HL Deb 08 June 1981 vol 421 cc66-111

House again in Committee on Schedule 7.

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 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, 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 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 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 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 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 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 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 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 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 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. 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 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- 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.

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 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 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.

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- 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 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 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 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 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 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):— 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 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. 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 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 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 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 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.

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 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 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 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 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.

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 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 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 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 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—

  1. (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State; or
  2. (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—

  1. (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
  2. (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 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, 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.

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 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 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 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 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.