvechurch, B.

Hale, L.

Stewart of Fulham, L.

Hampton, L.

Stone, L.

Hanworth, V.

Strathcarron, L.

Houghton of Sowerby, L.

Taylor of Mansfields, L.

Howie of Troon, L.

Underhill, L. [Teller.]

Jacques, L.

Wallace of Coslany, L.

Jenkins of Putney, L.

Wells-Pestell, L.

John-Mackie, L.

Whaddon, L.

Kilmarnock, L.

White, B.

Listowel, E.

Wigoder, L.

Llewelyn-Davies of Hastoe, B.

Wootton of Abinger, B.

Longford, E.

NOT-CONTENTS

Ailsa, M.

Davidson, V.

Airey of Abingdon, B.

de Clifford, L.

Allen of Abbeydale, L.

De Freyne, L.

Auckland, L.

De La Warr, E.

Avon, E. [Teller.]

Denham, L. [Teller.]

Bathurst, E.

Dilhorne, V.

Bellwin, L.

Diplock, L.

Beloff, L.

Donegall, M.

Belstead, L.

Drumalbyn, L.

Bessborough, E.

Eccles, V.

Boyd of Merton, V.

Elton, L.

Bridgeman, V.

Ferrers, E.

Brougham and Vaux, L.

Fortescue, E.

Cairns, E.

Fraser of Kilmorack, L.

Campbell of Croy, L.

Gainford, L.

Cathcart, E.

Gibson-Watt, L.

Cockfield, L.

Glenkinglas, L.

Cottesloe, L.

Greenway, L.

Craigavon, V.

Gridley, L.

Craigton, L.

Grimston of Westbury, L.

Crawford and Balcarres, E.

Harmar-Nicholls, L.

Cullen of Ashbourne, L.

Hatherton, L.

Daventry, V.

Hawke, L.

43

Hives, L.

Orr-Ewing, L.

Home of the Hirsel, L.

Pender, L.

Howe, E.

Porrit, L.

Hunt of Tanworth, L.

Rankeillour, L.

Hylton-Foster, B.

Rawlinson of Ewell, L.

Kilmany, L.

Reay, L.

Kinnaird, L.

Reigate, L.

Lauderdale, E.

Renton, L.

Lloyd of Hampstead, L.

Rochdale, V.

Long, V.

Roskill, L.

Lucas of Chilworth, L.

Rugby, L.

Lyell, L.

Saint Oswald, L.

McAlpine of Moffat, L.

Saltoun, Ly.

Mackay of Clashfern, L.

Sandford, L.

Mancroft, L.

Sharples, B.

Mansfield, E.

Skelmersdale, L.

Marley, L.

Spens, L.

Middleton, L.

Sudeley, L.

Milverton, L.

Swinfen, L.

Monk Bretton, L.

Terrington, L.

Monson, L.

Trefgarne, L.

Montgomery of Alamein, V.

Trumpington, B.

Mottistone, L.

Vaux of Harrowden, L.

Murton of Lindisfarne, L.

Wakefield of Kendal, L.

Northchurch, B.

Waldegrave, E.

Nugent of Guildford, L.

Ward of Whitley, V.

Onslow, E.

Willoughby de Broke, L.

Orkney, E.

Resolved in the negative, and amendment disagreed to accordingly.
5.33 p.m.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 57:
Page 15, leave out line 43.
The noble Lord said: In view of the result of the last Division, it would not be appropriate for me to move the amendment at this stage.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 58:
Page 16, line 20, after ("of") insert ("penalty").
On Question, amendment agreed to.
Lord Underhill Lord Underhill moved Amendment No. 59:
Page 16, line 25, at end insert—
(": and
(c) provide for the deletion or addition of an offence and the number of points in respect of such additional offence ").
The noble Lord said: I am sure that there will be general agreement among members of the Committee with the provisions in Subsection (8): that the Secretary of State shall have power by order to alter the number of points for any particular offence and provide for different numbers of points in respect of the same offence committed in different circumstances. The amendment seeks to give the Secretary of State an additional power whereby he can, by order, provide for the deletion or addition of an offence and the number of points in respect of such additional offence.
The reason for this is twofold. First, we are going into an experimental period of points procedure and the amendment is therefore intended to help so that any changes that may be considered to be necessary shall be able to be taken in the light of that experience; secondly, any changes that may be considered necessary will not have to await primary legislation, bearing in mind that the subsection is a safeguard because no
44
order shall be made unless a draft has been laid before Parliament and approved by resolution of each House. Therefore the amendment which I am proposing would come under that same provision. I hope that the Government will be able to accept it because it is intended to be helpful to the Government, to the Secretary of State and to the Committee. I beg to move.
Lord Bellwin: The purpose of subsection (8) is to give the Secretary of State an element of flexibility so that he can in the light of experience vary without recourse to main legislation the number of points for an offence which is already liable to points. Lord Underhill's concern seems to be with the broader question of adding to or deleting from the list of offences which attract points.
It is rare that any proposal is made that an offence should become endorsable when it has previously not been so or vice versa. The effects of such a change could be so significant that in the Government's view it ought not to be introduced except by principal legislation. Of course, if an entirely new offence is being created or an existing offence abolished, the consequences of this on the points schedule can be taken care of in the legislation necessary for the major purpose. I hope that, in view of that brief but nevertheless to-the-point explanation, the noble Lord will be able to withdraw his amendment.
Lord Lucas of Chilworth: May I take it that were I to move Amendment No. 59A, I should get a similar response? In effect, my amendment is the same, though it goes somewhat further. In the post last Friday, or it may have been Saturday morning, some of us received the report of the inter-departmental working party on the law. A great deal of what is contained in that report has not been debated by Parliament. There is unlikely to be the opportunity for us to go through that report and consider anything during the course of this Bill. It may well be that in retrospect some of the suggestions contained in the report should be embraced within the general arrangement of this Bill because, after all, we are, as noble Lords have said, engaged in introducing a number of new and deterrent factors.
Lord Underhill's amendment, and my own, permit the Secretary of State to introduce variations of penalties into this scheme without going for primary legislation. That seems eminently suitable. We can imagine the Transport Bill of 1982 having another road safety section where a number of people, including perhaps the Government, wish to introduce changes. On the other hand, there is in both our amendments the safeguard that any regulations so made have to be subject to the approval of Parliament by affirmative resolution. That is in the Bill now.
This Bill has become longer and larger. All Government Bills always seem to get longer and larger. We are continually complaining about the length of Bills. Surely, it would be more sensible to deal with the narrowness of one subject-matter through the affirmative resolution procedure. Both these amendments have that attraction. However short my noble friend's answer was, I do not think in all honesty that it has done justice to what lies behind these two amendments.
Lord Bellwin: I was speaking to the specific amendment of the noble Lord, Lord Underhill. I shall be very happy if both he and my noble friend Lord Lucas would like me to deal with Amendment No. 59A at the same time. I am content to do that.
Lord Lucas of Chilworth: I did say that I had to assume that, because the two amendments were so similar, the answer might be similar. If it is similar, fine; but, if it is not, then perhaps we may take up Amendment No. 59A again.
Lord Bellwin: I am in the hands of the noble Lord, Lord Underhill. It is his amendment.
Lord Underhill: It is in my hands, but I cannot pledge what the noble Lord, Lord Lucas, wishes to do. If he is satisfied with the attitude the Minister is taking, then we could take these two together, but I must leave it to the noble Lord, Lord Lucas, to decide.
Lord Lucas of Chilworth: To be helpful, perhaps my noble friend would like to deal with Amendment No. 59A separately.
Lord Bellwin: In that case, I have dealt with No. 59 as best I am able.
Lord Underhill: I am sorry that the Minister feels he cannot accept this amendment. I think he realises that it is intended to be helpful. As the noble Lord, Lord Lucas, has said, if it were not for the provision that any such order must be by affirmative resolution of both Houses, then I would not have moved my amendment. But there is that safeguard. I think it must be agreed that we are in this period of experiment with the due points system and therefore there may have to be adjustments. I can appreciate the point made by the Minister that it may be something new to introduce a new offence by order, but, with that safeguard, I should have thought it would be helpful. If the Government do not feel they want us to be helpful then I have no alternative but to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.42 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved amendment No. 59A:
Page 16, line 25, at end insert—
("; and
(c) provide for additional offences to be included in section 80(1) of the Road Traffic Regulations Act 1967 (offences which can be punished without prosecution); and
(d) delete any offences or penalties from Schedule 7").
The noble Lord said: Perhaps I should say straight away to the Committee that it might have been very much better if I had stuck to the Marshalled List instead of embracing other matters! This amendment has a similarity, as I said, but it is put down particularly in view of the working party report, which we have not really had time to consider. There might well be other offences which should be included in the 1967 Act—that is, the offences which can be punished without prosecution. In this respect, of course, we are moving into the area of the fixed penalty case. At the same
46
time it does provide for alterations to those penalties which are set down currently in Schedule 7. Before we have the opportuniry to deal with transport matters again, I believe that we may very well wish to make certain changes, and as I said, in order to ensure that these enabling provisions do not enable any Secretary of State to impose changes without Parliament having the opportunity of discussing and debating which, as has been pointed out, is provided for in the Bill, I feel that an amendment such as No. 59A has some merit.
Lord Bellwin: May I say at once that as regards this amendment, and the preceding one, I accept entirely that noble Lords are trying to be helpful and to make this the best Bill we can get at this time. I accept that without reservation. May I also say that as regards this amendment I welcome my noble friend's interest in securing the possibility of a wider application of the fixed penalty procedures. The possibility of extending them to a wider range of moving traffic offences was examined by the working party, as my noble friend knows. The report has now been published and I think I would say at once that the Government agree that this change should be made. However, in order to implement it effectively quite extensive legislation will be required. It also remains for the Government to reach a decision on one important aspect on which views were sought in my right honourable friend's foreword to the report namely, whether failure to respond to a fixed penalty notice should result in the penalty being recoverable as a fine without the need for a court hearing.
For these reasons, it will not be possible to introduce adequate legislation on this subject in the present Session. But on the understanding that it is the Government's intention to introduce such legislation at the earliest opportunity, and that in advance of it the amendment proposed by my noble friend we feel would be insufficient to enable a satisfactory extended system of fixed penalties to be introduced, I wonder whether my noble friend would feel able to withdraw this amendment.
Lord Mishcon: Before the Committee hears whether or not the amendment is to be withdrawn, would the noble Lord the Minister agree that there is a great body of opinion at the moment which is terribly anxious to assist in saving the time of the police, of court officials and others, and that there is a great interest in relieving the crowded lists in magistrates' courts in order that serious cases may be dealt with rather more speedily? Is he really of the opinion, therefore, that it is quite impossible within the time allotted to this Bill to bring in the procedure which is suggested under this very sensible amendment? I would hope that the Minister would regard this as sufficiently important for him to give a more positive reply, especially as we all know that before another Bill of this kind can come before Parliament, a very considerable amount of time is bound to elapse, not least because of the crowded legislative programme.
Lord Bellwin: I am not at all without sympathy on that point, but I am advised that in fact it is extensive legislation that would be required to do this

47
satisfactorily, and it is because of that that I am not able to go further at this moment. I entirely take the point—I know it so well—about the crowded courts, the great pressures that there are and the wish to improve matters now rather than wait for some indeterminate time. But I think I may also go on to say that it is the Government's intention not simply to sit back and say, "One of these fine days …". It is much more than that. I do not know low long this report has been "on the go", but it has now been published and I think the fact that we have made the recognition that we have of the point relatively quickly shows that we also want to see things done. Unfortunately, I am not in a position to go further than I have done today. Should it be before the next stage—and we will look carefully at what has been said—that I am advised otherwise, the noble Lord, Lord Mishcon, knows what I would do. However, I clearly cannot give an undertaking to that extent at all at the present time.
Lord Lucas of Chilworth: What my noble friend has said is fairly helpful. Obviously I am in no position to question the inability of the law to embrace what I want to be embraced under the amendment which I have put down. My noble friend has said he will look at it. I think what I would rather press him to do is this: could he arrange for his department to explain to me in rather more detail exactly why what I want to do cannot be done? In the event that my common sense may prevail over what his legal advisers may tell him, I may wish to do something at a later stage. I notice a certain jocularity in that, but so often in matters of this kind common sense can prevail—sometimes more effectively. With the assurance that has been indicated, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 19, as amended, shall stand part of the Bill?
5.50 p.m.
Baroness Stedman: I should first like to thank the noble Lord, Lord Bellwin, for the very long reply he gave to the points about the totting-up procedure which I raised on Second Reading. However, I am afraid that the noble Lord has yet to completely convince me that the discretionary points will not turn out to be somewhat confusing for magistrates and the courts to deal with. I know that the Automobile Association has also put forward the view that a simpler approach to the points system would make life a lot easier for all those concerned with the administration of justice at the time.
Now that the announcement has been made in another place that there are to be fixed penalties for certain other traffic offences which the police will deal with, would it not be better to leave discretionary points out of this part of the Bill for the time being and to look at the whole question of how the points system should be arranged once we know the position regarding fixed penalties which are, I believe, going to be included in legislation next year?
Although I do not necessarily agree with all the points which the AA has put forward, it has suggested
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that points might fall into three different categories. The AA has suggested a penalty of five points for dangerous and anti-social driving offences; three for offences which have a road safety implication; and perhaps one or two points for those offences which relate to a technical infringement. Whether the AA has its numbers right is a matter for argument or discussion, but I am sure that kind of system would, in the long run, turn out to be more easily understandable to both magistrates and motorists alike. In the same way, serious offences—if someone kept on committing them—would add up to a disqualification.
The other point, about which I did give notice to the noble Lord's office, concerns the question of the relevant date used in this clause. There are always three possible dates which can be taken. One can use either the date of the commission of the offence, the date of the conviction, or the date on which sentence was passed. In this clause, one has a confusion of choice between all three. Under Clause 19(3) the points cease to count for the purpose of compulsory points disqualification; under Clause 19(2), when the points are in respect of an offence committed more than three years before the date of the commission of the latest offence; and under Clause 19(4), previous disqualification ceases to count if it was imposed more than three years immediately preceding the commission of the latest offence—and in this case, it is the date of sentencing on the earlier occasion which is material.
There are strong arguments for following the same principle in the two sections of the clause and for not choosing the date of the earlier offence in one case and the date of the earlier sentence in another. One of the disadvantages which may arise from the fact that the points will run from the date on which the offence was committed is that offenders might seek to escape detection, and seek to postpone the date of the hearing so that the points do not last quite so long. Also, a person who committed offences on different dates might perhaps have points running out on different dates, and that too would add to the confusion.
One result of the present proposal is found in paragraph 12 of Schedule 9 which sets out the proposed new Section 10(7)(a) of the Road Traffic Act 1972. This will provide that the duration of an endorsement will vary depending on whether a disqualification is imposed, even in disqualification in respect of a completely different offence. The position may change from day to day, particularly if an appeal is entered. As disqualifications will affect future offences from the date of sentencing, surely there are arguments for running an endorsement from the date of sentencing and not from the date of conviction?
It almost seems that the date of conviction has ceased to be material. Clause 19(3) refers to considering the position on the occasion of conviction, but in most magistrates' courts this will in practice be also the date of sentencing. The date of conviction is no longer material—or no longer the material date—in view of the wording of Clause 19(3) and (4). On the other hand, it is the date of conviction that is used in Clause 19(5). Surely it is much better to have one relevant date and to have the same date throughout the whole of the clause rather than different dates, which will make life more confusing.
Lord Mackay of Clashfern: With regard to the first point of concern to which the noble Baroness, Lady Stedman, drew attention, the argument is that the difficulties facing the courts are difficulties we should try to meet at the earliest opportunity, as my right honourable friend has indicated in the other place and also in his foreword to the report from the working party—and the points system which is delivered in association with Clause 19 is a very considerable step forward in that direction and will also he extremely helpful if we are able to go further towards the fixed penalty system, as we intend to do. This is a step in the right direction, and we hope the second step will come fairly quickly.
So far as the relevant date is concerned, the approach taken in the clause is to take what we consider to be the most practical date. I shall be happy to consider what the noble Baroness, Lady Stedman has said, and will see whether we could consider any improvement, but certainly practical considerations have determined everything we have done so far.
Baroness Stedman: I should be most grateful to the noble Lord if he will take a look at this, and perhaps write to me before the next stage.
Lord Lucas of Chilworth: Before we leave this clause, I should like to ask my noble friend whether he can give some further clarification about the transition period. This does not appear to be at all clear, either in the preceding debate or in subsection (7). That seems to be the only section of the Bill that deals with the transition period. Subsection (7)(a) states:
"An order for endorsement which was made before the commencement of this section counts as an order made in pursuance of subsection (1) for the endorsement of 3 points …".
Am I to take it that if there is an endorsement on a licence at the commencement date for any offence whatsoever, it would be carried forward at that date with a three point value? If that is so, then if one was a fairly wicked offender prior to the commencement date and had committed an offence which carried 10 points, one would get away on commencement day—when the line is drawn with a three point penalty. If, however, one had committed a lesser offence carrying only three points, one would get away with a zero marking. In other words, when the line is finally drawn, some are winners and some are losers. Is that the way in which it is anticipated that the transitionary period will operate?
Lord Mackay of Clashfern: It is difficult to attain perfection in this particular area without an undue amount of retrospection. At the time of a previous endorsement, it would count as one endorsement towards three, which would introduce the disqualification period. It was on that basis that we considered that three would be a reasonable number of points for all pre-existing endorsements, bringing them into the new system on that basis. I agree it means that some win, but the only alternative would be to re-examine all the previous cases and that seemed to be a very large practical obstacle.
Lord Lucas of Chilworth: I understand that and certainly I have no wish to see the whole thing re-
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examined. But my understanding is right in that it is an arbitrary decision after various considerations have been made, and that some win and some lose? That is what it really all boils down to.
Clause 19, as amended, agreed to.
Schedule 7 [Points to be endorsed]:
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 60:
Page 65, line 6, after second ("of") insert ("penalty").
The noble Lord said: I am coming to the end of the amendments which are consequential on the amendment which I moved earlier this afternoon. I beg to move.
On Question, amendment agreed to.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 61:
Page 65, line 15, column 3, after ("of") insert ("penalty").
The noble Lord said: Is it in order to say, "The same again"? I beg to move.
On Question, amendment agreed to.
6.1 p.m.
Lord Underhill Lord Underhill moved Amendment No. 62:
Page 65, line 18, column 3, leave out ("5") and insert ("3–8 at the discretion of the court").
The noble Lord said: This is the first of a number of amendments dealing with the number of points to be given for certain offences. This amendment relates to the points to be given under Schedule 7 for the offence of careless or inconsiderate driving, for which the schedule provides five points. Noble Lords will recall that during the Second Reading debate a number of your Lordships referred to the fact that, for some of these offences, there should be a range, because some offences could be extremely dangerous and serious, while others could be merely technical though coming under the same heading.
There will be varying circumstances leading to such an offence. Noble Lords will know of circumstances where there has been careless or inconsiderate driving, but where there has been inadvertence without any possible danger to anyone. On the other hand, there will be occasions when such an offence has either led to an accident or could have done so but for the awareness of another driver. It could be that, in some circumstances, inconsiderate driving goes very near to reckless driving, for which 10 points are awarded under the schedule. What we are asking in the amendment is: is it right that the same number of points—namely, five—should be awarded in the two sets of circumstances to which I have referred?
I know that in debates in another place on various questions of offences and points under this Bill, it was said that this was rough justice. But we ought to be a little more careful about treating a matter as rough justice, and the courts ought, surely, to have some degree of discretion to adjudicate on the seriousness of a certain offence. The amendment proposes that, according to the circumstances, there should be a range and the courts should be able to award points

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varying between three and eight, thus giving the possibility of two points fewer than in the schedule and up to three points more.
The principle of a range has already been accepted in the Bill, because reference to Schedule 7 will show that there are two offences where ranges are given for the courts to determine. This seems to be one of those offences where just to have the flat five points would be wrong, and there ought to be some degree of latitude for the courts to determine the seriousness of an offence. So we are proposing that the range should be from three points to a maximum of eight points, at the discretion of the court. I beg to move.
Lord Jacques: I should like to support this amendment from experience as a magistrate. I think research will show that, of all the motoring offences, the greatest variety of fines is for careless driving, because there are so many different circumstances. If the court has that discretion on fines and there is that great variety, then there is need for some flexibility in the points system in regard to those offences.
Earl Fortescue: I, too, should like to support this amendment and in doing so I want also to speak to Amendment No. 63. I believe that the two offences of careless driving and driving while uninsured are peculiar, in that the gravity of individual cases varies so much. On Second Reading, I gave examples of how such offences can vary and I shall not weary your Lordships by repeating them again today.
Since this Bill went through another place—and, incidentally, since its Second Reading in your Lordships' House—we have had the advantage of the publication of the report of the working party on road traffic law, and you Lordships may think it significant that on page 55 of that report the working party came out in favour of giving discretion to courts in the case of both these offences. As I think the noble Lord, Lord Underhill, has already said, it is also significant that in another place the Government accepted an amendment giving courts discretion, by means of a range of points, for the offences of failing to stop and failing to report.
No doubt my noble friend the Minister will claim that pleas of mitigation, for the number of points awarded to be near the minimum rather than the maximum, will take up extra court time, if this discretion is given. Maybe it will take up a little more court time, but I do not think that the amount of this court time should be exaggerated and, surely, a little extra court time is more than offset by better justice.
Lord Lucas of Chilworth: Since the next amendment is in my name, and differs only in the number of points, it follows that I am in support of the principle underlying the amendment of the noble Lord, Lord Underhill, for precisely the reasons which have already been given. I can see some difficulty here, in that, were I to give undue encouragement to the noble Lord, Lord Underhill, he might decide that he wanted to press this amendment—and he is looking for three to eight points at the discretion of the court—and it would be churlish of me, in the event of his winning, to press
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mine and then bring the range back to two to five. I do not know quite what we can do about that.
However, what seems to be most desperately important is that the top figure of eight in the amendment of the noble Lord, Lord Underhill, is somewhat excessive. It seems that we are then bordering on a decision to be made by the court, by virtue of what penalty may be awarded, on the more serious charge of reckless driving. For example, if for reckless driving we have 10 points—nobody so far has argued about that one—and the court considers that it is a fairly outrageous piece of careless driving and awards eight points, we are just two points short of, or very marginally off, reckless driving. If there is that amount of doubt, there may be some imprecision in the prosecution. After all, it is for the prosecution, is it not?—and I look to my noble and learned friend on the Front Bench, and also to the noble and learned Lord opposite, to tell me—to make up its mind as to what charge is to be brought. Is it to be one of reckless driving, with the penalties which that may impose, or is it to be the lesser charge of careless driving, knowing that the penalty can so very nearly approximate to that on the reckless charge? For these reasons, while I fully appreciate and agree with the principle underlying Amendment No. 62, I prefer mine, purely on the number of points. I would ask the noble Lord, Lord Underhill, to bear that in mind, just as I shall bear in mind what he has to say after we have listened to the response of my noble and learned friend.
6.10 p.m.
Lord Mishcon: I intervene merely in order that the noble and learned Lord the Lord Advocate can deal with the very sound point which has been made by the noble Lord, Lord Lucas of Chilworth. Since he was courteous enough to address his question to me as well as to the noble and learned Lord opposite, it may help if I say that it is a matter of practical experience that police forces throughout the country vary greatly regarding this offence. Some of them even after a death has been caused will prosecute for driving without due care and attention, while others will prosecute for reckless driving even when there is no serious injury, if they think that the facts constitute reckless driving. It is a matter which causes a great deal of concern among those who are charged with the duty of defending motorists.
I can only say that it is sensible to have an upper limit as high as eight for driving without due care and attention, even though it comes within just two points of reckless driving, because in many cases it is extremely difficult in a bad case of driving without due care and attention for the court to understand why the prosecution has not been for reckless driving.
Lord Mackay of Clashfern: If I may deal first with that point, it is certainly for the prosecution to decide what charges will be preferred. Sometimes in relation to a traffic case there are charges of careless driving and reckless driving in the alternative, passing the responsibility to the court to choose between the two degrees. So far as Scotland is concerned, it is the responsibility of the Crown to decide what form the prosecution shall take. But the important point is that Parliament has differentiated between the two. There are distinct charges of reckless driving on the

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one hand and careless driving on the other. Although the one set of circumstances may shade into the other, Parliament for practical reasons has to make a distinction between the two, and it has done so. One cannot have an infinite gradation of offences in this area, at least not without some greater legislative complexity than we have at the moment, and I think most people feel that perhaps we have enough of that already.
If I may turn to the main matter, as my noble friend has pointed out, the interdepartmental working party considered that a variable range of points for certain offences was possible. However, we as a Government have to consider the effect on the work of the courts. The total number of offences which are dealt with in this area of the law is very considerable. To take England and Wales alone, there were 1.8 million findings of guilt for motoring offences in 1979. Of these, about 2 per cent. were in the failing to stop group of offences, whereas the number of careless driving offences was of the order of 150,000 and insurance offences nearly 160,000. That is 40,000 against 150,000 and 160,000.
At present the totting up procedure does not distinguish between offences which are subject to it. Therefore anything which distinguishes between offences is an improvement. We consider that, as a matter of practical determination it is not wise to go beyond giving fixed points for these offences, otherwise what happens is that the time of the courts is taken up with considering the number of points which should be awarded. The court has a discretion as to whether or not to disqualify in those cases where disqualification is discretionary. It has a discretion on the size of the fine and it has to consider whether it is to endorse or whether there are special reasons for no endorsement, in which case there would be no points endorsed upon the offence.
It seems to us that those discretions are sufficient and that to introduce another range of discretions within the offence, distinguishing within the offence between one set of circumstances and another, is to introduce refinements which, however much they might appear to assist justice as between one particular offence and another, mean, considering the total number which have to be dealt with and the finite resources available to the court to deal with all of them, that you find yourself allocating resources to matters which are comparatively small, thus increasing the backlog, or neglecting the more important cases.
In making a judgment, therefore, on the allocation of the resources which are available to the courts and to the prosecution systems and the defence systems which are called upon to assist the court in these matters, we concluded that it would not be right to allow discretion for this offence. The only exception is, as has been pointed out, the case of failure to stop. That group of offences is much smaller in number than those with which this amendment is concerned. It is also an offence which in recent years has been very much on the increase. Parliament has found it necessary to raise the maximum fine tenfold, from £100 to £1,000. This suggests that in this case there is a very special problem which makes it right to depart from the general principle. Otherwise we strongly suggest it is right to adhere to the principle of fixed points and to proceed upon that basis.
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In the light of that explanation, I hope the noble Lord will feel able not to press his amendment.
Lord Underhill: I am very disappointed with the reply of the noble and learned Lord the Lord Advocate. I prefer to keep separate the insurance argument on Amendment No. 63, which I did not speak to, because a different principle is involved upon which I wish to say something. The reason why the amendment which I have moved and which has been supported by the noble Earl, Lord Fortescue, makes a maximum of eight points for careless and inconsiderate driving was deliberately so that it would be two points below the 10 points for reckless driving. There is a difference between the two offences.
The noble and learned Lord the Lord Advocate said that we must consider the effect on the work of the courts, but surely we must pay some regard to justice for the person who is brought before the court. I am certain that every noble Lord here who is a motorist would be very upset if for what was almost a technical offence which was careless and inconsiderate but which created no fear of any danger or accident he got five points, which is only seven points away from possible disqualification. This is the seriousness of having fixed points of this kind. I am not a magistrate, but if I were I should feel that in a case like that I ought to have discretion. I should hate to feel that Parliament had said that irrespective of the circumstances it must be five points. This is one case where we ought to give consideration to the point.
As we have another amendment which would not make the range so severe as this—we are proposing 3–8, whereas the other amendment proposes less—I think that at this stage, without accepting anything that the noble and learned Lord the Lord Advocate has said, I should like to read carefully what he has said and maybe come back to this, because an important matter of principle is involved here. In the meantime, I shall withdraw this amendment and see what the Minister's reply will be to the amendment to be moved by the noble Lord, Lord Lucas of Chilworth. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.21 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 62A:
Page 65, line 18, column 3, leave out ("5") and insert ("2–5").
The noble Lord said: In moving this amendment I merely have to remind your Lordships of what my noble and learned friend the Lord Advocate said with regard to the principle. Notwithstanding the figures he gave—and I have to confess that I did not make a note of them—I was not overly impressed with his argument, because a careless driving offence is one of judgment. When you come to a parking offence, you know jolly well whether you have parked in the wrong place—the signs say so, the yellow lines say so, the meter says so, or whatever it might be. There is no escaping that. If you happen to draw up closely to a kerbstone and a gust of wind knocks a bicycle over, it may be that somebody will come out of a shop and say, "I saw you knock that". You might get charged

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with careless driving. It is a matter of judgment. I certainly would not like to get five penalty points for an offence of that nature. It is quite conceivable, although not probable that one might be charged.
I believe that where there is an element of doubt, where there is a question of opinion, as distinct from fact, I believe that one should be able to go to the court and put one's point of view. If in fact it results in rather more court work than magistrates and clerks would like, I am rather sorry about that. Where we get these matters of opinion, we have a court system set up in which the opinion may be tested. I feel that in fact I may have to do just that in this Committee; namely, test the opinion of the Committee. I beg to move.
Lord Mishcon: I only ask that, when your Lordships consider what view should be taken in regard to this amendment, you will bear in mind a point that has not been mentioned so far, but which your Lordships may remember from a previous debate; namely, that the seriousness or otherwise of the offence cannot be taken into account by a subsequent court when dealing with the question of disqualification.
That means just this. If you happen to cut in front of another motorist in a way which he thinks is objectionable, it is open to that motorist, without any intervention of the police, to cause a summons to be issued against you for driving without due care and attention. When the case comes to court, on the basis that it was an act which was not that of careful driving, the court could come to the conclusion, on hearing both motorists, that driving without due care and attention had been committed in the case and there could be a conviction.
There is another case with which your Lordships are very familiar; that is, that sort of driving which causes an accident—and quite a serious accident—but does not amount (in the opinion of one prosecuting authority) to reckless driving. Bear in mind the fact (this was the burden of my argument before, which I shall not inflict again on your Lordships) that, as the Bill now stands, on a subsequent occasion the seriousness of the offence of driving without due care and attention—if in the totting-up of the points it comes to 12 or more—cannot be taken into account by the court, because that is what subsection (6) now means. Would your Lordships consider that it is imperative that, in a case of this kind where driving without due care and attention can be so variable in regard to its seriousness, at least a discretion ought to be granted to the court to decide the number of points that ought to be awarded in the limit that is now suggested by the noble Lord, Lord Lucas.
Lord Jacques: I should like to suggest to the noble and learned Lord the Lord Advocate that there is scope here for compromise between the two amendments and the attitude of the Government. I can understand the Government's attitude, that it will take the time of the court, but the court already has to decide on the fine and I can say from experience that those fines are decided quite quickly. That is not the kind of thing on which the courts spend very much time. However, it seems to me that there is a possibility of compromise
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here. The narrower the range before the court, the less time it is likely to take in deciding, and I would suggest that 4–6 points would be a fair compromise between the two amendments and the attitude of the Government. That would seem to me to be a reasonable compromise.
Baroness Trumpington: I merely wish to say, speaking as a humble magistrate who has spent today hearing nothing but driving offences in Horseferry Road Court, that I left that court and drove in my car to your Lordships' House, where I smartly drove into the "out" entrance, instead of the "in". Somebody was on their way out, but I caused no actual danger. On the other hand, I suppose one could say that I was carelessly driving and I should have been very angry if I had been given five points. There is no doubt in my mind that we magistrates deal with an endless number of driving offences in one day and there are many variations on the theme of careless driving, so I would certainly agree with flexibility in regard to the penalty.
Lord Harmar-Nicholls: I should like to urge upon my noble friend to look at this again. I honestly do not think that the convenience of the court comes anywhere near in importance to fairness and justice in law. For what it is worth, I remember that when I held a junior appointment which meant that the department was responsible for Trafalgar Square, the Metropolitan Police brought along a whole list of regulations which they wanted to bring in. If you broke a flower, it was an offence; if you grazed a plinth, it was an offence; if you put your hand in the water it was an offence. I remember asking, "How do you deal with it now?" They replied, "We have to prove damage or nuisance", to which I replied, "Well, from my point of view, that is what you will have to go on doing". You can accidentally break a flower, you can accidentally cause a scratch on a plinth with your umbrella, you can trail your finger in the water without doing any sort of harm. I did not think that the convenience of the Metropolitan Police in order to get cases through quickly, or that in the point of my noble friend's argument, the convenience of the courts, ought to interfere with the discretion of the magistrates to assess the extent of the misdemeanour or mistake that has been made.
Lord Mackay of Clashfern: Perhaps I may take a lesson from my noble friend's suggestion—go on doing what you are doing now—which is not to have a discretion in this particular matter but to have a fixed value for the purposes of totting up for this particular offence. I should like to remind your Lordships that of course there is the possibility of there being no endorsement at all. If the offence is of such a character that the court considers that there are special reasons for not endorsing, then the points value is zero. So in a sense the discretion exists to have zero. But, if one comes to the situation where there is a definite offence of careless driving, then what we have to say is that it is really unreasonable, in the present state of the resources which are available to the court, to make this discretion available for the first time, because that is what is being proposed.
It is not just a matter of convenience for the court. It is a matter of the total amount of resources, the

57
total amount of burden, and what happens if you increase the burden of deciding these careless driving offences by adding an additional dimension to the discretion the court has to exercise. That is bound to be productive of extra time, because although they do it quite quickly they do it very carefully. It is bound to take some time; there are a very large number of cases in this category. That time all adds up, and that time is at the expense of other cases, unless we can increase the amount of resources available to the courts, and in these days that is just not possible. Therefore, what you are doing is increasing the backlog, taking up time at the expense of other cases; you are doing injustice to others by an attempt to produce, by this additional refinement, the sort of justice as between one and another which it may be thought exists.
Merely to create a discretion does not necessarily mean that people have the idea that all is just, because they may find that with exactly the same offence with exactly the same circumstances in two magistrates' courts, to use the words of the noble Lord, Lord Mishcon, earlier, one court is soft-hearted and the other hard-hearted, one gives five points and the other eight points. The impression of justice is not thereby enhanced. For all these reasons I would invite your Lordships to take the view that the practical and proper course is to make this a fixed number. I invite your Lordships not to accept the amendment.
Lord Underhill: If I may intervene before the noble Lord, Lord Lucas, replies, if one took the words strictly as the noble and learned Lord the Lord Advocate has given them, it would make some of us who believe in the points system think that we ought to change our view about it. Take the case that the noble Baroness, Lady Trumpington, mentioned. If by chance a policeman had said, "You are guilty of careless driving", that means five points. You have only got to do that once again, and add on two points, and you are disqualified. How can you justify it? Within the magistrates court they will have to determine, on the range of fines, whether this offence is worthy of the maximum fine or a lower fine. All we are suggesting is that the points go along with that. It seems to me so reasonable, whereas the attitude taken by the Government, I believe, is unreasonable and one which is not fair and equitable to the people brought before the courts.
Lord Lucas of Chilworth: May I express from these Benches very sincere sympathy to the noble Baroness, Lady Trumpington, in her most unfortunate behaviour this afternoon. I am glad that nobody suffered thereby. I must say that my noble and learned friend the Lord Advocate has rather disappointed me. He talks of the burden on the courts. Oh dear! With the crime rate going up the burdens become more burdensome. I really think the kind of amendment I am suggesting would make little difference to that burden. My noble friend says we have to consider the resources available to us. This is not a question of resources. This is a question, potentially, of somebody's livelihood, due to a moment's lack of consideration, a moment's carelessness, over which the courts have no jurisdiction. I believe they should have.
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I am not overly impressed with the argument that the fine that could be imposed makes the balancing feature. So often, of course, it is not the individual who pays the fine; it could indeed be an insurance company, it could be an employer. It has to get very high indeed before that remedy bites at all. If one pursues that line of argument, I recall that in the working party report some of the points were based, as a scale, against amounts of money that the courts up and down the country levied on people by way of fines. That seems to me a most odd way of measuring.
I sense that the Committee feel that there is some justification, particularly on this offence, for some variation, some discretion to be allowed to the court. I must therefore ask the Committee to display their feeling in one way or another.
6.36 p.m.
On Question, Whether the said amendment (No. 62A) shall be agreed to?
Their Lordships divided: Contents, 98; Not-Contents, 50.

CONTENTS

Airey of Abingdon, B.

Longford, E.

Amherst, E.

Loudoun, C.

Ardwick, L.

Lovell-Davis, L.

Auckland, L.

Lucas of Chilworth, L. [Teller.]

Bacon, B.

Banks, L.

MacLeod of Fuinary, L.

Barrington, V.

Middleton, L.

Beaumont of Whitley, L.

Milner of Leeds, L.

Bishopston, L.

Mishcon, L.

Boardman, L.

Molloy, L.

Boston, L.

Monk Bretton, L.

Boston of Faversham, L.

Monson, L.

Brabazon of Tara, L.

Mottistone, L.

Brooks of Tremorfa, L.

Mowbray and Stourton, L.

Brougham and Vaux, L.

Oram, L.

Bruce of Donington, L.

Peart, L.

Cairns, E.

Phillips, B.

Cathcart, E.

Ponsonby of Shulbrede, L.

Chitnis, L.

Rankeillour, L.

Collison, L.

Redesdale, L.

Colville of Culross, V.

Renton, L.

Cross, V.

Ross of Marnock, L.

David, B.

Rugby, L.

Davies of Leek, L.

Saltoun, Ly.

de Clifford, L.

Seear, B.

Denbigh, E.

Sefton of Garston, L.

Denington, B.

Segal, L.

Diplock, L.

Sharples, B.

Drumalbyn, L.

Shinwell, L.

Elwyn-Jones, L.

Simon, V.

Ewart-Biggs, B.

Stamp, L.

Fortescue, E.

Stedman, B.

Gaitskell, B.

Stewart of Alvechurch, B.

Gisborough, L.

Stewart of Fulham, L.

Gosford, E.

Stone, L.

Greenway, L.

Strathcarron, L.

Hale, L.

Swinfen, L.

Hampton, L.

Taylor of Mansfield, L.

Hanworth, V.

Teviot, L.

Harmar-Nicholls, L.

Tordoff, L.

Hatherton, L.

Trumpington, B.

Houghton of Sowerby, L.

Underhill, L. [Teller.]

Howe, E.

Wakefield of Kendal, L.

Inglewood, L.

Wallace of Coslany, L.

Jacques, L.

Wells-Pestell, L.

Jenkins of Putney, L.

White, B.

John-Mackie, L.

Wigoder, L.

Kilmarnock, L.

Winterbottom, L.

Lauderdale, E.

Wootton of Abinger, B.

Llewelyn-Davies of Hastoe, B.

59

NOT-CONTENTS

Ailsa, M.

Lyell, L.

Avon, E. [Teller.]

Mackay of Clashfern, L.

Bathurst, E.

Mancroft, L.

Bellwin, L.

Mansfield, E.

Beloff, L.

Marley, L.

Belstead, L.

Murton of Lindisfarne, L.

Bessborough, E.

Napier and Ettrick, L.

Boyd of Merton, V.

Northchurch, B.

Bridgeman, V.

Nugent of Guildford, L.

Campbell of Croy, L.

Onslow, E.

Cockfield, L.

Orkney, E.

Cullen of Ashbourne, L.

Rawlinson of Ewell, L.

Daventry, V.

Reay, L.

Davidson, V.

Reigate, L.

Denham, L. [Teller.]

Rochdale, V.

Dilhorne, V.

St. Aldwyn, E.

Elliot of Harwood, B.

Sandford, L.

Elton, L.

Skelmersdale, L.

Ferrers, E.

Stradbroke, E.

Gowrie, E.

Sudeley, L.

Gridley, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Vaux of Harrowden, L.

Vivian, L.

Hives, L.

Waldegrave, E.

Kilmany, L.

Ward of Witley, V.

Long, V.

Resolved in the to affirmative, and amendment agreed to accordingly.
6.45 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 62B:
Page 65, line 28, column 3, leave out ("5–9") and insert ("3–9").
The noble Lord said: I beg to move Amendment No. 62B, and with the leave of the Committee, I should like also to speak to Amendment No. 62C. These two amendments change the number of points to be awarded in respect of two offences: the first, failing to stop after an accident; the second, failing to give particulars or to report an accident. I can appreciate the upper limit of nine points as regards both these offences in that what we are particularly anxious to do is to inflict a sufficiently severe penalty on somebody who, for example, is involved in a hit-and-run accident causing extreme damage and extreme injury and who disappears into the night, so to speak.
In effect one could argue, as I have suggested in my amendment, that the lower limit of five points for failing to stop after an accident, and the lower limit of four points for failing to give particulars, should be reduced even further. I can promise the Committee that I am not proposing to pursue that line of argument any further this evening. However, I am particularly anxious to ascertain at this time why the Government have established this wide bracket and why they have differentiated between the two.
Secondly, I am particularly anxious that there should be from my noble friend, indeed from the Government —and I would ask this question of whoever was sitting on the Front Bench—a clear statement as to what are the responsibilities of drivers and/or other persons who may be involved in an accident, and I am not necessarily referring to a personal injury accident. I understand that it is popularly thought that it is only necessary to stop after a personal injury accident, and that it is also popularly thought that it is only necessary to report that in the event of one being unable to stop after that time.
So I should like to make it quite clear that these two amendments are probing amendments to establish why there should be a differential in the lower points, and to elicit a clear statement as to what are a person's responsibilities having been involved, with or without a vehicle, in an accident. I beg to move.
Lord Mackay of Clashfern: The amendment opens the question of the range of points once one has decided that there should be a range—and we are in principle agreed that there should be a range of points for these particular offences, for the reasons which I mentioned earlier. The general situation is that in our view to go below what we have already suggested is really introducing into the system an unrealistic degree of precision, because one must have in mind that the law will have to be operated in a very large number of courts, by a number of different magistrates even in the same court and so on. At the low end of the scale one must also take account of the fact in many cases where the police are involved they give warnings rather than go forward to a prosecution. The same is true in Scotland. Perhaps I might risk touching on an offence which we were told about earlier this afternoon, because I would think that a warning might be the appropriate way of dealing with that offence.
So far as responsibilities are concerned, I think that the best answer that I can give is to refer to Section 25(2) of the Road Traffic Act 1972 which provides that where an accident has occurred which causes injury to someone other than the driver himself or damage to another vehicle or damage to an animal—and the animals are listed—it must be reported by the driver to the police as soon as possible, and in any event within 24 hours, if he has not stopped after the accident and given his name and address and those of the owner of the vehicle to anyone having reasonable grounds for requiring them. In the light of that explanation, I hope that my noble friend will feel able to withdraw his amendment.
Lord Brougham and Vaux: I believe that my noble and learned friend said that one has only to report an accident to another car. Recently on television there was a programme called "So you think you can drive ". The Ministry was consulted—it appeared on the credits—and it said that you did not have to report an accident to another car. Would my noble and learned friend care to clarify that point?
Lord Mackay of Clashfern: I do not have the provision in front of me at this minute, but my recollection of Section 25(2) of the Road Traffic Act 1972 is that it includes an accident which causes damage to another vehicle, and an obligation to report arises in that situation.
Lord Brougham and Vaux: From the BBC programme it was pretty clear in my mind that you did not have to do so because the situation was put forward: do you or do you not?—and the answer was that you do not.
Viscount Hanworth: Would the Minister agree that the law as it stands says that if you can exchange insurance

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certificates usually an accident does not have to be reported?
Lord Mackay of Clashfern: As I said, the obligation to report an accident to the police arises if the person has not stopped after the accident—the accident being of the type that I have described—and given his name and address and those of the owner of the vehicle to anyone having reasonable grounds for requiring them. Therefore, if he has stopped and given particulars to someone who has reasonable grounds to require them, in that situation the obligation to report to the police does not arise.
Lord Swinfen: Can my noble and learned friend say why the driver of a vehicle damaging property does not have to report the accident to the police? I am sure that a number of local authorities must lose a considerable amount of money as a result of their lampposts being knocked over and, likewise, private individuals with their garden walls being damaged.
Lord Mackay of Clashfern: I am not in a position to explain the policy that gave rise to Section 25(1) of the 1972 Act, and in the absence of a proposal to change it at the moment, I am not sure that I can give a very good answer to that question, but I shall certainly undertake to examine the question.
Lord Harmar-Nicholls: My noble friend Lord Lucas has made it perfectly clear that this is a probing amendment in order to obtain a reaction while there is still time to do something about it. There is one aspect of this amendment that could perhaps be looked at. As my noble friend pointed out, the difference between accidents can be quite huge. If someone has killed a person or maimed a person in an extreme way and then disappears, as my noble friend put it, into the night, that is worthy of all the points that my noble and learned friend would want to put on that man. But one can envisage other circumstances which may not be as blatant as that or where the accident may not be as damaging.
In his probing amendment my noble friend is saying that the difference between five and nine does not reflect the gradations of difference that there can be in the effect of the offence. He is suggesting that, in justice, "3–9" would reflect the difference rather more fairly than "5–9". I think that it may well be worth looking at this again, if my noble and learned friend can do so. The principle that my noble and learned friend at the Dispatch Box has supported is absolutely right. I do not think that anyone would quarrel with the principle, but I think that the margin of difference is worth another thought if we take into account the different kinds of misdemeanours that can come under the heading of not reporting.
Lord Gisborough: I should like to raise a point for thought; that of the motorist who, in pushing himself into a parking place, goes into someone else's bumper, so causing a dent. This is a frequent occurrence. If he is seen and does not report that small damage, that would be equal in penalty to the penalty given for careless and inconsiderate driving. I wonder whether that is the Government's intention.
Lord Mackay of Clashfern: As I said earlier, the range that one takes for this is a matter of judgment. In our view, having regard to the nature of the penalties imposed, the difficulties which I mentioned and the increase in the number of these offences, this is a reasonable balance to take. Of course, for a person who has very limited resources to find that the car he has cherished and kept polished and so on has been damaged in a parking place, by someone who has not troubled to leave his name or any way in which he can be contacted, is often rather an annoying experience. If one is to judge all the possible refinements, one could see the magistrates' courts being taken up with this for rather a long time. Certainly we think that we have the balance about right.
Viscount Simon: On the last remark that the noble and learned Lord made, I was given to understand the other day that a car knocked in a parking places does not come under the law at all because it is not on a public road.
Lord Mackay of Clashfern: That depends on where the parking place is. One can envisage parking places to which the law might not apply, but in our view the provision which we have made here is perfectly reasonable. We think that to go under five would be to introduce an unreasonable appearance of precision without actually attaining anything definite in exchange for it.
Lord Lucas of Chilworth: I find all that very perplexing. My noble and learned friend says that to go under five would not be representative, but the second one goes over five. I also find it somewhat disappointing that we have not been able to learn exactly what constitutes failing to report an accident or failing to stop after an accident. In fact, Section 25(1) of the 1972 Act deals merely with the duty to stop and furnish where damage is caused to a vehicle, trailer and people. We have been talking about other occurrences which may fall into the category of an accident. It might be more helpful if I suggested to the Committee that I look at what my noble and learned friend the Lord Advocate has said with a view to bringing back at a later stage an amendment which will suitably elicit the kind of information which I seek. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62C not moved.]
6.58 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 62D:
Page 65, line 34, column 3, leave out ("2") and insert ("4").
The noble Lord said: This amendment is a little more important. Its purpose is to question the Government's view as to why someone with defective eyesight who fails to correct it, and is prosecuted, is penalised two points. Two points is extremely low. With the greatest respect to colleagues who wear spectacles, to colleagues who should wear spectacles and to older people who fail to realise that they ought to wear spectacles or take some kind of corrective action,

63
as well as those who know full well that were they to make the declaration they might possibly be prohibited from driving, I believe that they should be most heavily penalised.
I do not want to make a big issue of this, but I have knowledge of various instances. I recall a relative of mine whose eyesight had failed and failed, and he wore the same glasses; but on days when he left them at home he drove his motorcar. Unfortunately, one day he knocked over a bicycle and after that, fortunately, he gave up driving altogether.
I consider this to be a serious offence. It is one of the health offences. Indeed, I might possibly have liked to see in a Transport Bill at some time further measures with regard to age, infirmity and serious illness requiring people to subject themselves, as do public service vehicle drivers, train drivers, and so on, to medical inspection. However, we cannot go that far under this amendment. May I ask the Government what is the thinking behind this particular penalty, with the suggestion that I should certainly like to see it much higher? I beg to move.
7.1 p.m.
Lord Underhill: I should like to support the noble Lord, Lord Lucas, in his amendment. As one who wears spectacles, it may seem strange that I am doing so. But it may be fitting that I support him because some 10 months ago, as a number of noble Lords know, I completely lost the sight of one of my eyes. What did I do? I contacted the Swansea licensing office, and the confidential report from my doctor to the licensing office said that I was fit to drive, and I drive, but only with the medical test. I do not want to be thought of as wearing a halo, put publicity should be given that people have the opportunity for a medical test.
I do not know the actual figures, but looking at the booklet of offences I see that there are 110,000 driving licence-related offences. They are not broken down. Therefore, I do not know how many relate to giving incorrect information about eyesight. Maybe the noble and learned Lord can tell us. What we know is that in 1979 there were 285 convictions for driving with uncorrected eyesight and six for failure to submit to a test. If a person cannot see a number plate at 25 yards, it is reasonable to assume that there will be great difficulty in reading many of the traffic signs. If a person cannot read the traffic signs, then there is a possibility of danger.
Therefore, I should like to echo what the noble Lord, Lord Lucas, has asked: why have the Government fixed a figure of only two points? Surely anyone who is driving with uncorrected eyesight is a danger not only to himself but to other people, and, whatever happens as a result of this amendment, I hope that the fact that we have discussed this will bring publicity to bear on the issue, because I am certain that there must be a substantial number of persons who are driving with eyesight that ought to be dealt with, or about which information should be given on their application for a driving licence.
Lord Mackay of Clashfern: The general approach to fixing the points value in this part of Schedule 7 has been to determine it by reference to the average
64
levels of fines imposed as a proportion of the average fines imposed for offences carrying mandatory disqualification. It seems as good a way to arrive at a formula as any. If we depart from such a formula then the judgment that one applies may be difficult to justify.
In the case of this particular offence certainly so far I am not persuaded that overwhelming reasons for going away from this general approach have been established. Under the current driving licence law the minimum eyesight requirement for a driver is the ability to read in good daylight, with glasses if worn, the registration mark of a motor vehicle at a distance of 75 feet in the case of symbols 3½ inches high, or 67 feet in the case of symbols 3⅛ inches high. Research has established that this apparently simple test stands up well in comparison with standards adopted in other countries. It also meets the vision standards set out in the international Agreement on Minimum Requirements for the Issue and Validity of Driving Permits.
Recent research by the Transport and Road Research Laboratory into sight standards among drivers suggests a better overall standard than some previous reports have indicated. Of those drivers tested, only between 1 per cent. and 5 per cent. would have failed the number plate test. While the report confirmed a gradual decline in sight with increasing age, even among those drivers aged 65 years and over the failure rate was no higher than 5 per cent. to 10 per cent. Where eyesight is a factor in accidents it is often not so much that the person involved has defective eyesight but that he has failed to use the perfectly good eyes which he has. Accordingly, so far at least, we are not persuaded that it is wise to increase the number of points for this particular offence. I hope that, in the light of that explanation, my noble friend will feel able to withdraw his amendment.
Lord Lucas of Chilworth: I shall beg leave to withdraw this amendment. It will be with some reluctance. I do not find my noble and learned friend's answer at all satisfactory. It seems to me very arbitrary to refer to the average of fines in the courts as the yardstick against which penalty points should be totted up. What we are seeking in the whole of Part IV is not to penalise people but to prevent accidents happening by having deterrent penalties. I have not done a lot of research on eyesight, but I know enough people who should jolly well wear their glasses.
Notwithstanding that my noble and learned friend says that people should use the good eyes that they have got, the trouble is that if you have defective eyesight and do not wear spectacles you take two looks before you establish what it is you want to see. It is that flash of an eyelid, that second thought, that causes the accident. It is the delay element. I would ask my noble and learned friend to have another look at this; to make some researches between now and Third Reading. There are bodies such as the Opthalmics Association which I am sure could be helpful with regard to this. I do not think that, where we are talking about a physical infirmity, a disability, as listed in Schedule 7, it should be dealt with, with, if I may say so, such scant attention. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: I think that this is probably the moment when we should adjourn this Committee stage for the dinner adjournment. Perhaps it would be best if we arrange that the House resumes after the next piece of business to be taken in the dinner adjournment, at eight o'clock. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Nationality Bill
Brought from the Commons; read 1a, and to be printed.
Yarmouth (Isle of Wight) Pier Bill
Brought from the Commons; read 1a, and referred to the Examiners.

Employment Protection (Employment in Aided Schools) Order 1981
7.9 p.m.
Lord Lyell Lord Lyell rose to move, That the draft order laid before the House on 15th April be approved.
The noble Lord said: My Lords, on behalf of my noble friend the Minister I beg to move the Motion which stands in his name on the Order Paper. The order before us this evening removes employees in voluntary aided schools from the provisions in Section 8(1) and Section 12 of the Employment Act 1980. These altered the unfair dismissal and maternity rights of employees in small firms. At the Committee stage of the Employment Bill in your Lordships' House my noble friend the Minister of State gave an assurance to the noble Lord, Lord Parry, that if case law did not develop in a way which solved these problems for teachers in aided schools, the Government would give serious consideration to introducing amending legislation, and this is what I am doing on behalf of my noble friend this evening. In doing so, I should perhaps remind your Lordships of the background to this matter.
Legally, the employers of teachers and other employees in voluntary aided schools are the governors of the school, whereas for employees in county schools the employer is the local education authority. This means that employees in small aided schools could fall within the scope of the "small firms "provisions of the Employment Act 1980. Those provisions were intended to give some relief from employment legislation to firms with few employees—by extending from one to two years the period during which firms with 20 or fewer employees are protected from a complaint of unfair dismissal by a new employee, and by exempting firms with five or fewer employees from the obligation to reinstate an employee after maternity absence where it is not reasonably practicable for them to do so.
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These limited exemptions were designed to lift from small firms a burden which they found it particularly difficult to cope with, and to remove a disincentive to their taking on more employees. These considerations do not apply to small aided schools.
The present provisions are anomalous. The local education authority is the paymaster not only for county schools but also for aided schools. Aided schools are an integral part of the maintained education sector and part of the total pattern of school provision in the area. It is quite wrong for employees in a small aided school to be treated less favourably than their colleagues in a similar sized school in the same LEA which is provided entirely by the authority. This order is intended to rectify the anomaly. The order has the backing not only of representatives of the employees concerned—that is, teachers' associations—but also of the employers' representatives (namely, the Church of England Board of Education and the Catholic Education Council) and of local education authorities. I beg to move.
Moved, That the draft order laid before the House on 15th April be approved—(Lord Lyell.)
Lord Wallace of Coslany: My Lords, I am grateful to the noble Lord, Lord Lyell, for that clear explanation of the order; he has cast a great deal of light on the subject. I obtained a copy of the order last weekend and read it. Utterly confused, I read it again—and again—and each time the situation became worse. Then I got copies of the Acts referred to and a slight glimmer of light began to emerge. Then, by good fortune, I got a copy of the notes sent to the Joint Committee on Statutory Instruments, and the whole thing became clearer. I am grateful therefore to the noble Lord for clarifying what I must call a certain amount of gobbledygook. I believe the order is justified, fair and reasonable and I have no objections to it.
Lord Lyell: I thank the noble Lord for those kind comments. Indeed, I recall that when I was in his position in the House I used to have to try to decipher a great deal of gobbledygook. I too found the subject matter fascinating, but I was more fortunate than the noble Lord, Lord Wallace, in that I had a speaking brief prepared, together with the legislation and copies of what had been discussed in this House and in another place. However, I am glad the noble Lord has found the order acceptable.
On Question, Motion agreed to.
The Earl of Avon: My Lords, I beg to move that this House do now adjourn during pleasure until 8 o'clock.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 7.14 until 8 p.m.]

Transport Bill
House again in Committee on Schedule 7.
Lord Underhill Lord Underhill moved Amendment No. 63:
Page 65, line 38, column 3, leave out ("5") and insert ("4–8 at the discretion of the court").
The noble Lord said: This is another amendment dealing with a variation of the points as contained in Schedule 7. The amendment proposes that there should be a range of points at the court's discretion for the offence of using, or causing or permitting the use of, a motor vehicle uninsured and unsecured against third party risks. I am certain that Members of your Lordships' Committee will agree with me that driving without third party insurance is one of the most serious of motoring offences. Failure to make provision for third party insurance could have the most serious consequences should there be a major accident leading to a fatality or serious injury.
I appreciate that one can bore the Committee in dealing with personal experiences, but I should like to refer to two that I have had in this connection. In one instance, while hastening to get into a parking space, a gentleman reversed his car into mine. Fortunately, there was not much damage, but when, about 48 hours afterwards, we started talking about settling my repair bill, I discovered that he had no insurance. The accident resulted only in damage to the wing of my car, but a child could have been seriously injured as a result of the motorist reversing suddenly. On another occasion I was serving on a jury when an offender came up for the second time—I emphasise that it was for the second time—for not having third party insurance. Needless to say, he was sent to prison.
I notice that in the booklet that deals with motoring offences there is reference to 159,000 cases of people found guilty of insurance offences. I do not know what is the breakdown of that total, and perhaps the situation is not so serious as the figure of 159,000 suggests. However, it seems to me, and to the noble Earl, Lord Fortescue, who has put down his name to the amendment, that in these cases a penalty of five points is far too inadequate. As I have said, driving without third party insurance is one of the most serious motoring offences, bearing in mind all the possible consequences. Therefore the amendment proposes a range of from four to eight points, which we think would measure up to the seriousness of the offence.
On the other hand, as was mentioned on Second Reading, there will be occasions where the motorist is not entirely to blame for failure to have insurance, and so the amendment proposes that instead of a penalty of five points, there should be a range of from four to eight points at the discretion of the court. I beg to move.
Lady Saltoun: I entirely and wholeheartedly support the amendment. Driving without insurance is one of the worst crimes that can be committed. But for what the noble Lord, Lord Underhill, had said, I should have been very doubtful whether there could be mitigating circumstances in such cases. I would not consider eight points in any way excessive, and I shall certainly support the amendment. I suggest that the imposition of eight points should be unarguable.
Baroness Trumpington: I, too, should like to support the amendment. What I wish to say will eventually appear in the form of a question. If someone who is
68
insured causes injury by reckless, careless or inconsiderate driving, at least the injured person receives payment. I should like to ask my noble friend whether in the case of a TDA who is not insured, the person who is injured will receive compensation. In the courts in which I am fortunate enough to sit we take an extremely serious view of driving while uninsured. I believe that there is an option to disqualify the driver, and we impose very severe financial penalties. We do not see why the penalty should be less than the cost of the insurance, if the offender has not been insured for over a year. I think it very strange that only five points is proposed in this case, and I wholeheartedly support the amendment.
Earl Fortescue: I, too, wish to support the amendment. I have in fact already spoken to it on Amendment No. 62. The worst type of case of driving uninsured involves a youth or very young man driving a very fast sports car. He deliberately drives without insurance because it might cost him several hundred pounds to get the necessary cover. At the other end of the scale is the person who has driven for many years and has been insured with the same company. The company might fail to send him a reminder, or the man might be away from home when it is sent. So the insurance lapses for a few days, or possibly even a week or two, without his being aware of it, and he then has an accident. In such circumstances, the offence of driving uninsured is comparatively minor and in many instances of that kind the client would be looked after by the insurance company. He might well be charged with driving uninsured, since he is technically uninsured, but the insurance company will stand the loss.
There is also the case of a man who on buying a car asks for it to be delivered and says, "See that I am insured ". When the insurance certificate arrives he does not bother to look at it—I agree that he ought to look at it—and the insurance is only for the owner to drive. Perhaps it excludes any driver under the age of 25. In my submission the types of cases to which I have referred vary greatly in their degree of gravity, and therefore if justice is to be done, the same number of penalty points should not be applicable in each instance.
Lord Mackay of Clashfern: This particular offence has had the level of points attached to it in the same way as I sought to describe earlier for other offences in the schedule. That is to say, the level of points has been decided broadly by taking the average penalty that has been imposed by magistrates for the offence—and that has included the experience referred to by my noble friend Lady Trumpington—and by taking the average as a proportion of the fine imposed in cases of mandatory disqualification. So it is an attempt to use the experience of magistrates of offences of this kind in order to give us a level.
Of course, I agree that the offence is quite a serious one, and that is why it has five points attached to it. If one were sitting down to fix a figure without the benefit of what the magistrates have done in the past, then the sort of considerations about which we have been hearing would no doubt be the way that one would reach a judgment, and I suspect that all of us,

69
if we started out on that kind of a priori ground, might well reach somewhat different figures for our range. But there is a point about all of these that I think one has to bear in mind, and that is that there is discretionary disqualification; in other words, the court hearing the case can go right up to full disqualification on the basis of one of these if it wants to do so. It is only if it decides that it is not a matter for discretionary disqualification in the particular case that one has to have regard to the totting-up system, and in that situation it is in the nature of a warning. It cannot be absolutely precise, but in my submission, on the basis of the information that we have and the experience that we have, this is a reasonable level at which to take it.
The same arguments apply as applied in principle to careless driving in going for a single figure. The more discretion one has the more difficult it is to get justice in every case, for the reasons which I sought to explain previously. That really is the answer that it seems to us is appropriate for this amendment, and I certainly take the view that the experience of magistrates' courts in the past has very much been brought into the figure that we have put in here. I would invite your Lordships not to approve this amendment. Of course, it is obvious that the arguments which have been put forward today are arguments that we should like to consider.
Lord Lucas of Chilworth: I waited until my noble and learned friend had in fact given his answer, which I must say again I find disappointing. The Government seem to shelter behind this average cash penalty that magistrates' courts have imposed. This seems to be their answer for everything. This is the yardstick by which they are measuring the points system. It may be right, but I should like to suggest to the Committee that it is in fact the wrong yardstick. This is the first comprehensive review of road safety that has come before Parliament since, I think, the late 1960s. Surely it is not beyond reasonableness to have expected some imagination to have emanated from the department—or perhaps it is. We are here looking at the whole problem of deterrence. We are trying throughout the whole of this section of the Bill to find penalties which, frankly, are going to deter people from doing certain things. Yet my noble friend comes back with, "We have taken the yardstick of the average fine". That shows a total lack of imagination.
It is well known that there are three offences which are most difficult to observe and convict upon because you cannot catch the offenders; that is, not having a road fund licence, not having an MOT test certificate and not having valid insurance. It was in the early 'seventies that a campaign was run by the department in Brixton. It just happened to be in Brixton, and it was called off for rather different reasons. Since then we have had campaigns up and down the country—quite notable campaigns—on road fund licence avoidance. But we have never really had anything at all with regard to MOT tests and insurance, which are always the subject of the supplementary charge after something has happened.
Your Lordships will probably recall the passage of another Bill in 1974—and the noble Baroness, Lady Stedman, will remember exactly the one it was—with
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regard to insurance. I have to say that I am no great lover of insurance companies, and I feel that there should be some discretion here because the ordinary person—that is not a nice expression; I mean the average motorist, the average policyholder—does not understand what he is buying for his money. It is after the event that he suddenly finds: no, he could not drive that car because it was not covered under his own policy, because that was restricted to the policyholder and spouse only; neither was he covered under his friend's policy, because that was restricted in some other way. I believe that the Government should look to the insurance companies to make very much more clear what it is that people are buying, or what it is that they are selling to people.
My noble friend Lady Trumpington in fact asked a question. She said that under an ordinary comprehensive policy—the kind of policy most of us accept—if there is an accident the unfortunate damaged person sues for damages, and under the terms of the policy is likely to get them. In the event, however, of a very restricted policy—a third party fire and theft policy only, or perhaps a third party policy only, which is permissible with, of course, the extension of the requirement for the car-hiring provision which we made in 1978—where does that person look for damages? What I am really trying to suggest is that there are a number of cases where accidents occur where there is not a fully comprehensive insurance and damages cannot be obtained.
Now, if somebody sets out to secure a policy under which he can slide from his normal obligations by virtue of the premium not being £350 per annum but £90 per annum, it is a pretty serious offence. If he wants to slide right from under with the fairly sure chance of not being caught—that is, not having any insurance at all—the offence is even more serious. In the Bill, I do not see this kind of seriousness reflected in the penalties. I do not want to go back to the argument as to whether it should be three, four, five, six, seven, eight, nine, or whatever, points, but certainly I am not really happy to accept the yardstick of the fine, magistrates' courts and resources and all that sort of thing. There has to be some kind of major deterrent here—some really major deterrent—because if in fact a person is disqualified, then again being caught and charged with driving while disqualified is a pretty serious affair.
I do not think that the fact that there is a discretionary disqualification acts as a deterrent. People think, "It is not going to happen to me". But when you know that if you get caught there are eight points against you, then there it is in black and white. That you may get a very good advocate who may talk the court out of a disqualification I do not think is an excuse. I should like to hear from my noble friend specifically on the point raised by my noble friend Lady Trumpington and myself with regard to insurance and damages; but in general terms I should like to feel that my noble friend will take this away and have another look at it.
Lord Mackay of Clashfern: I have already said that we would consider this matter. I am sorry that I did not answer the earlier question of my noble friend Lady Trumpington. I had intended to do so but it slipped

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my mind. The situation is that if a person suffers injury and the driver concerned is in breach of the law by not being covered by insurance which would have covered a claim by that injured person, the compensation otherwise payable under the insurance policy is payable by the Motor Insurance Bureau, the association of insurers who have got together to provide that cover. Where there is a breach of the law in this respect, that arrangement applies. I do not think that I can add anything to what I have said before, except that it seems to me that the fact that there is power to disqualify is itself an important deterrent and then, if it is said that something discretionary is not to be a deterrent, that is an argument that I had not thought to make earlier against allowing discretion in the number of points. I would submit that this is only the minimum obligatory if there is an endorsement and the major deterrent is always the possibility of disqualification.
Lord Winstanley: On the very last point, I would say this. The insurance companies themselves have got together and have established a fund to which people can apply if somebody is injured as a result of an accident where the driver is not covered by insurance, a fund provided by the insurance companies which will see that compensation is paid; but that fund is paid for not by the insurance companies but by other motorists. It does not come from thin air; it comes from premiums paid by other law-abiding motorists. I do not think the fact that the insurance companies have erected this machinery, which operates very fairly but at some cost, in any way excuses us opting out of responsibility. I share the view of noble Lords in all parts who have said most sincerely that the noble and learned Lord should look at this again. It is a serious matter. We cannot opt out merely because the insurance companies are taking necessary and proper action themselves.
Lord Mackay of Clashfern: I do not wish to delay the Committee. I was not suggesting that that was other than an answer to the question that I was asked by my noble friends. I am not suggesting that that has much bearing one way or another on the correct number of points to assign in the schedule for this offence.
Lord Underhill: Did I understand, in answer to a previous noble Lord, that the noble and learned Lord was saying that he would be prepared to take this away and look at it again? If so, I shall be happy to withdraw it and not delay the Committee. I take it the noble and learned Lord nods his head in assent.
Lord Mackay of Clashfern: This is the third time I have said this. I said that I would be prepared to consider it.
Lord Underhill: I am grateful for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.23 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 63A:
Page 66, line 16, column 3, leave out ("3") and insert ("2–3").
The noble Lord said: I move this amendment to
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emphasise the degree of an offence. I do not think I need delay the Committee on this matter. One gets the situation where there has been a repeated occurrence of speeding, probably due to familiarity, in a particular street in a built-up area. This usually happens at business time in the morning. A radar trap is set and people are caught travelling perhaps 4, 5 or 6 miles over the limit. Then we have the alternative where perhaps in a 30 mph limit on a beastly, wet November evening, somebody is doing 40 mph. Then we have the third case on, say, a motorway, at dead of night with nothing else on the road, where somebody is doing 80 or 85 mph, some 10 or 15 miles over the limit. Yet all these, on the points system, carry the same penalty.
I accept that other penalties can apply: the monetary one, disqualification, the alternative charge of reckless driving and the alternative charge of inconsiderate driving and so on. It seems to me that to set down a flat fee, as it were, albeit comparatively low, does not recognise the wide variation that can occur in this kind of offence. We have not yet arrived at the state where the machinery employed for detecting such offences is sufficiently sophisticated to have universal acceptance; so that frequently an offence of this nature, a speeding offence, may be on the word of the officer. It may be contested. I know professionally that people have argued variations of speedometers of plus or minus X at various speeds—all probably fairly legitimate defences, albeit defences.
I should have thought it would not have been unreasonable to have allowed some flexibility. Earlier this evening, we talked about the offences which are not matters of fact. It is a matter of fact whether you have an insurance policy, or whether you have parked in a prohibited place. There are others which are matters of opinion, and this is where a variation in penalty and punishment should be allowed. That is what my amendment seeks to provide. I beg to move.
Viscount Hanworth: I should like to support this amendment. We all know of cases where originally a stretch of road was at 30 mph and is then put up to 40 mph and maybe even to 50 mph. One can argue that there is breaking of the law. But let us be more practical, because we all know that if you drive at 30 mph in a 30 mph limit you will almost certainly be passed. The accepted norm is somewhere around 34 to 35 mph. I do not think that the argument of just breaking the law and enforcing the penalty is a reasonable one. What we are after is safety on the road and not just convicting people. Therefore, I think there is everything to be said for not just relying upon technicalities but giving the courts some scope for giving a higher penalty where the offence was not a purely technical offence.
Lord Monson: I should like to support this mendment. I suppose that I should declare an interest in that I have been fined once, but only once, for speeding. As it happened, I was on my way, my urgent way, to a debate in your Lordships' House. I was apparently doing 65 mph in a 50 mph limit, albeit in an area which was almost completely non-built-up. Had this Act been in force at the time I do not suppose that I could have legitimately objected since I was a full 15 mph

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over the limit; but whether that limit should have been in force at that particular spot is another question. We know, however, that there are certain police forces, not many, which make a habit of prosecuting when one is doing only six, seven or eight mph over the limit. This does not justify three penalty points; and for that reason I support the noble Lord's amendment.
Earl Howe: Exceeding the speed limit is what one might call a technical offence. This is something which I am bold enough to say possibly almost all of us have done from time to time; and, although we may strongly deny it, frankly there are very few people who could honestly say that they have never exceeded the speed limit, whether 30 mph, 40 mph, 50 mph or 60 mph. We are all human beings and it is only human nature.
I support this amendment. It is a small matter, but a very important one. It affects so many people. For years we have been discussing from time to time realistic speed limits. So many speed restricted areas today are not in my opinion essentially necessary. I do not mind admitting that I was caught for speeding five times before the war—my father was caught 25 times—all for the same offence. Not dangerous, careless or reckless driving, just going too fast.
Before the war, one received a warning, very sensibly, and was fined about £1·50. I made a mistake and I am ashamed to say that over three-tenths of a mile I exceeded the speed limit on the by-pass from Wendover to Stoke Mandeville. I was going to speak at a school at Quarrendon not far from Aylesbury. I was delayed by police officers, and they knew me, which made it even more embarrassing. I was not clever enough to recognise the police Jaguar by its headlights. I pulled off the road onto the forecourt of a garage and I advised the police to do the same, otherwise their vehicle would be shunted in the back. They followed suit.
What annoyed me about this business of special speed limits was that having been caught and fined (£8 I think it was) and receiving an endorsement, the speed limit over that particular stretch of open road was removed within 10 days. Unfortunately, that was done after I had been caught. This matter, although it may seem a small one, is important. It affects all of us. It would give a little licence between two to three points, instead of just three points where somebody is travelling at 100 mph in a 40 mph area or 32 mph in a 30 mph zone. I support the amendment purely on the grounds that speed limits today are not realistic.
Lord Underhill: May I briefly support this amendment, particularly as I spoke on this aspect on Second Reading. If anything, I support going down to a lower figure than going to a higher one. When one has had the experience of being passed at 80 mph or 85 mph on a motorway in a heavy downpour, with spray splashing in all directions, and the driver not having the vehicle's lights on, one realises that that is far more serious than where a person is caught travelling at 40 mph in a 30 mph area with no traffic about on a moonlit night on a clear road. There is a sound case for a variation. While I should like to see a bigger variation, I believe that this is something in the right direction.
Lord Mishcon: At the risk of boring the Committee—I promise for only one minute—may I repeat that the Committee have already sanctioned another provision of this Bill, which says that the seriousness or otherwise of this offence cannot be mentioned on a disqualification application. In those circumstances, the Committee will appreciate the situation.
The noble Earl was so frank with the Committee in dealing with his driving sins and nevertheless met with the compassion of this Committee when he mentioned the fact that although it was an offence one week when he was caught, some week or so later it would have been no offence. That was a matter which would have led him to have a fixed point awarded against him. There was no opportunity, having regard to the ancient subsection (6)—"ancient" only from the point of view of it being mentioned so many times—to plead in his defence that of course it was not a serious offence when he committed it by virtue of the fact that that road was derestricted only a matter of a week or so later. I mention the point only so that it is appreciated at least by Report stage if it is not appreciated at Committee stage.
Lord Mackay of Clashfern: It is fairly obvious that Parliament felt that speeding was a matter which constituted an offence by itself with variations which may make it more or less severe. No doubt there are occasions on which one may speed in such a situation as to cause little difficulty. If the particular speed limit is removed the following week, that might seem to be one such situation. We are obliged for that particular example. But that does not show anything about the offence except that it is necessary for the speed limits to be kept realistic. That was the lesson which my noble friend drew from his experience: that it is necessary to keep the speed limits realistic. I believe that considerable effort goes in that direction. However, that argument in a way would suggest that in some situations the offence should not be an offence at all. Magistrates have a discretion upon the penalty and, in particular, if there are special reasons, they may decide not to endorse, in which case there are no points awarded at all.
I pointed out earlier in relation to other offences the number involved. The offence of speeding involves a very large number of cases—some 300,000 or so in 1979—and the extra range offered to the court by this amendment is only one point. Therefore you have the discussion and time involved in that which in my submission is a very strong argument against allowing discretion in this case. After all, this is only in the nature of a warning. Whether it is two or three has no practical effect if that is the only thing that happens. It is only if one has repeated the matter a number of times or fallen foul of another regulation that the particular points awarded will have any practical effect.
There is another factor that I should like to mention. As the Committee knows, my right honourable friend the Secretary of State has indicated his intention to introduce legislation to extend the fixed penalty system to the less serious moving and traffic offences, including speeding. One matter about a fixed penalty system is that the penalty has to be fixed. That is so obvious as not to require statement. But it means that if a

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discretion is to be granted in respect of the penalty, then one cannot have a fixed penalty system applying to that. Surely this is not in the interests of a satisfactory road traffic regulation that a single point of discretion should be awarded or allowed in respect of speeding with the effect that one precludes it being a fixed penalty offence.
I see substantial difficulties in introducing a fixed penalty system in respect of speeding if there is a variation allowed in respect of this aspect of the penalty which the noble Lord, Lord Houghton, was so clear in emphasising today is part of the penalty. For these reasons, I strongly urge that this amendment should not be agreed to. I invite the Committee to accept that advice.
Lord Mishcon: Before the noble and learned Lord sits down, he made one comment and I wonder whether he will allow a brief question. He said that the matter of points would be of no concern unless one of course committed another offence, and therefore had points that added up to the disqualification total. With great respect, does he really think that insurance companies will not at some time ask on a proposal form how many points a driver has against him when assessing the question of the insurable risk and the premium to be charged?
Lord Mackay of Clashfern: That may well be, but that is not a statutory consequence and, equally, if the penalty is a fixed one and if it is two points, they will not learn anything more about the offence than that it was a speeding offence. If Parliament says that two points is attracted for a speeding offence the insurance company will learn nothing more once it learns that it is a speeding offence from the fact that two points have been awarded. If they want to know anything about the seriousness of the offence in that situation they will look at the actual fine imposed; so I stand by the view that there is no statutory consequence of this. It is a warning and statutory deterrent against repetition but, in my submission, it does not even have much consequence for the insurance company because the nature of the offence itself will tell them as much: they will learn nothing from looking at the points.
Lord Gisborough: Surely, with regard to fixed penalties, is it not a fact that a motorist who gets a fixed penalty will have the option to say that he does not like it and would rather go to court? Surely exactly the same thing happens if a policeman says that he is going to give the motorist three points; he can then take the option to go to court. Therefore he is protected just as well as if the fixed penalty was higher than he considered just.
Lord Mackay of Clashfern: Probably it was not so obvious after all that a fixed penalty system is one with fixed penalties in it. If you have a system where the penalty is going to vary with the court's discretion, obviously the only way a person can get justice is to go to court. The system which my noble friend has suggested just now is quite a considerable variation of what I would consider a fixed penalty system. That would be one in which the penalty would be fixed and
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the question of whether or not you were guilty and therefore liable to penalty was something you would take to the court if you felt so inclined. The penalty itself would be fixed.
Lord Monson: The noble and learned Lord said or seemed to say that speed limits on a given particular stretch or road must be kept constantly under review. Would he not agree that it takes a long time to get unsuitable speed limits varied?
Lord Mackay of Clashfern: I agree that that is a matter which takes some time and which can vary according to the circumstances, but I do not agree that the remedy for that particular mischief is to affect the law about speeding offences in this particular way. I should have thought that the remedy for that was to do one's best to ensure that the speed limits were properly reviewed.
Lord Lucas of Chilworth: I have to say that I find my noble and learned friend's answers to be totally unsatisfactory. I really find them to be what I might crudely describe as ham-fisted and heavy-footed answers. They are a kind of answer which started a long time ago and has run right through this piece. I know full well that if every noble Lord had sat down quietly and thought about this we could have had 50 or 60 variations in this list, In fact we have had seven variations. We have had arguments advanced from all sides. I find it so odd that my noble and learned friend should say, "But there is discretion on the penalty." Let us be practical. What happens in most cases is that in practice it costs something like £2 a mile over the limit. You get a bit further north and it gets a little heavier. I prefer to do my speeding down in the south where the rate seems to be around £2 a mile.
I think it so wrong, when we are talking about almost a new system of "totting up", that my noble and learned friend can ask as if it is of no great consequence: what are two or three points? That is the whole purpose of totting up. One or two or three or four—they all add up, and I do not think it can be dismissed in this way.
When my noble and learned friend spoke about insurance companies he said that the insurance company could learn no more than that there are two or three points. My experience of insurance companies is that they can ask questions and they can learn an awful lot. Perhaps they may say, irrespective of the offence—failing to report, a parking offence or speeding —"OK: six points in any 12 months carries a 20 per cent. premium", or whatever. So I think it is wrong for the Minister to say that it is of no great consequence: that is what he said in effect, even if they were not his exact words.
My noble friend Lord Gisborough and, I think, the noble Lord, Lord Mishcon, spoke about the fixed penalty; but my noble friend did not argue that point in this way when we were discussing fixed penalties in connection with Amendment No. 59A. He has just moved across slightly and, on balance, I do not find his argument persuasive. It is late: I do not know how many people are in the House. I think that this is a matter, as my noble friend Lord Howe

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said, that most people, wittingly or unwittingly, may be guilty of and I think that most of your Lordships who drive motor cars should perhaps have an opportunity to think about this and see how they feel. Not too many of them have actually listened to the debate and perhaps more may read it. I think it will be in the best interests of the Committee if I say to my noble friend that I find his answers totally unsatisfactory but that I will give the matter further consideration and talk to friends and colleagues and decide whether or not I wish to bring it back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.48 p.m.
On Question, Whether Schedule 7, as amended, shall be the seventh schedule to the Bill?
Lord Lucas of Chilworth: I again apologise for detaining the Committee, but there are three points in this schedule upon which I should like some elucidation. There is an offence of
"Taking in Scotland a motor vehicle without consent or lawful authority or driving, or allowing oneself to be carried in, a motor vehicle so taken".
That carries eight penalty points. Later in the schedule, on page 66, we have, referring to the Theft Act:
"Taking or attempting to take conveyance without consent or lawful authority or driving or attempting to drive a motor vehicle so taken or allowing oneself to be carried in a motor vehicle so taken ".
I should like to know the difference between those two. One appears to be Scotland and one appears to be other parts of—what—the United Kingdom of Great Britain and Northern Ireland? Perhaps my noble friend would help me on that one because I really fail to see how one can be convicted for allowing oneself to be carried in a stolen vehicle. What do you do? Do your turn to the driver and say, "Just a minute: have you stolen this vehicle?" The chap is probably going to say "No, I borrowed it from my auntie". It may be with auntie's authority or it may not be; and if she finds out that he will be convicted she would most likely say to the policeman, "Yes, I did allow him to take my motor car".
Is being a passenger in a stolen vehicle not a case of aiding and abetting an offence? I do not know: I am not a lawyer. Is this not an offence which you cannot foresee or take suitable precaution against? I do not know, and perhaps my noble and learned friend will tell me.
The other point, in general terms, that I should like to raise is this:
"Going equipped for stealing with reference to theft or taking of motor vehicles".
I am not sure whether that is expressed grammatically in quite the way I should like to understand it. It is my understanding that the vast majority of criminal offences, such as larceny, theft and robbery (although I do not know the technical terms), have a motor vehicle connection. It would seem to me that whatever the penalty may be the more substantive effects should be taken in preference to this one. On the other hand, I suppose it may be argued that no policeman may stop a motorist in the reasonable expectation
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that a moving vehicle offence may take place. He may have in mind that a drink charge might be attached but, having found a jemmy or what-have-you on the back seat, will decide to go for "Going equipped for stealing …". I do not understand this penalty and if the offence is as grave as I take it to be, then I believe it should carry a penalty of 12 points.
I should also like to embark upon the argument surrounding the carrying of guns in the furtherance of theft and robbery. Suffice it to say that if one takes a motor-car in furtherance of theft or robbery—which is a pretty vicious type of crime—then the penalty should be "the lot ". Although the chances of being caught later may be minimal, as I said earlier, at least the penalty is there and one knows where one is. I cannot quite see how this penalty has been set against this kind of offence when the increase in the number of motor-car thefts in the furtherance of another crime is on the increase. Perhaps my noble friend could answer those three points on the general area of the schedule.
Lord Brougham and Vaux: I have one other question on a matter I raised in my speech on Second Reading. It was also raised by Mr. Enoch Powell in the other place on Second Reading. It is that this penalty does not in general affect Northern Ireland. I said in my speech on Second Reading that we ought to have one fair law for all. I do not know whether I should raise this point again now but perhaps the noble and learned Lord, Lord Mackay of Clashfern, will give me some indication of whether the road safety aspect does affect Northern Ireland.
8.52 p.m.
Baroness Macleod of Borve: My noble friend Lord Lucas of Chilworth referred to the point about people knowingly travelling in a stolen motor vehicle. So far as my own experience goes, it refers only to people who are carried in a motor vehicle in furtherance of theft; people who should know that the car is stolen. That has always been an offence and there is no reason why it should not continue to be an offence in the future.
Lord Mackay of Clashfern: The distinction between the reference to Scotland and the later references arises principally from the fact that the Theft Act 1968 is a measure covering England and Wales and one that does not cover Scotland. The corresponding offence for Scotland is contained in Section 75 of the 1972 Act and it is slightly differently worded, possibly because of differences between England and Scotland in respect of the general law on theft.
With regard to allowing oneself to be carried in a motor vehicle so taken, my noble friend Lady Macleod of Borve has given an explanation on that point. It would be necessary for the prosecution in any case, in order to succeed under this particular provision, to show that the person in question had allowed himself or herself to be taken; in other words that there was some fact or circumstance whereby the person's consent to being carried could be inferred. With regard to using a motor vehicle for stealing, again the number of points is fixed in the same way that I described earlier and it is always open to the magistrates to take a more serious view than simply imposing the number of points in question; for example, by imposing disqualification.

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So far as Northern Ireland is concerned, the situation is that road traffic regulations in Northern Ireland are made by orders under the Constitution and accordingly it would not be necessary to make any provision in this Bill.
Lord Gisborough: I take the point that the noble and learned Lord made about consent, but I do not feel that he has covered the question. If someone is carried in a stolen car, then he can be assumed guilty unless he can prove himself innocent. If the person was a hitchhiker he would have no idea that the car was stolen, but it would be up to him to prove his innocence.
Lord Mackay of Clashfern: I hesitate to make a general pronouncement on that point, but certainly my understanding of the provision is that before it was shown that one had allowed oneself to be carried in a motor vehicle that had been stolen, circumstances would have to be shown from which it could be inferred that one had consented to be in that situation; the one had consented to be in a stolen vehicle.
The Earl of Selkirk: The noble and learned Lord said that the 1968 Act applied only to England and Wales, and so I take it that Section 25 does not apply to Scotland. Is that so?
Lord Mackay of Clashfern: That is correct. The 1968 Theft Act does not apply to Scotland.
The Earl of Selkirk: And so this particular section does not apply to Scotland?
Lord Mackay of Clashfern: Not in this form.
Schedule 7, as amended, agreed to.
Clauses 20 to 22 agreed to.
Clause 23 [Provisional licences and driving tests]:
8.57 p.m.
Lord Strathcarron Lord Strathcarron moved Amendment No. 64:
Page 17, line 34, at end insert—
("Provided that any applicant for a provisional licence for the first time may not be refused any such licence under these regulations for a further period of two years after the expiration of the first such provisional licence issued.").
The noble Lord said: I should like to make it quite clear that I support the Government's intention to prevent learner motor-cyclists from renewing their licences year after year without ever taking a test or even intending to do so in many cases. However, I strongly disagree with the Department of Transport's proposal that, if a rider fails his test after a two-year period, his licence should be taken away for 12 months. One must bear in mind that it is not possible often to book a test within a reasonable period of time—and at the moment that period is 17 weeks on average. It should not make any difference whether the motorcyclist passes or fails provided the test is taken within two years. In fact, if the motor-cyclist fails it could well be argued that he needs more practice on the roads to improve his riding ability. To prevent abuse it would be quite reasonable for provisional licences to be made progressively more expensive after the initial two-year period, until the test is passed. This would encourage the keen rider to reach a higher standard more quickly while the really bad rider would be dis-
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couraged from continuing at all, to the benefit of both other road users and the rider himself.
Another argument against taking a provisional licence away after two years is that it could cause great hardship—particularly when the motor-cyclist uses his or her machine to go to work and in country areas where there may not be any practical alternative means of transport which he or she can afford. Finally, it would not be right that the test examiner should have to decide whether a rider ought to be disqualified for one year—which is what it amounts to. Surely only a court of law should continue to exercise this power. In fact, the disqualification of a rider for one year because he had failed his test would be a more serious penalty than might be imposed by the courts of law for very serious motoring offences. I beg to move.
Lord Monson: I should like briefly to support this amendment. The noble Lord, Lord Strathcarron, has given a number of reasons why this amendment should be supported. I should like to ask the Government what happens during a bad winter when the roads are exceptionally icy and, therefore, unsuitable for tests? What happens, again, in a bad winter when there is a 'flu epidemic or an epidemic of some other kind; or when there are strikes or "go-slows" or other forms of what is called, in a rather self-contradictory fashion, industrial action? All these things are likely to lead to an enormous backlog of people applying for tests, therefore making it impossible for learners to take their tests within the prescribed two-year period. For that reason I suggest that the amendment ought to be supported.
Earl Howe: In supporting my noble friend in his amendment, one should realise that in Lord Strathcarron we have somebody who probably has more practical experience of motor-cycling than anyone else in your Lordships' House. Not only that, he is a motoring journalist and a motor-cycling journalist, so that anything he says is said with great experience and after very careful thought. What I say will be very brief, because the time is late and it would almost be repeating what my noble friend has already said.
Quite obviously, we all want to bring an end to the ghastly list of motor-cycling tragedies that are taking place all the time. With a provisional licence, a motor-cyclist is enabled to drive for three, four, five or even ten years without a test of any kind. This must be stopped, and I think that even motor-cyclists themselves would agree to that. Not only Her Majesty's Government, but, for example, Kawasaki—which is a big firm—and others are doing their best to improve road safety for motor-cycles.
So, also, is the Don International Company and, two years ago, as chairman of a panel of experienced road safety officers and engineers working for that firm, we presented the certificate for the finest road safety device of the year to a firm called Cibié. That is a French firm which has British agents working for it in this country. It is a self-levelling device for motor-cycle headlamps. It is a great improvement, and it means that if you have a fat passenger on the stern of a machine the headlight will remain fairly stable, unless you go over a road hump which nobody can control. That shows that people are working for road safety, so far as the motor-cycle industry is concerned.

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It seems that a two-part driving test is a very sound idea. For the first two years, there will be training for an off-road test, which is test one, and if they fail after that it will be a great mistake, as my noble friend Lord Strathcarron has said, to take away their licence. That is because a further two years and then a test would enable them to have far more experience. By the end of whatever time is specified by the Government, whichever party is in power, they will then take a test and, I hope, pass. But if they fail to take a test—the important point is not whether they pass, but whether they fail to take a test—they should then receive some kind of punishment to make them realise that they should take a test.
I feel that the amendment which has been moved by my noble friend is worthy of serious consideration, and my noble friend Lord Lucas will very shortly move a similar amendment. It will give a motor-cyclist an opportunity of gaining further experience. But to knock him off the road completely by failing him will probably stop him from going to work on his motor-cycle, and I do not think that will be very helpful to the motor-cycle industry or to motor-cyclists as a body.
Lord Skelmersdale: I had hoped that, with a change of cast and with my noble friend Lord Strathcarron and myself in the driving seat, we might have a change of pace. Let us hope that we may pursue that laudable aim at this time of night. The object of the limit on provisional licences is to give motor-cyclists an incentive to take training and pass their test, instead of riding on L-plates for as long as they like, which far too many of them seem to do. I have had various measures of support behind me on this, and I am sure that the rest of the Committee would agree.
Under Clause 23(5) the Secretary of State may prescribe in regulations the period for the duration of a provisional motor-cycle licence. Although I say "in regulations ", the period is not fixed at this stage and we do not intend to have it fixed in the Bill. One might refer to this as the "on "period. Under Clause 23(1), he may prescribe in regulations the period which must elapse before a rider can apply for a further provisional licence. This I shall refer to as the "off" period.
On present thinking, we believe that a two-year licensing period would be reasonable. But circumstances can change and, for, example, they have changed fairly recently. Some nine months ago, I understand that there was a waiting list of 26 weeks for a motor-cycle test and we have succeeded in reducing the time to 16½ weeks nationally, or 13½ weeks excluding the Metropolitan area. The new regulations would be laid before Parliament, and we should be able to make sure that the period in question was reasonable. We believe that such flexibility will be in the interest not only of ourselves, but of all riders.
I am, however, aware that some unease exists in motor-cycle circles, and we have heard about that this evening. This unease stems from the belief that a two-year period is unacceptably short, and a fear that there is nothing to stop a Secretary of State in future from making the period even shorter. But, as I say, this will be done by regulation, and Parliament will have plenty of time to comment. I hope that with that
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explanation my noble friend will feel able to withdraw his amendment.
Lord Strathcarron: I thank my noble friend for his reply. I am relieved, and I am sure that all motor-cyclists will be relieved, to know there is no fixed period arranged at the present time, though two years have been mentioned. I like the idea of all the "on" periods; I am not so keen on these "off" periods. So I hope that the Government will be able to think again on this matter. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.8 p.m.
Lord Underhill Lord Underhill moved Amendment No. 65:
Page 18, line 30, at end insert—
("( ) In section 88 of the 1972 Act the following words are inserted after subsection (4)—
"(5) The Secretary of State shall establish a system of training for the driving of a motor cycle and shall provide that the holder of a provisional licence shall not ride a motor cycle on the public highway until he has completed a course of such training.".").
The noble Lord said: This is a probing amendment to ascertain the Government's plans. However, at this time of night I do not want to detain your Lordships for too long. Nevertheless, there are one or two points that I must make. The Government have laid a lot of emphasis on training for learner motorcyclists, but I wonder whether mere exhortation will be sufficient. We understand that the advisory committee on motorcycle rider training found that only 15 per cent. of learner drivers took training. I am not going into the statistics—we have all read them—relating to the serious problem of the young motorcyclist. The issue before us is how this number of learner riders taking training is to be increased.
It is surely at the beginner stage that the training is so important. I have nothing but praise for the RAC and ACU national training programme and for the STEP programme, but bearing in mind the low numbers who take training now and the high numbers who would be required to take training each year, there must be positive action by the Government. Mere exhortation will not bring new learner drivers to the testing ground unless something is done about it. Therefore the point of the amendment, which I believe would be impracticable to carry out, is to make training compulsory. But the Government have got to offer more than they seem to be offering at the moment. Positive action on what facilities will be made available is needed. This means cash, which is one thing that it would be impossible to cut down on if the Government are serious about wanting the maximum number of young learner drivers on motor-cycles to be trained. Therefore I ask the Government what their plans are, apart from exhortation.
Lord Skelmersdale: The noble Lord, Lord Underhill, says that something must be done. I should have thought that under the terms of the Bill and the amendment which we have just discussed something very definite is being done. The reason why a learner will want to learn properly and pass his test is that without it he then moves to what I have referred to as the "off" period, which means that if he wants to drive on a public road he will lose his opportunity for a year before he can start again.

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I think we could all agree on three general propositions. The first is that the present level of motorcycle casualties is far too high and represents an appalling loss of life, particularly among the young. The second is that it these casualties are to be reduced, it is essential that the new motorcyclist should be properly trained to handle his machine and to cope with the problems of riding on our busy roads, where there are so many potential dangers. This is particularly important for the learner motorcyclist because, unlike the learner car driver he does not have by law to be accompanied by a qualified person and in most cases is not. The third is that the present proportion of new riders taking any formal course of training—the noble Lord, Lord Underhill, referred to this—is estimated at some 15 per cent., which is far too low. In saying this, I imply no disrespect to the various training organisations themselves. The RAC, STEP and the local authorities have all made great efforts to provide and promote training and we owe them a big debt of gratitude for their work.
The problem we therefore face raises issues of principle and of practice. In terms of principle, is it not right to allow freedom of choice over something like training? This is surely the kind of matter where someone should be allowed to make the choice for himself. In terms of practice, is the voluntary system ever capable of being improved to the point where we are satisfied? Or do we have to admit that if we want to see riders trained, the only wad is to compel them to take it? 1 do not like compulsion.
Some 18 months ago we published the report of an advisory committee set up by the Secretary of State under the previous Administration. This committee was composed of all sections of the motorcycle world: the manufacturers, the dealers, the riders, the local authorities, the training organisations and the police. They came down firmly in favour of first trying to make the voluntary system work better and resorting to compulsion only if they failed.
The Government have followed the advisory committee's approach and included some of their detailed recommendations in the present Bill. Subsections (1), (5) and (6) of Clause 23 seek to give new riders this encouragement by prescribing a limit on the duration of motorcycle provisional licences and a two-part test. Part I of this test could be taken either with an approved training organisation after a course of training or at a department centre. Part II would be taken with the department and would be very much like the present test.
We believe that if a motorcyclist has to pass two tests within two years, he will, first, need to take Part I as soon as possible after he takes out his licence and, secondly, see the advantages of going to a training organisation rather than coming to us. We hope that the new system will result in the great majority of riders receiving formal training rather than the present small minority.
We believe that this is a sensible approach, and while I sympathise with the objective of the noble Lord's amendment I hope the Committee will endorse our approach rather than his. I should perhaps say by way of conclusion that besides my main objection I have a number of detailed objections to the amend-
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ment. However, this is hardly the time of night for nitpicking.
Lord Underhill: I have not had the answers that I requested because I have heard not a word about the facilities that are going to be offered, not a word about the finances which are to be made available for training schemes, and that was the point of my amendment. It may be that this is what happens when one tries to move an amendment in shorthand in order to save time. What we are concerned with is not only the position of the lad who has had the cycle on the road for 12 or 18 months; we are concerned with the chap who takes it out for the first time and maybe he has not even got a sense of balance. As the Minister has agreed, only 15 per cent. of the learners have training.
As the Minister rightly said, if any of us are provisional car drivers we have to be accompanied by a responsible and competent driver; yet we can take a motorcycle straight on to the road and drive it with no one accompanying us. That was the aspect that I was referring to; but I shall have to read carefully what the noble Lord has said and see what may have to be done at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 65A not moved.]
9.16 p.m.
Lord Strathcarron Lord Strathcarron moved Amendment No. 66:
Page 19, line 16, leave out ("and").
The noble Lord said: This is a paving amendment, so with the leave of the Committee I should like to speak also to Amendment No. 67. I should first like to say that the principle of the two-part test is quite acceptable but the proposals of the Department of Transport are quite unrealistic. One major criticism is that the Department of Transport will not take positive action to provide facilities for the Part 1 test other than at certain heavy goods vehicle centres, of which I believe there are only about 60, and will expect voluntary training organisations to cope, although they themselves rely on the co-operation of local authorities to make suitable sites available.
We have heard that about 15 per cent. of motorcyclists take official training. I should like to pay tribute to the many motorcycle club members who give up weekend time with great devotion in order to teach the young how to ride safely, and they are not in the official figures. It may be possible to do all this, given time and adequate preparation, but the Department of Transport admits that it does not know what the likely increased demand for training will be, and it is quite possible that there may be a tenfold increase in trainees. Therefore I would urge the Government not to introduce the two-part test until a complete survey has been carried out of the facilities throughout the country and all concerned are satisfied that they are adequate to meet the demand without unreasonable delay.
I hope also that the Government will not insist that a course of training must be completed before the Part 1 test is taken, as this will only make matters worse. Other ways of dealing with this difficult situation could be to waive the requirement for a Part 1 test for those who are currently provisional licence holders, or will be

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from 1st January 1982 until October 1982, which will coincide with the new maximum capacity of 125 ccs. for learner motorcyclists. Before any definite changes are made to the present legislation I trust that we shall be given a chance to discuss them. I beg to move.
Lord Skelmersdale: I find it very difficult to co-relate, as it were, the words on the Marshalled List with my noble friend's amendment. The words on the Marshalled List would appear to mean that a positive resolution of each House of Parliament would be required, but what I understood my noble friend to say in this connection was rather different, and perhaps would have been better had it been raised under the Question, Whether the clause should stand part of the Bill. However, I shall "have a go".
The point surely is the worry as to whether the test would be adequately prepared for and the testing facilities would be there in order to enable the riders to take the test. Perhaps the noble Lord can tell me whether I have got that right?
Lord Strathcarron: Yes, that is right.
Lord Skelmersdale: Splendid. The object is to take the motorcycle test at heavy goods vehicle testing stations as proposed in the recent consultation paper on the two-part test. The road haulage industry will of course not—and I repeat "not"—have a worse service of vehicle and driving tests, especially in terms of waiting periods, and I can assure the Committee that the department would arrange the conduct of the various tests so that this did not happen. We are still not in a position to bring forward the regulations prescribed in the two-part motorcycle test. When we are they will all be brought before Parliament, but, as I sort of half said in my rather wishy-washy introduction to this reply, the idea of having such things by affirmative resolution is so unusual that I am afraid that I would have to rule it out of hand.
Lord Strathcarron: I thank my noble friend for his reply. I should like an answer, if he can give it, to the question that I put about the two-part test being due to start on 1st January 1982, although I think it is generally agreed that the facilities just will not be available. Would it not then be sensible to put it back until at least October 1982, or perhaps even to January of the following year?
Lord Underhill: Before the noble Lord replies, may I ask him to give a more firm reply to the actual amendment, not simply to what has been said. The amendment is asking for a statutory instrument to be made, but only when a resolution has been approved by each House. All the noble Lord has said is that this is so unusual that it must be ruled out. Why is it unusual? Surely we are in a new field here. What the noble Lord, Lord Strathcarron, is asking for is that, because we are in a new field, Parliament ought to have the opportunity of discussing it and dealing with it by affirmative resolution. I cannot see why it is so unusual. Could we possibly have an answer to that point? The other point is really on the Question that the clause stand part.
Lord Skelmersdale: Yes, of course we can. The point is that the amendment would conflict with Section 199 of the 1972 Act, which is not consequentially
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amended, and which would apply the negative procedure to such regulations. They would, therefore, be in conflict. As the Road Traffic Act stands, regulations prescribing the driver test are subject to negative procedure. There is no obvious reason why regulations for the multi-part test should alone be subject to affirmative procedure. Also, the amendments are to Clause 23 and to Section 85 of the 1972 Act. But it is Section 199 of that Act which relates to the exercise of regulation powers and parliamentary control thereover, and the present amendment would be better to Section 199.
There are no clear-cut rules or conventions as to when regulations should be subject to affirmative or negative resolution procedure. Negative procedure is much more common. In the case of the regulations for driving tests, for example, Section 199(3) of the 1972 Act provides that once laid, the regulations
"… shall be subject to annulment in pursuance of either House of Parliament …"
but a resolution must be tabled and carried, as usual, within 40 days of laying of the regulations.
Affirmative procedure usually means that the regulations become effective only when both Houses have resolved to approve them. It is usually prescribed for substantial and important portions of legislation delegated by an Act to a Minister, where Parliament requires to have a high degree of scrutiny over the secondary legislation, for example, over a rate of taxation or where the regulations amend the Act itself. A significant side effect of prescribing an affirmative procedure is that this would apply to any further amendment to the relevant regulations; so that there would be a debate in both Houses—albeit a brief one—however small the amendment. I hope that goes some way to answering the noble Lord's question.
Lord Mishcon: May I tell the noble Lord the Minister that he has exceeded the speed limit and deserves, in my view, the maximum amount of points to be awarded against him. These are an entirely new type of regulations. The noble Lord opposite has made the point much more effectively than I could and does so with much greater experience. Would the noble Lord not agree in the circumstances that it would be sensible to consider the point made with such force by the noble Lord opposite, and also dealt with by my noble friend Lord Underhill, and possibly write to both noble Lords before Report stage, in order to see whether the affirmative procedure is not, after all, the sensible course? May I suggest that the noble Lord the Minister adopts that course, and instead of reading at great speed and quoting a number of sections and subsections, which I think really exhausted all of us, including himself, would he not think this a more suitable way of dealing with this amendment?
Lord Strathcarron: I should like to thank the noble Lord once again for his reply of which I did not understand a word. I should like to thank him none the less—
Lord Skelmersdale: If my noble friend will forgive me for one moment, I should like to respond to the noble Lord, Lord Mishcon, and say that most certainly I shall willingly write both to my noble friend Lord

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Strathcarron and to noble Lords opposite on this point.
Lord Strathcarron: I hope that the Government will not introduce two-part testing until facilities are available. In my view that is a very important point, and I hope that the Government will consider it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 67 not moved.]
On Question, Whether Clause 23 shall stand part of the Bill?
Baroness Stedman: The noble Lord, Lord Donaldson of Kingsbridge, is unable to be with us this evening but has passed on a sheaf of papers to me, copies of which I understand he has sent to the noble Lord, Lord Bellwin. He is concerned because they were received from one of the major motorcycle manufacturers and although they contain no criticism whatever of the provisions of Clause 23, they do raise some doubts as to whether it will be possible to do the testing in the time allowed, which I think was one of the points that the noble Lord opposite was making.
The noble Lord has told us already that there is a backlog of some 16½ or 17 weeks and, according to the documents which we have had from the motorcycle manufacturers, they say that generally there are something like 200,000 to 250,000 new motorcycle and moped riders entering the field each year and something like 130,000 of those are actually riding motorcycles. At the moment the department has 1,490 examiners, and we understand that they are each capable of overseeing 1,300 tests per annum—that is something like 1,900,000 tests. Something like 200,000 of those tests are for motorcycles and, with a success rate of about 60 per cent., it means that something like 120,000 riders at the moment gain their full licence annually—that is only to keep up with the figures of those who are coming on to the road each year.
However, we understand that there are also something like 340,000 to 390,000 motorcyclists who are holding provisional licences. If we are to get the outstanding 340,000 to 390,000 through these tests as well, then the backlog will be considerably more than the 16½ or 17 weeks. What my noble friend wanted to know was whether the Government had given any consideration to the physical possibility of carrying out what is being done without a considerable expansion in the testing programme.
Lord Skelmersdale: Again I rather think that I shall have to take the advice of the noble Lord, Lord Mishcon, on this subject. This has been quite a bombshell, which I was not expecting, and, with your Lordships' permission, I should like to write to the noble Baroness.
Clause 23 agreed to.
Clause 24 agreed to.
Clause 25 [New provisions as to offences relating to alcohol and drugs]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 67A:
Page 20, line 2, leave out from ("is") to end of line 3 and insert ("added at the end of subsection (3):—
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"but in determining whether there was such a likelihood the court may disregard any injury to him and any damage to the vehicle."
(2) The following is substituted for subsection (5) of that section:—").
The noble and learned Lord said: I beg to move Amendment No. 67A. This amendment is basically to correct a past anomaly. Under Section 6(2) of Schedule 8, it is a defence to the in charge offence of driving above the limit if the driver can show that there was no likelihood of his driving so long as he was above the limit. However, this defence is limited by a further provision that the court may disregard any injury to the accused and any damage to his vehicle in determining whether it was likely that he would drive.
These provisions are not new; they have been in the legislation since it was first introduced. The parallel in charge offence under Section 5 of the 1972 Act, which deals with those in charge when unfit to drive through drink or drugs, has the provisions as to the defence to the charge, but it does not contain the same limitation on that defence. The proposal is to bring in that limitation. In view of the opportunity that this legislation gives for that, it seems appropriate to do so. I beg to move.
On Question, amendment agreed to.
Clause 25, as amended, agreed to.
[Amendment No. 68 not moved.]
Schedule 8 [Provisions substituted for ss. 6 to 12 of the Road Traffic Act 1972]:
9.32 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 68A:
Page 67, line 7, at end insert—
("(3) The period of disqualification to be imposed on conviction of an offence under subsection (1)(a) above shall not be less than 2 years if the proportion of alcohol in the blood of a person charged with such an offence is more than 150 milligrammes per 100 millilitres, or 3 years if the proportion of alcohol is more than 200 milligrammes per 100 millilitres.").
The noble Lord said: This amendment is designed to establish different degrees of drink-driving offences and to increase the deterrent effect of the penalties. Again, I remind the Committee that that is what Part IV is really all about. One of the ways of increasing the deterrent effect is by imposing a longer compulsory period of disqualification for high blood alcohol content. Certainly this amendment goes somewhat further than the Government, who have indicated that they plan to bring forward measures to deal with such cases, but only after two such offences have been committed within a period of 10 years.
The statistics show that with a higher proportion of alcohol, one is much more likely to be involved in an accident and to cause or incur death or serious injury. If one refers to the Home Office statistics which were published quite recently, one finds that there were a total of 49,692 offences of drinking, et cetera, with alcohol in the blood above the prescribed limit—this is in all age groups—of which 29,500 had over 150 milligrammes per 100 millilitres. It is felt that it is preferable that a first offence at a level of this nature should be dealt with more severely. It is also felt that there can be instances where drivers find themselves inadvertently over the basic limit; and when I say "inadvertently", I use the word somewhat advisedly.

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It is not possible for most people to know exactly when they have crossed the line. I certainly believe that when one has arrived at 150 milligrammes, one jolly well knows that one is way over the top. It is drivers with this higher concentration who tend rather more consistently to drink and have a level at 150 milligrammes or so. Again, the statistics show this. In an endeavour to give greater warning of the average level at which most convictions take place—this 150 milligramme limit—I think that it would be sensible to have a two-tier staged penalty. This is what Amendment No. 68A seeks to do. I beg to move.
Lord Bellwin: I appreciate the reasoning behind this amendment and agree with its intention. It does, as it happens, embody advice similar to that given by the Magistrates' Association on penalties for drinking and driving. Their leaflet, which provides a guide for Benches, says:
"Experience has proved that driving and drinking offences account for very many accidents, injuries and deaths. The Court of Appeal has consistently upheld higher penalties for offenders with higher blood alcohol and it is suggested that fines and especially periods of disqualification should reflect this".
They go on to suggest that offenders with BAC levels of over 150 milligrams should be disqualified for 18 months; those over 200 for two years, and those over 250 for three years. In 1979, 21,940 people were disqualified for more than a year; 12,775 of them for more than two years. In the same year almost 29,500 people were convicted for being over 150 milligrams.
While we do not wish to discourage magistrates from imposing longer periods of disqualification, the amendment, might tend to make sentencing practice more rigid. It was only earlier on, was it not, that we were so concerned to ensure that we had wider parameters for penalty points—the noble Lord, Lord Houghton, will be glad to hear me using the phrase, "as of now"—as opposed to points. Earlier we were concerned to have wider parameters; we were concerned about greater flexibility. I would submit that what we should be moving to on this amendment is to something that would be more rigid.
If the magistrates consider that someone with a BAC of, say, 149 milligrams should be disqualified for two years, or in a particular case that someone at 200 should be disqualified for the same period, then they should not be discouraged or inhibited from deciding accordingly. They should be able to take all the circumstances of the case before deciding on the appropriate period of disqualification. Also, as it so happens although I would not seek to base the objection to the amendment on this, because it can always be said that amendments can be rectified, the amendment is defective as it does not cover people convicted on the evidence of alcohol in the breath or urine—and I am sure my noble friend will take that point—in the wording of the amendment itself. I hope that, having heard what I have to say on this, not least the concern I have for flexibility itself, my noble friend will feel able on this occasion at least to withdraw his amendment.
Lord Mishcon: Would not the noble Lord the Minister think that the time of the court would be saved if in these circumstances there was this fixed penalty?
Lord Bellwin: The argument there was taken up a long time ago in many a moment earlier on, and I would not wish to get involved in it now. I think I made the point that if it was flexibility one is talking about then one should not be going for rigidity.
Lord Lucas of Chilworth: I am obliged to my noble friend the Minister for his reply. He set down clearly a number of figures which illustrate the gravity of this particular offence. Perhaps some noble Lords may remember that, during the Second Reading when we were discussing drink accident connected offences, I asked how many deaths or serious injuries involving road accidents had a drink element attached. We have heard that some 49,500 convictions were made. I have to thank my noble friend for a letter he wrote to me with regard to the specific question in which the answer was that 30 per cent. of drivers killed in road accidents had a drink content. The point I was trying to get at was—with the high proportion of offences over 150 milligrams, 29,500, as the Minister told us out of 49,500—how many deaths and serious injuries involving road accidents have a drink content. I am anxious to get at that figure.
I believe that nearer one-half of road accidents involving death and serious injury have a drink content. When I am able to obtain an authoritative figure in that context I shall then more accurately be able to evaluate the value of my amendment and, with respect to my noble friend, the value of his answer, notwithstanding the technical difficulties and imperfections of the amendment. If my noble friend will give me that information—not necessarily tonight, but certainly before Report—I shall be happy to withdraw the amendment.
Lord Bellwin: I cannot, as I stand here, say exactly what is the extent of the information on record, but, in so far as I am able, my noble friend knows that on this, as on previous occasions, I shall be glad to give him all the information that is available on the matter. There is no doubt that the basic problem of drinking and driving is enormous, and everybody involved in road safety is deeply concerned about it. All we are discussing in the amendment are ways of trying to handle the situation. Whether the suggestions of my noble friend are better than what is in the Bill at present is for him to show. But as I have said time and again, we want the best Bill we can get, and I promise to send my noble friend everything that is available and it will then be up to him to decide what to do about it.
Lord Lucas of Chilworth: I am grateful to my noble friend and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.42 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 69:
Page 67, line 7, after ("uniform") insert ("(i)").
The noble Lord said: The Committee will be aware that Amendment No. 69 is the paving stone to Amendment No. 70. I am proposing to add to the circumstances in which a police constable may stop a driver a system of spot-checks where the constable is
"acting under instructions given by the Chief Commissioner, Commissioner, or Chief Constable of the relevant police authority

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to carry out a random check of drivers of motor vehicles in motion".
Frankly, I do not quite know what to do about the amendment because the hour is late and we are anxious to arrive at a point in considering the amendments on the Marshalled List which will enable us to make a fresh start on Thursday with an important amendment which has been before your Lordships' House in different forms before dealing with compulsory seat belts. I am in favour of the compulsory wearing of seat belts and I do not want to do anything to spoil the maximum impact of our deliberations on Thursday. If we are going to disagree with another place, we should do it at a reasonable hour when the Chamber is well attended so that whatever decision is taken is taken obviously with a volume of opinion on one side or the other, or on both, so that another place realises that this is not just a capricious exercise on the part of a redundant and irrelevant House of Lords. After all, such epithets are flung at us from time to time. We might as well acknowledge that; we might as well throw them back—
Lord Brougham and Vaux: May I—
Several noble Lords: Order, order!
Lord Houghton of Sowerby: The noble Lord is interrupting me while I am trying to save a little time. I am looking at the last couple of pages of my speech, instead of at the first 10 pages, and I am sure that members of the Committee realise how helpful I am trying to be.
I shall confine myself to the following point. As I have previously told your Lordships on more than one occasion, I was in the Labour Government when in 1965 we published the White Paper, Cmnd 2859, entitled Road Safety Legislation 1965–6. I shall quote a line or two from paragraph 32:
"The Government have given very full consideration to these problems and have come to the conclusion that roadside screening tests are desirable if the new law concerning driving with more than a prescribed level of alcohol in the blood is to be properly enforced …".
The White Paper went on to say:
"The Government consider that random checks would be preferable. These checks would be completely fair and undiscriminating and would cast no slur on the driver who happened to be stopped. They would be the most effective deterrent since any driver would be liable to be stopped at any time to see whether he had exceeded the statutory blood-alcohol level".
The White Paper went on to say that the proposals were drastic. But at that time we believed that the public would accept drastic measures to deal with a growing problem, which has indeed since become worse. Mark you, we were proposing to introduce the roadside test for the first time, and that alone was a very dramatic step to take, especially in the eyes of those people who were always cherishing their individual liberties and who resented being interfered with by authority when going about their lawful purposes. We felt that no doubt the presidents of the Band of Hope Union would protest loudly that it was an insult that they should be stopped, even at random, to be asked to breathe into a breathalyser.
That is what we thought at the time, but more than once I have explained why the Labour Government settled for something else. What they settled for is
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what we have now. That was a long time ago, when we believed that the modified system of testing was probably a curtain raiser to something more effective, even more drastic, in order to deter drinking and driving. But time has gone by, and we have not really improved matters at all. This Bill does very little indeed to strengthen the existing drinking and driving law.
I shall not at the moment go into detail about the inadequate respects in which the Bill tries to improve, or strengthen a little, our existing law. What I want to stress—and I shall not take more than two or three minutes, at any rate at this stage—is that the amendment introduces a degree of flexibility into more stringent methods of roadside testing. I think it time that we saw some experiments conducted on these lines. I believe that those authorities that were undertaking special exercises just before last Christmas were probably exceeding their powers on roadside testing. Certainly, I think that in the circumstances they were doing far more than obeying the strict letter of the law in regard to not stopping a driver in motion unless he is clearly incapable of driving, or has committed an offence involving a moving vehicle.
There is nothing nationally mandatory about my proposal. There is an element of flexibility and discretion. What I propose could apply in particular seasons of the year. It could apply in particular areas; it need not be universal throughout the area of a particular chief constable. There is room for adapting the opportunities of the roadside check to particular seasons and circumstances. When I read that on average we are now spending £5 a week per head of the adult population on alcohol, I think one must wonder what those who drink above the average are consuming, and whether they walk home, drive home, get carried home or what. But, clearly, there are quite substantial dangers there.
I have occupied enough of the time of the Committee for the moment. The question is: What is my strategy? Quite frankly, I would welcome being stopped by the noble Lord, Lord Bellwin, right now, he saying, "You need not say a word more; you went on long enough this afternoon when I was ready to agree to what you were proposing, and I want to spare you the same experience twice in a day". He might therefore say "Stop"—a roadside "Stop"! if you like—"you need not go any further; you have convinced me ". I do not know what he is going to say, though I suspect he is not going to say that, somehow or other. Anyhow, quite seriously, I would welcome some comments from the Minister, at any rate, so that I may consider what I do at any subsequent stage of the Bill, without holding up the Committee stage any further now.
Lord Bellwin: The noble Lord, Lord Houghton, knows that lightning never strikes in the same place. and what nearly happened earlier on and might have happened, I fear he has correctly judged, is not about to happen now. The fact is that this amendment has brought us to the most controversial and well-debated issue in the drinking and driving legislation. Those who have proposed that the police should be given an unrestricted power to test at the roadside—including the Blennerhassett Committee itself—have usually argued that this does not mean random testing. It

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means, in their view, giving the police power to test at their discretion. They maintain that there is an important distinction between the two. Some have argued that, since it is impossible to draw such a distinction in law, it would be impossible to ensure that the distinction was observed in practice. I am glad that the amendment moved by the noble Lord, Lord Houghton, gets us over this difficulty. He refers to random testing, and not untypically, if I may say so respectfully, he makes no bones about it.
The Government's main concern over such a proposal is the effect which it would have on relations between the police and the public. We believe that it is vitally important to preserve the good relations between the police and the motorist which we are fortunate enough to enjoy in this country. Without it all our efforts to improve the drinking and driving legislation, indeed all our efforts in this part of the Bill, would be negated and wasted. Many people now appreciate that drinking to excess and then driving is a very anti-social act, and one which should be discouraged as much as possible. However, I doubt if we should continue to enjoy their support if they were faced by road-blocks at various times of the day or night and given a breath test even if they did not give the slightest cause to the police to suspect that one was necessary. People would soon become fed up with that sort of thing. I know it can be argued that we can leave it to the good sense of chief officers to see that the powers would be used reasonably. But this is not something on which we can legislate or bind them in future. Undoubtedly, there would be cases which caused public concern, and this, in our view, is too high a price to pay.
It seems to us that too much emphasis has been placed on the possible deterrent effect of random testing. We would certainly agree that drivers will be discouraged from drinking if they think that their chances of being caught are high. However, removing the restrictions on the police would not alone achieve that end because motorists would soon realise that they could still drive without fear of being stopped. What must be done is to increase the level, not the type, of enforcement, and the changes we are now proposing will free the police from time-consuming procedures in the police station so that they can spend more time on the road actually enforcing the law. Surely that is the real need, and this is the need we have set out to meet in the Bill.
It is not as if the police experience any major problems in administering the law. They already have the power to stop and test anyone they have reasonable cause to suspect of driving, or attempting to drive, with alcohol in their body, or of committing a moving traffic offence, and to test anyone involved in an accident. The campaigns conducted by some police forces over the Christmas and New Year periods, which have our whole-hearted support, demonstrate that the law can be adequately enforced without the present restrictions. In any event, testing large numbers of innocent drivers, which would be the inevitable consequence of stopping people purely at random, would be extremely wasteful of resources. In France, where the police have the power to carry out random tests, the proportion of drivers found to be over the limit is extremely low and the accident figures are still high. Random testing is not the panacea that many people fondly imagine.
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While I must, therefore, strongly resist this amendment, I should like to make it clear that we have reviewed this part of the legislation and are proposing some important changes. As foreshadowed in the consultative document, we have extended the power to test those drivers "in charge" of a vehicle, as it is clearly unsatisfactory for the police to have to arrest such a person for impairment under Section 5(5) before they can require an evidential specimen instead of being able to conduct a roadside breath test. More importantly, we have now been convinced of the need to extend the power to those who have been driving or attempting to drive, or have been in charge, as proposed in new Section 7(1). This will make an important contribution in our efforts to ensure that those who commit offences do not escape prosecution simply by running away. We have also dropped the unnecessarily restrictive phrases such as "there or nearby" and "as soon as reasonably practicable".
These changes all add to the police's powers to conduct roadside tests. Together with the other important changes in the Bill, they will enable the police to increase the efficiency of their enforcement effort. These are real, practical steps to improvement. They are in our view to be preferred to the more theoretical possibilities of random testing, where any benefits would be likely to be more than counterbalanced by the adverse effect on relations between the police and the public. For these reasons the amendment must be resisted.
I appreciate the great sincerity behind the noble Lord's moving of this amendment in this and in other matters. I am quite sure that he firmly believes that this amendment would advance the situation more than if it were not accepted. In turn, I hope that he will accept that there are other views, such as those I have expressed, though the wish to achieve the end is the same on my side as on his side. In that spirit, I have explained why we cannot accept the amendment.
Lord Houghton of Sowerby: I am grateful to the noble Lord for making such an adequate and firm statement of the Government's position. I think that is very helpful and I thank him for it. I would only observe before sitting down that, if I could have closed my eyes and heard another voice, I should have said that we had heard it all before in the Cabinet in 1965. But we persuaded the majority of the Cabinet to determine otherwise when we published the White Paper to which I referred. I shall not recall the name of the Home Secretary at the time—he was just as concerned about relations between the public and the police as was the noble Lord. I shall now consider carefully whether there is anything that I can usefully do on this matter in some different form for a later stage of the Bill. Renewing my thanks to the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 70 not moved.]
The Deputy Chairman of Committees (Lord Ampthill): I must tell the Committee that, if Amendment No. 71 is agreed to, I cannot call Amendment No. 72.
10 p.m.
Baroness Stedman Baroness Stedman moved Amendment No. 71:
Page 67, line 38, leave out from ("constable") to end of line 42.
The noble Baroness said: I should like to move Amendment No. 71 and speak to Amendment No. 73. This Bill will cure many of the defects of the existing drinking and driving laws; but, having blocked some of the gaps in the existing law, the new proposals in Schedule 8 paragraph 7(3) create an even larger gap through which offending motorists may very well seek to drive. This Bill legislates for and extends the recent decision of the House of Lords in the Morris v. Beardmore case of 1980, in which it was held that a constable who requires a motorist to provide a breath test must be acting lawfully towards that person. A police officer in this instance who was a trespasser in Mr. Beardmore's home could not therefore make a valid requirement of a breath test, and the subsequent arrest and requirement of a specimen of blood or urine was also invalid. So on offence of refusing to supply a specimen or refusing to supply a specimen of blood or urine was committed.
Surely, this type of decision has created a form of diplomatic immunity, as it were, for drunken drivers who can reach their own property from which they can then exclude policemen. It means that any drunken driver who succeeds in reaching a place in which he has the right to exclude others, be it his driveway, house, business premises owned or occupied by him, can, provided he makes it clear to the policemen that they are trespassers, avoid the consequences of his wrong-doing and can claim sanctuary in that place.
I am sure that their Lordships in the case referred to did not intend to create such a wide species of immunity. I believe that they tried to confine it to the individual's home and the provision of Section 8(2) of the Road Traffic Act 1972. But Schedule 8 paragraph 7(3) extends that immunity to "place". Many would agree that without reasonable suspicion the police should not be empowered to enter premises without consent order to see whether an offence had been committed.
With a hit-and-run driver who seeks the sanctuary of his own home or the motorist who refuses to stop for the police who witnessed a moving traffic offence and is pursued to his home, as many would agree, the police should be empowered to enter in order to enforce the law. One's fundamental right of privacy was never intended to create a sanctuary for persons reasonably suspected of crime, and driving with excess alcohol in the blood is a crime which contributes to more deaths annually than murder or manslaughter.
Schedule 8, paragraph 7(3), will create the new loophole in the very area where the public would not wish such loopholes to exist. It will be a direct incentive to the drinking driver who has had an accident, however serious, to try and make a bolt for home, regardless of the consequences thereafter, possibly in the form of another accident and to exclude a pursuing and investigating police officer from his premises as a trespasser. This subsection does not apply just to the offender's home; it creates a situation of the constable being a trespasser in any place from which that person is entitled to exclude him.
This opens up very wide possibilities. What does "place" mean in this context? Is it farmland owned by the offender? Is it his place of business? Is it his shop premises which he owns? Could a local authority even exclude a police officer as a trespasser from council houses or other council property? Could members of golf clubs or other recognised clubs claim immunity as members of those clubs and part shareholders in their premises? The courts are going to have a fine old time considering which are the places from which an officer could be excluded as a trespasser.
If we alter "place" to "home", what is the legal concept of one's home? Must it be a house, or could it be a houseboat or even a caravan or mobile home? Could it be a motorised caravan used as a home which has been involved in the incident leading to the officer asking for a breath test? And what is the position of the officer who may have been willingly admitted into the home but who, when he asks for a breath test, is then told that he is a trespasser? Can that officer make the arrest or, as a trespasser, will he no longer be acting in the execution of his duty? This subsection will put a considerable burden on police officers to learn all about the very complex law of trespass. Is it not more likely that when in doubt they will be prudent and take no action?
I am sure the public would want the police to be able to deal with drinking drivers involved in accidents. The public will expect the police to bring the offenders to justice, and even more so if they are close relatives or friends of those who have been killed or maimed. We have seen a concentrated Government advertisement campaign on the evils of drinking and driving; yet this very subsection will encourage those drivers who drink and who are involved in a serious accident to seek to avoid the consequences.
This may be the last, or almost the last, opportunity to get the Bill right before it goes on to the statute book. Your Lordships in a judicial capacity opened up this gap in the judgment in Morris v. Beardmore. These amendments would give us an opportunity in our legislative capacity to close the gap that has been opened up. I beg to move.
Lord Underhill: As the Deputy Chairman of Committees has ruled, quite rightly, that if this amendment is carried my Amendment No. 72 cannot be put, probably I could say just a few words as to why Amendment No. 72 is preferable to No. 71, moved by the noble Baroness, Lady Stedman. Briefly, regarding her amendment, despite all our agreement with what she says about drinking and driving and the steps to be taken, I am certain that many noble Lords will share my concern over the last five words—
"by force if need be".
That needs to be clarified, and I look forward to hearing the legal argument from the Government Front Bench.
My own amendment, No. 72, endeavours to deal with some of the points raised by the noble Baroness—that the alleged offender should not be followed to his own home unless the constable has reasonable cause to suspect that the person has been involved in an

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accident. It is those important words which I believe our amendment is much concerned about.
I ought to explain that an identical amendment was moved in Committee in another place and there Mr. Kenneth Clarke, the Parliamentary Secretary for Transport, said he thought the majority of the public would not think it right that a policeman should be able to follow to his home somebody who had committed a moving traffic offence, knock on the door and start applying the breath test. I think most noble Lords would think that is a reasonable stand to take.
At the same time, however, attention was drawn to the memorandum of the Faculty of Advocates in Edinburgh. This section of the Bill, I understand, extends to Scotland. I have a copy of that memorandum which, referring to the word "trespasser" in the provision in the Bill, states that this expression has no definite meaning in Scots law and suggests that it should be defined in the Bill. The memorandum also states that unless the constable actually forces his way into a building the owner of the land would normally have no right in Scotland to exclude him. Thus the exception in the Bill would appear to be of very limited application. At that stage in another place the Committee appreciated the general argument and the Parliamentary Secretary said he was attracted to the idea of "home" being used if a form of words could be chosen. He also said that the point on Scots law would need to be looked into; and on that basis the amendment was withdrawn.
The Government did not propose any change at the Report stage in another place—a different form of amendment aiming at the same purpose was moved. On that occasion the Minister said:
"If by chance we have gone wider than we intended, that can be corrected in another place."—
that is, in your Lordships' Committee. Mr. Clarke added:
"We have not forgotten the undertaking that I gave in Committee. We shall consider the matter carefully."
The amendment moved in the other place was thereupon withdrawn because it was appreciated that the department's lawyers would require some time to consider the matter.
In moving this amendment I am really asking the noble Lord the Minister to answer two questions: First, have the department's lawyers really considered the implications of the amendments that were moved in the other place, and therefore the implications of the amendment which I am moving tonight? Secondly, have the department's lawyers looked into the question of Scottish law? This I know nothing about; I am merely dealing with the memorandum from the faculty which has been in my possession.
10.11 p.m.
Lord Inglewood: This is one of the most difficult questions dealing with the drink and driving issue that we have to discuss, and it is made even more difficult because of the fact that we have to discuss two amendments at the same time—and just to make it more complicated we have to consider the possible implications of Scottish law. From the point of view
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of the police constable, his interest is that his position should be made clear and simple. Over the past few years it has been made extremely difficult for the average policeman to know what his powers are in various circumstances. The circumstances in which he has to take action are not necessarily the same, and there are occasions when a police constable in doing his best by what he believes to be the law has in fact put himself in the wrong. That has, of course, damaged the relationship between the police and the public quite unnecessarily. We must bear in mind before we leave this amendment tonight that we must satisfy ourselves that we have at least made the policeman's role simple and clear. If we have not done that, we have not done our duty.
So far as the two amendments are concerned, the noble Baroness opposite seemed to be speaking from a police brief—or so it appeared to me, because the police are always anxious to increase their powers. The substance of the speech made by the noble Baroness was a plea for an increase in the powers of the police. I thought that the noble Lord who spoke from the Front Bench took a rather more moderate view and I am inclined to believe his solution is the better one for us to adopt.
The difficult relationship between the police and the public today, when they are not as good as they ought to be, is very largely the result of motoring offences. This is because we are all offenders during the course of our lives, and the question of alcohol in the blood can make a certain section of offences all the more difficult. I do not believe this situation will be resolved by simply giving the police more powers. It will be solved by finding more intelligent ways which are accepted by everybody as being fair. I do not believe it is fair to give the average police officer, whether a policeman or a policewoman, who may be only 19, the power to rampage around one's house. It is most important that the Government look at this matter in the light of the debate we have had this evening, and if the right solution has not been arrived at here tonight, then the Government must be certain that they have the right solution ready at the next stage. The relationship between the police and the public in this country is the important thing and we must do nothing here that could possibly damage it.
Lord Brougham and Vaux: I should like to draw your Lordship's attention to something that I said during the course of my speech on Second Reading and which was also said by Mr. Kenneth Clarke in the other place at Committee stage. It is that we want a just law and a fair law; one law for all. With that I will just echo all that has been said.
10.15 p.m.
Lord Mackay of Clashfern: The subject matter of these amendments is certainly among the most difficult of those that arise, at least under this Part of the Bill. As the noble Baroness, Lady Stedman, has said, from recent cases, and particularly from Morris v. Beardmore, it has appeared that to make a valid requirement for a breath test, or to make a valid arrest, the police must be in a place where they have a right

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to be. They are not in a position to make a valid requirement if they are on property where the driver concerned exercises his right to exclude them on the ground that they are trespassers.
In order to make sure that I express the position correctly, I should perhaps quote from the speech of the noble and learned Lord, Lord Diplock, in the case of Morris v. Beardmore, when he said:
"In my opinion, in order to constitute a valid requirement, the constable who makes it must be acting lawfully towards the person whom he requires to undergo a breath test at the moment he makes that requirement. He is not acting lawfully if he is then committing the tort of trespass on that person's property for Section 8(2) [of the Road Traffic Act 1972] gives him no authority to do so"—
Viscount Simon: I wonder whether the noble and learned Lord could help me on one point. Is it only that he is trespassing if he is on this person's property? What would happen if, for example, the person had gone to his son's house or to his daughter's house? Would not the constable also be trespassing if he went into that house?
Lord Mackay of Clashfern: This is the reason why I wish to read the passage from the noble and learned Lord's speech. He says this, if I may just repeat it:
"He is not acting lawfully if he is then committing the tort of trespass on that person's property for Section 8(2) gives him no authority to do so."
The precise situation to which the question of the noble Viscount, Lord Simon, relates is not expressly dealt with, and it is a matter of some debate whether it is a breach of the law only in relation to the person whom you are trying to test that is at issue, or whether it is a more general law. I must say on reading the speech, that the only question at issue was with a person who had that right and, therefore, it might not be wise to extend the case further. But it is a very difficult and important question which the noble Viscount has raised.
Before I go further, seeing that I have mentioned the name of the noble and learned Lord, Lord Diplock, perhaps I should also say that he very kindly explained to me that his Amendment No. 68, which is on the Marshalled List, was to deal with the situation in which a person was asked to give a roadside specimen and did not do so, and then was able to have the benefit of sanctuary. When I explained to him that we would certainly undertake to consider that point, and we were also seeking to consider the whole question of trespass and the proper scope of it, the noble and learned Lord said that he would not be pressing his amendment and, since I had undertaken to consider it, he did not remain to move it.
I should perhaps say that the number of people who have been able to take advantage of the law in this way is small and, in spite of the publicity given to recent cases, we think it is likely to remain reasonably small in the future. We are dealing with a fairly minute portion of the whole area of drinking and driving. Nevertheless, the legal position has prompted considerable concern, which is reflected in the amendments now before us.
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The legal position which I have dealt with so far is that in the law of England and Wales, as dealt with in Morris v. Beardmore. As the noble Lord, Lord Underhill, pointed out, under reference to the Memorandum of the Faculty of Advocates, of which I have the honour to be a member, the law of Scotland may be different in this respect. So far as I know, there are no cases of this kind that have yet arisen under the law of Scotland.
The question then is: What should the law be? The view of some—and this appears to be the line taken by the noble Baroness, Lady Stedman—is that it is quite intolerable that drivers should be able to escape the consequences of drinking and driving in this way, and that it makes something of a mockery of this law.
So far as we are concerned, the Government feel that to go the length which the noble Baroness has proposed would probably be going beyond what is a proper balance against the law that has been set out for England and Wales. A balance of some kind has to be struck between the need for effective enforcement of the laws on drinking and driving and the longstanding and much cherished right of a person to privacy in his own home. So far as our consideration has gone, we believe that the unrestricted power which would be given by the noble Baroness's amendment may tilt the balance too far.
The Government had started out by taking the view that we should continue to rely on the law of trespass to provide this balance. We had sought in paragraph 7(3) of Schedule 8 to encapsulate in statutory form the law as we understood it now was. However, on further reflection and considering all the arguments which have been put forward during the progress of the Bill up to this time, we agree that this position is not altogether satisfactory. In short, it appears to afford protection to some drivers in situations where they ought not to be protected and not to afford protection to others in situations where they ought to be protected.
Although case law has not yet confirmed this, it seems quite possible that a driver might be able to exclude the police from his own shop, factory, field and other places as well. This seems to be carrying sanctuary too far. On the other hand, a driver who is not the householder may be unable to exclude the police from his own home and his position may then depend on whether the householder himself chooses to exclude them.
A third unsatisfactory feature of the law may be that the outcome of a case may depend on whether it is the police who first make their requirement for a breath test or the driver who first makes his request that they should leave. That matters should depend upon who is quickest on the draw in a situation of this sort may seem hardly satisfactory.
We have therefore come round to the view which is not absolutely final, as I shall explain, that it may be preferable to base the individual's rights and the limitations on the powers of the police on the concept of a person's home rather than that of trespass. That is the line of the amendment to which the noble Lord, Lord Underhill, has referred. However, that approach has difficulties, also. For example, we feel that to give the police unrestricted powers in the case of an

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accident may not be very just. We know from what we heard this afternoon, if we did not know it before, that there are many different types of accidents, cases involving death or serious injury at the top end of the scale to no more than scratched paintwork at the other, and the question of who is to blame for the accident is not easy to deal with in this sort of provision. We do not believe, therefore, that this is a very satisfactory basis for giving an unrestricted power.
Secondly, we believe that silence in the legislation will not enable the police to overcome one of the other problems to which I alluded earlier; namely, the case of the person who excludes the police where he is on property of his own other than his own home, for the reasons which the noble Baroness has already mentioned. An express provision in the law seems to be needed for this purpose.
We had hoped to be able to put down a Government amendment at this stage which reflected our revised views. I regret to say that the problems have so far made it impossible for us to come forward with a satisfactory amendment. We are grateful therefore for your Lordships' help this evening, even at this late hour, in helping us to formulate a satisfactory amendment. We certainly fully expect to come forward with an amendment at Report to deal with this difficult problem. I hope your Lordships will understand that it is not want of will or desire but the inherent difficulty of the problem which has made it difficult for us. We should certainly want to aim at the absolute clarity which my noble friend has asked for. As noble Lords know, absolute clarity in this area is a high goal at which to aim. I hope we shall reach it.
Lord Teviot: My noble and learned friend has given us a very full reply and before that my noble friend Lord Inglewood also gave us an extremely good explanation. The only point of difference I have with him is that he mentioned that the noble Baroness, Lady Stedman, might have taken a police brief. I do not think that either the police or the noble Baroness, Lady Stedman, would have produced either. I prefer the amendment tabled by the noble Lord, Lord Underhill, on this matter. The only point I should like to take up with my noble and learned friend the Lord Advocate is that he described the number of cases as "small". That is an undefined amount; let us have some figures. I do not think we can just be left with it being "small": we should have a further explanation on that.
Lord Mackay of Clashfern: I am sorry, but, in the very nature of things, where this applies it would not result in any recorded conviction and obviously once the police understood the problem they would not take up such a case. All I can say is that it is our impression that the total number of cases in which this point would arise would be not more than something of the order of 5 or 10 per cent., and probably less.
Lord Houghton of Sowerby: I think that the sanctuary we wish to cherish is to exclude forcible entry into one's own home unless there are very strong reasons for giving the authorities the right to intrude. If that is the basis, then I think that any immunity from entry should be restricted to the driver's own home, because he has the right of entry and the right of sanctuary
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there. If he is admitted to his son's home or to his daughter's home or to anybody else's home, that person allows entry; he has not the right of entry into anybody else's home, even that of a member of his own family. Any person, if he proved to be a nuisance, could be excluded from a son's or a daughter's or a grandmother's home but not from his own home, unless there were exceptional reasons to justify so excluding him.
If the noble and learned Lord the Lord Advocate is seeking help, for what it is worth I offer that. I think that that is really where the right of intrusion stops. Even at the risk of some persons escaping what may be otherwise even an indictable crime, sometimes we have to regard the sanctuary of the home as having a special place in the cherished liberties of the subject. I question many of the rights of forcible entry that we already have and to extend them would be rather a grave step to take.
What fastidious legislators we are! Good heavens! in Europe they put it all in round terms which cover the lot, but here we draw the fine distinctions between liberty and licence and rights and privileges and so on. This is probably the model for the world but, my goodness, we make a lot of difficulties for ourselves. Here is one: we must face it in traditional fashion, and I humbly offer my own opinion on it as a contribution to the others to which the Lord Advocate has listened.
Lord Boardman: I do not wish to add to the complexity which my noble and learned friend has so clearly outlined but I think that the introduction of forcible entry makes the problem extremely difficult to resolve. The noble Lord, Lord Houghton, referred to the sanctuary of the home. Does that mean, in the case of a teenager, his parents' home? Is that the home and is that the sanctuary? Once one gives a right of entry then one must give the right forcibly to enter; otherwise the person seeking sanctuary will go in and bolt and bar the doors, and one has the problem of the police forcing an entry without a warrant, and so on. I find this an extremely difficult point. I feel your Lordships are of one mind in wishing to avoid sanctuary, and I wish I could be more constructive in helping my noble and learned friend to find the right answer.
Lord Mottistone: Perhaps I may briefly suggest that my noble and learned friend on the Front Bench should go back to the Middle Ages and give us only the church as sanctuary. A cold church on a winter's night would surely be sobering up for anybody.
Lady Saltoun: In these days when almost all churches are locked because of vandalism, I do not think that right of sanctuary would be very much use.
Baroness Stedman: I am grateful to the noble and learned Lord for the explanation he has given. I am glad I was not the only one who found it difficult to frame an amendment, and that his department are having the same difficulty in trying to get to the right solution. I am perfectly happy to withdraw my amendments and leave it to the noble and learned Lord to see whether he can come up with something

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which meets all our views before Report stage. Perhaps if he does so in sufficient time he may let us have notice of it, so that we can consider what he is proposing. In the meantime. I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 72 and 73 not moved.]
The Deputy Chairman of Committees: I should point out that, if Amendment No. 74 is agreed to, it will not be possible to consider Amendments Nos. 74A, 74B, 74C, 75 or 76.
10.31 p.m.
Lord Underhill Lord Underhill moved Amendment No. 74:
Page 68, leave out from beginning of line 13 to end of line 35 on page 69 and insert—
("Provision of specimens for analysis.
8.—(1) A person who has been arrested under section 5(5) or 7(5) of this Act may, while at a police station, for and a person, not so arrested, while at a hospital as a patient may, be required by a constable to provide specimen for analysis subject to and in accordance with the following provisions of this section.
(2) A constable may, subject to the following provisions of this section and section 9 below, require any such person—

(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State; or

(b) to provide a specimen of blood or urine for a laboratory test.

Provided that where the constable requires a person to provide a specimen of breath for analysis under paragraph (a) of this subsection such person may, after providing such specimen, elect to provide a specimen of blood for a laboratory test in accordance with the provisions of this Act and if he then provides such a specimen of blood it shall be used as the specimen for analysis and neither specimen of breath shall be used;
Provided also that where there is no device available for the purpose of the said paragraph (a), whether because of malfunction or otherwise, the constable may only require a person specified in subsection (1) of this section to provide a specimen for a laboratory test, and such person may at his entire discretion provide such specimen by way of a specimen of blood or a specimen of urine in accordance with the requirements of this Act.
(3) Without prejudice to the provisions of section 9, a requirement under this section for a person while at a hospital as a patient to provide specimens for analysis shall only be made—

(a) if it appears to a constable as a result of a breath test carried out on that person under section 7 of this Act that he has reasonable cause to suspect that the proportion of alcohol in that person's breath or blood exceeds the prescribed limit; or

(b) if that person has failed, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test when required to do so in pursuance of section 7 and the constable has reasonable cause to suspect that he has alcohol in his body.

(4) The Secretary of State shall not appoint a day for the provisions of subsection (2)(a) of this section until he is satisfied that every police station in Great Britain is equipped with a device.
(5) If the laboratory test is to be for a drug the question whether the specimen is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement; except that if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(6) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.
(7) A person who, without reasonable excuse fails to provide a specimen when required to do so in pursuance of this section shall be guilty of an offence.
(8) On requiring any person to provide a specimen in pursuance of this section a constable shall warn him that a failure to provide it may render him liable to prosecution.
(9) For the purposes of this section "a device" shall be a fully automatic and self-calibrating device approved by, and operated and maintained in accordance with requirements specified by, the Secretary of State after consultation with such representative organisations as he thinks fit.")
The noble Lord said: This is a very important amendment. It may be convenient if I speak also to Amendment No. 77, which is consequential. One feels that one will not be doing full justice to this important amendment at this time of night, but other noble Lords will undoubtedly wish to say something on this, and therefore I shall skip over, as my noble friend did, the major part of my speech, and concentrate mainly on the one important point, which is the question of the alternative option of blood or urine test according to the circumstances. The amendment is put forward on the basis that the introduction of the evidential breath test by machine is a completely new step and it is essential that the new procedure should receive the full understanding and acceptance of the public. I suggest that one way to do this is to provide in the Bill that in all circumstances a person shall have the option of providing either a blood specimen or a urine sample. If a person is to be judged on a machine reading, that person must be given the option of having a blood test and of having that produced in court as evidence. The option that is given in the Bill for this to be done is far too limited; it comes in only under subsection (6).
I want to make it absolutely clear that I join with everyone in wanting to ensure that persons driving under the influence of drink are properly dealt with, but at the same time we must ensure that a person who is going to be brought before the court knows that he has the full opportunity to defend himself. There is every probability that, in the course of time, there will be general acceptance of the reliability of the new breath machines and the new procedure, and it may be that a number of persons will not wish to go beyond the breath machine. But until the condition of general acceptance is here, we should ensure that a person is satisfied by having the option of providing alternative blood or urine tests.
The three motoring organisations—the AA, the RAC and the Royal Scottish Automobile Club—are all concerned about the absence of this option for drivers. In a joint statement issued on 6th May the three bodies urged that all alleged offenders should be given this right to demand a blood test if they do not accept the print readings from the machine. I shall quote one paragraph from their statement. It says:
"While the motoring organisations fully support all reasonable measures to prevent drinking and driving and the imposition of appropriate penalties for such offences, they are nevertheless anxious that there will be adequate safeguards to ensure no risk of injustice and also to permit justice to be seen to be done."
Time does not permit me to go into a long argument

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about the accuracy of the machine, but the Minister will know that there have been arguments about the Home Office tests of the new machine, and although there is no doubt that they have a high degree of accuracy, there were defects. I would suggest that if under the new machine procedure a number of persons currently guilty would be found to be innocent, and other persons currently innocent would be found to be guilty, then justice suggests that there must be the option of the alternative blood or urine tests. No matter how few people are involved in defects, justice says that they must have this alternative. Therefore, without going fully into my criticisms of the present clause, I have put forward the main principle behind the amendment and I beg to move.
Lord Skelmersdale: On this occasion I shall try very hard not to exceed the speed limit. I appreciate that many people are very worried about this matter which is an entirely new concept, as the noble Lord, Lord Underhill, has said. Again it is rather complicated.
The proposal to reinstate the present requirement that arrest must precede the requirement of an evidential sample flies in the face of the recommendation of the Blennerhassett Committee, which said:
"It should not be necessary that the suspect who is required to furnish a specimen for analysis should have been arrested … We therefore recommend that the police should have power to arrest, but the arrest should not be a necessary part of the procedure."
On the question of the option to provide blood, which is one of the matters about which the noble Lord was particularly concerned, the Bill already gives an option where the breath analysis does not exceed 50 microgrammes. This is equivalent on average to 115 milligrammes in the blood, and although there is a spread on either side of that average no one who is over 50 on breath would be under 80 on blood. The machines will be checked with a standard vapour sample both before and after being used and their evidence will not be used unless they perform correctly on both these checks. There seems therefore to be no practical justification for making the blood option more widely available; to do so would be to risk losing, much of the benefits of the introduction of breath analysis.
The unfettered choice between blood and urine, in cases where a breath machine is not working, would, I am afraid, land us back in all the possibilities for obstruction which are offered by the present system, and the noble Lord has obviously taken the point that this is something that we would not want. Provided that due provision is made (as it is under the Government's Bill but incidentally not under this amendment) for nobody to be required to provide blood if a medical practitioner advises that for medical reasons he should not do so, we believe that the necessary safeguard is ensured and that discretion for drivers would inevitably perpetuate unnecessary delays and obstruction.
Finally, of course, there is the problem of the machines themselves. Many people, I know, have not had the opportunity to see these. A final choice has not yet been made. If it would help the Committee, I am perfectly prepared tonight to offer the facility—it will not happen tonight—of a demonstration of the machines currently being looked at. I hope that this would help all members of the Committee and,
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indeed, the House to understand the problem very much better.
It is our intention to choose a machine that is as automatic as possible. However, the terms used in the proposed amendment, while clear in intention, are not scientifically precise, and I have been advised by our scientists that if the amendment were allowed, a great deal of time could be wasted in court trying to determine whether a particular instrument was in fact "fully automatic" and in trying to pin down what exactly, in terms of machinery, fully automatic and self-calibrating means. There are various unfortunate bits in this amendment, but I hope that the noble Lord will concede that I have tried to play fair with him at a reasonable speed and, therefore, will not seek to press this amendment this evening.
Lord Brougham and Vaux: I do not think that we will take up my noble friend's offer of providing a machine for us tonight; it is getting rather late and I think that we are all rather weary. Perhaps we will take him up on it on Report; perhaps we could have one in the Chamber.
As my name is down to this amendment, I agree with the noble Lord, Lord Underhill. I shall not declare my interest again; I did that on Second Reading. I shall simply say that I blew in the hag, gave some blood and the other. In my speech on Second Reading I asked that all these machines should be mandatory throughout the United Kingdom. I do not want to repeat myself, but I must. It was said in another place, I said it on Second Reading and I have said it again this evening, that we want a fair law and one law for all. If we do not have machines throughout the country that are mandatory for everybody we shall have two different laws for two different sets of people: some will give blood and urine samples and some will just blow in the machine. We must make up our minds. This has arisen at a very late hour and I shall not labour the point tonight; I shall read what has been said and will probably take up this matter at a later stage.
Lord Inglewood: I should like to reinforce what the noble Lord has just said and ask the noble Lord the Minister to confirm or otherwise that we are now making it possible for all the 40-odd police forces in this country to have different procedures if they want to and, in fact, to use different machines. At present one of the great difficulties in the British police system is that the independence of the different police forces means that they can use different equipment. There is no reason to say that different equipment may not, in the great majority of cases, arrive at acceptable and correct solutions to whatever problem they may face. But here we have probably the most difficult situation where misunderstanding can arise between the police and the public.
I think that it should be cleared up beyond all reasonable doubt that here we are dealing with a situation where thousands of people will find themselves in minor difficulties with the police. If I may put it this way, the convenience of Home Office officials is not important at all; that convenience is totally unimportant. We are concerned here with relations between the police and the public.

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I welcome what the noble Lord has said, that we should be allowed to see a particular machine. But in his reply will he say whether that machine will be obligatory for use in all police forces in this country; or is this something that they can accept or refuse as they will? Can he say whether they can perhaps employ other machines? This is a matter which we ought to clear up tonight at this late stage of the Bill.
Lord Lucas of Chilworth: As we were advised that my amendment could not be called in the event of the amendment of the noble Lord, Lord Underhill, being agreed to, it seems appropriate that I should speak to my amendment which, in essence, embraces many of the same points. I noted that, when responding to the noble Lord, Lord Underhill, my noble friend Lord Skelmersdale said that of course there is a lower limit provision in the Bill as it stands. If my amendment were adopted, that lower limit would not stand because it is precisely that which I want to take out in Amendment No. 74B.
I believe that, notwithstanding the accuracy of any machine, there is a deep-rooted suspicion of machines as being fallible. I can see no harm whatsoever in allowing the offender to opt for a blood or urine test at any level, certainly the lower of the two that are offered, particularly if the lower is marginal. In the event, and he finds that the blood analysis corresponds with the print-out on the machine, then custom will take away the necessity to call for a specimen to be given. It is really an exercise in public relations. I do not believe that it is the Government's job to impose it because they or some laboratory are satisfied—or indeed even if Members of your Lordships' House take advantage of my noble friend's offer of a testing session, and if we are totally satisfied with it—and there remain any large numbers of people who do not believe in it.
There was an article in the Sunday Times of 1st June. It was written by a much respected motoring correspondent. He is talking the whole time of the breath test and the machinery. He says:
"Even if the Transport Bill becomes law in July breath machines are unlikely to be introduced in police stations before late next year. This is partly because it will take time to train police officers to use them and also because the Home Office is engaged in another series of tests on more advanced machines. It may be that the results of these tests will help to remove some of the doubts about accuracy and reliability."
He says in the final sentence in which he quotes an analytical chemist:
"I am prepared to accept that the new system will be fair to most motorists, but is most good enough?"
This is the whole point behind Lord Underhill's amendment and indeed mine. While there are, as my noble friend Lord Inglewood says, a number of different tests and testing systems being used, and while there are other pieces of machinery in the pipeline, nobody knows where they are. They will opt for what has always been considered in general terms to be the safer and the more beneficial to the alleged offender: that of a blood sample which he can take; one sample going to his laboratory and one to the police laboratory.
I do not know what the noble Lord, Lord Underhill, is going to do. Were it a few hours earlier I should suggest that he test this. If he did not test his amendment, I would certainly test my amendment in the
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Committee. I should like to ask my noble friend the Minister to save us that embarrassment and take this away and give it consideration. It is a public relations exercise. It has nothing to do with court time, police time, costs. You are playing with people's sensibilities in an area which has been so explored this evening in other parts of the Bill. Any suggestion of doubt, or bulldozing people into something, will have an adverse effect. I suggest that he finds some way of meeting those of us who have amendments and support amendments of this nature.
Lord Skelmersdale: Before the noble Lord, Lord Underhill, responds perhaps I should say in answer to my noble friends that the Home Secretary is required under Section 8(1)(a) to approve the evidential breath machine. A further series of tests is going on and he has not yet approved such a machine or such a range of machines. I also understand that once a recommended range has been proposed by the Home Office it is up to particular chief constables to choose one for use in his area. To require every police station to be equipped with a breath analysis machine would be extremely wasteful; only a proportion of stations in the country operate 24 hours a day, and clearly we do not want to install machines where they will not be used. That answers a point made by my noble friend Lord Inglewood. We have taken police advice as to the numbers that will be needed and have budgeted accordingly.
Lord Inglewood: When my noble friend says they have budgeted accordingly, may I ask him to say what it will cost in the first year?
Lord Skelmersdale: I could not give that information off the cuff, but I will write to my noble friend. Variations as to the geographical layout, population and number of traffic patrols in different forces mean that they will have different needs, and no set formula will be used in distributing machines among them. We expect, however, that machines will be installed at those stations where most drink-driving offenders are currently taken. Although in theory a police surgeon could be called to any station at night, in practice the system is already largely centred on specific stations, and the breath machines will be placed to follow this pattern. We do not need, and could not afford, to put a machine in every station, but this does not mean that people will be unreasonably denied use of the machine. Having said all that, I can assure the Committee that there will be no question of bringing these provisions into operation until we are sure there is a reasonable coverage across the country.
As for the point raised by my noble friend Lord Lucas about there being a dual range of laws for different people in different areas, I hope that what I have said, and the fact that there will still be the opportunity for blood samples over 50 milligrammes, will help to reassure him.
Lord Brougham and Vaux: Before the noble Lord, Lord Underhill, responds to the Minister's comments, I would only say that I am not entirely satisfied with my noble friend's remarks and will read what he said in Hansard and discuss the matter with Lord Underhill with a view to seeing what action to take on Report.
Lord Underhill: So many points have been made by noble Lords who have spoken to the amendment that it is clear that this is a subject which requires far greater discussion than we have had tonight. My first reaction is to say we should divide on the principle involved, but I feel that at this hour that would be unfair to noble Lords on both sides of the Committee who hold strong views on the matter. I hope the demonstration offered by the noble Lord, Lord Skelmersdale, will be arranged. It is a question of the public acceptance of a new procedure. It is certainly not just a question of the time that may be taken up in the courts; it is a question of the individual who is eventually convicted being satisfied that he had a full crack of the whip before he was convicted.
There is obviously a flaw in my amendment; that has come to light because in subsection (4) we wanted a machine in every police station before the Secretary of State introduces his regulations. As for the Minister saying the Government "expect" to have machines at all stations where offenders of this type will be taken, the word "expect" is not good enough; and the phrase, "We hope there will be reasonable coverage", is not good enough either. We must be satisfied that every station where offenders in this category are taken will have a machine before the system is introduced. For all these reasons, we shall bring the matter forward again on Report, perhaps in a different form, and I hope that between now and then the Minister and his colleagues will consider the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 74A:
Page 69, line 1, leave out from ("be") to end of line 6.
The noble Lord said: Section 8(4) as at present drafted preserves a distinction between the procedures for the Section 5 (impairment by drink or drugs) and Section 6 (excess alcohol) offences. On further reflection, we do not think that this distinction is justified, and it may in certain circumstances hamper effective police action. The police have to decide whether they are dealing with a person who is affected by alcohol or drugs. This may not be easy. If they have the evidence of a screening test or an evidential breath test, there is unlikely to be a problem. But a person may refuse the screening test and an evidential breath machine may be unavailable. Then there may be difficulty.
The laboratory test may, under Section 8(4)(a), be for alcohol, but it may be that the driver was in fact impaired by drugs. The laboratory test may under Section 8(4)(b) be for drugs, but it may be that the real cause of the driver's impairment was a mixture of drugs and alcohol. In either case the test as provided for may not provide evidence of the real cause of the problem. The amendment will eliminate the possible restriction on what may be analysed, and the police will be provided with the evidence on which to bring an appropriate charge. On the other hand, there is no question of the driver being subjected to any additional requirements. The police will have discretion to require a specimen of blood or urine, but not to require both. I beg to move.
On Question, amendment agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 74B:
Page 69, line 19, leave out ("with the lower proportion of alcohol").
The noble Lord said: Since I have already spoken to this amendment, I shall—
The Principal Deputy Chairman of Committees (Baroness White): I understand that this amendment has been incorrectly printed.
Lord Lucas of Chilworth: The amendment has been incorrectly printed, and I was going to explain how it should read, so that when I invite the Minister to include my amendment with that of the noble Lord, Lord Underhill, in his further consideration he will at least have the right wording of my amendment.
The Principal Deputy Chairman of Committees: I understand that the version of the amendment which we should be considering reads:
"Page 69, line 19, leave out from ('but') to end of line 21".
Lord Lucas of Chilworth: That is absolutely correct; I am most grateful to the Principal Deputy Chairman. Now that the proper wording of the amendment has been established, I would ask my noble friend to bear it in mind when he gives the further consideration that the noble Lord, Lord Underhill, has requested, and that I too, would seek, so that, preparatory to discussion at Report stage, we can arrive at something a little more sensible than what is at present in the Bill. I beg leave to withdraw the amendment.
The Principal Deputy Chairman of Committees: The noble Lord has not actually moved the amendment, so far as I know. The amendment is:
"Page 69, line 19, leave out from ('but') to end of line 21".
Now the noble Lord wishes to withdraw the amendment. Is it your Lordships' pleasure that this amendment, having been moved, is now withdrawn?
Amendment, by leave, withdrawn.
[Amendment No. 74C not moved.]
10.58 p.m.
Lord Underhill Lord Underhill moved Amendment No. 75:
Page 69, line 33, after ("State") insert ("after consultation with such persons and representative organisations as he thinks fit").
The noble Lord said: It may be to the convenience of the Committee if in moving this amendment I speak also to Amendments Nos. 76 and 78. These amendments all relate to the proportion of alcohol in breath, blood, or urine, according to circumstances, and the various limits are given in paragraphs 8 and 12 of the schedule. In the Bill there is provision that the various proportions may be varied by regulations made by the Secretary of State. That is obviously a sensible proposal, because it will avoid the necessity of any further primary legislation. However, before the making of such regulations there should be consultations with such persons and representative organisations as the Secretary of State may think fit. These are very important changes, and therefore the consultations will be vital.
I hope that the Minister in his reply will not say that my proposal is unnecessary on the grounds that of course there will be such consultations. This should be written into the Bill, as the Government have similariy done in other legislation, and I hope that that suggestion will be accepted. As I have said, I am in agreement with the proposal that the Secretary of State should be able to make such changes by way of regulations, but this should be done by affirmative resolution approved by each House. Those are the two purposes of the three amendments. I beg to move.
Lord Skelmersdale: I think I am right in saying that this matter was first raised during the Commons Committee stage. The Government undertook to do something about it, and indeed did, but in another part of the Bill. The powers relating to orders made by the Secretary of State are contained in Section 199 of the Road Traffic Act 1972, to which I have already referred. An amendment to this section to give effect to the proposals now suggested in these amendments was considered and accepted in another place. Noble Lords will find this in paragraph 18 of Schedule 9. In these circumstances, I hope the noble Lord will be able to withdraw his amendment.
Lord Underhill: I am grateful to the noble Lord the Minister for drawing my attention, in particular, to that. I am grateful to him. I will study this; and in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76, 77 and 78 not moved.]
Schedule 8, as amended, agreed to.
The Earl of Avon: I think this might be a good time at which to end today's Committee proceedings. I beg to move that the House do now resume.
Moved according, and, on Question, Motion agreed to.
House resumed.