Transport Bill

HL Deb 08 June 1981 vol 421 cc9-65

3.14 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bellwin.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE EARL OF LISTOWEL in the Chair.]

Schedule 6 [Amendments of the Harbours Act 1964]:

Lord Skelmersdale moved Amendment No. 44: Page 60, line 43, after ("charge") insert ("previously incurred or incurred").

The noble Lord said: In moving this amendment, I should like to speak to Amendment No. 45. These two amendments make technical, but important, corrections to paragraph 8 of Schedule 6, which provides for a new Section 27A in the Harbours Act 1964 dealing with port charges. They deal with two separate points, but I hope you will agree that it will be for your Lordships' convenience to discuss them together as they arise on the same paragraph of the Bill.

The first amendment puts right the possibility, pointed out to us by the Port of London Authority, to whom I am most grateful, that in certain circumstances a port user might be able to avoid paying any ship, passenger or goods due for the use of certain harbour facilities. As your Lordships know, the new Section 27A provides that port users may object to a port authority's practice of levying what is called a combined charge, comprising both ship, passenger and goods dues and other charges. In that event the authority would have to quote separately for dues and for other charges, thus enabling the user to identify the "dues" element and object to that in accordance with the provisions of Section 31 of the Harbours Act 1964.

Under Section 30 of the 1964 Act a due can be imposed only if it is already included in a port authority's published list of ship, passenger and goods dues. But there may be circumstances where, if a user objects to paying a combined charge, the authority will not already have an appropriate due included in their published list. In such circumstances they would therefore be prevented from collecting it; and since they could not impose a combined charge as a result of the objection, the user would not have to pay at all for the use of the harbour. This would clearly be wrong, and the amendment seeks to ensure that a user cannot object to paying a combined charge made in respect of the use of a harbour or the provision of services which he has already enjoyed. He will therefore only be able to object to paying it in the future, and this will give the harbour authority time to include an appropriate due in their published list.

Although the amendment will prevent users from objecting to dues that they have already agreed to pay, I can assure your Lordships that this will in no way prejudice users in so far as their right of objection against dues under Section 31 is concerned. This is simply because a decision by the appellate authority under that section cannot be retrospective, so that an appeal cannot be lodged in order to secure a reduction in dues that a user has already agreed to pay. It can affect only the future payment of dues.

The other amendment is, I am pleased to say, a little less complex. It concerns the definition of the port authorities who are subject to the provisions of the new Section 27A. By virtue of the definition of "harbour authority" in the section as it stands, the authorities subject to it are those who are also subject to the provisions of Section 26 of the Harbours Act 1964, which in 1964 gave most port authorities freedom from statutory limitation on their charges. This definition therefore covers most port authorities but it does not cover the "boards"; namely, the British Transport Docks Board, the British Waterways Board and the British Railways Board, who own and operate a number of harbours. Most of the charging provisions of these nationalised boards are at present governed by the Transport Act 1962 rather than by the Harbours Act 1964, although the substance of the provisions is the same. But the transport boards are not subject to the new provisions of the new Section 27A as currently drafted, and the effect of the amendment is to make them subject to the new section. The amendment deletes the present definition of "harbour authority" from the section. As a result, references in the new section to a harbour authority will attract the general and wider definition in Section 57(1) of the Harbours Act. This definition covers all port authorities, including the transport boards.

We are anxious that the new provision on combined charges, which is a most useful clarification of the law governing the right of appeal against dues, should be as widely applicable as possible. It was always our intention that the new section should apply to the boards and the amendment achieves this intention. I beg to move.

On Question, amendment agreed to.

Lord Skelmersdale moved Amendment No. 45: Page 61, line 5, leave out from ("harbour") to end of line 7.

On Question, amendment agreed to.

3.8 p.m.

Lord Underhill moved Amendment No. 46: Page 61, line 18, leave out from ("inserted") to end of line 22 and insert (""and all other charges imposed by a harbour authority as provided in section 27A"").

The noble Lord said: I would draw the attention of the Committee to the widespread support that there is for this amendment. At present, there is opportunity for objections to be made to the National Ports Council against charges for ship, passenger and goods dues imposed by a harbour authority. That provision is laid down in Section 1 of the Harbours Act 1964 to which reference was made by the noble Lord on the previous amendments. Paragraph 10 of Schedule 5 provides that with the abolition of the Ports Council, as is proposed in the Bill, the determination upon these objections will be transferred in future to the Secretary of State. On this side of the Committee—and my noble friends have supported my amendment—we are pleased that this provision has been included in the Bill, so that there is this opportunity for appeal; but we regret the limitations placed upon it by subsection (3) of this particular paragraph.

At the time of the 1964 Act in most ports there were a number of employers of labour providing stevedoring and associated services in competition one with another. Since then there have been considerable changes with regard to employment and charging arrangements. These facts were supported by the Under-Secretary of State when at Report stage in another place he moved an amendment to insert the present paragraph 8 of this schedule. Mr. Kenneth Clarke, the Minister, agreed that since 1964 port authorities have themselves become major employers of stevedores, they have acquired a lot of warehousing facilities and, with the growth of containerisation and with technical changes in the industry, the practice has arisen of port users looking to the port owner for cargo handling charges as well as the traditional port dues.

The number of employers has rapidly declined and in some ports the authority is the only employer of registered dock labour. This is one of the factors which has led to the financial difficulties of the PLA and the Mersey Docks, a matter before the House only a short while ago. This means that there is a tendency for there to be a monopoly situation in respect of the charging of dues to cover all aspects of port operations, and because of the changed conditions there is provision in paragraph 8—as has been explained by the Minister—that in certain circumstances there may be a combined charge to cover ship, passenger and goods dues and also these other charges.

Despite these changed conditions, a provision is proposed in subsection (3) that Section 1 of the 1964 Act shall exclude the opportunity of an objection against a combined charge. The Inland Waterways Association, which aims to secure the maximum use of the freight waterways, has expressed concern about this tendency towards monopoly charging. Similar concern has been expressed by the National Water Transport Association, which represents the commercial and industrial waterway interests. That is, the private undertaking that engages in waterways freight activities.

Although the Minister is in full agreement with the changed conditions in many ports, he stated in the other place that the Government resisted the idea of extending the power of appeal to cover cargo handling largely because it would be inconsistent with the policy of the Bill. Frankly, I find it difficult to understand. Mr. Clarke continued—and I am quoting from column 232 of Commons Hansard for 14th April: The Government believe that there is a limit to the extent of useful Government involvement…in the ports". But the amendment is in no way seeking that. The amendment proposes that there should be fair treatment for port users in the light of the changed conditions.

These conditions are illustrated in one example affecting the Humber Estuary and the lower River Trent. The British Transport Docks Board acts as navigation authority for that area. When Associated British Ports takes over, as is provided in the Bill, as a private company, as well as functioning as a harbour authority it will be responsible also for access to private wharves on their waterways and also to the wharves on the waterways of other operators. It could be understood that as a private company British Ports would hope to encourage traffic to use their dock facilities, and as a navigation authority they will be in a strong position to do so.

I must remind the Committee that the Government have provided finance for the improvement of the Sheffield and South Yorkshire navigation to enable larger craft to proceed as far as Rotherham. It would be wrong to imperil that national investment by arbitrary charging and at the same time not to allow appeals against such charging. The amendment proposes that subsection (3) be changed to provide for insertion in Section 31 of the 1964 Act so that there may be provision for objections to all charges levelled by a port authority and they now be confined only to the ship, passenger and goods dues. This, I think the Committee will agree, is a very reasonable amendment.

It surely is equitable that where charges are made in a monopoly or near-monopoly situation, there must be opportunity for appeal and the objections would be to the Secretary of State. It would be the Secretary of State who would determine upon the objections. That makes the amendment even more reasonable and I hope that the Government accept it as something which is equitable. I beg to move.

3.15 p.m.

Viscount Hanworth

As one who is interested in the waterways and who is also interested in trying to promote the greater handling of cargo, I think that this is an important amendment and I should like to support it. If the Government do not like to be involved in any way, there is of course another alternative which has been suggested: to put into the Bill some provision for independent arbitration. Unless one or two of those suggestions are accepted, the situation is highly unsatisfactory. The Government—who I know do not like monopolies any more than anybody else does—should not allow one to occur in this case.

The Countess of Loudoun

I, too, should like to support this amendment. There is concern about the increasing emergence of monopoly situations within the port industry, and the measures proposed in the Bill will hasten this process. Did not the National Ports Council in their report to the Secretary of State in 1978 recommend that the two functions of harbour authorities relating to dock operations and conservancy should be separated? The conservancy functions would be taken over by a non-commercial organisation, thus ensuring that unfair biases against estuarial and inland waterway transport are not introduced by the provisions of the Bill.

Lord Skelmersdale

We are grateful to the noble Lord, Lord Underhill, and the other members of the Committee who have spoken. We know that there has been wide concern among port users on this particular subject. Port charging is an important subject and the Government have therefore given careful consideration to the many requests to extend the present right of objection against ship, passenger and goods "dues" to cover all port charges. It is important to recognise first the important distinction between ship, passenger and goods "dues" on the one hand and other port charges on the other hand. The "dues" are levied on all port users in respect of the use of the basic or essential port and harbour, and reflect the authority's costs in the provision of the harbour infrastructure and the maintenance of approach channels, lights, buoys and beacons. They are essentually in the nature of a tax, an amount payable by a user, but not necessarily directly related to the services he receives. Were we dealing with another Bill, we might equate them with rates.

Other port charges, on the other hand, are levied for specific services provided to users—for example, for loading or unloading a ship or for the storage of goods—and they are related to the kind of services provided. I ask the Committee to bear these distinctions carefully in mind because of what I am going on to say.

Port users, and the noble Lord, Lord Underhill, have argued that, as port authorities are now in many cases the sole employers of stevedore services, they exercise a monopoly over these services, thus justifying the extending of the appeals procedure. The noble Viscount, Lord Hanworth, argued the same point. While it is certainly true that port authorities are now the main employers of registered dock labour, we do not accept that they are in a monopoly position. After his kind remarks, I am sure that the noble Viscount would be the first to concede that the Government would be the first to recognise a monopoly situation should it exist.

The ports industry is a fiercely competitive one and there is no basis on which monopoly can effectively be exercised by an individual port authority. Charges for stevedore services are in any event a specific charge for a specific service provided to users. But the same cannot be said of ship, passenger and goods "dues". These are, as I have already said, essentially a tax paid simply for the use of a port, not directly related to the services provided. Because of the nature of these "dues" we recognise that there is a continuing need for the right of objection against them to be retained, and paragraph 10 of Schedule 5 therefore transfers the National Ports Council's appellate function to the Secretary of State. But, for the reasons that I have mentioned, we do not believe that the right of appeal should be extended to cover all port charges. It is, furthermore, central to the Government's policy that the ports industry should be given as much responsibility as possible for its own affairs. This would be seriously damaged by an extension of Government control over the ports' pricing policies.

During the passage of the Bill in another place, and indeed here, it has been clear that much of the criticism of the present appeals procedures lies in the fact that it is very difficult for users to identify the "dues" element in the combined charges which port authorities are increasingly imposing. As I have just explained, we are amending the Harbours Act 1964 to put a clear obligation on authorities to specify the dues element of any combined charge, where the users require them to do so. I think we all recognise that this is a helpful improvement to the present appeals procedure, but I hope I have explained to your Lordships' satisfaction why we do not believe that an extension of Section 31 to cover all port charges is either necessary or desirable.

The navigation charges which will be levied by the Trent and Humberside Harbour Association of British Ports will be subject to appeal under Section 31—that is one of the points mentioned by the noble Lord—just as at present, where they are made by the British Transport Docks Board. As I say, I am afraid there is no way the Government can accept this so reasonably moved amendment.

Lord Underhill

I am very disappointed with the Minister's reply, charming though was his turning down of the amendment. To suggest that the Government do not accept a monopoly situation is surely not accepting the position that was agreed by the Under-Secretary of State for Transport in another place, where he as good as agreed that this situation is now growing. It is not a question of asking the Government to interfere in charging policy: we are not asking for that. What the amendment says is that if a port user believes that charges other than those for ships, passengers and goods, stevedoring and other charges, are excessive, he ought to have a fair opportunity of appeal. That is all we are asking for—not interfering with or laying down of charging policy.

I am very disappointed and I am wondering whether the Government would accept the proposal made by the noble Viscount, Lord Hanworth, that if the Secretary of State does not want this responsibility the Government themselves might bring forward an amendment to provide for some independent arbitration body to make a decision. If the Government would make such a statement I would readily withdraw the amendment; but otherwise this is such an important question of equity and decent treatment for commercial users of the port that we would have to stand by the amendment.

Viscount Simon

Before the noble Lord replies, I wonder whether I could ask the noble Lord, Lord Underhill, to explain one thing to me. Is he suggesting that the charges for cargo handling, loading, discharging and storage should be appealed against only when those services are provided by the port authority and not when they are provided by other people?

Lord Underhill

The amendment provides that there can be an appeal by any person. It does not stipulate where it is only provided by the port authority. I think the wording of the amendment would cover the circumstances outlined by the noble Viscount, Lord Simon.

Viscount Simon

I am sorry that I evidently did not make myself clear because the noble Lord, Lord Underhill, has misunderstood me. It is where the services are provided by the port authority. It has been mentioned that in some cases these services are supplied on a practically monopoly basis. But of course in a lot of other cases they are not supplied on anything like a monopoly basis, particularly as regards storage. There are many independent companies offering storage. Is it only the port authorities whose charges are to be subject to appeal?

Lord Underhill

I must withdraw what I said previously. The wording is— and all other charges imposed by a harbour authority…". Therefore it could only deal with those imposed by a harbour authority. The reason for that is, of course, where they are not imposed there is no question of monopoly arising. It is only where this other work is carried out by the harbour authority that you get this near-monopoly situation. The noble Lord the Minister said the Government do not accept that there is a monopoly situation because ports are competitive. But if one takes the Sheffield and South Yorkshire Navigation to which I referred, what other port could the users there go to? They would have to use the port at the end of their waterway, and therefore they would be in the position of having to go to a monopoly.

Lord Skelmersdale

Much, as I thought, has been made of this word "monopoly "—I thought it would be. The point about it is this: if you have a monopoly in one situation are you justified in legislating for the whole range of port authorities? The Government feel strongly that the answer is, no. Were we satisfied that there was a monopoly I am sure we would look very carefully with regard to considering the suggestion of the noble Viscount, Lord Hanworth. But since we are not, I am afraid there is no hope of that.

3.26 p.m.

On Question, Whether the said amendment (No. 46) shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 91.

CONTENTS
Airedale, L.	Birk, B.
Amulree, L.	Bishopston, L.
Bacon, B.	Blyton, L.
Banks, L.	Briginshaw, L.

Bruce of Donington, L.	MacLeod of Fuinary, L.
Byers, L.	Mishcon, L.
Clancarty, E.	Oram, L.
Collison, L.	Peart, L.
Crook, L.	Phillips, B.
Cudlipp, L.	Plant, L.
David, B. [Teller.]	Porritt, L.
Denington, B.	Roberthall, L.
Donaldson of Kingsbridge, L.	Rugby, L.
Ewart-Biggs, B.	Sainsbury, L.
Flowers, L.	St. Davids, V.
Gaitskell, B.	Seear, B.
Goronwy-Roberts, L.	Shinwell, L.
Hampton, L.	Sligo, M.
Hanworth, V.	Spens, L.
Henderson, L.	Stamp, L.
Houghton of Sowerby, L.	Stedman, B.
Ilchester, E.	Stewart of Alvechurch, B.
Jacques, L.	Stewart of Fulham, L.
Janner, L.	Stone, L.
John-Mackie, L.	Strauss, L.
Kearton, L.	Taylor of Mansfield, L.
Kilmarnock, L.	Underhill, L.
Leatherland, L.	Wallace of Coslany, L.
Listowel, E.	White, B.
Llewelyn-Davies of Hastoe, B.	Wigoder, L.
Lloyd of Hampstead, L.	Wootton of Abinger, B.
Loudoun, C. [Teller.]

NOT-CONTENTS
Adeane, L.	Hives, L.
Ailsa, M.	Home of the Hirsel, L.
Alexander of Tunis, E.	Howe, E.
Alport, L.	Hylton-Foster, B.
Ampthill, L.	Jessel, L.
Auckland, L.	Killearn, L.
Avon, E.	Kinnaird, L.
Barnby, L.	Lauderdale, E.
Bellwin, L.	Long, V. [Teller.]
Beloff, L.	Lucas of Chilworth, L.
Belstead, L.	Lyell, L.
Boyd-Carpenter, L.	McAlpine of Moffat, L.
Brougham and Vaux, L.	Mackay of Clashfern, L.
Caccia, L.	Macleod of Borve, B.
Cairns, E.	Mansfield, E.
Campbell of Croy, L.	Mar, C.
Clwyd, L.	Marley, L.
Cockfield, L.	Milverton, L.
Cottesloe, L.	Monk Bretton, L.
Cross, V.	Mottistone, L.
Cullen of Ashbourne, L.	Mountgarret, V.
Daventry, V.	Mowbray and Stourton, L.
Davidson, V.	Murton of Lindisfarne, L.
De Freyne, L.	Northchurch, B.
Denham, L. [Teller.]	Nunburnholme, L.
Derwent, L.	O'Neill of the Maine, L.
Donegall, M.	Orkney, E.
Duncan-Sandys, L.	Rankeillour L.
Dundee, E.	Rawlinson of Ewell, L.
Ebbisham, L.	Reay, L.
Eccles, V.	Rochdale, V.
Effingham, E.	Saint Oswald, L.
Ellenborough, L.	Sandford, L.
Elliot of Harwood, B.	Sharpies, B.
Fortescue, E.	Skelmersdale, L.
Gainford, L.	Soames, L.
Gibson-Watt, L.	Strathcarron, L.
Glenkinglas, L.	Sudeley, L.
Gormanston, V.	Trefgarne, L.
Grantchester, L.	Vaux of Harroden, L.
Gray, L.	Vivian, L.
Gridley, L.	Wakefield of Kendal, L.
Grimston of Westbury, L.	Waldegrave, E.
Hailsham of Saint Marylegone, L.	Ward of Witley, V.
	Willoughby de Broke, L.
Hawke, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.34 p.m.

Lord Skelmersdale moved Amendment No. 47: Page 63, line 19, leave out ("this section ") and insert ("subsection (7) or (9) above ").

The noble Lord said: In moving Amendment No. 47 I should like also to speak to Amendment No. 48. Both amendments will enable regulations to be made to exempt certain classes of statutory harbour undertakers from the new version of Section 42 of the Harbours Act, 1964, which is provided for by paragraph 10 of Schedule 6 to the Bill. This section applies the accounts provisions of the Companies Acts to statutory harbour undertakings, subject to such modifications and additions as the Secretary of State may prescribe by regulations, and requires copies of the accounts of statutory harbour undertakings to be sent to the Secretary of State.

The intention of these amendments is to limit the application of the new provision (and of the regulations) to harbour undertakers from whom the Secretary of State needs to have information in connection with his overall responsibilities for the ports industry—namely, those undertakers operating a port as their main business. If these amendments are approved, we propose to use the exemption power to exclude from the regulations what are called "own account under-takers ". These are undertakers who operate a harbour facility which is ancillary to their main business and used wholly or mainly for handling raw materials or goods which they manufacture for the purposes of their own business. Typical examples of "own account undertakers "are oil companies, the British Steel Corporation and the Central Electricity Generating Board. We do not consider it necessary for the Secretary of State to receive separate accounting information on these organisations' ancillary harbour operations. The accounts of the organisations concerned are, of course, already governed by the Companies Acts or by other specific legislation, and I believe—or at least I hope—your Lordships will agree that to make such organisations produce a further set of accounts dealing purely with their harbour operations would be to impose upon them an unnecessary burden.

The exemption provision may also be used to exempt very small harbour undertakers, who are already excluded from the present regulations under the existing Section 42. Again, the Secretary of State does not need detailed information under the provisions of Section 42 on these undertakings. They will of course remain subject to the requirements of their existing local enactments. I hope your Lordships will agree that these are helpful amendments, which will ensure that we do not impose unnecessary burdens on industry at a time when we are withdrawing from unnecessary and detailed involvement in the ports' affairs. I beg to move.

On Question, amendment agreed to.

Lord Skelmersdale moved Amendment No. 48:

Page 63, line 27, at end insert— ("(c) a statutory harbour undertaker of a class exempted from this section by regulations made by the Secretary of State.").

On Question, amendment agreed to.

On Question, Whether Schedule 6, as amended, shall stand part of the Bill?

3.38 p.m.

Viscount Simon

I should like to draw to your Lordships' attention a very small point on paragraph 5 of Schedule 6, which appears on page 57 of the Bill and which states: Each of the Ministers may, subject to subsection (2) of this section, by order vary the constitution of a harbour authority so far as it provides for the appointment by him of any member or members of the authority—

1. (a) so as to abolish the power of appointment (except where the power is to appoint the chairman of the authority); or
2. (b) so as to provide for the power of appointment to be exercised by such other person or persons as may be specified in the order".

An amendment to delate this paragraph was put down and discussed in the other place, but it was defeated in Committee. However, I thought it was worth drawing to your Lordships' attention because it creates a rather peculiar situation. As I understand it, the Minister already has the power under that part of the Act to produce what is called a harbour revision order to provide for an alteration in the composition of the authority controlling the harbour. In such a case there are provisions for an objection to be lodged and, if an objection is lodged and not withdrawn, for an inquiry to take place. Under paragraph 5 the Minister can alter the composition of the port authority with no provision for any objection or appeal. To the British Ports Association, which has written to me on the matter, it seems that this could be rather dangerous, because very often the body controlling the port is carefully balanced between a number of interests. If the Minister withdrew his appointments—or, still more, if he handed over his appointments to somebody else—the balance could be easily upset. One might feel that, in those circumstances, there should still be provision for objections to be made and considered and, if necessary, for an inquiry. This could be done at present without this clause by a harbour revision order under the Harbours Act.

Lord Skelmersdale

The noble Viscount, Lord Simon, referred to the appointments system and I shall try to clarify both his mind and my own mind, because I too find this a complicated subject. In fact we seem to be going through a whole series of complicated subjects, but doubtless we shall win through in the end.

The Secretary of State, together with the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales, has a variety of powers to make appointments to the boards of a number of harbour authorities in accordance with the constitutions of those authorities; so the noble Viscount was quite right. In the light of our policy to withdraw from involvement in the ports industry wherever possible, paragraph 5 of this schedule provides Ministers with the opportunity—no more than that—of withdrawing, if they so wish, from making a number of these appointments.

I should first explain the limited extent of this power. Subsection (2) of the new Section 15A of the Harbours Act 1964 excludes from its application those port authorities to which the Secretary of State appoints all the board members, excluding ex officio or co-opted members. In practice, this means that the Secretary of State's powers of appointment to the major public trust ports, such as Dover, London, Forth and Tyne, are unaffected by the new power.

During the last decade, the major public trust ports have undergone a major programme of reconstitution, with the Secretary of State appointing board members on an independent and unbiased basis, for their personal qualities and expertise, rather than as, prior to reconstitution, representatives of sectional interests.

This programme of reconstitution is generally accepted as having led to a much improved quality of board membership and of improved port performance. The Secretary of State recognises the value of these appointments and will, of course, continue to make appointments to the major commercial public trust ports, so that the independent and "non-representative "nature of the board membership is maintained.

The appointments covered by the power are, on the other hand, either those to the smaller public trust ports, to which the Secretary of State appoints, or those made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales to a number of fishery harbours. I know that the British Ports Association believe that ministerial appointments provide a means of ensuring a proper balance and an element of independence in the composition of authorities. We accept, as I have already said, that this is certainly true in the case of the major public trust ports. But at the ports covered by the power, although the proportion of ministerial appointments varies from port to port, the maximum number is only four and the number is usually only one or two.

This is, in our view, too small a number in practice to have any significant balancing effect. For example, the Secretary of State appoints only two of the 27 members of the Teignmouth Harbour Commission and only one of the 19 members of the Cowes Harbour Commission. At harbours such as these, with localised interests, the kind of board member required is somebody with local knowledge of the area and the harbour, and the harbour authorities themselves are in a much better position than a Minister to identify potential members. I hope that, with those explanations and assurances, the noble Viscount will now be happy with the schedule.

Viscount Simon

I am greatly obliged to the noble Lord. I think I am fairly happy with the schedule, but this objection was brought to my notice by the British Ports Association, who know much more about it than I do, and they are not happy. But I shall have to leave it there.

Schedule 6, as amended, agreed to.

Clause 19 [Disqualification for repeated offences]:

3.44 p.m.

Lord Houghton of Sowerby moved Amendment No. 49: Page 14, line 29, after first ("of") insert ("penalty").

The noble Lord said: We now come to Part IV of the Bill which deals with road safety. Your Lordships will remember that on Second Reading I suggested that the Government had lost a valuable opportunity of making a big impact on the question of road safety, by putting all these proposals in a Bill that has got mixed up with harbour authorities and various other institutions. The amendment which I now move follows up that criticism, which was not only in general but in particular, regarding the psychology of the points system. I move Amendment No. 49 to insert the word "penalty" before the word "points" and this follows in Amendments Nos. 50, 51, 52, 53, 55, 58 and, in the schedule, 60 and 61.

"Penalty" all along the line is what I have set out to have. It is short, it is simple and it is serious. If we are going to use the points system—and I shall not indulge in any major criticism of it in this amendment—we ought to introduce a suitable note of statutory displeasure in respect of people convicted of certain serious offences and not disqualified on account of them alone, but who accumulate penalties which, when they reach the prescribed total, lead to automatic disqualification. So these are serious matters.

The word "points" is used in many different connections, most of them meritorious, It is strange, and probably unsuitable, to use the word "points" in connection with serious road and related motoring offences, when we want these points to be shown and understood to be a black mark. I made the suggestion on Second Reading that instead of "points" we ought to call them "black marks ". But I do not want to go too close to the classroom; Clause 19 is close enough, anyway. So I thought that a better idea was to make them penalty points, which made it much easier for the compositor to amend the Bill and would probably be more suitable than what I suggested earlier.

It is true that, in Clause 19 and in Schedule 7 on page 65, there is reference to "points to be endorsed" rather than "awarded". That is one up, if they are to be endorsed. But, although I concede that, I feel that the whole idea of the points system introduces the technique of the flower show, the kind of score board where you get the cup for the best in the show, if you have enough points. As I say, points are usually meritorious; you win them or gain them and you are given prizes for them. But in this context you go down the Swanee in due season if you get too many points. That seems to be the mistaken psychology of this system. That is why I think the only way in which we can rescue this subject from a certain amount of flippancy and insignificance is to put the word "penalty" there.

I sincerely hope that your Lordships will take this matter—I nearly said "point"—seriously. I believe that the totting up system, by itself, is evidence of our leniency towards offences in this varied field of delinquency. Indeed, on this subject nearly all Governments are more or less wet—they really are. We have not set out to control the motor-car as many other countries have. Why? I believe that there are probably three reasons why. The first is that the history, the invention and the development of the motor vehicle in this country has been associated with wealth, class, aristocratic position and bearing.

The car began in this country not so much as a utility vehicle but as a pleasure vehicle; it was what you got pleasure out of. You did not need it in the same way as motor transport across the prairies of the United States was needed. We had a very good railway system, the best in the world at the time, so the motor-car was not invented to cover wide open spaces and long distances. You went out for little joy rides on a Sunday afternoon. Of course, all that has been lost over the years, though I believe that in this country the motor-car is still associated with a degree of arrogance and privilege.

If I were to sit down on a stool in the middle of the highway I should soon be removed; the police would gather around and carry me bodily away. But if I were to walk along the pavement and I saw a huge lorry which wanted to park in a place where parking is forbidden, which mounted the pavement a few yards, and in some cases only a few feet away from me, and claimed the right to remain on the footwalk and restrict the passage of pedestrians while the driver got out of the lorry and went across to a neighbouring café for a meal, that would be overlooked. That is how you are treated by the motor vehicle. No pedestrian dare treat a motorist in that way. Traffic wardens are resented. There is hostility towards the police. Pedestrians are regarded as a nuisance, especially when crossing at their appointed places. Motor drivers and crowds are the two menacing indications of over-population and we do not know what to do about either of them. They are both hard to control.

I admit the difficulties. I was not born yesterday. We see all these problems around us and we must admit that the number and variety of motoring offences provide a baffling problem of enforcement and treatment. Schedule 7 lists nearly 30 of them, from being drunk when driving to carrying a passenger on a motorcycle. The sheer numbers involved, the size of the problem of enforcement, is obvious both in terms of police manpower and the capacity of the courts to cope. This suggested system of penalties, points, will reduce to some extent the congestion in the courts, but at the same time I believe that it will reduce the significance of the offence from the point of view of social judgment. The motorist is almost ungovernable; he is the nation's most dangerous killer, but we treat him all the time with a velvet glove.

Another reason, probably, why we are lenient, is because, not to put too fine a point upon it, we are legislating for ourselves. We are all motorists now. When making laws about burglars and footpads and the purveyors of pornography we do not say to our-selves, "But for the grace of God, there go I ". But when a motoring offence is involved we realise that within a couple of hours from now we might be deeply and personally involved. I wonder whether we are a little more lighthanded when dealing with the motoring offence because we are all in it?

It is time for us to ignore the fact that we ourselves are likely to fall into error, and to lay down the law for ourselves as firmly as we should if we were all pedestrians, non-motorists, and regarded the motor-car as one of the enemies of society, as I do. What other explanation can we find for our indulgence towards motoring offenders? When we are lenient in fixing penalties the courts are often lenient in imposing them. We read quite frequently of unbelievably light sentences on motorists who have been convicted of some very grave offences. I know that the points system is of itself an attempt to get greater uniformity in the treatment of cases by the courts, to get some kind of national discipline incorporated into the law. I think this is to the good. Benches are notoriously unreliable when dealing with motoring offences.

We ought to be ready to do a simple job like this, to put the word "penalty" in front of "points". So far as this amendment is concerned it does not propose to amend anything else. I have gone rather wider than the terms of the amendment because it is part of the huge social problem of how to keep life tolerably free from the enslavement and the tyranny of the motor-car. So my simple case is that when trying to weave the many strands of misbehaviour on the road into an acceptable schedule of penalties, we should call them penalties and should never let people forget it. These points in the clause and the schedule are penalty points, and I move that we say so in the Bill.

Viscount Hanworth

I should like to support this amendment, but if I had listened to most of the speech of the noble Lord, Lord Houghton of Sowerby, I should have taken a completely different point of view. No, the motorist is persecuted. There is still the red flag mentality. Many of us think that the penalties are far too great for relatively innocent offences which are not in any way deliberate but purely accidental. Yes, punish those who drive deliberately dangerously. However, to make the allegations which have just been made about the motorist is the greatest mistake. The tendency has been far otherwise. Governments, faced with high accident rates, have tended to produce more and more legislation as the cheapest way of dealing with the situation and showing that they were doing something. We really must set the offences of the motorist, which sometimes are purely technical, against the punishment handed out to other people. If you hit an old lady over the head, very often you will simply be told not to do it again, or you will be put on probation. I know that the points system is probation, but there are other cases where motorists are punished far more harshly than those who have deliberately committed violence.

Baroness Phillips

I should like to support the noble Viscount who has just spoken. I can assure my noble friend that I shall support his amendment but, equally, not for the reasons which he advanced. I am a non-motorist and a magistrate. I resent the constant suggestion which is made in this House, that magistrates are ill-informed and irresponsible. Today we are told that they are unreliable. I think we have made the motorist the villain in our society. First we persuade this unfortunate person to buy a car because it helps the economy, and then we tell him every time he uses it either that he is polluting the atmosphere or that he is using energy, despite the fact that he is paying for it. Let him park on a double yellow line and you will see what a villain he is.

I say to my noble friend Lord Houghton of Sowerby, that if he were to sit in a London court for a day he would find that it is far cheaper to hit somebody over the head than to park on a double yellow line. This does not make sense to me. I think that we are very harsh on the motorist in this country. But that does not mean that I think this amendment is not right. We should state exactly what these marks are. They are penalties, they are not points. So I say to the noble Lord, Lord Houghton, that I think, far from being easy on the motorist in society, we tend to be rather harsh on him—and I speak as a non-motorist. There is merit in this amendment, however, and I should like to support my noble friend in it.

Earl Howe

I always thought that the noble Lord, Lord Houghton, whom I respect very much, was a peaceful man, going to present his prizes at the flower shows. Instead of that, to see him bouncing about in fury against the poor harassed motorist has really worried me. Does he not realise that from time to time a pedestrian is just as responsible for the death or injury of a motorist as the motorist himself?

Lord Underhill

Just before the Minister replies, if I may speak on the amendment that is on the Marshalled List, what my noble friend Lord Houghton of Sowerby has moved is surely something that we ought all to accept. Anything that draws attention to the seriousness of this problem is well worthy of our support, and I would ask your Lordships to support it on the word that he wants inserted and nothing else.

Lord Bellwin

When the noble Lord, Lord Houghton, was speaking he managed almost to convince me that I was wrong in wanting to support him, too. It seemed to me that he was doing fine with the amendment; then he nearly, but not quite, talked me out of it. In what I say now I am sure the noble Lord will agree with me that we are also talking about Amendments Nos. 50, 51, 52, 53, 55, 58, 60 and 61.

There is merit in the noble Lord's argument about the point. I think we would accept what seems to be the feeling of the Committee, that we should accept this amendment. It is arguable and there will be minor matters that will have to be rectified in so switching. We shall have to make one or two changes in other places, but I think we can easily do that on Report. So I say again, I refuse to be talked out of accepting what the noble Lord suggested. We accept his amendment.

Lord Houghton of Sowerby

I am covered with shame. I introduced a little drama into the matter in the hope of alerting your Lordships to the gravity of the situation, but I see that I should have done better to stick to the simple word "penalty" without enlarging on the whole of the background. So I accept the rebuke of the noble Earl, Lord Howe, and of my noble friend Lady Phillips, and, while full of contrition, I am grateful to the noble Lord, Lord Bellwin.

On Question, amendment agreed to.

Lord Houghton of Sowerby moved Amendment No. 50: Page 14, line 34, after first ("of") insert ("penalty").

On Question, amendment agreed to.

4.4 p.m.

Baroness Stedman moved Amendment No. 50A: Page 14, line 35, leave out from ("be") to end of line 37 and insert ("shown, and any excess points shall be carried forward when the licence is returned after disqualification").

The noble Baroness said: I should like to move this amendment and at the same time speak to Amendments Nos. 51A and 55A, which are in a sense consequential upon the first one. I had assumed that the provisions in this part of the Bill were to apply sanctions to drivers who were guilty of repeated serious traffic offences, but in my view the Bill is not as effective as it should be if my assumption about what it is intended to do is the correct one. Clause 19(1) as it stands proposes that, once a period of disqualification has been imposed under the points system, the points cannot be counted again, but surely the purpose of the points system is to influence and perhaps to deter the persistent offender. In my view—and, in this sense at least, my view is shared by the AA—to wipe the slate clean appears to be quite contrary to that objective. The amendment would enable a licence to be returned after a disqualification, showing on it the number of valid points equal to the balance, if any, over the 12 which caused the disqualification. I believe that this retention of excess points after a disqualification would be a simple way of applying a sanction to the persistent offender.

I know that the AA believe that a case can be made for not wiping the slate clean of points once a disqualification has been imposed. Amendments 51A and 55A follow the same line of thought. The court is allowed discretion to mitigate the normal consequences on reaching 12 points by not ordering a disqualification in certain exceptions, but surely if a driver accumulates the maximum permitted number of points in three years, it must indicate a persistently careless or anti-social driver. In my view, the points system will only be fully effective in influencing driving behaviour if, when the maximum permitted level is reached, disqualification for a minimum period is automatically imposed by the court. Again, this view is also shared by the AA.

Part IV of this Bill is about road safety. It is about people's obligations to each other when they are driving motor vehicles. Persistent offenders must be given a salutary lesson, and that can best be achieved by carrying over the excess points accrued as a consequence of previous convictions.

I shall no doubt be told that my amendments are defective in their drafting, and I happily accept that that may well be so, but I contend that the disqualification should stand for the 12 points with no discretion, and, in the same vein, I suggest that if this is accepted there will then be no need for subsection (6). I beg to move.

Lord Underhill

It will be noticed that Amendment No. 50A, which has been moved by the noble Baroness, Lady Stedman, is on the same principle as Amendment No. 54, which is in my name. There is a difference, in so far as Amendment No. 54 proposes that, where any points are in excess of 12, they should be carried forward and added to the points in respect of any other offence committed within a period of three years from the date when the court first considered the original offence. There is that difference from the amendment moved by the noble Baroness, but I support the general principle in this amendment.

It may be argued by some noble Lords that wiping the slate clean is in accord with a generally accepted principle on other matters that once an offender has paid the price of his misdemeanour that should finish the matter, but surely this cannot hold true in the case of a number of serious motoring offences with which we are dealing in this particular clause. One of the points of the points system is surely, as the noble Baroness, Lady Stedman, said,—and not only the points system but the whole complex of road safety measures—is surely to have some influence, if at all possible, on the habitual offender, and, if the residue of points over and above the 12 is wiped clean, then surely we are diminishing the possible effect upon the habitual offender.

Perhaps I may give a possible example. A motorist has accumulated 10 points and is then convicted of an offence of, say, reckless driving, which would give a penalty of another 10 points. Surely it cannot be justified that, with a total of 20 points when that motorist is given a period of disqualification, the eight points in excess of the 12 required shall be wiped clean. Surely that cannot possibly be justified.

I find unconvincing the reasons given by the Secretary of State for not following the principle of not wiping the slate clean. These were, first, that the courts will take into consideration the number of points over 12 when determining the period of disqualification to be imposed, and, secondly, that the persistent offender will also be deterred by subsection (4), which provides that a motorist disqualified twice in three years would get a minimum of 12 months instead of six, and that if that happens more than twice the minimum would be two years. I appreciate these arguments, but they in no way invalidate the amendment put forward by the noble Baroness or my amendment. What both amendments are seeking to do is to say that following disqualification any points above 12 shall not be expunged but shall be carried forward and added to any other offence. That, I believe, is in the spirit of what the public would request. It is not a vindicative proposal; it is a common sense proposal, that a person should not get away with additional points that shoul be added to any subsequent offence he may be convicted of.

Lord Lucas a Chilworth

One has a certain amount of sympathy with both these amendments and I suppose to some extent they impinge a little on my Amendment No. 52A. But it would seem on the face of it grossly unfair that a person should be punished twice, and perhaps twice for a minimal offence. If one had, say, 9 to 10 points already amassed, and then one commits a purely technical offence—that of failing to report an accident, carrying, I think, three points—then you are over and disqualification may apply. Suppose you are disqualified for X period, you start off again with a small number of points, one point in this instance for what is, after all, a technical offence rather than the kind of offence the noble Baroness was speaking about, persistent anti-social behaviour such as speeding and so on. I am not totally satisfied that were an offender to go over, to, say, 16 or 18 points, magistrates through-out the country would necessarily come to the same conclusion as to the degree of severity of the disqualification; so in some cases although one magistrate may go for a six months' disqualification because you are eight points over, or something of that nature, another may go for 12 months. It would seem unfair that in some parts of the country a residue of past misbehaviour is left behind.

On the other hand, surely if one has a record of minor infringements all of which make a fair accumulation towards the latter end, and one has a conviction for, let us say reckless driving or driving under the influence of drink, which in itself would carry 10 points, and one goes all the way then perhaps to 20 points, it would be wrong that the most serious offence should be penalised in a similar manner to that of a technical offence.

I am not quite sure at this stage whether it would be prudent for me to move my Amendment No. 52A, because it is in a way concerning the same thing, although in the reverse; I am suggesting in my amendment, on the one hand, that a disqualification should not mean a benefit. So having given these views on the general idea of totting up and carrying forward, I think I should say to your Lordships that I may well not move my own amendment in the light of what my noble and learned friend has to say in response to this amendment.

Viscount Cross

If I may, I should like to say a few words about Amendment No. 54 in the name of the noble Lord, Lord Underhill, and I should also like to speak to the amendment moved by the noble Baroness, Lady Stedman. I do not agree with either of these amendments. I do not agree with them because I think they do, to a degree, tend to perpetuate the present system. I do not know of any other sphere of life where the offender is punished for an offence in the first instance and then continues to be punished for many years after that for the same offence. I think the present system is rather unfair. I think the public think it unfair, and I hope to show quite briefly why it is unfair.

May I take the case of a driver who incurs two 30 miles-an-hour speed limit convictions and one 40 miles-an-hour speed limit conviction in a period of three years. That sounds extremely reprehensible, and of course it is, but in the pace and density of modern traffic it is quite an easy thing to do, and to call such a driver a persistent offender, as if he were some sort of criminal, is, I believe, totally wrong. At any rate, such a driver is fined, quite rightly, on each occasion, his licence is endorsed on each occasion, and after the third conviction he is disqualified. Disqualification is a very dire penalty indeed, especially for someone living in the country where buses are few and far between.

Furthermore, drivers are proud to have a clean licence, but under the present system many years must pass before the driver can get back to a clean licence. Let us suppose after a period of four years have elapsed the driver in question manages to get his original endorsement, for the first 30 miles-an-hour offence, removed from his licence; if he should at that point incur one further endorsement penalty, with two endorsements still on his licence he would be immediately disqualified again. To carry points over, as proposed in the amendment, is perpetuating the present, I think, very unsatisfactory system. I welcome the new points penalty system and the Secretary of State's new clean sheet proposals. I believe they are fair and just and that the public will respond to them.

Earl Fortescue

I would also like to oppose this amendment. It is considerably more severe than the present totting up procedure, and to my way of thinking far too severe. At present, if a driver commits a number of endorsable offences as part of one incident, for totting up purposes all those offences only count as one endorsement. Under this Amendment, No. 50A, which I only saw this afternoon, each endorsable offence which is part of one incident would count, and all the points for those offences in the one incident would be added together. For this reason it might well be that because of one incident the driver would be either disqualified under the new totting up procedure, or he would be within a point or two of being so disqualified.

I, too, am very much in favour of wiping the slate clean after a period of disqualification. If the points that would be carried forward are very numerous, I suggest that the court dealing with the case under the totting up procedure might well consider disqualifying for more than the minimum period. But please let the driver start off again, after his disqualification, with a clean slate.

Lord Mishcon

There have been at least two speeches made against the amendment and I should like to intervene briefly in order that the arguments for the amendment should not be forgotten. I do not intend to repeat those arguments. I want to answer, if I may, from my point of view the arguments that have been put forward. Always one hears the case of the person who may be suffering an injustice—the case of the driver, very properly and fairly put, who has three endorsable offences connected with one really substantial offence. Since there will have to be points awarded in respect of each one, the point is made that it would be unjust for the carry-forward to take place when, indeed, at present the law is that if there be but one incident and there is more than one endorsable offence connected with it, it counts only as one conviction for the purpose of the totting-up procedure.

The argument is a logical one. If one puts it another way and says that there are bad cases where it is only just that a man who has totted up an extraordinarily unsocial number of points, if I may put it that way, should suffer for it, and if one says that there are cases where the person has had a great deal of misfortune in totting up a number of points, one is left with the situation, if one is trying to safeguard the public and at the same time do justice, that there should be a carry-over of points, but that the discretion of the court when disqualification is to be dealt with should be a very complete discretion without—and we shall be talking about this later when we deal with subsection (6)—imposing unrealistic and not very complimentary restrictions on that discretion.

So is not the logical thing to say that there should be a carry-over, but that when disqualification is dealt with the magistrates should always have a very full note of what applications there are for disqualification and why it is they have allowed them or have not allowed them so that any court thereafter may take a proper and complete view of the whole situation and may say in one case, "Although there has been a carry-over here we can see that there has been hardship and we can see that from the magistrates' own reasoning and in those circumstances we shall not disqualify" or "We shall disqualify for a short period".

On the other hand, the courts may say, "we have seen the totting up of points and the excess carry-over. This is a very bad case and we are looking at the whole situation in regard to the previous disqualification. We have seen the magistrates' reasons for it and what points were advanced on behalf of the driver. We have come to the conclusion in this case that it is very proper to take into account the excess that there was on the previous disqualification and that ought to be carried forward".

It is wrong to legislate for the special case. It is wrong to legislate for hardship. It is equally wrong to legislate so that one excludes hardship. Therefore, the scene ought to be kept open in my submission with magistrates keeping a very clear note as to why they have ordered a disqualification and of the factors that they have taken into account. There should be the carry-over, but the magistrates should have the right, on reviewing the whole of the circumstances, to say, "We shall ignore part of this carry-over" or "all of this carry-over", or "none of this carry-over, because on the facts and in the circumstances it would be right" or "wrong for us to do so".

Lord Harmar-Nicholls

I think that that raises a point that we ought to take into account. I believe that these two amendments are legislating for special cases—the very opposite to what the noble Lord has said he does not want to happen. I think that he is right: we ought not to legislate for special cases. I do not think that we ought here to concern ourselves too much with how the magistrates who hear all of the case and all the details connected with it ought to fulfilltheir functions. I have sat as a magistrate for 30 years and in these sorts of cases the magistrates have all the powers they need to deal with what they think are cases that ought to be hardly dealt with and they also have the discretion to be lenient where they think the circumstances are such that it warrants it.

I believe that we should approach this part of the Bill not from the point of view of how we can punish or fine but on the basis of how we can deter motorists from becoming a danger to the general public. I rather feel that, at the end of the day, these two amendments concentrate on making certain that somebody can be fined or be more hardly dealt with by carrying forward past misdemeanours.

The point that I should like to put to your Lordships from the point of view of the ordinary motorist is the following: which is the greatest urge to be a careful driver? I should have thought that the greatest urge was to keep a clean licence. I believe that one thing that causes people to take special care, with all of the problems that one has to face when driving a motor car, is that they do not want their clean licence interfered with. I believe that if we are—as I hope we shall—to get to the point where, after a certain period, a motorist can have again his clean licence, I believe that he is more likely to be a better driver in order to keep it a clean licence; whereas if we have the carry-over where we carry over the besmirchment (if you like?) of not having been a 100 per cent. conscientious citizen as a driver, I believe that it is more likely to cause him not to take the same amount of care. The noble Lord shows a little astonishment at that. In recent years we have made so many things law-breaking that used not to be law-breaking and we have seen people who used to be citizens of some high repute brought in front of the magistrates for some technical offence. I have circumstances in mind to do with the rationing period when people who would not have thought of doing anything that would bring them within the purview of the magistrates court have been found guilty of a technical matter to do with this or that. Once that has happened all of the things that cause people not to want to appear in front of magistrates somehow disappear. The same considerations are here. The maintenance of a clean licence is perhaps the greatest deterrent to people taking risks that will make them unpleasant as far as the rest of the public are concerned.

The Lord Advocate (Lord Mackay of Clashfern)

We have had a fairly full discussion of matters which have perhaps not been entirely covered by the first amendment which the noble Baroness, Lady Stedman, moved. It might be useful if I explained that in our understanding the purpose of the existing totting up system and the way in which we are now seeking to improve it, is to discourage repeat offences. In other words, the emphasis is on acting as a deterrent, as my noble friend Lord Harmar-Nicholls pointed out. If an offence or a group of offences committed on the same occasion are not serious enough to result in immediate disqualification, then the licence is endorsed as a warning.

I think that it is important to remember that the endorsement of penalty points—if I can take up the results of what has gone before—is only to occur if disqualification is not itself imposed in respect of that offence. If the court decides that this is not a case for disqualification immediately, then it will endorse penalty points on the accused's licence as a warning to him and he will know that if he continues to flout the safety laws he will sooner or later be disqualified.

This is why at present, even though a number of offences may have been committed on the same occasion—for example, a person may have been speeding and then be found to have a defective tyre on his car—only one offence will count for totting-up purposes. Clause 19(1) therefore specifies that only points for this most serious offence of any committed on the same occasion will be endorsed on the licence. It would be wrong to make the penalty all the points that could be given for one occasion, which may indeed be more than 12. I can appreciate that it may be that the offence, or series of offences occurring as part of the one incident, will be such that the court thinks that it should not pass on that basis. Of course, in that case the court has the remedy of disqualification. Perhaps I may take up the point raised by the noble Lord, Lord Mishcon. It certainly seems to me that it is far better that that should he discussed and diposed of by a court which is in full knowledge of these facts, rather than some years later a court should try to read a record, however accurate, to obtain a sense of what occurred.

This brings me to the second matter; namely, that of restricting the "wipe clean" provisions. In future, if a person is disqualified on the basis of what we propose because he has accumulated more than 12 points, then the number in excess of 12 will be reflected by an increased period of disqualification. Surely, if one reaches a stage where disqualification is to be imposed, one should take account of all the circumstances, including all the points that might have been awarded or endorsed at that stage. Surely it is much better to do it now, to do it fully, and to do it when the facts are fresh, than to try to store a record for some time, carrying it over to the future.

Therefore, with the greatest respect for the argument which the noble Baroness and those who support her have advanced, we would strongly submit that what we propose is better, even from the point of view that they have put forward; of course, the point that my noble friend made about having the restored incentive of a clean licence and trying to keep it clean is an important additional argument for dealing with the whole matter at the first stage. Carry-over is just a postponement of, we would say, true dealing with the position.

There are, of course, other provisions, and I would remind your Lordships of the provisions of Clause 19(4) to discourage persistent offenders; that is completely apart from the point that the court will have a record of what has occurred to the accused driver and of the nature of other parts of the penalty which have been imposed, because of course the fine that is imposed will also reflect the seriousness of the matter. Therefore, in our view—and I should like to express my appreciation of the support which has come from my noble friends Lord Cross and Lord Fortescue—I submit to your Lordships that, on balance, our proposals meet the problem better than those suggested in this amendment. I hope that the noble Baroness, Lady Stedman, will feel persuaded to accept that position.

Baroness Stedman

I am grateful to the noble and learned Lord for the very full reply that he has given. The noble Lord, Lord Harmar-Nicholls, and I have been on opposite sides of the fence for something like 30 years. We are on opposite sides again today because, while he says that the incentive to keep a clean licence would be a deterrent, I would argue that it might be an even greater deterrent if, after disqualification, one had back a licence which had a few points on it, in order not to build up to another disqualification from that situation. I think that one can argue both ways, as the noble Lord and I have done for many years on many subjects.

I am grateful to the noble Lord, Lord Underhill, who spoke to his amendment, to which we shall come later. I should be happy to withdraw my set of amendments at this stage, but will give my support to the noble Lord, Lord Underhill, if he presses his. I beg to leave withdraw the amendment.

Amendment, by leave, withdrawn.

4.35 p.m.

Lord Houghton of Sowerby moved Amendment No. 51: Page 14, line 39, after ("the") insert ("penalty").

On Question, amendment agreed to.

[Amendment No. 51A not, moved.]

Lord Houghton of Sowerby moved Amendment No. 52: Page 15, line 7, after first ("The") insert ("penalty").

On Question, amendment agreed to.

Lord Lucas of Chilworth

had given notice of his intention to move Amendment No. 52A: Page 15, leave out lines 15 and 16 and insert ("under sub-section (2)"). The noble Lord said: In view of the earlier discussions, I take it that at this stage my noble and learned friend on the Front Bench is more inclined to the view of one punishment and one punishment alone, with no carry-over. I think that, having heard him, I would subscribe to that view. Therefore, although I had something of a reverse position in this amendment to that of the noble Baroness, Lady Stedman, and also the reverse position to that contained in the amendment of the noble Lord, Lord Underhill, which he will probably move, I think that it would be better if I were not to move my amendment at this stage.

[Amendment No 52A not moved.]

Lord Houghton of Sowerby moved Amendment No. 53: Page 15, line 18, after ("the") insert ("penalty").

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 54:

Page 15, line 19, at end insert— ("( ) Where the position of a person has been considered by a court in accordance with the provisions of subsection (2) hereof, any points which are in excess of twelve shall be carried forward and added to the points in respect of any other offence committed within a period of three years from the date of the consideration of the case by the court.").

The noble Lord said: I did, in effect, speak on this amendment when I spoke on the previous amendment, but perhaps I could say just a few further words in support of it. From listening to some of the speeches, one would imagine that this amendment sought to be harsh on motorists. In fact my amendment has the fullest support of the Automobile Association, which believes that we should not have a policy of wiping the slate clean. I would echo what has already been said by the noble Baroness, Lady Stedman, that what surely would affect a motorist, and what surely would affect me, is the fear of another disqualification. That is what would worry me most of all.

Therefore, Amendment No. 54 is really aimed at trying to influence the habitual offender. That is what the amendment seeks to do. The difference between this amendment and the amendment moved by the noble Baroness, Lady Stedman—Amendment No. 50A—is that my amendment seeks to limit the carry-over for a period of three years. I am wondering whether that has any effect on the Government, and whether or not they will accept that we are trying to deal with the habitual offender, and that we are putting forward an amendment which has the fullest support of the large motoring organisation, the Automobile Association. I beg to move.

Lord Mishcon

I rise only so that, for the convenience of the Committee, all the arguments can be dealt with at once, instead of us popping up one after the other to put forward, with great pride, our separate arguments. I listened to the noble and learned Lord the Lord Advocate with the care that one always listens to him, because he speaks most carefully and he has behind him a very substantial reputation in my own profession. I failed on this occasion to catch the full forcefulness of his argument by virtue of the very position that the Government are taking up in regard to what can be considered when there is an application for disqualification. I make the point now so that I do not bore the Committee with too much repetition when we come to consider subsection (6).

Your Lordships will remember that the main point made by the noble and learned Lord was that the time to consider the whole question of how points have been awarded in the past, and so on, is when the application for disqualification is dealt with. I could not agree with him more. But, if your Lordships will look at subsection (6), this is what the Bill as it now reads says. It says in subsection (2): unless the court is satisfied,— —that is, on the question of disqualification— having regard to all the circumstances not excluded by sub-section (6), that there are grounds for mitigating the normal consequences of the conviction". So it is pertinent to look at what is excluded at the moment from the magistrates' mind and withdrawn from their discretion. If you look at subsection (6): No account is to be taken under subsection (2) of—

1. (a) any circumstances that are alleged to make the offence or any of the offences not a serious one;
2. (b) hardship, other than exceptional hardship; or
3. (c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a short period or not ordering him to be disqualified".

That means that the Bill as drawn does not allow the court, when dealing with the question of disqualification, to take into account whether any offence which previously carried some points that go to make up the 12 was, or was not, a serious offence; was, or was not, one occasioned by hardship—and you can only take into account serious hardship. I am not going to take your Lordships into the debate on that—that will follow hereafter. However, the logic of what the noble and learned Lord said escapes me completely, for he made an answer to the previous debate the whole basis of which was; "Don't worry. Surely the court that ought to be considering all this is the court which deals with the disqualification. They will have all the facts before them. They will be able to ascertain whether really the accumulation of points previously amounted to something serious or not serious, or whether hardship was involved or not involved ".

I repeat, these matters are excluded as the Bill now stands—in my judgment quite wrongly—from the whole vision of the magistrates when they are looking at the record in front of them. So, because of the illogical situation—most unusually for him—put before the Committee by the noble and learned Lord I must, of necessity, bring this to the Committee's attention because, obviously, if a vote is to be taken and your Lordships have no politics in your minds on this—anybody who finds politics in the points system and whether or not a driver is, or is not, to be disqualified must belong to an extreme group which is not represented, by the grace of God, in your Lordships' House—I say that, exercising proper judgment as legislators, either subsection (6) has to go or the noble and learned Lord's argument has to go. We cannot have both.

4.45 p.m.

Lord Mackay of Clashfern

My noble friend Lord Bellwin is going to deal with this amendment in accordance with the allotment we arranged before, but I cannot allow what the noble Lord, Lord Mishcon, has said to pass without some comment. What I was talking about on the last occasion was the question of whether a residue of points should be held over for the totting up business. The subsection to which the noble Lord referred deals with the question of whether at a certain stage one is bound to disqualify. My argument dealt with a situation in which the court, having disqualified, felt they should wipe the slate clean. Of course, in connection with the amount of disqualification, the length and period of disqualification, the matter is different. Subsection (6) relates to the obligation on the court to order disqualification—unless a very limited exception is made out—compulsorily once the 12 points have been reached.

Lord Mishcon

I will not weary the Committee, and I promise not to repeat this point again, but could the noble and learned Lord deal with this point to save me repeating it? On the application for disqualification, the noble and learned Lord is saying that that is the time when the court has all the facts before it and it should take into account the whole history of how the 12, or excess of 12, points have been accumulated. I am saying—and the noble and learned Lord has not answered this—that his argument is wrong, false, and misleading, but through no intention of his whatsoever because nobody would ever accuse the noble and learned Lord of any such behaviour; it is purely inadvertent. However, the Committee is being misled because the court under the wording of subsection (6) cannot go into the question of whether previous points have accumulated through a serious or a not serious offence; or whether a previous disqualification has taken place by virtue of serious or not serious offences; or whether or not hardship has been involved at all. If the noble and learned Lord can show that I am wrong on that I shall wear a penitent's gown of white and apologise to him, but if I am not wrong would he please deal with the argument.

Lord Mackay of Clashfern

In anticipation of that brilliant prospect, may I point out that the noble Lord is treating subsection (6) as if it covers the whole scope of what is open to the court to do once the 12 points have been arrived at. What subsection (2) does is to limit the grounds on which the court could disqualify for less than the minimum period, or not at all. What I am pointing out is that if the total number of points is more than 12 that might well be a ground for making the disqualification more than the minimum, and that is the issue about carry-over as I see it. I do not know whether I am going to see the white or not.

Lord Bellwin

I am tempted to say, "Can anyone join in?" But having listened carefully I do not think that I particularly wish to do so. May I say first to the noble Lord, Lord Underhill, that this amendment is not, as he claims, different from that of the noble Baroness, Lady Stedman, in that it would apply only for three years. This is already the case by virtue of Clause 19(3). I think we have heard this matter debated at some length. I want to say first that it is not the intention under the proposed system that a convicted driver should escape any more lightly than hitherto. Courts will be able to, and should, take account of all the circumstances in deciding whether to impose more than the statutory minimum period of disqualification. And the fact that a driver might have more than 12 points would of course be a very material factor to take into account.

The real question is not whether a driver is to get off more lightly under one system or the other. It is whether to get his punishment over all in one go or whether to keep a part of it hanging over him in the future. We believe that the former is the better not only in itself but as an encouragement for a person to improve his standard of driving in the future. The present system, which the noble Lord's amendment is designed to perpetuate, could induce a feeling of some hopelessness. It is rather like a treadmill from which it is virtually impossible to get off at any time. There is always a discretion to disqualify. I myself, like many other noble Lords, have been involved for many years in making decisions of that kind from time to time. We believe that the new system is both more equitable and an encouragement to better driving. It is for these reasons, plus those expressed by my noble and learned friend the Lord Advocate that I say that we would not want to accept this amendment.

Lord Underhill

It was because we were looking to the future that we proposed the amendment. There is obviously a complete difference of approach between the two sides of the Committee on this issue. One view is that one should get the punishment over with straight away and that that will stop the person committing another offence later. The other, our view, is that if some points are carried over, that will tend to make the person look to the future. In view of the statements made by the two Ministers, the best thing I can do is to study carefully in Hansard what they said to see whether the matter should be raised, either in its present form or in another way, on Report; and meantime I beg leave to withdraw amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 55: Page 15, line 28, after ("which") insert ("penalty").

On Question, amendment agreed to.

[Amendment No. 55A not moved.]

4.52 p.m.

Lord Mishcon moved Amendment No. 46: Page 15, line 41, leave out paragraph (a).

The noble Lord said: We return to the fray, I hope at not too great a length. Much has been made of the discretion that should be left to magistrates and the experience which they undoubtedly have. I recognise that one good reason for the points system is that we should have a degree of uniformity. But we must not forget that injustices could be perpetrated as a result of the fixed points system. I shall not in any way argue against such a system; that is not the purpose of my addressing the Committee at this stage. My purpose is to draw your Lordships' attention to the fact that the points system will be fixed and that, except in a couple of cases, if one looks at Schedule 7, no discretion will be left to magistrates.

This is a very serious position and before noble Lords indulge, if I may say so with respect, in a more holy than thou attitude, I would remind the Committee that most of us are drivers on the road and that most of us therefore, whether we acknowledge it it not, have been guilty at some time of breaches of the Road Traffic Act. Therefore, without pointing a finger at the other person on the road, let us for a moment think in terms which might selfishly be in protection of each and every one of us, or possibly (if your Lordships care to be more objective and unselfish) in protection of those who are using the road day in and day out, and often night in and night out, because it is their calling or profession to be drivers.

I draw the Committee's attention to Schedule 7, and I will go through an example of how unjustly the exclusions might operate, apart from the fact that I have a principle which says, "Do not remove from the courts by statute the full discretion that you give them. Do not give them half a discretion, because if you do in the end you will either have courts which will somehow or other worm their way into the half you have not allowed them or you will stultify more honest or strict courts into perpetrating an injustice". I beg noble Lords to bear that thought in mind when looking at the first item in Part II of Schedule 7, which says, "Reckless driving".

The enforced number of points is 10. I am sure your Lordships will immediately say, without possibly the opportunity of further reflection, that anybody who is guilty of the offence of reckless driving should have 10 points and, without any question of doubt, be on the road to a compulsory disqualification unless the court, within a limited discretion, says he should not be. In fact, under the provision it is not just reckless driving, for Section II of the Road Traffic Act says: If a person drives a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case"— it is having regard to all the circumstances of the case in regard to danger to the public, not in regard to the offence itself— including the nature and condition and use of the road and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be guilty of an offence ". The court has no discretion. I wonder if the Committee realises that. It has discretion in regard to the fine it may impose, but it has no discretion otherwise. If you or I happen to have a child dangerously ill and the doctor cannot come or the doctor says, "Bring the child to the hospital as fast as you can", and we drive—it is very human to do this in the circumstances— at a speed which is reckless and dangerous and we are stopped by the police (and we may be allowed to go on and take the child to the hospital) the offence will have been committed. The plea in mitigation will obviously be one which the court can and will consider, but the court cannot say, if it acts honestly, that the offence has not been committed. It can only say, "We will show how we feel about it by imposing a nominal fine or no fine at all". Nevertheless, the 10 points will be there obligatorily because the offence is compulsorily endorsable, and 10 points are duly awarded.

If that example is not sufficient for the Committee's purpose, perhaps your Lordships will consider the third offence, another 10-pointer: Being in charge of a motor vehicle when unfit through drink or drugs ". At once the Committee will think of the serious case—the one all of us would wish to condemn—of the motorist who gets into his car, starts up the engine and drives while under the influence of drink, and we say, "No pity for him at all ". But what about the person who has been to the doctor, has been given drugs and drives home—possibly wrongly because he has been warned that the drugs may have a soporific effect—and straight into a lamp post as a result, or is found to be driving his car in a zig-zag fashion? Again, the mitigation will be there, I have no doubt, in regard to the fine, but 10 points will have to be awarded against him.

One finds there are a number of offences, once one has 10 points, which can put one over 12 with the greatest of ease, and if any one of us can put our hands on our hearts and say, "This is an offence which we individually could not commit", then I ask the Committee to look at the two three-pointers which appear under "22" and "24" in the first column of Part II relating to the section of the 1972 Act, the first being failing to comply with traffic directions. That means merely that one does not see a policeman; or it might mean that one does not see a traffic sign. It is possible for any one of us to go the wrong way down a one way street, to observe a policeman, but not to notice that he is directing us in a certain way, or is holding us up. Then you have 10 points, and three points—13 points.

In those circumstances I ask your Lordships' Committee immediately to look at subsections (2) and (6). Let us suppose that Members of your Lordships' Committee, or rather myself—I am perfectly content to take myself as an example—is the unfortunate victim of an accumulation of 13 points in one or other of the ways that I have indicated. I am before the court and the question of disqualification is to be considered. I ask Members of the Committee to look at the bottom of page 14 of the Bill and the top of page 15. Subsection (2) provides that if the person convicted has 12 points or more the court shall order him to be disqualified for not less than the minimum period defined in subsection 4 unless the court is satisfied, having regard to all the circumstances not excluded by subsection (6), that there are grounds for mitigating the normal consequences of the conviction…". A fetter has been placed on the discretion of the magistrates. In the example that I have given they cannot take into account what is contained in sub- section (6). I now ask Members of the Committee to turn to subsection (6), which states: No account is to be taken under subsection (2) of— (a) any circumstances that are alleged to make the offence or any of the offences not a serious one…".

Let us suppose that I am before the court and I ask my advocate to plead with the court that, although there are l0 points against me, I should like the court to look at the fine that had been imposed and to note that it was a nominal fine. I ask the court please to take account of the reason why the fine was a nominal one; it was because it was not a serious offence. It was not a serious offence because of the circumstances that I have outlined to your Lordships' Committee. The court cannot take that into account. We have taken away the court's discretion. We have said to the court, "You are not capable of dealing with this. You are not capable of dealing with it, it might be argued, because it would be misleading if you were to deal with it. It has already been dealt with by the previous court." That situation would be just in previous circumstances, but not when there is an obligatory points system. As I said earlier, the courts must keep notes of what happens in cases where there is a plea in mitigation.

I turn now to the second provision of the subsection. In the circumstances that I have outlined the court cannot take account of hardship, other than serious hardship. I ask the Committee to consider the case of a doctor who appears before the court, having accumulated 13 points. He tells the court of the hardship that he might experience if he cannot use his car to visit patients who are too sick to go to his surgery; or there may be other reasons why a doctor has to use his car. From the reading of an Act, will someone tell me whether that is serious hardship, of merely hardship?

I ask the Committee to consider another case, not of a learned doctor, but of a lorry driver, who has accumulated 13 points and tells the court that he will lose his job if it takes away his licence. Is that a hardship, or a serious hardship? Who is to decide? Is it to be a soft-hearted court, which says that in the circumstances it regards the pleas of the doctor and the lorry driver as relating to a serious hardship? is it to be the hard-hearted court, which says that the House of Lords, let alone the other place, has agreed to the wording of the provision and therefore it must be taken that the wording has been very seriously considered and has been given their Lordships' meticulous attention? The court might then say, "We have been told that we must not look at a serious hardship. We think it is a quite normal hardship if a person with 13 points might lose his job or, if he is a doctor, would be unable to visit his patients. It is not a serious hardship, but rather one that the doctor and the lorry driver ought to have taken into account".

What is the clerk of a court to do in advising the magistrates? Has he to say, "Magistrates, will you kindly retire? The learned advocate has tried to put before you circumstances which he says amount to a serious hardship. Will you kindly retire in order to see whether you find it a serious hardship or a hardship? If it is a hardship, you can't take it into account; if it is a serious hardship, you can".

The subsection is not only an injustice but, with great respect, it is a nonsense, and in those circumstances I am asking the Committee to consider the deletion of paragraphs (a) and (b). I do not ask—in the same way that I believe that the noble Baroness, Lady Stedman, was asking—for the deletion of paragraph (c), since that paragraph provides that the court cannot take into account any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a shorter period or not ordering him to be disqualified". I pleaded earlier that magistrates, when disqualifying a motorist, should take a very full note of the matters that they have taken into account, and I can well see the justice of saying that the court cannot twice take the same factors into account. The factors have already been taken into account by the court in ordering disqualification for a shorter period, or, as the case may be, they have been discounted and the court has found no reason for ordering a shorter disqualification. One cannot try to go back to a more merciful court and say, "South Western Magistrates' Court said that that was not a reason for mitigating the penalty, but I hope that Lambeth Magistrates' Court will be rather more sympathetic". That is an obvious point and I take it immediately. Therefore I would not delete paragraph (c).

However, I ask your Lordships Committee, with responsibility as legislators, most earnestly to consider paragraphs (a) and (b) as well as subsection (6) along with the two paragraphs, and to decide that in the circumstances they ought to be deleted. I beg to move.

5.8 p.m.

Baroness Phillips

I am sorry constantly to have to take issue with my noble friends on this side of the Committee, but listening to my noble friend I felt that I was sitting in court listening to a plea in mitigation. I am very sorry that he used the example of drink and drugs, because this is used all too frequently in relation to criminal offences. It seems to me that if the law says "Drink and/or drugs" that is exactly what it means. Surely if the individual concerned is foolish enough to take a drug, assuming that it has been administered on the spot at the doctor's surgery (which is unusual) he must accept that his position is no different from that of an individual who has taken a quantity of alcohol. I feel that that example was an unfortunate one to advance.

I consider that my noble friend's other example—that of a doctor—was also unfortunate. If there is a law, it seems reasonable to say that it is there to protect other people against the misuse of a vehicle on the road. During the many years that I have sat in court I have listened to pleas in mitigation for almost every offence under the sun, and they are usually of this nature. If an offence has been committed, surely the doctor can deal with the situation in some other way. Perhaps he has gone through a red light. It seems to me very dangerous to suggest that arguments such as have been mentioned should be used in mitigation in relation to our traffic laws, which, on the whole, I think we would all agree, are reasonably fair; and certainly traffic courts take all these matters into consideration. In my experience, in the case of anyone accused of reckless driving certainly evidence has been presented which shows that there has been reckless driving and that it is not merely that they have exceeded the speed limit for one-tenth of a mile. So while I would not say that I will not support my noble friend, I felt, again, that some of his arguments were a little unfortunate in relation to pleas of mitigation.

Lord Mishcon

Before my noble friend sits down, the example I gave of reckless driving was not that of the doctor; it was the case that could happen, unfortunately, to any one of us—that of a child of ours who was dangerously ill and we then exceeded the speed limit in a dangerous way, by really going it in our motor vehicle, in order to get the child to a hospital or to a doctor. That is what I said; and I said that we now have an obligatory points system which will make the court, whatever the circumstances, order 10 points.

Lord Mackay of Clashfern

I had understood the noble Lord, Lord Mishcon, earlier to advise us that it was dangerous to legislate for special cases, but his argument on this occasion rather suggests to me that it is based on rather special cases. Certainly, so far as the first one is concerned, I think I am right in saying that the section as he read it out has been modified by the Criminal Law Act 1977, so that the section now reads: A person who drives a motor vehicle on a road recklessly shall be guilty of an offence; and the bit about dangerous, and so on, has been amended. The other example, of driving under the influence of drugs in rather exceptional circumstances, I should have thought would not be relevant either, because if it is an offence which is proved to have been committed then it will be an obligatory disqualification unless there are special reasons in the circumstances of the offence. It is also important, I think, to remember that before there is any question of points in relation to any particular offence the offence must be one which has led to endorsement; that is to say, the court has ordered particulars of the conviction to be endorsed under Section 101 of the 1972 Act.

The purpose of the provisions in Clause 19(2) is to narrow the circumstances in which the minimum disqualification will not be imposed when the total number of points, 12, has been reached. This appears to me, at least, to be in line with what the noble Baroness, Lady Stedman, was arguing for earlier. The reason why she did not want (6)(c) to stand was because she did not want (6)(a), (b) or (c); in other words, she did not want any exception to the obligation to disqualify. So far as we are concerned, we go a good deal along the road in that direction, thinking that if a driver has accumulated this number of points then the disqualification should be something that is highly likely to occur, and that the discretion not to impose this disqualification should be very closely limited. We suggest that the limitation should include paragraphs (a) and the (b), which the noble Lord's amendments seek to delete.

I think that in the course of speaking to his amendment the noble Lord referred several times to "serious "hardship. I have no doubt the word he had in mind was "exceptional" hardship, which is the word in paragraph (b); and, of course, I accept what he said about "serious" as applying to that. The application of the words to the particular circumstances would be a matter for the court, but basically what we are seeking to do is to limit very substantially the circumstances in which, once the total is reached, the minimum period of disqualification is not imposed. What we say is that where you have a points system like this, which reflects to a considerable extent the nature of the offences which have led to the total, then it is right to make it a very narrow exception to the obligation on the court to disqualify.

We would strongly submit that if paragraphs (a) and (b) are deleted then the result is to leave the matter completely open to the court; and, surely, this is really quite opposite to the spirit for which the noble Lords, Lord Underhill and Lord Mishcon, were arguing earlier in speaking about the effect of the points. If the points which you have accumulated have a very strong likelihood of producing the minimum disqualification when they get to 12, then surely that is the best situation. Accordingly, we would strongly advise the Committee that this amendment is not acceptable, and I hope that perhaps on consideration of the situation the noble Lord who moved it may feel able not to press it.

Viscount Simon

Before the noble and learned Lord sits down, would it be possible for him to explain to a layman what is meant by "exceptional hardship"?

Lord Mackay of Clashfern

The intention in using the word "exceptional" is that it would require of the court that they should be satisfied that there had been some hardship quite out of the ordinary, quite different from what one would get in any ordinary case—because in almost every case a disqualification will give rise to hardship. What the court has to look at is something which could be regarded as exceptional; that is to say, not to be expected in any ordinary case. I think the word is a word of common usage, and therefore a word which the court would be able to apply wisely to particular cases.

Lord Underhill

Before the noble and learned Lord the Lord Advocate sits down, my noble friend referred to the position of the heavy goods vehicle driver. Would the noble and learned Lord agree that exceptional hardship might be held to cover the position of a heavy goods vehicle driver who not only has his licence taken away, and therefore his HGV licence as well, but will have very great difficulty in having it restored at the end of the period of disqualification because the licensing authorities are usually very strict on restoration?

Lord Mackay of Clashfern

The answer to the question would have to be for the court in a particular case, but one has to have in mind that the driver of a heavy goods vehicle is driving a piece of equipment which can be a very serious danger to other people. Personally, I would doubt whether merely to be able to say that one would put one's employment at risk by a disqualification would be an exceptional hardship, because there are many in that situation. For example, the doctor to whom the noble Lord, Lord Mishcon, referred might well put his occupation at risk if he lived in a district where it was very difficult to get anyone to drive for him. But that is as much as I think it would be right for me to say.

Lord Mishcon

The noble and learned Lord says that this is really the limit of what he can say, and that to say any more would not be right. He is saying by inference that it is impossible to define what hardship is and what exceptional hardship is. It will be for each and every magistrates' court to decide it; and we get back to the uniformity which, quite frankly, is what we are trying awfully hard to get in regard to the justice that the court administers and the penalties in regard to which we are trying to get uniformity if we possibly can, especially when we are dealing with serious penalties.

The points about this are the following—and the noble and learned Lord, with great respect, has not answered either of them. Is it sensible to say to any set of magistrates, "You are trying to adjudicate upon whether a driver, be he Lord X or be he Dr. Y, or be he plain Mr. Smith, is going to lose his licence", when the court, this subsection states, cannot take into account whether or not any of the offences making up the accumulation were or were not serious offences? This is in spite of the fact that you have an obligatory point system which says "ten" here and "five" there, and there are no exceptions to that rule in most of the offences which are contained in Schedule 7.

Is it right, is it proper, to exclude a submission from the court, to silence the advocate for that driver, to say that you cannot make a submission that the magistrates can listen to, as to whether any of the offences which made up the 13 were serious or not; that you cannot listen to it; and, worse than that, thinking of uniformity, to leave it to the discretion of each and every court as to what that court would regard in the circumstances as hardship or exceptional hardship? Once the court thinks it is only hardship, and not exceptional hardship, then the advocate is silenced and the court has to expunge from its mind in coming to its decision every submission that has been made about the hardship. If the court is a merciful court and takes exactly the same facts which may make another court say that it was not exceptional and the merciful court says that it was exceptional, then that driver is very fortunate to appear before it. I repeat that it is purely by coincidence that these amendments come forward from the Opposition. It is only because the Opposition looks with great care at every word of a Bill and tries hard to see that a Bill comes before the public in the best possible way and especially when dealing with a non-political point. This is a non-political point and nobody could ever make it one.

But when we divide (as I am afraid I must ask the Committee to divide) on (a) and (b), may I ask your Lordships seriously to take into account the fact that not one of us can wear a white sheet and say that we will never be in a position where we would want to say to the court, "Do not disqualify us. We want to tell you that the accumulation of points arose at least in respect of one offence which was not a serious one"? Or, would we not want to say, "Please listen to us. This is a case of hardships"—and not have a gamble as to whether the court will decide what we are submitting is or is not an exceptional hardship, because if it is only a hardship, they cannot take it into account if we legislate in this ambiguous and vague way? I regret I cannot accede to the invitation of the noble and learned Lord because I think I would be letting the public down if I did so. It is not a question of letting down a political party, but of letting down the public and every one of us. So that I am afraid I must press the amendment.

5.24 p.m.

On Question, Whether the said amendment (No. 56) shall be agreed to?

Their Lordships divided: Contents; 61; Not-Contents, 101.

CONTENTS
Amherst, E.	Loudoun, C.
Ardwick, L.	Lovell-Davis, L.
Bacon, B.	Melchett, L.
Beaumont of Whitley, L.	Mishcon, L. [Teller.]
Bernstein, L.	Molloy, L.
Bishopston, L.	Mowbray and Stourton, L.
Boston of Faversham, L.	Newall, L.
Bruce of Donington, L.	Ogmore, L.
Byers, L.	Oram, L.
Chelmsford, Bp.	Ross of Marnock, L.
Chitnis, L.	Seear, B.
Collison, L.	Sefton of Garston, L.
Cross, V.	Shannon, E.
Denington, B.	Shepherd, L.
Donaldson of Kingsbridge, L.	Shinwell, L.
Elwyn-Jones, L.	Simon, V.
Ewart-Biggs, B.	Stamp, L.
Gaitskell, B.	Stedman, B.
Granville of Eye, L.	Stewart of Alvechurch, B.
Hale, L.	Stewart of Fulham, L.
Hampton, L.	Stone, L.
Hanworth, V.	Strathcarron, L.
Houghton of Sowerby, L.	Taylor of Mansfields, L.
Howie of Troon, L.	Underhill, L. [Teller.]
Jacques, L.	Wallace of Coslany, L.
Jenkins of Putney, L.	Wells-Pestell, L.
John-Mackie, L.	Whaddon, L.
Kilmarnock, L.	White, B.
Listowel, E.	Wigoder, L.
Llewelyn-Davies of Hastoe, B.	Wootton of Abinger, B.
Longford, E.

NOT-CONTENTS
Ailsa, M.	Davidson, V.
Airey of Abingdon, B.	de Clifford, L.
Allen of Abbeydale, L.	De Freyne, L.
Auckland, L.	De La Warr, E.
Avon, E. [Teller.]	Denham, L. [Teller.]
Bathurst, E.	Dilhorne, V.
Bellwin, L.	Diplock, L.
Beloff, L.	Donegall, M.
Belstead, L.	Drumalbyn, L.
Bessborough, E.	Eccles, V.
Boyd of Merton, V.	Elton, L.
Bridgeman, V.	Ferrers, E.
Brougham and Vaux, L.	Fortescue, E.
Cairns, E.	Fraser of Kilmorack, L.
Campbell of Croy, L.	Gainford, L.
Cathcart, E.	Gibson-Watt, L.
Cockfield, L.	Glenkinglas, L.
Cottesloe, L.	Greenway, L.
Craigavon, V.	Gridley, L.
Craigton, L.	Grimston of Westbury, L.
Crawford and Balcarres, E.	Harmar-Nicholls, L.
Cullen of Ashbourne, L.	Hatherton, L.
Daventry, V.	Hawke, L.

Hives, L.	Orr-Ewing, L.
Home of the Hirsel, L.	Pender, L.
Howe, E.	Porrit, L.
Hunt of Tanworth, L.	Rankeillour, L.
Hylton-Foster, B.	Rawlinson of Ewell, L.
Kilmany, L.	Reay, L.
Kinnaird, L.	Reigate, L.
Lauderdale, E.	Renton, L.
Lloyd of Hampstead, L.	Rochdale, V.
Long, V.	Roskill, L.
Lucas of Chilworth, L.	Rugby, L.
Lyell, L.	Saint Oswald, L.
McAlpine of Moffat, L.	Saltoun, Ly.
Mackay of Clashfern, L.	Sandford, L.
Mancroft, L.	Sharples, B.
Mansfield, E.	Skelmersdale, L.
Marley, L.	Spens, L.
Middleton, L.	Sudeley, L.
Milverton, L.	Swinfen, L.
Monk Bretton, L.	Terrington, L.
Monson, L.	Trefgarne, L.
Montgomery of Alamein, V.	Trumpington, B.
Mottistone, L.	Vaux of Harrowden, L.
Murton of Lindisfarne, L.	Wakefield of Kendal, L.
Northchurch, B.	Waldegrave, E.
Nugent of Guildford, L.	Ward of Whitley, V.
Onslow, E.	Willoughby de Broke, L.
Orkney, E.

Resolved in the negative, and amendment disagreed to accordingly.

5.33 p.m.

Lord Mishcon had given notice of his intention to move Amendment No. 57: Page 15, leave out line 43.

The noble Lord said: In view of the result of the last Division, it would not be appropriate for me to move the amendment at this stage.

Lord Houghton of Sowerby moved Amendment No. 58: Page 16, line 20, after ("of") insert ("penalty").

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 59:

Page 16, line 25, at end insert— (": and (c) provide for the deletion or addition of an offence and the number of points in respect of such additional offence ").

The noble Lord said: I am sure that there will be general agreement among members of the Committee with the provisions in Subsection (8): that the Secretary of State shall have power by order to alter the number of points for any particular offence and provide for different numbers of points in respect of the same offence committed in different circumstances. The amendment seeks to give the Secretary of State an additional power whereby he can, by order, provide for the deletion or addition of an offence and the number of points in respect of such additional offence.

The reason for this is twofold. First, we are going into an experimental period of points procedure and the amendment is therefore intended to help so that any changes that may be considered to be necessary shall be able to be taken in the light of that experience; secondly, any changes that may be considered necessary will not have to await primary legislation, bearing in mind that the subsection is a safeguard because no order shall be made unless a draft has been laid before Parliament and approved by resolution of each House. Therefore the amendment which I am proposing would come under that same provision. I hope that the Government will be able to accept it because it is intended to be helpful to the Government, to the Secretary of State and to the Committee. I beg to move.

Lord Bellwin

The purpose of subsection (8) is to give the Secretary of State an element of flexibility so that he can in the light of experience vary without recourse to main legislation the number of points for an offence which is already liable to points. Lord Underhill's concern seems to be with the broader question of adding to or deleting from the list of offences which attract points.

It is rare that any proposal is made that an offence should become endorsable when it has previously not been so or vice versa. The effects of such a change could be so significant that in the Government's view it ought not to be introduced except by principal legislation. Of course, if an entirely new offence is being created or an existing offence abolished, the consequences of this on the points schedule can be taken care of in the legislation necessary for the major purpose. I hope that, in view of that brief but nevertheless to-the-point explanation, the noble Lord will be able to withdraw his amendment.

Lord Lucas of Chilworth

May I take it that were I to move Amendment No. 59A, I should get a similar response? In effect, my amendment is the same, though it goes somewhat further. In the post last Friday, or it may have been Saturday morning, some of us received the report of the inter-departmental working party on the law. A great deal of what is contained in that report has not been debated by Parliament. There is unlikely to be the opportunity for us to go through that report and consider anything during the course of this Bill. It may well be that in retrospect some of the suggestions contained in the report should be embraced within the general arrangement of this Bill because, after all, we are, as noble Lords have said, engaged in introducing a number of new and deterrent factors.

Lord Underhill's amendment, and my own, permit the Secretary of State to introduce variations of penalties into this scheme without going for primary legislation. That seems eminently suitable. We can imagine the Transport Bill of 1982 having another road safety section where a number of people, including perhaps the Government, wish to introduce changes. On the other hand, there is in both our amendments the safeguard that any regulations so made have to be subject to the approval of Parliament by affirmative resolution. That is in the Bill now.

This Bill has become longer and larger. All Government Bills always seem to get longer and larger. We are continually complaining about the length of Bills. Surely, it would be more sensible to deal with the narrowness of one subject-matter through the affirmative resolution procedure. Both these amendments have that attraction. However short my noble friend's answer was, I do not think in all honesty that it has done justice to what lies behind these two amendments.

Lord Bellwin

I was speaking to the specific amendment of the noble Lord, Lord Underhill. I shall be very happy if both he and my noble friend Lord Lucas would like me to deal with Amendment No. 59A at the same time. I am content to do that.

Lord Lucas of Chilworth

I did say that I had to assume that, because the two amendments were so similar, the answer might be similar. If it is similar, fine; but, if it is not, then perhaps we may take up Amendment No. 59A again.

Lord Bellwin

I am in the hands of the noble Lord, Lord Underhill. It is his amendment.

Lord Underhill

It is in my hands, but I cannot pledge what the noble Lord, Lord Lucas, wishes to do. If he is satisfied with the attitude the Minister is taking, then we could take these two together, but I must leave it to the noble Lord, Lord Lucas, to decide.

Lord Lucas of Chilworth

To be helpful, perhaps my noble friend would like to deal with Amendment No. 59A separately.

Lord Bellwin

In that case, I have dealt with No. 59 as best I am able.

Lord Underhill

I am sorry that the Minister feels he cannot accept this amendment. I think he realises that it is intended to be helpful. As the noble Lord, Lord Lucas, has said, if it were not for the provision that any such order must be by affirmative resolution of both Houses, then I would not have moved my amendment. But there is that safeguard. I think it must be agreed that we are in this period of experiment with the due points system and therefore there may have to be adjustments. I can appreciate the point made by the Minister that it may be something new to introduce a new offence by order, but, with that safeguard, I should have thought it would be helpful. If the Government do not feel they want us to be helpful then I have no alternative but to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.42 p.m.

Lord Lucas of Chilworth moved amendment No. 59A:

Page 16, line 25, at end insert— ("; and (c) provide for additional offences to be included in section 80(1) of the Road Traffic Regulations Act 1967 (offences which can be punished without prosecution); and (d) delete any offences or penalties from Schedule 7").

The noble Lord said: Perhaps I should say straight away to the Committee that it might have been very much better if I had stuck to the Marshalled List instead of embracing other matters! This amendment has a similarity, as I said, but it is put down particularly in view of the working party report, which we have not really had time to consider. There might well be other offences which should be included in the 1967 Act—that is, the offences which can be punished without prosecution. In this respect, of course, we are moving into the area of the fixed penalty case. At the same time it does provide for alterations to those penalties which are set down currently in Schedule 7. Before we have the opportuniry to deal with transport matters again, I believe that we may very well wish to make certain changes, and as I said, in order to ensure that these enabling provisions do not enable any Secretary of State to impose changes without Parliament having the opportunity of discussing and debating which, as has been pointed out, is provided for in the Bill, I feel that an amendment such as No. 59A has some merit.

Lord Bellwin

May I say at once that as regards this amendment, and the preceding one, I accept entirely that noble Lords are trying to be helpful and to make this the best Bill we can get at this time. I accept that without reservation. May I also say that as regards this amendment I welcome my noble friend's interest in securing the possibility of a wider application of the fixed penalty procedures. The possibility of extending them to a wider range of moving traffic offences was examined by the working party, as my noble friend knows. The report has now been published and I think I would say at once that the Government agree that this change should be made. However, in order to implement it effectively quite extensive legislation will be required. It also remains for the Government to reach a decision on one important aspect on which views were sought in my right honourable friend's foreword to the report namely, whether failure to respond to a fixed penalty notice should result in the penalty being recoverable as a fine without the need for a court hearing.

For these reasons, it will not be possible to introduce adequate legislation on this subject in the present Session. But on the understanding that it is the Government's intention to introduce such legislation at the earliest opportunity, and that in advance of it the amendment proposed by my noble friend we feel would be insufficient to enable a satisfactory extended system of fixed penalties to be introduced, I wonder whether my noble friend would feel able to withdraw this amendment.

Lord Mishcon

Before the Committee hears whether or not the amendment is to be withdrawn, would the noble Lord the Minister agree that there is a great body of opinion at the moment which is terribly anxious to assist in saving the time of the police, of court officials and others, and that there is a great interest in relieving the crowded lists in magistrates' courts in order that serious cases may be dealt with rather more speedily? Is he really of the opinion, therefore, that it is quite impossible within the time allotted to this Bill to bring in the procedure which is suggested under this very sensible amendment? I would hope that the Minister would regard this as sufficiently important for him to give a more positive reply, especially as we all know that before another Bill of this kind can come before Parliament, a very considerable amount of time is bound to elapse, not least because of the crowded legislative programme.

Lord Bellwin

I am not at all without sympathy on that point, but I am advised that in fact it is extensive legislation that would be required to do this satisfactorily, and it is because of that that I am not able to go further at this moment. I entirely take the point—I know it so well—about the crowded courts, the great pressures that there are and the wish to improve matters now rather than wait for some indeterminate time. But I think I may also go on to say that it is the Government's intention not simply to sit back and say, "One of these fine days …". It is much more than that. I do not know low long this report has been "on the go", but it has now been published and I think the fact that we have made the recognition that we have of the point relatively quickly shows that we also want to see things done. Unfortunately, I am not in a position to go further than I have done today. Should it be before the next stage—and we will look carefully at what has been said—that I am advised otherwise, the noble Lord, Lord Mishcon, knows what I would do. However, I clearly cannot give an undertaking to that extent at all at the present time.

Lord Lucas of Chilworth

What my noble friend has said is fairly helpful. Obviously I am in no position to question the inability of the law to embrace what I want to be embraced under the amendment which I have put down. My noble friend has said he will look at it. I think what I would rather press him to do is this: could he arrange for his department to explain to me in rather more detail exactly why what I want to do cannot be done? In the event that my common sense may prevail over what his legal advisers may tell him, I may wish to do something at a later stage. I notice a certain jocularity in that, but so often in matters of this kind common sense can prevail—sometimes more effectively. With the assurance that has been indicated, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

5.50 p.m.

Baroness Stedman

I should first like to thank the noble Lord, Lord Bellwin, for the very long reply he gave to the points about the totting-up procedure which I raised on Second Reading. However, I am afraid that the noble Lord has yet to completely convince me that the discretionary points will not turn out to be somewhat confusing for magistrates and the courts to deal with. I know that the Automobile Association has also put forward the view that a simpler approach to the points system would make life a lot easier for all those concerned with the administration of justice at the time.

Now that the announcement has been made in another place that there are to be fixed penalties for certain other traffic offences which the police will deal with, would it not be better to leave discretionary points out of this part of the Bill for the time being and to look at the whole question of how the points system should be arranged once we know the position regarding fixed penalties which are, I believe, going to be included in legislation next year?

Although I do not necessarily agree with all the points which the AA has put forward, it has suggested that points might fall into three different categories. The AA has suggested a penalty of five points for dangerous and anti-social driving offences; three for offences which have a road safety implication; and perhaps one or two points for those offences which relate to a technical infringement. Whether the AA has its numbers right is a matter for argument or discussion, but I am sure that kind of system would, in the long run, turn out to be more easily understandable to both magistrates and motorists alike. In the same way, serious offences—if someone kept on committing them—would add up to a disqualification.

The other point, about which I did give notice to the noble Lord's office, concerns the question of the relevant date used in this clause. There are always three possible dates which can be taken. One can use either the date of the commission of the offence, the date of the conviction, or the date on which sentence was passed. In this clause, one has a confusion of choice between all three. Under Clause 19(3) the points cease to count for the purpose of compulsory points disqualification; under Clause 19(2), when the points are in respect of an offence committed more than three years before the date of the commission of the latest offence; and under Clause 19(4), previous disqualification ceases to count if it was imposed more than three years immediately preceding the commission of the latest offence—and in this case, it is the date of sentencing on the earlier occasion which is material.

There are strong arguments for following the same principle in the two sections of the clause and for not choosing the date of the earlier offence in one case and the date of the earlier sentence in another. One of the disadvantages which may arise from the fact that the points will run from the date on which the offence was committed is that offenders might seek to escape detection, and seek to postpone the date of the hearing so that the points do not last quite so long. Also, a person who committed offences on different dates might perhaps have points running out on different dates, and that too would add to the confusion.

One result of the present proposal is found in paragraph 12 of Schedule 9 which sets out the proposed new Section 10(7)(a) of the Road Traffic Act 1972. This will provide that the duration of an endorsement will vary depending on whether a disqualification is imposed, even in disqualification in respect of a completely different offence. The position may change from day to day, particularly if an appeal is entered. As disqualifications will affect future offences from the date of sentencing, surely there are arguments for running an endorsement from the date of sentencing and not from the date of conviction?

It almost seems that the date of conviction has ceased to be material. Clause 19(3) refers to considering the position on the occasion of conviction, but in most magistrates' courts this will in practice be also the date of sentencing. The date of conviction is no longer material—or no longer the material date—in view of the wording of Clause 19(3) and (4). On the other hand, it is the date of conviction that is used in Clause 19(5). Surely it is much better to have one relevant date and to have the same date throughout the whole of the clause rather than different dates, which will make life more confusing.

Lord Mackay of Clashfern

With regard to the first point of concern to which the noble Baroness, Lady Stedman, drew attention, the argument is that the difficulties facing the courts are difficulties we should try to meet at the earliest opportunity, as my right honourable friend has indicated in the other place and also in his foreword to the report from the working party—and the points system which is delivered in association with Clause 19 is a very considerable step forward in that direction and will also he extremely helpful if we are able to go further towards the fixed penalty system, as we intend to do. This is a step in the right direction, and we hope the second step will come fairly quickly.

So far as the relevant date is concerned, the approach taken in the clause is to take what we consider to be the most practical date. I shall be happy to consider what the noble Baroness, Lady Stedman has said, and will see whether we could consider any improvement, but certainly practical considerations have determined everything we have done so far.

Baroness Stedman

I should be most grateful to the noble Lord if he will take a look at this, and perhaps write to me before the next stage.

Lord Lucas of Chilworth

Before we leave this clause, I should like to ask my noble friend whether he can give some further clarification about the transition period. This does not appear to be at all clear, either in the preceding debate or in subsection (7). That seems to be the only section of the Bill that deals with the transition period. Subsection (7)(a) states: An order for endorsement which was made before the commencement of this section counts as an order made in pursuance of subsection (1) for the endorsement of 3 points …". Am I to take it that if there is an endorsement on a licence at the commencement date for any offence whatsoever, it would be carried forward at that date with a three point value? If that is so, then if one was a fairly wicked offender prior to the commencement date and had committed an offence which carried 10 points, one would get away on commencement day—when the line is drawn with a three point penalty. If, however, one had committed a lesser offence carrying only three points, one would get away with a zero marking. In other words, when the line is finally drawn, some are winners and some are losers. Is that the way in which it is anticipated that the transitionary period will operate?

Lord Mackay of Clashfern

It is difficult to attain perfection in this particular area without an undue amount of retrospection. At the time of a previous endorsement, it would count as one endorsement towards three, which would introduce the disqualification period. It was on that basis that we considered that three would be a reasonable number of points for all pre-existing endorsements, bringing them into the new system on that basis. I agree it means that some win, but the only alternative would be to re-examine all the previous cases and that seemed to be a very large practical obstacle.

Lord Lucas of Chilworth

I understand that and certainly I have no wish to see the whole thing re- examined. But my understanding is right in that it is an arbitrary decision after various considerations have been made, and that some win and some lose? That is what it really all boils down to.

Clause 19, as amended, agreed to.

Schedule 7 [Points to be endorsed]:

Lord Houghton of Sowerby moved Amendment No. 60: Page 65, line 6, after second ("of") insert ("penalty").

The noble Lord said: I am coming to the end of the amendments which are consequential on the amendment which I moved earlier this afternoon. I beg to move.

On Question, amendment agreed to.

Lord Houghton of Sowerby moved Amendment No. 61: Page 65, line 15, column 3, after ("of") insert ("penalty").

The noble Lord said: Is it in order to say, "The same again"? I beg to move.

On Question, amendment agreed to.

6.1 p.m.

Lord Underhill moved Amendment No. 62: Page 65, line 18, column 3, leave out ("5") and insert ("3–8 at the discretion of the court").

The noble Lord said: This is the first of a number of amendments dealing with the number of points to be given for certain offences. This amendment relates to the points to be given under Schedule 7 for the offence of careless or inconsiderate driving, for which the schedule provides five points. Noble Lords will recall that during the Second Reading debate a number of your Lordships referred to the fact that, for some of these offences, there should be a range, because some offences could be extremely dangerous and serious, while others could be merely technical though coming under the same heading.

There will be varying circumstances leading to such an offence. Noble Lords will know of circumstances where there has been careless or inconsiderate driving, but where there has been inadvertence without any possible danger to anyone. On the other hand, there will be occasions when such an offence has either led to an accident or could have done so but for the awareness of another driver. It could be that, in some circumstances, inconsiderate driving goes very near to reckless driving, for which 10 points are awarded under the schedule. What we are asking in the amendment is: is it right that the same number of points—namely, five—should be awarded in the two sets of circumstances to which I have referred?

I know that in debates in another place on various questions of offences and points under this Bill, it was said that this was rough justice. But we ought to be a little more careful about treating a matter as rough justice, and the courts ought, surely, to have some degree of discretion to adjudicate on the seriousness of a certain offence. The amendment proposes that, according to the circumstances, there should be a range and the courts should be able to award points varying between three and eight, thus giving the possibility of two points fewer than in the schedule and up to three points more.

The principle of a range has already been accepted in the Bill, because reference to Schedule 7 will show that there are two offences where ranges are given for the courts to determine. This seems to be one of those offences where just to have the flat five points would be wrong, and there ought to be some degree of latitude for the courts to determine the seriousness of an offence. So we are proposing that the range should be from three points to a maximum of eight points, at the discretion of the court. I beg to move.

Lord Jacques

I should like to support this amendment from experience as a magistrate. I think research will show that, of all the motoring offences, the greatest variety of fines is for careless driving, because there are so many different circumstances. If the court has that discretion on fines and there is that great variety, then there is need for some flexibility in the points system in regard to those offences.

Earl Fortescue

I, too, should like to support this amendment and in doing so I want also to speak to Amendment No. 63. I believe that the two offences of careless driving and driving while uninsured are peculiar, in that the gravity of individual cases varies so much. On Second Reading, I gave examples of how such offences can vary and I shall not weary your Lordships by repeating them again today.

Since this Bill went through another place—and, incidentally, since its Second Reading in your Lordships' House—we have had the advantage of the publication of the report of the working party on road traffic law, and you Lordships may think it significant that on page 55 of that report the working party came out in favour of giving discretion to courts in the case of both these offences. As I think the noble Lord, Lord Underhill, has already said, it is also significant that in another place the Government accepted an amendment giving courts discretion, by means of a range of points, for the offences of failing to stop and failing to report.

No doubt my noble friend the Minister will claim that pleas of mitigation, for the number of points awarded to be near the minimum rather than the maximum, will take up extra court time, if this discretion is given. Maybe it will take up a little more court time, but I do not think that the amount of this court time should be exaggerated and, surely, a little extra court time is more than offset by better justice.

Lord Lucas of Chilworth

Since the next amendment is in my name, and differs only in the number of points, it follows that I am in support of the principle underlying the amendment of the noble Lord, Lord Underhill, for precisely the reasons which have already been given. I can see some difficulty here, in that, were I to give undue encouragement to the noble Lord, Lord Underhill, he might decide that he wanted to press this amendment—and he is looking for three to eight points at the discretion of the court—and it would be churlish of me, in the event of his winning, to press mine and then bring the range back to two to five. I do not know quite what we can do about that.

However, what seems to be most desperately important is that the top figure of eight in the amendment of the noble Lord, Lord Underhill, is somewhat excessive. It seems that we are then bordering on a decision to be made by the court, by virtue of what penalty may be awarded, on the more serious charge of reckless driving. For example, if for reckless driving we have 10 points—nobody so far has argued about that one—and the court considers that it is a fairly outrageous piece of careless driving and awards eight points, we are just two points short of, or very marginally off, reckless driving. If there is that amount of doubt, there may be some imprecision in the prosecution. After all, it is for the prosecution, is it not?—and I look to my noble and learned friend on the Front Bench, and also to the noble and learned Lord opposite, to tell me—to make up its mind as to what charge is to be brought. Is it to be one of reckless driving, with the penalties which that may impose, or is it to be the lesser charge of careless driving, knowing that the penalty can so very nearly approximate to that on the reckless charge? For these reasons, while I fully appreciate and agree with the principle underlying Amendment No. 62, I prefer mine, purely on the number of points. I would ask the noble Lord, Lord Underhill, to bear that in mind, just as I shall bear in mind what he has to say after we have listened to the response of my noble and learned friend.

6.10 p.m.

Lord Mishcon

I intervene merely in order that the noble and learned Lord the Lord Advocate can deal with the very sound point which has been made by the noble Lord, Lord Lucas of Chilworth. Since he was courteous enough to address his question to me as well as to the noble and learned Lord opposite, it may help if I say that it is a matter of practical experience that police forces throughout the country vary greatly regarding this offence. Some of them even after a death has been caused will prosecute for driving without due care and attention, while others will prosecute for reckless driving even when there is no serious injury, if they think that the facts constitute reckless driving. It is a matter which causes a great deal of concern among those who are charged with the duty of defending motorists.

I can only say that it is sensible to have an upper limit as high as eight for driving without due care and attention, even though it comes within just two points of reckless driving, because in many cases it is extremely difficult in a bad case of driving without due care and attention for the court to understand why the prosecution has not been for reckless driving.

Lord Mackay of Clashfern

If I may deal first with that point, it is certainly for the prosecution to decide what charges will be preferred. Sometimes in relation to a traffic case there are charges of careless driving and reckless driving in the alternative, passing the responsibility to the court to choose between the two degrees. So far as Scotland is concerned, it is the responsibility of the Crown to decide what form the prosecution shall take. But the important point is that Parliament has differentiated between the two. There are distinct charges of reckless driving on the one hand and careless driving on the other. Although the one set of circumstances may shade into the other, Parliament for practical reasons has to make a distinction between the two, and it has done so. One cannot have an infinite gradation of offences in this area, at least not without some greater legislative complexity than we have at the moment, and I think most people feel that perhaps we have enough of that already.

If I may turn to the main matter, as my noble friend has pointed out, the interdepartmental working party considered that a variable range of points for certain offences was possible. However, we as a Government have to consider the effect on the work of the courts. The total number of offences which are dealt with in this area of the law is very considerable. To take England and Wales alone, there were 1.8 million findings of guilt for motoring offences in 1979. Of these, about 2 per cent. were in the failing to stop group of offences, whereas the number of careless driving offences was of the order of 150,000 and insurance offences nearly 160,000. That is 40,000 against 150,000 and 160,000.

At present the totting up procedure does not distinguish between offences which are subject to it. Therefore anything which distinguishes between offences is an improvement. We consider that, as a matter of practical determination it is not wise to go beyond giving fixed points for these offences, otherwise what happens is that the time of the courts is taken up with considering the number of points which should be awarded. The court has a discretion as to whether or not to disqualify in those cases where disqualification is discretionary. It has a discretion on the size of the fine and it has to consider whether it is to endorse or whether there are special reasons for no endorsement, in which case there would be no points endorsed upon the offence.

It seems to us that those discretions are sufficient and that to introduce another range of discretions within the offence, distinguishing within the offence between one set of circumstances and another, is to introduce refinements which, however much they might appear to assist justice as between one particular offence and another, mean, considering the total number which have to be dealt with and the finite resources available to the court to deal with all of them, that you find yourself allocating resources to matters which are comparatively small, thus increasing the backlog, or neglecting the more important cases.

In making a judgment, therefore, on the allocation of the resources which are available to the courts and to the prosecution systems and the defence systems which are called upon to assist the court in these matters, we concluded that it would not be right to allow discretion for this offence. The only exception is, as has been pointed out, the case of failure to stop. That group of offences is much smaller in number than those with which this amendment is concerned. It is also an offence which in recent years has been very much on the increase. Parliament has found it necessary to raise the maximum fine tenfold, from £100 to £1,000. This suggests that in this case there is a very special problem which makes it right to depart from the general principle. Otherwise we strongly suggest it is right to adhere to the principle of fixed points and to proceed upon that basis.

In the light of that explanation, I hope the noble Lord will feel able not to press his amendment.

Lord Underhill

I am very disappointed with the reply of the noble and learned Lord the Lord Advocate. I prefer to keep separate the insurance argument on Amendment No. 63, which I did not speak to, because a different principle is involved upon which I wish to say something. The reason why the amendment which I have moved and which has been supported by the noble Earl, Lord Fortescue, makes a maximum of eight points for careless and inconsiderate driving was deliberately so that it would be two points below the 10 points for reckless driving. There is a difference between the two offences.

The noble and learned Lord the Lord Advocate said that we must consider the effect on the work of the courts, but surely we must pay some regard to justice for the person who is brought before the court. I am certain that every noble Lord here who is a motorist would be very upset if for what was almost a technical offence which was careless and inconsiderate but which created no fear of any danger or accident he got five points, which is only seven points away from possible disqualification. This is the seriousness of having fixed points of this kind. I am not a magistrate, but if I were I should feel that in a case like that I ought to have discretion. I should hate to feel that Parliament had said that irrespective of the circumstances it must be five points. This is one case where we ought to give consideration to the point.

As we have another amendment which would not make the range so severe as this—we are proposing 3–8, whereas the other amendment proposes less—I think that at this stage, without accepting anything that the noble and learned Lord the Lord Advocate has said, I should like to read carefully what he has said and maybe come back to this, because an important matter of principle is involved here. In the meantime, I shall withdraw this amendment and see what the Minister's reply will be to the amendment to be moved by the noble Lord, Lord Lucas of Chilworth. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.21 p.m.

Lord Lucas of Chilworth moved Amendment No. 62A: Page 65, line 18, column 3, leave out ("5") and insert ("2–5").

The noble Lord said: In moving this amendment I merely have to remind your Lordships of what my noble and learned friend the Lord Advocate said with regard to the principle. Notwithstanding the figures he gave—and I have to confess that I did not make a note of them—I was not overly impressed with his argument, because a careless driving offence is one of judgment. When you come to a parking offence, you know jolly well whether you have parked in the wrong place—the signs say so, the yellow lines say so, the meter says so, or whatever it might be. There is no escaping that. If you happen to draw up closely to a kerbstone and a gust of wind knocks a bicycle over, it may be that somebody will come out of a shop and say, "I saw you knock that". You might get charged with careless driving. It is a matter of judgment. I certainly would not like to get five penalty points for an offence of that nature. It is quite conceivable, although not probable that one might be charged.

I believe that where there is an element of doubt, where there is a question of opinion, as distinct from fact, I believe that one should be able to go to the court and put one's point of view. If in fact it results in rather more court work than magistrates and clerks would like, I am rather sorry about that. Where we get these matters of opinion, we have a court system set up in which the opinion may be tested. I feel that in fact I may have to do just that in this Committee; namely, test the opinion of the Committee. I beg to move.

Lord Mishcon

I only ask that, when your Lordships consider what view should be taken in regard to this amendment, you will bear in mind a point that has not been mentioned so far, but which your Lordships may remember from a previous debate; namely, that the seriousness or otherwise of the offence cannot be taken into account by a subsequent court when dealing with the question of disqualification.

That means just this. If you happen to cut in front of another motorist in a way which he thinks is objectionable, it is open to that motorist, without any intervention of the police, to cause a summons to be issued against you for driving without due care and attention. When the case comes to court, on the basis that it was an act which was not that of careful driving, the court could come to the conclusion, on hearing both motorists, that driving without due care and attention had been committed in the case and there could be a conviction.

There is another case with which your Lordships are very familiar; that is, that sort of driving which causes an accident—and quite a serious accident—but does not amount (in the opinion of one prosecuting authority) to reckless driving. Bear in mind the fact (this was the burden of my argument before, which I shall not inflict again on your Lordships) that, as the Bill now stands, on a subsequent occasion the seriousness of the offence of driving without due care and attention—if in the totting-up of the points it comes to 12 or more—cannot be taken into account by the court, because that is what subsection (6) now means. Would your Lordships consider that it is imperative that, in a case of this kind where driving without due care and attention can be so variable in regard to its seriousness, at least a discretion ought to be granted to the court to decide the number of points that ought to be awarded in the limit that is now suggested by the noble Lord, Lord Lucas.

Lord Jacques

I should like to suggest to the noble and learned Lord the Lord Advocate that there is scope here for compromise between the two amendments and the attitude of the Government. I can understand the Government's attitude, that it will take the time of the court, but the court already has to decide on the fine and I can say from experience that those fines are decided quite quickly. That is not the kind of thing on which the courts spend very much time. However, it seems to me that there is a possibility of compromise here. The narrower the range before the court, the less time it is likely to take in deciding, and I would suggest that 4–6 points would be a fair compromise between the two amendments and the attitude of the Government. That would seem to me to be a reasonable compromise.

Baroness Trumpington

I merely wish to say, speaking as a humble magistrate who has spent today hearing nothing but driving offences in Horseferry Road Court, that I left that court and drove in my car to your Lordships' House, where I smartly drove into the "out" entrance, instead of the "in". Somebody was on their way out, but I caused no actual danger. On the other hand, I suppose one could say that I was carelessly driving and I should have been very angry if I had been given five points. There is no doubt in my mind that we magistrates deal with an endless number of driving offences in one day and there are many variations on the theme of careless driving, so I would certainly agree with flexibility in regard to the penalty.

Lord Harmar-Nicholls

I should like to urge upon my noble friend to look at this again. I honestly do not think that the convenience of the court comes anywhere near in importance to fairness and justice in law. For what it is worth, I remember that when I held a junior appointment which meant that the department was responsible for Trafalgar Square, the Metropolitan Police brought along a whole list of regulations which they wanted to bring in. If you broke a flower, it was an offence; if you grazed a plinth, it was an offence; if you put your hand in the water it was an offence. I remember asking, "How do you deal with it now?" They replied, "We have to prove damage or nuisance", to which I replied, "Well, from my point of view, that is what you will have to go on doing". You can accidentally break a flower, you can accidentally cause a scratch on a plinth with your umbrella, you can trail your finger in the water without doing any sort of harm. I did not think that the convenience of the Metropolitan Police in order to get cases through quickly, or that in the point of my noble friend's argument, the convenience of the courts, ought to interfere with the discretion of the magistrates to assess the extent of the misdemeanour or mistake that has been made.

Lord Mackay of Clashfern

Perhaps I may take a lesson from my noble friend's suggestion—go on doing what you are doing now—which is not to have a discretion in this particular matter but to have a fixed value for the purposes of totting up for this particular offence. I should like to remind your Lordships that of course there is the possibility of there being no endorsement at all. If the offence is of such a character that the court considers that there are special reasons for not endorsing, then the points value is zero. So in a sense the discretion exists to have zero. But, if one comes to the situation where there is a definite offence of careless driving, then what we have to say is that it is really unreasonable, in the present state of the resources which are available to the court, to make this discretion available for the first time, because that is what is being proposed.

It is not just a matter of convenience for the court. It is a matter of the total amount of resources, the total amount of burden, and what happens if you increase the burden of deciding these careless driving offences by adding an additional dimension to the discretion the court has to exercise. That is bound to be productive of extra time, because although they do it quite quickly they do it very carefully. It is bound to take some time; there are a very large number of cases in this category. That time all adds up, and that time is at the expense of other cases, unless we can increase the amount of resources available to the courts, and in these days that is just not possible. Therefore, what you are doing is increasing the backlog, taking up time at the expense of other cases; you are doing injustice to others by an attempt to produce, by this additional refinement, the sort of justice as between one and another which it may be thought exists.

Merely to create a discretion does not necessarily mean that people have the idea that all is just, because they may find that with exactly the same offence with exactly the same circumstances in two magistrates' courts, to use the words of the noble Lord, Lord Mishcon, earlier, one court is soft-hearted and the other hard-hearted, one gives five points and the other eight points. The impression of justice is not thereby enhanced. For all these reasons I would invite your Lordships to take the view that the practical and proper course is to make this a fixed number. I invite your Lordships not to accept the amendment.

Lord Underhill

If I may intervene before the noble Lord, Lord Lucas, replies, if one took the words strictly as the noble and learned Lord the Lord Advocate has given them, it would make some of us who believe in the points system think that we ought to change our view about it. Take the case that the noble Baroness, Lady Trumpington, mentioned. If by chance a policeman had said, "You are guilty of careless driving", that means five points. You have only got to do that once again, and add on two points, and you are disqualified. How can you justify it? Within the magistrates court they will have to determine, on the range of fines, whether this offence is worthy of the maximum fine or a lower fine. All we are suggesting is that the points go along with that. It seems to me so reasonable, whereas the attitude taken by the Government, I believe, is unreasonable and one which is not fair and equitable to the people brought before the courts.

Lord Lucas of Chilworth

May I express from these Benches very sincere sympathy to the noble Baroness, Lady Trumpington, in her most unfortunate behaviour this afternoon. I am glad that nobody suffered thereby. I must say that my noble and learned friend the Lord Advocate has rather disappointed me. He talks of the burden on the courts. Oh dear! With the crime rate going up the burdens become more burdensome. I really think the kind of amendment I am suggesting would make little difference to that burden. My noble friend says we have to consider the resources available to us. This is not a question of resources. This is a question, potentially, of somebody's livelihood, due to a moment's lack of consideration, a moment's carelessness, over which the courts have no jurisdiction. I believe they should have.

I am not overly impressed with the argument that the fine that could be imposed makes the balancing feature. So often, of course, it is not the individual who pays the fine; it could indeed be an insurance company, it could be an employer. It has to get very high indeed before that remedy bites at all. If one pursues that line of argument, I recall that in the working party report some of the points were based, as a scale, against amounts of money that the courts up and down the country levied on people by way of fines. That seems to me a most odd way of measuring.

I sense that the Committee feel that there is some justification, particularly on this offence, for some variation, some discretion to be allowed to the court. I must therefore ask the Committee to display their feeling in one way or another.

6.36 p.m.

On Question, Whether the said amendment (No. 62A) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 50.

CONTENTS
Airey of Abingdon, B.	Longford, E.
Amherst, E.	Loudoun, C.
Ardwick, L.	Lovell-Davis, L.
Auckland, L.	Lucas of Chilworth, L. [Teller.]
Bacon, B.
Banks, L.	MacLeod of Fuinary, L.
Barrington, V.	Middleton, L.
Beaumont of Whitley, L.	Milner of Leeds, L.
Bishopston, L.	Mishcon, L.
Boardman, L.	Molloy, L.
Boston, L.	Monk Bretton, L.
Boston of Faversham, L.	Monson, L.
Brabazon of Tara, L.	Mottistone, L.
Brooks of Tremorfa, L.	Mowbray and Stourton, L.
Brougham and Vaux, L.	Oram, L.
Bruce of Donington, L.	Peart, L.
Cairns, E.	Phillips, B.
Cathcart, E.	Ponsonby of Shulbrede, L.
Chitnis, L.	Rankeillour, L.
Collison, L.	Redesdale, L.
Colville of Culross, V.	Renton, L.
Cross, V.	Ross of Marnock, L.
David, B.	Rugby, L.
Davies of Leek, L.	Saltoun, Ly.
de Clifford, L.	Seear, B.
Denbigh, E.	Sefton of Garston, L.
Denington, B.	Segal, L.
Diplock, L.	Sharples, B.
Drumalbyn, L.	Shinwell, L.
Elwyn-Jones, L.	Simon, V.
Ewart-Biggs, B.	Stamp, L.
Fortescue, E.	Stedman, B.
Gaitskell, B.	Stewart of Alvechurch, B.
Gisborough, L.	Stewart of Fulham, L.
Gosford, E.	Stone, L.
Greenway, L.	Strathcarron, L.
Hale, L.	Swinfen, L.
Hampton, L.	Taylor of Mansfield, L.
Hanworth, V.	Teviot, L.
Harmar-Nicholls, L.	Tordoff, L.
Hatherton, L.	Trumpington, B.
Houghton of Sowerby, L.	Underhill, L. [Teller.]
Howe, E.	Wakefield of Kendal, L.
Inglewood, L.	Wallace of Coslany, L.
Jacques, L.	Wells-Pestell, L.
Jenkins of Putney, L.	White, B.
John-Mackie, L.	Wigoder, L.
Kilmarnock, L.	Winterbottom, L.
Lauderdale, E.	Wootton of Abinger, B.
Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS
Ailsa, M.	Lyell, L.
Avon, E. [Teller.]	Mackay of Clashfern, L.
Bathurst, E.	Mancroft, L.
Bellwin, L.	Mansfield, E.
Beloff, L.	Marley, L.
Belstead, L.	Murton of Lindisfarne, L.
Bessborough, E.	Napier and Ettrick, L.
Boyd of Merton, V.	Northchurch, B.
Bridgeman, V.	Nugent of Guildford, L.
Campbell of Croy, L.	Onslow, E.
Cockfield, L.	Orkney, E.
Cullen of Ashbourne, L.	Rawlinson of Ewell, L.
Daventry, V.	Reay, L.
Davidson, V.	Reigate, L.
Denham, L. [Teller.]	Rochdale, V.
Dilhorne, V.	St. Aldwyn, E.
Elliot of Harwood, B.	Sandford, L.
Elton, L.	Skelmersdale, L.
Ferrers, E.	Stradbroke, E.
Gowrie, E.	Sudeley, L.
Gridley, L.	Trefgarne, L.
Hailsham of Saint Marylebone, L.	Vaux of Harrowden, L.
	Vivian, L.
Hives, L.	Waldegrave, E.
Kilmany, L.	Ward of Witley, V.
Long, V.

Resolved in the to affirmative, and amendment agreed to accordingly.

6.45 p.m.

Lord Lucas of Chilworth moved Amendment No. 62B: Page 65, line 28, column 3, leave out ("5–9") and insert ("3–9").

The noble Lord said: I beg to move Amendment No. 62B, and with the leave of the Committee, I should like also to speak to Amendment No. 62C. These two amendments change the number of points to be awarded in respect of two offences: the first, failing to stop after an accident; the second, failing to give particulars or to report an accident. I can appreciate the upper limit of nine points as regards both these offences in that what we are particularly anxious to do is to inflict a sufficiently severe penalty on somebody who, for example, is involved in a hit-and-run accident causing extreme damage and extreme injury and who disappears into the night, so to speak.

In effect one could argue, as I have suggested in my amendment, that the lower limit of five points for failing to stop after an accident, and the lower limit of four points for failing to give particulars, should be reduced even further. I can promise the Committee that I am not proposing to pursue that line of argument any further this evening. However, I am particularly anxious to ascertain at this time why the Government have established this wide bracket and why they have differentiated between the two.

Secondly, I am particularly anxious that there should be from my noble friend, indeed from the Government —and I would ask this question of whoever was sitting on the Front Bench—a clear statement as to what are the responsibilities of drivers and/or other persons who may be involved in an accident, and I am not necessarily referring to a personal injury accident. I understand that it is popularly thought that it is only necessary to stop after a personal injury accident, and that it is also popularly thought that it is only necessary to report that in the event of one being unable to stop after that time.

So I should like to make it quite clear that these two amendments are probing amendments to establish why there should be a differential in the lower points, and to elicit a clear statement as to what are a person's responsibilities having been involved, with or without a vehicle, in an accident. I beg to move.

Lord Mackay of Clashfern

The amendment opens the question of the range of points once one has decided that there should be a range—and we are in principle agreed that there should be a range of points for these particular offences, for the reasons which I mentioned earlier. The general situation is that in our view to go below what we have already suggested is really introducing into the system an unrealistic degree of precision, because one must have in mind that the law will have to be operated in a very large number of courts, by a number of different magistrates even in the same court and so on. At the low end of the scale one must also take account of the fact in many cases where the police are involved they give warnings rather than go forward to a prosecution. The same is true in Scotland. Perhaps I might risk touching on an offence which we were told about earlier this afternoon, because I would think that a warning might be the appropriate way of dealing with that offence.

So far as responsibilities are concerned, I think that the best answer that I can give is to refer to Section 25(2) of the Road Traffic Act 1972 which provides that where an accident has occurred which causes injury to someone other than the driver himself or damage to another vehicle or damage to an animal—and the animals are listed—it must be reported by the driver to the police as soon as possible, and in any event within 24 hours, if he has not stopped after the accident and given his name and address and those of the owner of the vehicle to anyone having reasonable grounds for requiring them. In the light of that explanation, I hope that my noble friend will feel able to withdraw his amendment.

Lord Brougham and Vaux

I believe that my noble and learned friend said that one has only to report an accident to another car. Recently on television there was a programme called "So you think you can drive ". The Ministry was consulted—it appeared on the credits—and it said that you did not have to report an accident to another car. Would my noble and learned friend care to clarify that point?

Lord Mackay of Clashfern

I do not have the provision in front of me at this minute, but my recollection of Section 25(2) of the Road Traffic Act 1972 is that it includes an accident which causes damage to another vehicle, and an obligation to report arises in that situation.

Lord Brougham and Vaux

From the BBC programme it was pretty clear in my mind that you did not have to do so because the situation was put forward: do you or do you not?—and the answer was that you do not.

Viscount Hanworth

Would the Minister agree that the law as it stands says that if you can exchange insurance certificates usually an accident does not have to be reported?

Lord Mackay of Clashfern

As I said, the obligation to report an accident to the police arises if the person has not stopped after the accident—the accident being of the type that I have described—and given his name and address and those of the owner of the vehicle to anyone having reasonable grounds for requiring them. Therefore, if he has stopped and given particulars to someone who has reasonable grounds to require them, in that situation the obligation to report to the police does not arise.

Lord Swinfen

Can my noble and learned friend say why the driver of a vehicle damaging property does not have to report the accident to the police? I am sure that a number of local authorities must lose a considerable amount of money as a result of their lampposts being knocked over and, likewise, private individuals with their garden walls being damaged.

Lord Mackay of Clashfern

I am not in a position to explain the policy that gave rise to Section 25(1) of the 1972 Act, and in the absence of a proposal to change it at the moment, I am not sure that I can give a very good answer to that question, but I shall certainly undertake to examine the question.

Lord Harmar-Nicholls

My noble friend Lord Lucas has made it perfectly clear that this is a probing amendment in order to obtain a reaction while there is still time to do something about it. There is one aspect of this amendment that could perhaps be looked at. As my noble friend pointed out, the difference between accidents can be quite huge. If someone has killed a person or maimed a person in an extreme way and then disappears, as my noble friend put it, into the night, that is worthy of all the points that my noble and learned friend would want to put on that man. But one can envisage other circumstances which may not be as blatant as that or where the accident may not be as damaging.

In his probing amendment my noble friend is saying that the difference between five and nine does not reflect the gradations of difference that there can be in the effect of the offence. He is suggesting that, in justice, "3–9" would reflect the difference rather more fairly than "5–9". I think that it may well be worth looking at this again, if my noble and learned friend can do so. The principle that my noble and learned friend at the Dispatch Box has supported is absolutely right. I do not think that anyone would quarrel with the principle, but I think that the margin of difference is worth another thought if we take into account the different kinds of misdemeanours that can come under the heading of not reporting.

Lord Gisborough

I should like to raise a point for thought; that of the motorist who, in pushing himself into a parking place, goes into someone else's bumper, so causing a dent. This is a frequent occurrence. If he is seen and does not report that small damage, that would be equal in penalty to the penalty given for careless and inconsiderate driving. I wonder whether that is the Government's intention.

Lord Mackay of Clashfern

As I said earlier, the range that one takes for this is a matter of judgment. In our view, having regard to the nature of the penalties imposed, the difficulties which I mentioned and the increase in the number of these offences, this is a reasonable balance to take. Of course, for a person who has very limited resources to find that the car he has cherished and kept polished and so on has been damaged in a parking place, by someone who has not troubled to leave his name or any way in which he can be contacted, is often rather an annoying experience. If one is to judge all the possible refinements, one could see the magistrates' courts being taken up with this for rather a long time. Certainly we think that we have the balance about right.

Viscount Simon

On the last remark that the noble and learned Lord made, I was given to understand the other day that a car knocked in a parking places does not come under the law at all because it is not on a public road.

Lord Mackay of Clashfern

That depends on where the parking place is. One can envisage parking places to which the law might not apply, but in our view the provision which we have made here is perfectly reasonable. We think that to go under five would be to introduce an unreasonable appearance of precision without actually attaining anything definite in exchange for it.

Lord Lucas of Chilworth

I find all that very perplexing. My noble and learned friend says that to go under five would not be representative, but the second one goes over five. I also find it somewhat disappointing that we have not been able to learn exactly what constitutes failing to report an accident or failing to stop after an accident. In fact, Section 25(1) of the 1972 Act deals merely with the duty to stop and furnish where damage is caused to a vehicle, trailer and people. We have been talking about other occurrences which may fall into the category of an accident. It might be more helpful if I suggested to the Committee that I look at what my noble and learned friend the Lord Advocate has said with a view to bringing back at a later stage an amendment which will suitably elicit the kind of information which I seek. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62C not moved.]

6.58 p.m.

Lord Lucas of Chilworth moved Amendment No. 62D: Page 65, line 34, column 3, leave out ("2") and insert ("4").

The noble Lord said: This amendment is a little more important. Its purpose is to question the Government's view as to why someone with defective eyesight who fails to correct it, and is prosecuted, is penalised two points. Two points is extremely low. With the greatest respect to colleagues who wear spectacles, to colleagues who should wear spectacles and to older people who fail to realise that they ought to wear spectacles or take some kind of corrective action, as well as those who know full well that were they to make the declaration they might possibly be prohibited from driving, I believe that they should be most heavily penalised.

I do not want to make a big issue of this, but I have knowledge of various instances. I recall a relative of mine whose eyesight had failed and failed, and he wore the same glasses; but on days when he left them at home he drove his motorcar. Unfortunately, one day he knocked over a bicycle and after that, fortunately, he gave up driving altogether.

I consider this to be a serious offence. It is one of the health offences. Indeed, I might possibly have liked to see in a Transport Bill at some time further measures with regard to age, infirmity and serious illness requiring people to subject themselves, as do public service vehicle drivers, train drivers, and so on, to medical inspection. However, we cannot go that far under this amendment. May I ask the Government what is the thinking behind this particular penalty, with the suggestion that I should certainly like to see it much higher? I beg to move.

7.1 p.m.

Lord Underhill

I should like to support the noble Lord, Lord Lucas, in his amendment. As one who wears spectacles, it may seem strange that I am doing so. But it may be fitting that I support him because some 10 months ago, as a number of noble Lords know, I completely lost the sight of one of my eyes. What did I do? I contacted the Swansea licensing office, and the confidential report from my doctor to the licensing office said that I was fit to drive, and I drive, but only with the medical test. I do not want to be thought of as wearing a halo, put publicity should be given that people have the opportunity for a medical test.

I do not know the actual figures, but looking at the booklet of offences I see that there are 110,000 driving licence-related offences. They are not broken down. Therefore, I do not know how many relate to giving incorrect information about eyesight. Maybe the noble and learned Lord can tell us. What we know is that in 1979 there were 285 convictions for driving with uncorrected eyesight and six for failure to submit to a test. If a person cannot see a number plate at 25 yards, it is reasonable to assume that there will be great difficulty in reading many of the traffic signs. If a person cannot read the traffic signs, then there is a possibility of danger.

Therefore, I should like to echo what the noble Lord, Lord Lucas, has asked: why have the Government fixed a figure of only two points? Surely anyone who is driving with uncorrected eyesight is a danger not only to himself but to other people, and, whatever happens as a result of this amendment, I hope that the fact that we have discussed this will bring publicity to bear on the issue, because I am certain that there must be a substantial number of persons who are driving with eyesight that ought to be dealt with, or about which information should be given on their application for a driving licence.

Lord Mackay of Clashfern

The general approach to fixing the points value in this part of Schedule 7 has been to determine it by reference to the average levels of fines imposed as a proportion of the average fines imposed for offences carrying mandatory disqualification. It seems as good a way to arrive at a formula as any. If we depart from such a formula then the judgment that one applies may be difficult to justify.

In the case of this particular offence certainly so far I am not persuaded that overwhelming reasons for going away from this general approach have been established. Under the current driving licence law the minimum eyesight requirement for a driver is the ability to read in good daylight, with glasses if worn, the registration mark of a motor vehicle at a distance of 75 feet in the case of symbols 3½ inches high, or 67 feet in the case of symbols 3⅛ inches high. Research has established that this apparently simple test stands up well in comparison with standards adopted in other countries. It also meets the vision standards set out in the international Agreement on Minimum Requirements for the Issue and Validity of Driving Permits.

Recent research by the Transport and Road Research Laboratory into sight standards among drivers suggests a better overall standard than some previous reports have indicated. Of those drivers tested, only between 1 per cent. and 5 per cent. would have failed the number plate test. While the report confirmed a gradual decline in sight with increasing age, even among those drivers aged 65 years and over the failure rate was no higher than 5 per cent. to 10 per cent. Where eyesight is a factor in accidents it is often not so much that the person involved has defective eyesight but that he has failed to use the perfectly good eyes which he has. Accordingly, so far at least, we are not persuaded that it is wise to increase the number of points for this particular offence. I hope that, in the light of that explanation, my noble friend will feel able to withdraw his amendment.

Lord Lucas of Chilworth

I shall beg leave to withdraw this amendment. It will be with some reluctance. I do not find my noble and learned friend's answer at all satisfactory. It seems to me very arbitrary to refer to the average of fines in the courts as the yardstick against which penalty points should be totted up. What we are seeking in the whole of Part IV is not to penalise people but to prevent accidents happening by having deterrent penalties. I have not done a lot of research on eyesight, but I know enough people who should jolly well wear their glasses.

Notwithstanding that my noble and learned friend says that people should use the good eyes that they have got, the trouble is that if you have defective eyesight and do not wear spectacles you take two looks before you establish what it is you want to see. It is that flash of an eyelid, that second thought, that causes the accident. It is the delay element. I would ask my noble and learned friend to have another look at this; to make some researches between now and Third Reading. There are bodies such as the Opthalmics Association which I am sure could be helpful with regard to this. I do not think that, where we are talking about a physical infirmity, a disability, as listed in Schedule 7, it should be dealt with, with, if I may say so, such scant attention. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

I think that this is probably the moment when we should adjourn this Committee stage for the dinner adjournment. Perhaps it would be best if we arrange that the House resumes after the next piece of business to be taken in the dinner adjournment, at eight o'clock. I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.