HL Deb 14 October 1982 vol 434 cc916-67

3.36 p.m.

Further considered on Report.

Clause 22 [Forgery and misuse of documents etc.]:

The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 31A:

Page 24, line 42, at end insert— ("or (c) in Scotland, forges or alters a document evidencing such an authorisation;").

The noble and learned Lord said; My Lords, as your Lordships will appreciate, the laws north and south of the Scottish Border are not quite the same—and in particular, the law of forgery north of the Scottish Border is not quite the same as that in England and Wales. This relatively minor amendment is designed to make the forging of documents evidencing authorisation as an authorised person in terms of Clause 8(4) a specific offence in Scotland. I beg to move.

On Question, amendment agreed to.

Clause 26 [Fixed penalty offences and fixed penalty notices]:

Lord Lucas of Chilworth moved Amendment No. 31B:

Page 27, line 34, at end insert— ("( ) he has been informed that the constable intends to issue such a notice; and")

The noble Lord said; My Lords, in moving this amendment I will remind your Lordships of the discussion we had during the course of the Bill at Committee stage. At that time the Committee was concerned that the exposure of a motorist's licence before the constable had made up his mind with regard to the offer of a fixed penalty award or a summons would affect his attitude. We suggested the same amendment as that set down this afternoon—that it should be a requirement that the constable should have to make it quite clear to the motorist that a fixed penalty was to be offered.

We discussed this at great length and there was general acceptance by the Committee that this was desirable, notwithstanding the fact that it was the intention for the department or the Home Office to include that requirement in guidelines to police forces. However, my noble friend the Minister said at that time, at the conclusion of our debate on 9th July (Hansard, col. 1003): In view of the support he has had around the Committee, perhaps my noble friend will offer to withdraw his amendment now and I will go back to counsel and say that the Committee wants this and that he will have to find some way around it.

I am very much obliged to my noble friend for his letter of 12th October, in which he tells me that for technical reasons—that is, to ensure that motorists do not find a loophole in the law and so escape their just penalty, whether it is a fixed penalty or a summons—the draftsmen are not able to meet the point. He goes on to suggest that I ought to be perfectly assured with the intention. I do not know whether he has had any further thoughts since 12th October. My further thoughts are that it should not be impossible for counsel to find a way round the difficulty; that is precisely what they are there for.

Secondly, in the Stewart Committee Report (Cmnd. 8027), which has featured so frequently in our debates on road safety matters, particularly matters of this kind, there is at the end, as an appendix, a number of suggested fixed penalty notices, pieces of paper. It does not seem to me to be beyond the wit of draftsmen, parliamentary draftsmen or others, to attach to that notice a disclaimer; that is to say, on being handed this by the policeman the alleged offending motorist might sign it acknowledging that he has been offered a fixed penalty award, subject of course to anything that might transpire later on examination of the licence; it would mean disqualification or that the law does not provide for a fixed penalty under those circumstances. That should be quite simple. I do not see why, if my idea of simplicity is correct, the requirement of such a notice cannot be included in the Bill, as suggested in the amendment. I beg to move.

Lord Underhill

My Lords, I do not think one need argue the case too much, because the noble Earl, Lord Avon, not only said that he would go back to counsel but also said at Committee stage that a police officer would have to do what the amendment would require him to do and therefore the amendment is unnecessary. Therefore, the argument is really accepted by the Government, and I do hope that the noble Earl has been able to get back to the legal advisers and will support this amendment.

The Earl of Avon

My Lords, as both noble Lords have said, the House will be aware that this issue was debated in Committee when I attempted to persuade noble Lords that this amendment would cause difficulties. In view of the support that my noble friend Lord Lucas got in Committee, I undertook to go back to counsel. Of course, the only trouble with writing to my noble friend, having gone back to counsel, is that he has now more or less read out my whole brief for me.

The situation is this; we had considered and we have now considered it again, but unfortunately we find that we still cannot welcome the amendment, nor offer an alternative form of words such as my noble friend is suggesting. I hope noble Lords will not mind if I cover some of the same ground again to explain the problems that might arise with such an amendment. In order to see the contents of the licence, to inspect it for points, the officer will have to explain to the driver why he needs to see it and therefore that he is thinking about offering a fixed penalty. This is because the provisions in Part III give no entitlement to the police to inspect the endorsements, if any, on a licence. We are, as I previously explained, having to rely on the willingness of the driver to show his licence.

The amendment will thus require the officer to do what he will have to do anyway, but putting such a requirement on the statute book would increase the number of grounds on which the validity of such a notice could be challenged and give rise to technical defences which I am sure noble Lords will agree are unwelcome. It might subject the police to false claims that the offer was not made first, despite the fact that a fixed penalty was in fact issued. There could be claims that the fixed penalty was, therefore, issued invalidly; and for offences such as failing to comply with traffic directions governed by Section 179 of the Road Traffic Act 1972 the time allowed for warning of an ordinary prosecution would almost certainly have passed. There would thus be a risk that some motorists who had accepted fixed penalties would seek to exploit this technical defect and escape altogether.

To conclude, it is indeed our intention that an officer will do exactly what my noble friend Lord Lucas would like him to do, but we believe it is unwise to give the status of law to this requirement, which may lead to technical defences. I cannot think that my noble friend would wish to see this. He mentioned that there is going to be Home Office guidance. I would add that the chief officer of police will also give instructions on this line. May I say finally that I do not believe there would be any incentive for the police themselves to act otherwise than in the way my noble friend wants. I hope, having said that, that my noble friend will find this constructive enough to enable him to withdraw his amendment.

Lord Lucas of Chilworth

My Lords, I have to thank my noble friend for his further explanation. I was looking at my own driving licence and wondered exactly how a policeman could see other than the name and address. My fear is that when greater knowledge of the fixed penalty system comes about motorists will still, rightly or wrongly, hold the view that a decision is going to be made on sight of the licence. They then may well elect not to offer the licence at that time, saying they have not got it, in which case they will be served with a further notice to produce it at the nearest police station in five days' time. It could well be that the motorist will take advice from a lawyer and the whole procedure gets drawn out. There is then further work at the police station, even when that work may ultimately end in a fixed penalty notice being offered.

I think the argument my noble friend has advanced about technical defence is liable to lead to greater difficulties. In the circumstances, particularly since our conversations finished only two days ago, I would like to consider again what he has said, in the hope that I or my advisers and his own department can find some formula to meet this problem. With the assurance to your Lordships that I will not weary you too much at Third Reading next week on the point, I beg leave to withdraw the amendment at this time.

Amendment, by leave, withdrawn.

3.48 p.m.

Lord Mishcon moved Amendment No. 31C: Page 28, line 35, at end insert ("and such notice shall be in the form which the Secretary of State shall from time to time by regulation prescribe.").

The noble Lord said: My Lords, I am sure there is no doubt at all in your Lordships' minds that the majority of the Members of your Lordships' House, and certainly the two Front Benches, are completely in favour of fixed penalty notices. The only concern that we all have is that there should be clarity, that there should be uniformity and that there should be justice in regard to the fixed penalty notice.

At Committee stage I ventured to draw the attention of the Committee to one hit of injustice, as an example, which might occur if we did not know that the fixed penalty notice was in a prescribed form. I dealt with the issue of an endorsement of a licence, a very serious matter to many people who as ordinary amateur drivers take a pride in their driving record, but of even more serious consequence to people who earn their livelihood as a result of being able to show a clean licence. There are occasions—the noble Earl was good enough to confirm this to me in a letter—when the court is entitled to take into account special reasons relating to the facts of the case before deciding whether or not an endorsement should be placed upon a licence. That is a series of cases within the transport legislation which is not within the knowledge of the ordinary member of the public. Therefore, the ordinary member of the public, when stopped or approached by a police officer in regard to an offence which is capable of being endorsed, might well concede the endorsement which would automatically follow without knowing that there are cases where, if he wanted to fight the endorsement, he had the right to do so by electing to appear in court.

Therefore, instead of complicating the statute I humbly suggested that there should be a prescribed form, prescribed from time to time so that there is no question of fixing it for time immemorial and losing flexibility. The form should give in its wording an indication to the motorist concerned that, if it is that type of offence, if he wished to make a submission in regard to endorsement he need not accept the fixed penalty notice; instead, he can elect to have the matter heard by a court if it is decided to prosecute him. That was one of the grounds on which I wanted to argue for a prescribed form.

The noble Earl, Lord Avon, with his customary courtesy, having promised that he would write to me and certain other of your Lordships in regard to matters raised in Committee, did so. In his kindness and generosity he added in the course of his objection to a prescribed form one additional argument in favour of such a form which I had not myself advanced. I am sure he will not mind my saying that, and quoting briefly from the letter that he sent to me. He said: The present fixed penalty system relies on forms prescribed by Statute and in looking at the weaknesses of the system, we concluded that one of the reasons people do not pay their fixed penalties or respond to their notices is that they find them difficult to understand and fill in. If there is one good reason for prescribing a form in language which can be understood by everyone, so one hopes, that one good reason for having simplification and clarity of language has been given to the House, I suggest, in that sentence in the letter. If it be true and it is not too charitable a view one is expressing in regard to the motorist that the reason many of them do not pay fixed penalties is because they do not understand the form, how foolish it would be to leave the matter to various authorities which are merely obeying, no doubt, a general direction to be as clear in their language as they can.

One does not doubt that Ministers of Transport will always have the great gift of being able to express themselves in good clear simple English, as indeed the present incumbents of that office undoubtedly can. In those circumstances, therefore, should we not ask that the Minister from time to time, and with flexibility, should see that there is a prescribed form which everyone can understand and which will be just because it will point out the rights of the motorist in certain circumstances.

I only add this because I must do so in fairness. To suggest that that was the only answer given in reply to my submission would be grossly unfair and inaccurate. The Minister added the point in a subsequent letter that a prescribed form might give the motorist an excuse to point out, through the agility of mind of a lawyer that he would instruct, that there was a comma missing from, say, the third line in the notice he received, but that the comma was in the form prescribed by statute. That would be an answer to every prescribed form that we have in many statutes. One can only say from the point of view of experience that the court will not in any way respect a de minimis argument of that kind. If that is the only slight variant or there is a misprint no court will say that the motorist has a good defence in those circumstances. This is an important point. It is a sensible amendment and I hope that your Lordships will agree.

The Earl of Avon

My Lords, I agree with the noble Lord, Lord Mishcon, and it is clear from what he says that our intentions are the same. We both want simple forms in plain language that are easy to understand. We differ only in how that might be best achieved. In fact, we differ to such a small degree that he can actually turn one of my arguments to his own advantage.

This is a narrow point. If people are to use the rights and safeguards in the system we all believe they must understand them and we agree that the House will consider that crucial. That is why the Government have decided to move away from prescribed forms where the language and content is often dictated by regulation. That is to say, although the noble Lord, Lord Mishcon, understands them well sometimes the ordinary driver does not understand them as well as those accustomed to the regulations. Instead, in the Bill we have enumerated some of the things about which a recipient of the notice must be warned and we have taken powers to specify in regulations what further information the fixed penalty notice should contain. I take very much the point made by the noble Lord in his opening remarks and I am sure that will be borne in mind as well.

The forms themselves will not have to conform to the language of statute which I believe is often found difficult to understand by the average person. I can assure noble Lords that any information that can be usefully included in the forms as suggested by the noble Lord, will be included. The flexibility that is provided by not prescribing the forms will mean that they can be expressed in as simple English as possible. It will also mean that any very minor variation between forms of different police areas, necessitated for instance between different set-ups, can be accommodated. However, while our aim is simplicity and comprehension we do not want to see different areas produce different forms which might possibly lead to confusion in themselves. There, the Home Office intends to prepare model forms to recommend to chief officers and police, after taking advice from experts in the sphere of form design. I hope that I have been able to persuade the noble Lord how clearly we want the same end product. The Government do not believe that the amendment is the best way of achieving it. I hope, therefore, that the noble Lord will agree to withdraw the amendment.

Lord Mishcon

My Lords, I should have loved to start off this afternoon with a reasonable reply to a most reasonable request. My misfortune is that I feel I have a duty here. These are important measures. The form should be laid down. As I said, it can be changed from time to time, and with great respect to the Minister—I do not intend to make a second speech—to say that guidance will be given to various chief constables and that that necessarily will result in a clear English document that is capable of being understood by the average motorist is being far too optimistic.

I believe I have a duty and that the House has a duty and I intend to test the opinion of the House on what in no way at all can be conceived to be a party point. I therefore hope that your Lordships will agree with the amendment.

3.59 p.m.

On Question, Whether the said amendment (No. 31C) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 104.

Airedale, L. Banks, L.
Ardwick, L. Barrington, V.
Aylestone, L. Beswick, L.
Balogh, L. Bishopston, L.
Blease, L. Lovell-Davis, L.
Briginshaw, L. McNair, L.
Brockway, L. Mayhew, L.
Cledwyn of Penrhos, L. Mishcon, L.
Collison, L. Molloy, L.
Cooper of Stockton Heath, L. Peart, L.
Phillips, B.
David, B. [Teller.] Plant, L.
Davies of Leek, L. Ponsonby of Shulbrede, L. [Teller.]
Denington, B.
Diamond, L. Roberthall, L.
Elwyn-Jones, L. Rochester, L.
Evart-Biggs, B. Sainsbury, L.
Ferrier, L. Segal, L.
Fisher of Rednal, B. Stamp, L.
Gaitskell, B. Stedman, B.
Gormley, L. Stewart of Alvechurch, B.
Grey, E. Stewart of Fulham, L.
Hale, L. Stone, L.
Hankey, L. Strabolgi, L.
Harris of Greenwich, L. Tanlaw, L.
Houghton of Sowerby, L. Taylor of Blackburn, L.
Hughes, L. Taylor of Gryfe, L.
Jacques, L. Thurso, V.
Jeger, B. Tordoff, L.
Jenkins of Putney, L. Underhill, L.
Kaldor, L. Wallace of Coslany, L.
Kilmarnock, L. Wells-Pestell, L.
Kirkhill, L. Whaddon, L.
Leatherland, L. Willis, L.
Listowel, E. Winstanley, L.
Llewelyn-Davies of Hastoe, B. Wootton of Abinger, B.
Wynne-Jones, L.
Lloyd of Hampstead, L.
Adeane, L. Hives, L.
Ailesbury, M. Hornsby-Smith, B.
Alexander of Tunis, E. Hylton-Foster, B.
Avon, E. Inglewood, L.
Beloff, L. Kemsley, V.
Bessborough, E. Kinloss, Ly.
Blake, L. Kinnaird, L.
Boyd-Carpenter, L. Lane-Fox, B.
Braye, L. Long, V.
Caccia, L. Loudoun, C.
Campbell of Alloway, L. Lyell, L.
Carnegy of Lour, B. McFadzean, L.
Carrington, L. McFarlane of Llandaff, B.
Cathcart, E. Mackay of Clashfern, L.
Chelwood, L. Mar, C.
Clancarty, E. Marley, L.
Clitheroe, L. Merrivale, L.
Cockfield, L. Mersey, V.
Cottesloe, L. Milverton, L.
Cross, V. Morris, L.
Cullen of Ashbourne, L. Mottistone, L.
Daventry, V. Mowbray and Stourton, L.
Davidson, V. Murton of Lindisfarne, L.
De Freyne, L. Norfolk, D.
De L'lsle, V. Nugent of Guildford, L.
Denham, L. [Teller.] O'Brien of Lothbury, L.
Derwent, L. Orr-Ewing, L.
Drumalbyn, L. Pender, L.
Ebbisham, L. Platt of Writtle, B.
Eccles, V. Plummer of St. Marylebone, L.
Effingham, E.
Ellenborough, L. Portland, D.
Elton, L. Rankeillour, L.
Faithfull, B. Rawlinson of Ewell, L.
Ferrers, E. Reigate, L.
Fortescue, E. Renton, L.
Gainford, L. Rochdale, V.
Glanusk, L. Romney, E.
Glenarthur, L. St. John of Bletso, L.
Gormanston, V. Sandford, L.
Gridley, L. Sandys, L. [Teller.]
Hailsham of Saint Marylebone, L. Sempill, Ly.
Skelmersdale, L.
Hatherton, L. Stanley of Alderley, L.
Henley, L. Stradhroke, E.
Strathclyde, L. Vaizey, L.
Strathspey, L. Vaux of Harrowden, L.
Suffield, L. Vickers, B.
Swinfen, L. Vivian, L.
Terrington, L. Wakefield of Kendal, L.
Thomas of Swynnerton, L. Ward of Witley, V.
Trefgarne, L. Westbury, L.
Trumpington, B. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 27 [Fixed penalty notices given at a police station]:

4.8 p.m.

Lord Underhill moved Amendment No. 31D: Page 29, line 36, leave out subsection (4).

The noble Lord said; My Lords, I beg to move Amendment No. 31D. Subsection (4) of this clause, which this amendment seeks to leave out, provides that the entire section shall: not apply in respect of offences committed in Scotland and a notice under this section may not specify a police station in Scotland". Noble Lords will recall that at the Committee stage there was pressure for there to be similarity of treatment for Scottish motorists in respect of an offence committed in England or Wales. The noble Earl, Lord Avon, said that very few motorists would be involved and he referred to the cost of equipping and manning police stations in Scotland if the provisions which we wanted had to be carried out. On 9th July, at col. 1015, the noble Earl said: the purpose of Clause 27 is to allow a driver to get a fixed penalty notice even though he is not carrying his driving licence. This is achieved for Scotland by Clause 40".

The noble and learned Lord Advocate also said that the number of motorists likely to be affected would not justify the burden of performing this particular job. I must emphasise that there is no desire on the part of myself and my noble friend whose name is attached to this amendment to change in any way the procedure with regard to the procurator fiscal in Scotland. We would not attempt to do that. However, many references have been made to the Stewart Committee. I would refer to paragraph 6.13, which makes absolutely clear that a motorist should not be prevented from getting a fixed penalty if he does not have his licence with him. It refers to the requirement to present a licence for inspection at a police station within five days—I merely paraphrase to save time. We propose the deletion of this subsection. Motoring organisations want this subsection. The Royal Scottish Automobile Club, while expressing some sympathy with the position of the police with regard to administration, takes the view—whether in Scotland or in England—that a motorist must have the right to take full advantage of the law and that when this Bill becomes an Act, the Scottish motorist in England and Wales should be treated just the same as any other motorist—his position must not be prejudiced.

We have the provision of Section 161(4) of the Road Traffic Act 1972 which provides that a motorist may within five days produce a licence or other document at any police station in Great Britain. Therefore, we see no reason why the Scottish motorist should not have this provision. If by any chance the Government again stress the problems of the small police stations in Scotland, I hope that the noble and learned Lord the Lord Advocate—who will most likely reply to this amendment—will accept the spirit of what we are after in this amendment and will bring forward an amendment of his own on Third Reading which may specify certain particular police stations in Scotland. However, it appears that there ought to be the maximum amount of uniformity for any law passed by our Parliament. We hope that the Government will accept the equity of this amendment and agree to the deletion of this subsection.

Lord Drumalbyn

My Lords, I should like to add to what the noble Lord, Lord Underhill, has said. I find it difficult to understand how this will work. Let us take, for example, the case of an English tourist going to Scotland who commits a road offence there. Let us say that he does not have his licence on him. What will happen in that case? Subsection (4) is totally disapplied here. It says: This section does not apply in respect of offences committed in Scotland and a notice under this section may not specify a police station in Scotland". But as it is disapplied completely, nor can it specify a police station in England. I hope that my noble and learned friend will make that position clear, because I believe that an amendment is certainly necessary there to clarify the position, if it is the intention that he can specify a police station in Scotland.

As regards the Scottish aspect, I notice that no amendments are down to Clause 40, but as this is so closely linked with Clause 40 I think it would be relevant to mention one point at least in it. I would suggest that my noble friend might explain what is to happen in the case of an offence committed in Scotland by a person domiciled in Scotland who does not have his certificate with him. Clause 40 makes it tolerably clear but, as is so often the case in Scottish legislating, it leaves the discretion with the procurator fiscal, which is entirely separate from what happens in England. It is not an inherent consequence of the difference between law in England and law in Scotland that that should be so. Why should the procurator fiscal or, in this case, the clerk of the court, have this option? I cannot see why he should. If the conditions are complied with—namely, that the licence is forwarded to the clerk of the court—why should there be a discretion? Surely he can proceed in exactly the same way as one would in England where a licence has not been in the possession of the motorist at the time when the offence is committed. I wonder whether my noble and learned friend could comment on that and make the matter clear.

Lord Mackay of Clashfern

My Lords, as the noble Lord, Lord Underhill, said in moving this amendment, this is a subject which we have discussed fairly fully before, but in view of the interest that has been expressed in it I hope that your Lordships will forgive me if I speak on it at a little length.

Our objective in framing the fixed penalty provisions of the Bill as they apply to Scotland was to offer to the Scottish motorist the maximum possible range of opportunities to have his offence, if he so chooses, dealt with by a fixed penalty. In this we have been much assisted by the recommendations of the Stewart Committee on Alternatives to Prosecution, which dealt not only with road traffic but the situation generally—and it is still dealing with that—to which we have referred before and to which the noble Lord, Lord Underhill, has referred today.

We accept, of course, that road traffic law should be uniform throughout the country, but we must take account of the fact that the systems of criminal procedure north and south of the Border differ in some significant respects. What we are dealing with in Part III of this Bill is procedure for dealing with road traffic offences which remain, as I think all noble Lords agree as regards this Bill, criminal offences.

For the purposes of this Bill, the most important difference between Scottish and English criminal procedure is that there is in Scotland a public prosecutor who prosecutes almost all criminal offences. It was on that foundation that the Stewart Committee built its recommendations. As noble Lords will recall, it recommended that the police and the procurator fiscal should both be empowered to deal with offences by fixed penalty. The police should be able to issue fixed penalty notices at the roadside for a list of offences which is more or less the same as the list in Schedule 1 to the Bill, and the procurator fiscal for those offences—fixed penalty offences under Schedule 1—plus others, now listed in Schedule 2 to the Bill. We shall perhaps hear more about Schedule 2 later on.

In accepting this recommendation for Scotland the Government had in mind that it would provide the maximum opportunity for the use of fixed penalties in appropriate cases. The fiscal would be able to offer fixed penalties in cases where the police had been unable to do so and for a wider range of offences than is available to the police. This is to the advantage of the motorist and will relieve in addition some of the burden on the criminal courts.

Against that background perhaps I could just look briefly at the provisions of Clause 27 of the Bill. That clause allows a fixed penalty notice to be issued at a police station in cases where it has not been issued at the roadside because the driver was not carrying his driving licence. The clause does not apply to Scotland because it would be an unnecessary duplication; these offences can he dealt with by the offer of a fiscal fixed penalty. There is no need to have the two systems running in parallel; to do so would be wasteful.

I pause here to deal a little more fully with the question which my noble friend Lord Drumalbyn put to me. The situation is that for an English motorist going to Scotland who happens to commit an offence in Scotland and who does not have his driving licence with him, the police meet him on the roadside and are unable to give him a fixed penalty for the reasons that all understand—that he does not have his licence with him and they cannot say whether or not he is qualified. The next stage in the ordinary case will be for that matter to be reported to the procurator fiscal. We took the view that it is the simplest administrative provision for the procurator fiscal to deal with that case and he can deal with it very simply by the procedure set out in Part III of the Bill. That is certainly not to the disadvantage of the motorist because he deals with it without the motorist having to come to any police station. He is able to deal with it by post to the motorist's home; so the motorist need not bother further until he hears from the procurator fiscal about the matter.

There is also this advantage, I think all noble Lords will agree, that the primary responsibility of the police is the conduct of law and order on our roads and streets. It is undesirable in principle to put on the police administrative burdens if these can reasonably he put on some agency more specialising in administration. That is a view which is strongly held by the Scottish police. They want to use their resources for their primary responsibility and to minimise, so far as possible, any unnecessary administration. In the case of anyone offending in Scotland the procurator fiscal is able to give him the full range that the police at the roadside in England can do, plus the other offences listed in Schedule 2. To our mind that is an advantage. For the advantage of the motorist committing an offence in Scotland, we have used the existing system to extend the availability of fixed penalties.

The other side of the question is the one that the noble Lord, Lord Underhill, referred to primarily in moving this amendment. I turn to that now: the question of the Scottish motorist driving in England or Wales without his driving licence. I accept that such a motorist will not be able to have an endorsable offence dealt with by a fixed penalty, and I accept that this can be construed as a disadvantage. But I want to make two points about it. First, the motorist will be able to plead guilty by letter, and this whole argument applies only of course to motorists who wish to accept the penalty and not go to court in any event. There is no point in going to a police station anywhere to get a fixed penalty notice if you do not mean to accept that you are guilty of the offence.

When the motorist pleads guilty by letter he will have the opportunity of explaining the circumstances to the court. In particular he will be able to point out that the offence would have been dealt with by fixed penalty had he been carrying his driving licence at the time. Then of course it will be up to the court to decide on the level of penalty, but I should have thought that, applying commonsense and being fully apprised of the circumstances, the court will be inclined to impose a fine equivalent in size to the fixed penalty. That would in our view he what is likely to happen. The court, I am sure, will give full effect to the circumstances, so that the driver in that situation would only have to write to the court in the ordinary way. That is my first point. Very few motorists would be affected and they could easily deal with the position in this way.

The second is a more practical matter of considerable concern to the police. In order to enable motorists from Scotland offending in England to get a fixed penalty at the police station, arrangements would have to be made in every police station in Scotland to issue them. Remember that Scottish police stations would not be issuing fixed penalty notices for offences committed in Scotland for the reasons I have sought to explain. The effort involved in providing specially in every police station in Scotland against the possibility that someone committing an offence in England will want to report there in order to get a fixed penalty would be out of all proportion to the number of motorists likely to benefit, and I speak here with the full support of the Scottish police who know exactly the nature of the administrative burden which would be involved.

It is not possible to say how many motorists would be involved but the number will certainly be very small, because in order to be covered in this matter at all they have to satisfy a number of qualifications. They must be Scottish motorists—that is, motorists with their homes or places where they would like to present their licences in Scotland—driving in England or Wales. They must be without their driving licence and unable to produce it in England within five days. They must be stopped by the police for an endorsable fixed penalty offence. It must be an offence which, in the constable's view, merits a fixed penalty, not so serious as to merit prosecution. The motorist must be willing to admit his guilt and to accept endorsement. If he disputes either of these he will have to go to court. Finally, he must be liable to disqualification on a totting up basis if convicted of the offence. Therefore, in order to be affected in this way at all he must have all of these qualifications—if that is the right way to describe them. These conditions must be satisfied.

All these considerations will mean that the number of motorists likely to derive benefit from a system allowing the nomination of a police station in Scotland will be very small, and the Scottish police have represented very strongly to us that the effort needed in equipping, training, and manning Scottish police stations to cope with what would be required is out of all proportion to the benefits likely to be derived. The Government accept that view. We consider that the first priority of the police is to minimise office administration and to devote their efforts to their ordinary work. We have to accept, and do accept, their view that to make this special provision which will have to be made—and I emphasise this—at every police station, because the Scottish motorist is going to be able to nominate any police station in Scotland for this purpose, would be out of all proportion to the benefit to be derived. In our view the system which has been set up is one which uses the qualities of the existing system very fully for the benefit of all the motorists involved.

I hope that in the light of these explanations the noble Lord may feel able not to press the amendment. I would emphasise that this amendment has the effect not only ofdealing with Scottish motorists offending in England, but also would put into the Scottish system a duplication requiring every police station to make it possible to give a fixed penalty in respect of motorists offending in Scotland, thus duplicating the role of the procurator fiscal. The noble Lord, Lord Underhill, mentioned Section 161(4) of the Act of 1972, which allows a person who is asked to produce his licence, and does not have it with him, to produce it within five days. There is no difficulty about that. That provision is not in any way being repealed or interfered with. The amendment is dealing with the provision of additional facilities to enable fixed penalty notices to be issued at police stations in Scotland in respect of offences committed in England and in Scotland also. That is a quite additional burden which is quite apart from anything in Section 161(4). I hope that the noble Lord will feel able, in the light of that explanation, to withdraw the amendment.

4.28 p.m.

Lord Lucas of Chilworth

My Lords, before my noble and learned friend finishes, can he tell the House what is the additional burden when, as I understand it, the Scottish police stations still have a number of forms and pieces of paper to complete with regard to a case that will go to the procurator fiscal? It is only substituting one set of forms for another. Secondly, as I understand it, the Association of Chief Officers of Police, and notably the Strathclyde Division, have made no submissions on this matter. It seems to me that we are making a sharp division, even though it be for allegedly a small number of potential offenders. This does not seem to be right to me.

Lord Mackay of Clashfern

My Lords, the fixed penalty notice in respect of an offence committed in England is a type of notice which will not be familiar to the Scottish police. The procedure that has to be used to deal with that is quite different from the procedure involved in reporting a case to the procurator fiscal. The fact that you have only a few customers in every police station, or in any station, does not in any way reduce the fact that the necessary provision has to be made in every police station. It is the number of' police stations which, in effect, creates the burden. You cannot tell at any time how many people will come to the police station wanting this facility. Therefore, it has to be provided everywhere. I can assure your Lordships that the view of the Scottish police on this matter is very clear indeed, and they are against Clause 27 for Scotland.

Lord Hughes

My Lords, my noble friend Lord Underhill asked me—it was a coincidence that I happened to be here—if I would comment on the amendment. I am not certain he will be happy that he asked me to do so by the time I have finished. I understood him to refer principally to the Scottish motorist in England, and I shall come back to that. I understood the Lord Advocate to say that the Scottish motorist committing an offence in Scotland is at no disadvantage compared with an English motorist committing an offence in England, so from that point of view I am perfectly satisfied with what the noble and learned Lord said.

When we come to the case of the English motorist committing an offence in Scotland, he appears, through the different procedure, to be at no disadvantage either. The one who is at a potential disadvantage is the one to whom my noble friend Lord Underhill referred; namely, the Scottish motorist committing an offence in England and not having his licence with him. I am not certain the Lord Advocate is right in saying with such certainty that the courts in England will almost automatically impose a fine which will be the equivalent of the fixed penalty. He may be right, but I should not want to bet a large sum on the noble and learned Lord being right all the time.

However, I could not support the amendment because what is being sought for Scotland is the simplest possible procedure for giving the maximum benefit to the motorist. I think the Scottish motorist going South can deprive himself of any disability by the simple method of making damn certain that he has his licence with him.

Lord Underhill

My Lords, it has become clear from the debate that it would have been wise for the amendment to have concentrated on specifying the police station in Scotland. I said in my opening remarks that we had no desire to interfere with the procedure of the procurator fiscal in Scotland, and I appreciate that the amendment might have that result. The fact that only a few motorists may be affected is no reason to allow any possibility of injustice, a point we have stressed time and again.

When the noble and learned Lord stresses the complications of handling the matter in a Scottish police station—if we concentrate only on the position of the Scots motorist in England and Wales—that is surely overstating the case. The position could be handled quite simply. We are faced with the situation that if the Scots motorist driving in England and Wales has his licence with him, he has the option of a fixed penalty. The very fact of not having his licence places him in the situation to which reference has been made. Naturally, I shall not press the amendment to a vote, but I shall seek advice on how we might still deal with the position of the Scots motorist in England and Wales because I am thoroughly dissatisfied over the possible outcome for him.

As my noble friend Lord Hughes asked, have we any guarantee that the courts will act in the way the Lord Advocate suggested? I wonder whether the noble and learned Lord could say, either today or in writing to interested noble Lords, if the Government would be prepared to see that guidance is given to the courts to ensure that in a case of this kind, no penalty will be greater than that which would apply to the fixed penalty had the motorist had his licence with him. An assurance of that kind would help the situation. If the noble and learned Lord cannot give such an assurance, I shall have to seek advice on whether to raise on Third Reading the matter of the position of the Scots motorist in England and Wales.

Lord Mackay of Clashfern

My Lords, I shall gladly consider the suggestion which the noble Lord, Lord Underhill, just made. It would of course be a matter for the authorities in England and Wales. I shall consult to see what can he done in that connection, and I am grateful to the noble Lord for the very constructive way in which he has dealt with the problem.

Lord Underhill

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.35 p.m.

Lord Lucas of Chilworth moved Amendment No. 31E: After Clause 27, insert the following new clause:

("Fixed penalty notices given by magistrates.

A fixed penalty notice may be issued in court by a magistrate provided that—

  1. (a) the offence under consideration is among those listed in Schedule 1 as a fixed penalty offence;
  2. (b) the magistrate is satisfied, on inspecting the licence, that the holder would not be disqualified under section 19(2) of the Transport Act 1981 (disqualification where penalty points number twelve or more) if he were convicted of that offence; and
  3. 930
  4. (c) it can he shown that a fixed penalty notice would have been issued by a police constable had the driving licence been available either at the time of the offence or for presentation at a police station within 5 days of the offence; and
  5. (d) it can be shown that the non-production of the driving licence within 5 days of the offence was due to circumstances beyond the licence holder's control.").

The noble Lord said: My Lords, it would probably be for the convenience of the House if I addressed myself also to Amendment No. 31F standing in the name of the noble Lord, Lord Underhill, and I am sure that were the Minister able to accept 31E, he would wish to accept 31F. My amendment is designed essentially to cater for drivers who at the time of committing what might be a fixed penalty offence are without their driving licence. We have been over the various procedures which follow being without a licence. People will have the opportunity of taking the licences to a police station, and if the licence is in order and they qualify, a fixed penalty notice could be issued at the police station.

If, however, the offending motorist is not able to produce his licence due to circumstances totally beyond his control, the situation is altered, and immediately two examples come to mind. One concerns the procedures of the DVLC at Swansea, where, I am reliably informed, licences can at present be held for up to six weeks. Secondly—this has happened in recent years—there might be a postal upset or strike. In other words, there can be proper reasons why the motorist should not have his licence available. The police at the police station have no alternative at present but to summons the offender, probably at the same time adding the technical offence of not producing the driving licence.

In due course—in perhaps six, 10 or 12 weeks' time—the motorist goes to court, by which time he has perhaps received his driving licence. Nevertheless, he has a summons to appear before the magistrates, who will deal with the primary offence—be it for careless driving, speeding, an insurance matter or whatever the case may be—and will probably, when the offender has given the reason for his failure to produce the licence, dismiss the second charge. But magistrates have no power, as I understand it, to award a fixed penalty; they must proceed via the normal process.

That means, irrespective of the award they make—if the man pleads guilty or is found guilty; it may be a fine, and while my noble and learned friend the Lord Advocate suggests that it would be no more than the fixed penalty, frankly, I doubt that—the grave disadvantage will accrue that the motorist will suffer a conviction. By not being able to take advantage of the fixed penalty award procedure, he denies himself the opportunity of steering clear of a conviction. The fixed penalty award is not recordable in the same way as a magistrates' court conviction. I am suggesting that there is a very grave disadvantage for someone who has committed a secondary offence totally outside his control. Perhaps one can live with a fixed penalty and some points on one's licence. But there are many people, in particular young people aspiring to positions in perhaps the public service or in other areas, for whom a conviction could prove to be of very great disadvantage.

So the amendment is to provide for the magistrates to take on board—I am sorry to burden the magistrates, by virtue of the amendment, with additional duties—duties almost the same as those of the procurator fiscal. Certainly the magistrates would take on board some of the responsibility that might normally have fallen inside the police station.

I suggest to your Lordships that if my understanding of the current position is correct, there are people who are gravely disadvantaged. I do not believe that it is the intention of the Bill, or the extention of the fixed penalty system, to disadvantage anybody at all, and I am suggesting that the amendment would ensure that no such disadvantage occurred. I beg to move.

4.42 p.m.

Lord Underhill moved as an amendment to Amendment No. 31E, Amendment No. 31 F: Line 1, leave out ("court") and insert ("England and Wales").

The noble Lord said: My Lords, the fact that I have down an amendment means that in general I accept the principle contained in the amendment of the noble Lord, Lord Lucas of Chilworth. The change that I propose would mean that the first line of Amendment No. 31E would read: A fixed penalt?, notice may be issued in England and Wales by a magistrate …"— deleting the reference to a court. So, as the noble Lord said, a magistrate would be free to act in the way outlined in the amendment. Also, I am advised that it would be inappropriate to attempt to apply the proposed new clause to Scotland; hence my amendment that it should apply to England and Wales. For the reasons that the noble Lord, Lord Lucas, has explained, I support the principles of his amendment, and he has indicated that he has complete support for my amendment, No. 31F. I beg to move.

Lord Davies of Leek

My Lords, I should like to ask my noble friend a question. What about Northern Ireland? Is it affected at all?

Lord Underhill

My Lords, perhaps the Minister can help me when he replies to the two amendments. My information is that the position in Northern Ireland is that the matter is dealt with by a form of orders and not by legislation. I think that that might be the answer in this particular case.

Lord Davies of Leek

My Lords, I thank my noble friend.

The Earl of Avon

My Lords, the new clause would widen even further than the Bill already provides for the circumstances in which an alleged offender may be able to take advantage of the fixed penalty procedure. To put the other side of the picture, I would say that I think it is important for us to remember that a person who is alleged to have committed an offence is entitled to a court hearing to determine whether or not he is guilty of that offence. That is his right. He does not really have a right to a fixed penalty notice. The fixed penalty system proposed in the Bill is an extra, a choice available to the alleged offender at the discretion of the police. Every further complexity of the kind that we are envisaging and that we build into these provisions makes it more and more likely that we shall end up with a system that at worst the police and the courts cannot operate, or at best barely makes few savings in police or court time.

In Clause 27 the Bill already allows a driver who is not carrying his driving licence at the time that he is stopped by a police officer for allegedly committing a fixed penalty offence, to take advantage of the fixed penalty procedure by producing his licence at a police station of his choice within five days. Noble Lords will be aware that we discussed this matter in Committee. This provision is similar to Section 161 of the 1972 Act. If due to circumstances beyond his control the driver fails to attend the police station within the five days, the new clause would allow him to apply to a magistrates' court to be allowed nevertheless to be issued with a fixed penalty notice. That is what the noble Lord, Lord Lucas, would like.

Interesting though that approach is, the Government cannot recommend acceptance of the new clause. The procedures which the Bill at present enshrines maintain very clearly the distinction which now exists between the role of the police and the role of the courts. Decisions on whether to take action where an offence has been committed, and, in the case of a fixed penalty offence, on whether to proceed by way of fixed penalty or through the normal processes of laying an information and bringing a prosecution, are matters solely for the police. It is no part of the role of the courts to decide how an offence will be prosecuted. The new clause would therefore give the courts a role which they do not have and which would surely blur the clear line dividing the responsibilities of the police and the courts. In the Government's view that would be an undesirable development, even in the narrow field of fixed penalty procedure. Further, I cannot see the magistrates' courts being terribly happy if this proposal were to be put to them.

If the fixed penalty procedures proposed in the Bill are to succeed, the essential requirement is that in their practical operation they should be simple and clear-cut. Clause 27, which allows a fixed penalty notice to be given at a police station if the alleged offender was not carrying his licence when he was stopped by the police, is a complication of the procedure which the Government were happy to accept in the interests of allowing as many people as possible to take advantage of it. However we do not feel that it would be reasonable to go further by granting some authority—and I have explained why that authority should not be the courts—discretionary power in effect to lengthen the five days within which a licence has to be produced at a police station under Clause 27. That would inject into the procedures a degree of complication that would make their administration unacceptably onerous for the police.

I must also point out that as drafted the new clause places no restriction on the time within which an alleged offender may apply to the court for the issue of a fixed penalty notice. The present drafting would also allow an application to be made by the offender when the case came before the court in the normal process of prosecution. That might indeed be what my noble friend has in mind. It would be even more undesirable than a procedure requiring an earlier application, since at that stage the police would have considered the case in full and decided to prosecute the offender for his alleged offence. At that stage the court's normal task is to judge, upon the facts presented to it, whether or not the individual is guilty or not guilty. It would be totally undesirable for the court to be given the discretion which the new clause in effect would give it to order the police to withdraw the prosecution in favour of a different procedure; namely, the fixed penalty procedure.

I referred earlier to Section 161 of the 1972 Act. Under that section if a police constable requires production of a licence for whatever reason and the driver fails to produce it within the five days allowed, he is actually committing an offence, and it would be open to the police to prosecute the licence holder. Five days was chosen in this case as the period for the purposes of a fixed penalty system to tie in with the existing procedure. I do not know that anyone is complaining that the procedure has gone particularly awry, and I suggest that without such evidence we should go on in the way that we are proposing. I do not believe that if one goes to a police station after four days and says that one's licence is at Swansea, the police constable will not do something about it.

If the new clause were to be inserted into the Bill, and if the Government felt bound to view that as an expression of the will of the House which they must accept, consideration would have to be given to its drafting with a view to amending it at Third Reading. However, I very much hope that for the reasons I have given the House will reject the amendment. The reasons are twofold. First, we believe that the five-day arrangement is a good step forward in a new system which is an additional help to the motorist. Secondly, we believe that the magistrates' courts should not be given this particular task.

Lord Lucas of Chilworth

My Lords, I thank my noble friend for his explanation, and while I am not too happy about his suggestion to the House, I have the feeling that at the end of the afternoon it will have to be accepted. However, there are some points which I think the Government might take on board, perhaps for another day. When my noble friend talks about Section 161 of the 1972 Act and the five days which were generally thought to be quite reasonable, and that there have been no complaints, we did not have arising the situation that I have suggested; that is, that an offender may be denied an opportunity.

The same argument really goes through. I suggest to him that certainly nobody wants to draw the distinction between the police authorities and the courts authorities. Certainly nobody in your Lordships' House would wish to dictate to the courts what they shall or shall not do, particularly in relation to the police. However, by virtue of the fact that after a certain period the fixed penalty cannot be offered by the police, the offender is denied the opportunity to take an award which he might well have had offered if he had had his licence at the time. He is going to get a conviction. So rather than make things better for the motorist and, indeed, better for the court, the reverse is going to happen: the courts will get a job which they might not have had otherwise, and the offender will in all likelihood get a conviction—and I do not believe that is right. I do not accept that within this clause the advantage the motorist has in rejecting a fixed penalty award in favour of a court hearing is analogous in any way whatsoever.

My Lords, I accept what my noble friend says. I leave him with the thought that perhaps some of the difficulties which I envisage and which he, too, has accepted as being possible rather than probable might well have been thought out before we got to this stage—indeed, perhaps before the provision was drafted—and I am disappointed that we can do nothing more about it at this time. It is sufficient to say that the various motoring associations, who give general support to the principle here, will no doubt monitor cases, so that if there is a grave injustice being carried out to a large number of people we can come back to it, perhaps another year. I beg leave to withdraw the amendment.

Amendment to Amendment No. 31E, by leave, withdrawn.

Amendment, by leave, withdrawn.

4.54 p.m.

Lord Underhill moved Amendment No. 31G: After Clause 27 insert the following new clause:

("Issue of fixed penalty notices by chief officers of police.

The Secretary of State may by regulation make provision for the issue on behalf of chief officers of police in England and Wales of fixed penalty notices in respect of any offence mentioned in Schedule 2 to this Act where the chief officer of police has received a report that there has been committed such an offence in his police area.").

The noble Lord said: My Lords, Schedule 1 to the Bill lists the fixed penalty offences which are applicable to England and Wales; Schedule 2 lists other fixed penalty offences which are confined to Scotland. At the Committee stage, on a totally different amendment, the noble and learned Lord the Lord Advocate explained that it would not be a correct assumption that because an offence is listed in Schedule 2 it is necessarily considered less serious in Scotland than it is in England. He also pointed out, as he has done this afternoon, the responsibilities of the procurator fiscal in exercising discretion at a fairly high level, as he said, with the protection of a very considerable measure of independence.

It is not at all the purpose of this amendment to interfere in any way with the procedure in Scotland as outlined by the noble and learned Lord the Lord Advocate. However, if the procedure in Scotland enables motorists there to have the benefit of a fixed penalty option in respect of the offences listed in Schedule 2, I ask your Lordships: Why should this not be extended to motorists in England and Wales? I recognise that the list of offences in Schedule 2 may include some the nature of which is such that the decision should not be made by a police constable at the roadside; but why should not the police in England and Wales have the same power as is given to the procurator fiscal in Scotland? That is what this amendment is proposing.

The police set in motion a substantial number of prosecutions on other matters, and they are considered competent to do so. The amendment seeks to give motorists in England and Wales the same advantage of a fixed penalty for offences listed in Schedule 2 as applies to motorists in Scotland. I would suggest to your Lordships that the police in England and Wales can surely be relied upon to exercise the same discretion in these matters—the same serious discretion, the same almost independent discretion—as the procurator fiscal in Scotland. So what we are really asking is that the police should have the same power to handle these Schedule 2 offences as the procurator fiscal has in Scotland. I beg to move.

The Earl of Avon

My Lords, I appreciate the comments of the noble Lord, Lord Underhill. In fact, I tried to suggest to my noble and learned friend the Lord Advocate that he might reply to this amendment, but he told me it was for England and Wales to get on with it. I get the impression from this amendment that the noble Lord, Lord Underhill, is attempting to turn our chief officers of police into procurators fiscal. With all due respect to both callings, I am not sure that this can or should be done. As the House will be aware, Schedule 2, to which the amendment refers, lists the offences for which a fixed penalty may be issued only in Scotland, and then only by a procurator fiscal. As I understand it, this list was arrived at by considering for which offences a fixed penalty might appropriately be made available, but which nevertheless occurred under such varied circumstances that it was thought necessary for a procurator fiscal's judgment to take the decision.

This is not of course the case in England and Wales. From our point of view there is no merit whatsoever in splitting off from the main stream of fixed penalty offences some others which must not be dealt with at the roadside. Indeed, it would represent a quite unnecessary complication. The system already provides that an officer may issue a fixed penalty notice at the roadside, or at a police station if the driving licence is produced within five days. What the amendment proposes is a wholly separate category of offences where the officer at the scene must enter a report in the normal way, but another officer, on behalf of the chief officer, retains the right to issue a fixed penalty at that stage. As I have indicated, there is in England no reason of principle whatsoever to distinguish the capacity for judgment of the appropriateness of a fixed penalty between a constable at the roadside and another officer at headquarters.

Nor does the amendment make any attempt to consider what the consequences of such a system might be. Presumably it expects the Secretary of State's regulations to deal with this. If so, then our conclusion is that a chief officer could not simply issue a fixed penalty, as the wording of the amendment rather suggests; he would have to offer it upon the condition of seeing the licence, to ensure that the person was eligible in terms of points. If the offender did not reply it would not be open for the police to register the unpaid penalty as a fine; they would have to prosecute, thus rendering the exercise perhaps a net loss of time.

This will of course be the case in Scotland, where, when the procurator fiscal has offered a fixed penalty and there is no response, the matter will have to be dealt with by prosecution rather than the registration of an unpaid fixed penalty as a fine. In England and Wales, however, this system of registration is seen as the key to the future effectiveness of the fixed penalty, and this amendment would not be consistent with that.

In conclusion, therefore, we do not see any future in the attempt to graft the solutions which Scotland has arrived at as a consequence of the deliberations of the Stewart Committee on the Scottish criminal justice system and the scale of road traffic offending there, and the system which we have evolved to deal with the rather different situation in England and Wales. So far as the selection of offences for the fixed penalty system in England and Wales is concerned, this was based on excluding any offences which occurred only infrequently or involved an element of fraud which rendered a fixed penalty an inadequate sanction, or which were quite simply too serious for inclusion in the system. The offences included in the system have already been debated at some length in both Houses, and I hope that we have now perhaps settled that issue.

I would not wish to see this amendment in effect adding to the list; and, as I have already said, there is in England and Wales no basis for distinguishing some offences from others as to the manner in which a fixed penalty should be offered. The House will appreciate that the Secretary of State will be very loath indeed to accept the regulation-making powers that the amendment seeks to confer on him.

In the slight rush of the last amendment, I did not respond to the noble Lord, Lord Davies of Leek, nor to Lord Underhill's extra amendment, No. 31 F. What the noble Lord, Lord Underhill, said was correct and, as I understand it, only Part I of this Bill refers to Northern Ireland. There was a lengthy explanation on an issue which I do not believe we debated before and I hope that the noble Lord, Lord Underhill, will be satisfied by it.

Lord Mishcon

My Lords, I am sure that the House will have been impressed by the reasoning of the noble Lord, which really was this: that a procurator fiscal in Scotland can obviously be given the task of differentiating between the serious and the minor offence in a way in which it would be quite impossible, or quite wrong, to give to the police constable at the roadside. Let me say at once that that is an impressive argument. Unfortunately, however, if one looks at Schedule 2 on page 80 of the Bill—and this I ask the noble Lord to consider—one comes across such trivial offences which are best judged on the spot that I think the case has been made for a transfer of those offences to Schedule 1.

I think that, from that point of view, the moving of this amendment has served a useful purpose, because the noble Lord might like to look at a couple of examples. I can give the House a couple of offences in Schedule 2 which could quite easily be judged by the constable on the roadside. The first one, which is listed under"Offences under the 1972 Act", is Unlawful carrying of passengers on bicycle". The second one is, Failure by pedestrians to comply with direction of constable regulating vehicular traffic". This is the very thing that a constable could judge at the roadside. The third is Holding or getting onto a moving vehicle to be carried". The next is, Holding onto a moving vehicle to be towed". I do not intend to bore your Lordships by going through this list except to read this one—and one imagines a police constable to be quite capable of dealing with this. It is, Causing or permitting dog to be on designated road without lead". These are matters that the procutator fiscal is being asked to consider—with great difficulty, as the noble Earl might say. He has to peruse reports in Scotland—which is their procedure, and it is right that he should—which come from the police officer concerned as to whether in regard to these heinous offences a notice should be issued or not. I think that the moving of this amendment has done this bit of good: that we have had our attention drawn to offences that can have a fixed-penalty notice in Scotland with the wisdom of the procurator fiscal and could equally be included in Schedule 1 as being within the proper province of the officer on the spot.

Lord Underhill

My Lords, obviously there is no more that I need add to the helpful contribution made by my noble friend. I am grateful for his comments and to the noble Earl for explaining the problem. I beg leave to withdraw the amendment and in the meantime to study what the noble Earl has said and also the comments of my noble friend.

Amendment, by leave, withdrawn.

5.3 p.m.

Clause 28 [Further provisions with respect to fixed penalty offences and notices]:

Lord Underhill moved Amendment No. 32:

Page 30, line 40, at end insert— ("(8) Not later than the coming into operation of this Part of this Act, the Secretary of State for the Home Department and the Secretary of State for Scotland shall issue general written guidelines of recommended practice to chief officers of police regarding the discharge of their functions thereunder with the objective of ensuring uniform police practice, and the Secretaries of State may from time to time revise the whole or any part of those guidelines.")

The noble Lord said: My Lords, in dealing with this amendment perhaps I may be allowed to speak to the Government Amendment No. 34A which deals with the same matter. The purpose of the amendment is to ensure that motorists will have the same treatment no matter in what part of the country they may be; in other words, that the law should be applied everywhere. At the Committee stage I tabled an amendment, No. 47, which included the words, … operate the provisions on the same basis and in repect of the same fixed penalty offences in accordance with written advice". I quoted then paragraph 50 of the Interdepartmental Working Party on Road Traffic Law which urged that there should be uniformity of practice in all police forces.

I quoted then figures taken from the Home Office booklet on Offences Relating to Motor Vehicles in England and Wales for 1979. I think I can say that these figures startled a number of noble Lords. All those details are set out in columns 1022 and 1023 of the Mansard of 9th July last. The noble Earl, Lord Avon, expressed sympathy and said that the Government were anxious to see consistent treatment of offences across the country. He said: It is of course axiomatic that chief officers have the operational discretion over the treatment of offences in their force areas, and this is not something with which we would wish lightly to interfere".—[Official Report, Col. 1024, 9/7/82.] He said that the Association of Chief Police Officers shared this concern and that the Secretaries of State are willing to give some guidance. He also commented that differences in administrative systems and differing local priorities should be reflected in the operation of the fixed penalty system. But none of this answers the figures which I quoted from the 1979 booklet.

I should now like to quote some figures from the 1980 booklet which I have seen since the Committee stage. For the non-display of valid vehicle excise licences, 20 police forces in England and Wales gave no fixed penalty notices whatever. These include Avon, Somerset, Devon, Cornwall, Dorset, Gloucestershire, Neighbouring Wiltshire gave 14,000; Derbyshire, nil: Staffordshire, next door, over 6,000; Leicestershire, also next door, over 8,000; Bedfordshire, Cambridgeshire, Hertfordshire, all nil. My own county of Esssex, 13,5000. Suffolk, nil; neighbouring Norfolk, 2,300: Lincolnshire, 3,400. These are rather startling differences. Thames Valley, Kent, Surrey and Sussex, all nil; but Hampshire, 6,000. The City of London 8,000; but the Metropolitan Police, nil. We have three metropolitan counties varying from 4,000 to 36,000, but I find that South Yorkshire metropolitan force were 13,000 while the West Yorkshire metropolitan force were 1. These are almost identical areas.

For disregarding a prescribed route, the total number of notices in England and Wales was nearly 15.000. But 14 police forces issued none at all, yet 10 gave over 500 notices and of these some four gave 1,000 notices. On lighting offences the total in England and Wales was nearly 73,000 issues. Nine forces gave none at all; Derbyshire, 8,000, neighbouring Nottinghamshire, none at all; Greater Manchester, nil; Merseyside, 1,800; Cheshire, also adjoining, 3,000. And one could go on.

My Lords, why is it also that Hertfordshire and Lancashire issued no fixed penalty notices whatever except for parking offences? Three of the four Welsh forces also issued none except for parking. Surely this cannot be justified. It cannot be argued that the differences of administration should be reflected in that type of flexibility.

When I looked to Scotland I had to look in their case to the criminal statistics for Scotland, and Table 28 summarises the offences for which fixed penalty notices are issued. There were 41,000 notices issued for non-display of a vehicle licence but two police forces. Dumfries and Galloway, and Northern, issued none at all. There are only eight police forces in Scotland, so a quarter issued no notices at all. Nearly 13,000 notices were issued for lighting offences, but none at all in four of the eight police forces.

I have also taken figures for Scotland for 1980 which are to be published next month. I am grateful that the good offices of the Scottish Office have enabled these to be obtained. The figure of 46,000 is given for non-display of vehicle licences in 1980; but again the two police forces to which I referred for 1979 are in the same category. For Dumfries and Galloway there were only two notices and for the northern force, again, none. There were 12,000 lighting offences but again none in four of the forces. It is hard for anyone to justify that type of flexibility. In fact, I say it is impossible for anyone to justify that form of flexibility.

Lord Lloyd of Kilgerran

My Lords, I hesitate to interrupt the noble Lord, Lord Underhill, but he has found it helpful for his case to deal specifically with various parts of England. He will have remembered of course that in Clause 32(7) Wales and a justices' clerk are specifically mentioned. Can he now or later give me specific statistics of what has happened in the counties of Wales?

Lord Underhill

My Lords, I thought that I mentioned Wales.

Lord Lloyd of Kilgerran

My Lords, the noble Lord did mention Wales but without that specific matter in relation to Wales which will no doubt help his case.

Lord Underhill

I have the various tables, but I shall not weary the House by reading them. I shall see the noble Lord privately. I have the figures for Wales and three of the four Welsh police forces also issued no fixed penalty notices except for parking.

In view of the criticism that was made—and valid criticism—of the drafting of the amendment which I presented at the Committee stage, this amendment has been re-worded. It meets the criticism that we were trying to instruct chief police officers, and the present amendment provides that the respective Secretaries of State shall issue written guidelines of recommended practice. I am sure it will be recognised by your Lordships that in a number of pieces of legislation which have been before your Lordships in the past two to three years there has been provision for guidelines to be given to various authorities.

There is considerable concern and it is not the spirit of the law that there should be such substantial variations in practice. The noble Earl, Lord Avon, said at the Committee stage that the Secretary of State would be willing to offer general guidance to the police with the objective of uniform practices in mind. He said that, if it was possible to produce something along these lines at the Report stage, the Government would do so. My amendment was put down very early—I believe before we adjourned for the Recess. I should like to know from the Minister what is unsatisfactory about the amendment which I am moving and why it was necessary for the Government to put their own amendment down in very simplistic terms.

In my view, the Government's amendment is not satisfactory. It refers to guidance; it does not refer to guidelines. There is no reference in the Government amendment to the objective of ensuring uniform police practice which the noble Earl said he appreciated should be done. Also there is reference to only a Secretary of State. Whether that is intended to apply to both the Secretary of State for the home department and the Secretary of State for Scotland, perhaps he could explain. But obviously, it must apply to both Secretaries of State. I believe that unless the Government can give satisfactory reasons why they consider their amendment preferable to the one which I have submitted—which meets the criticisms put forward last time—then they should take another look at this matter and accept my amendment. I beg to move.

Lord Somers

My Lords, if I may say a word about this amendment, I am in favour of it. Far be it for me to say anything against the police, which in my opinion are one of the finest groups of people one can find anywhere, but they vary and some officers may be young and not very experienced as motorists. Certainly guidelines of this kind would be a help and would do no harm and would not give the Government a great deal of trouble. It would be advisable to accept this amendment and I hope therefore that the Government will do so.

5.15 p.m.

The Earl of Avon

My Lords, as usual I was fascinated by Lord Underhill's exposé which at one stage I thought was sounding like the football results. I hesitate to say what I am about to say because the noble Lord, Lord Underhill, has the book in front of him and I do not have it in front of me. By the time I sit down he may have checked my facts and proved me wrong. However, I am informed that in the less important offences the variations are much larger (this is normally because of administrative convenience), whereas for the more serious offence the more is the need for the police to see consistency of practice. I am sure that the House will agree with that as a general principle.

Before continuing, I should like to add that I hope equally that the chief officers of police will read Hansard so that they can see who is being good and who is being naughty. May we come back to what we are debating, which is fixed penalties. The Government are anxious to see consistent treatment of offences across the country and I sought to persuade the House that there is a general principle which allows chief officers to make their own decision on the way to deal with offences and we cannot lightly interfere with this operational discretion. The amendment I offer at Amendment No. 34A will provide that the Secretary of State shall issue guidance to chief officers in relation to the operation of a fixed penalty system but without binding chief officers to the effect that it must be operated on the same basis and for the same offences in each force. Such binding will present practical problems and we believe will be wrong in principle. In point of fact, it may even be found to be unworkable. The guidance to chief officers will be directed to drawing their attention to the need so far as possible to work towards uniformity. The House I know will be reassured to hear that once again the Association of Chief Officers in England and Wales share our concern and have said that they too would wish to see uniformity of practice.

Different police areas will have differing administrative systems and differing local priorities and it is reasonable that these differences should be reflected in small ways in the operation of a fixed penalty system. To bind chief officers by statute—which is what the noble Lord, Lord Underhill, would like to do—to the effect that the fixed penalty system must be operated on the same basis and for the same offences in each force would remove this flexibility, and as well as being thus wrong in principle would present practical problems. Forces will be ready to introduce a system, for instance, at varying times because of resource difficulties or other local reasons; and if introducing the system is required by statute to be operated uniformly and for the same offences, the result will be that it may only be introduced at the pace of the slowest force and this, perhaps we can say, will not make sense.

The noble Lord, Lord Underhill, asked me a specific point about the Secretary of State. The Secretary of State in the Bill refers to all Secretaries of State. The noble Lord has a later amendment about that point.

To conclude, I have explained the difficulties which would follow in providing for uniform application in different police areas and I repeat that we believe that the guidance given by the Secretary of State under the proposed amendment which I shall be moving will be directed to drawing their attention to the need so far as possible to work towards uniformity.

Lord Mishcon

My Lords, I feel it is necessary for me to rise if only for a brief moment. I say this with the greatest possible respect: I would not accept the interpretation that the Minister has put upon this very clearly worded amendment. Nowhere is there a directive to chief constables; nowhere is the phrase that chief constables must have a uniform system. The wording of the amendment is transparently clear. It asks for a general written guideline of recommended practice; so it is a practice that is to be recommended and not one that is to be insisted upon. It is not mandatory: it is a guideline. It does not express any orders to the chief constable, except to say that the objective—and that is the word which is used in the amendment—is to ensure uniformity of police practice. So, with the greatest possible respect to the Minister, the interpretation he has put upon this just does not stand up.

Is it desirable that there should be a guideline recommending as an objective uniformity, which quite obviously takes into account the variations that may occur between different areas? It has got that objective. I remember that your Lordships were very patient with me when I spoke in Committee on this very matter and dealt with the lack of uniformity which exists in other respects. "Other respects" related to motoring offences, and I linked that to this question of the fixed penalty notice. I remember the contribution made by the noble Baroness, Lady Macleod, who was kind enough to assent to my view that it was so often a question between advocates in a magistrates' court of deciding hopefully with the clerk that they should go into Court No. 1 rather than Court No. 2 because Court No. I was a very lenient court and Court No. 2, in regard to motoring offences, was known to be quite the opposite. It is also correct—and I am sure your Lordships will know this from practical experience—that there are some chief superindents of police to whom you can write, begging, either on behalf of a client or doing it for yourself as an individual, that because of exceptional or mitigating circumstances there should be a caution issued, let alone a penalty notice, instead of a prosecution.

It would be invidious if I were to talk of my experience with certain chief superintendents, except to say this: there are some who make it a rule, either themselves or by delegated authority, to say in almost every conceivable case "no caution at all". There are other chief superintendents who have a very definite view as to the duty they have to the public in this respect. They consider the applications very carefully and in many cases they do issue cautions, It is therefore abundantly necessary that we should take this opportunity to correct an injustice that does appear in the police courts and also, if I may say so, in the offices of certain superintendents of police. There ought to be uniformity and we ought to say in this House, now that we have the opportunity of dealing with fixed penalty notices in this Bill, that there should be guidelines in the Bill—no more than that: not instructions—that they should recommend but not order, and that the objective should be—again not mandatory—uniformity in practice. It is with that in mind that I think your Lordships should consider this amendment.

Lord Lloyd of Kilgerran

My Lords, I presumed to interrupt the noble Lord, Lord Underhill, when he was speaking specifically on matters he considered to be of very considerable significance. I feel sure now, having listened very carefully to the noble Lord, Lord Mishcon, that the noble Lord, Lord Underhill, would like to withdraw this amendment because I think it is quite clear that the noble Lord, Lord Mishcon, has indicated that really the substance of this amendment is about the same as that of the Government's amendment, No. 34A. The Government amendment certainly has the great advantage that it is contained in two and a half lines, whereas this amendment occupies seven and a half lines in order to achieve the same objective. I am sure that if the noble Lord, Lord Renton, were in his place, he would accept that as a very good reason for preferring Amendment No. 34A.

Lord Mishcon

My Lords, would the noble Lord permit me to interrupt him, with the leave of the House, before he resumes the seat he occupies with such distinction?

Lord Lloyd of Kilgerran

Thank you.

Lord Mishcon

My Lords, I am sure the noble Lord would want to concentrate upon this. Brevity is something to be admired—

Several noble Lords

Hear, hear!

Lord Mishcon

But where brevity does not say what one wants to say, it is something to be abhorred. The noble Lord does not say what is the objective or policy of this directive: it merely says that guidelines will be issued. One Minister could issue a guideline, if he wished, to say that he does not like the idea of uniformity. My noble friend's amendment actually states what the objective of the guidelines should be.

Lord Lloyd of Kilgerran

My Lords, I am very grateful for the intervention of the noble Lord, Lord Mishcon, because it just assists me. As noble Lords will realise, in dealing with courts and matters which come before them, lack of uniformity of decision is a curse. There was even a very important gathering of judges in September, called by the noble and learned Lord who sits on the Woolsack, in order to try to deal with this question of uniformity. With great respect to the noble Lords, Lord Mishcon and Lord Underhill, this amendment does not help in relation to that matter. At the moment I am not committing my party to what they will say eventually on 34A, but it seems to me there are very great advantages in that amendment as compared with this longer amendment, No. 32, which we are debating.

Lord Davies of Leek

My Lords, may I point out, irrespective of the legal boffins disagreeing with each other, that simple English says: … with the objective of ensuring uniform police practice,". That is in my noble friend's amendment, and "uniform" means uniformity, so that each area can as nearly as possible come to the same conclusion. Consequently, I do not really know what the argument is about. The noble Lord, Lord Bellwin, is always very careful, succinct and logical, and he has inserted the following: The Secretary of State shall issue guidance to chief officers of police for police areas in respect of the operation of this Part of this Act. There is no word there of uniformity. Our side of the House is aiming at uniform practice and, if the Minister says so, I accept that they are aiming for that too and would like to see uniformity as far as it is actually practicable in dealing with human beings—such funny creatures as we are—looking particularly at the Benches opposite.

The Earl of Avon

My Lords, if the House will allow me to respond to the noble Lord, Lord Davies of Leek, and to speak for a second time. I have already explained that indeed we want uniformity and, not only that, the Association of Police Officers have been approached and have agreed the same thing.

Lord Drumalbyn

My Lords, may I intervene for a moment to say that in my experience it is common, when new legislation is introduced, to issue guidance; but I have heard local authorities and other authorities again and again complaining about pages and pages of guidelines which are often not very welcome and often not very closely regarded.

Lord Underhill

My Lords, any criticism of reference to guidelines frankly cannot be substantiated in the light of the fact that the Government's legislation has referred many times in the last two or three years to giving guidelines to local authorities and, in one case, giving guidelines to authorities, including police forces. I will not weary your lordships with the details, but this is something the Government have done and we from this side have supported the issue of guidelines. There is a substantial difference between the words "guidance" and "guidelines".

I am certain that the figures which have been quoted, which are from official statistics and are not from Lord Underhill's private book, must be alarming, because they mean that what happens depends upon the area in which the offence is committed. No one at all can justify that, and I am very pleased that the Minister has not attempted to do so. He said that less serious offences are treated differently, but I should have thought that not displaying a vehicle excise licence was quite a serious offence, particularly in view of the efforts which authorities are making to chase those who do not pay the fee, which amounts to a very substantial sum. I should also have thought that lighting offences were very serious, particularly where cars are without rear lights, as often happens. As my noble friend Lord Mishcon said, nothing in this amendment is attempting to tie police officers down by statute, and to suggest that we are endeavouring to insert a directive means that the amendment has not been read seriously.

I must go back to the point that I made at the outset. I should have thought that the amendment was one of the first to be tabled following the Committee stage. I put it in as a safeguard in case the Government decided to do nothing. I am delighted that the Government have accepted the principle. However, they have not justified their preference for their own amendment. The noble Lord, Lord Lloyd of Kilgerran, suggested that it is a long amendment, but is seven lines and one word a long amendment? Heavens, my Lords, you should look at some of the others to which we shall be coming! The noble Lord, Lord Lloyd, will have a bit of a shock.

So I cannot understand why the Government have put down their own amendment. One hates to have suspicious feelings, but my amendment would have done exactly what the Minister said he wants to do and yet, for some reason, the Government have whittled down the wording so that it is very mild. It would be foolish of me to divide the House on a matter of this kind. But having said that, if the Government's amendment is approved we may come back on Third Reading to improve the Government's amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Registration of sums payable in default for enforcement as fines]:

5.33 p.m.

The Earl of Avon moved Amendment No. 32A: Page 40, line 21, at end insert— ("( ) For the purposes of this section, where the defaulter is a body corporate, the place where that body resides and the address of that body shall be either of the following—

  1. (a) the registered or principal office of that body; and
  2. (b) the address which, with respect to the vehicle concerned is the address recorded in the record kept under the Vehicles (Excise) Act 1971 as being that body's address.")

The noble Earl said: My Lords, this amendment is designed to simplify a rather technical, but nonetheless important aspect of the working of the fixed penalty system which will be introduced by Part III of the Bill. It is concerned with the procedure when a vehicle owned by a company is involved in the commission of a fixed penalty offence.

Subsections (6), (7) and (8) of Clause 48 will together have the effect of allowing a Notice to Owner in such a case to be served at the local office of the company where—as is normally the case—it is the local address which is shown on Driver and Vehicle Licensing Centre records as that of the registered keeper. The consequence of a failure to respond to a Notice to Owner under the new arrangements will be the registration of the unpaid fixed penalty for enforcement, as if it were a fine. When a sum is registered in this way, the clerk of the court concerned has to give a notice of registration to the defaulter under Clause 35(8). As the Bill stands at present, the sum would have to be registered in the court nearest to the registered office of the company and the notice of registration sent to that office. It clearly makes sense, however, for the sum to be registered in the court nearer to the company's local office and for the notice of registration to be sent, like the Notice to Owner, to that address. I commend this very simple amendment to the House. My Lords, I beg to move.

Lord Underhill

My Lords, we have no objection whatever to this amendment. Far be it from me, ungrammatical man as I am, to query the grammar, but is the use of the word "and" at the end of paragraph (a) correct? I ask that because ahead of that we see shall be either of the following". Surely, it should be "or", if it is "either of the following.

Lord Mackay of Clashfern

My Lords, I think that the word "either" refers to the "or" that occurs in paragraph (a).

Lord Underhill

Therefore, it is badly worded, is it not?

Lord Mackay of Clashfern

My Lords, I am not sure I would agree with that. But I think that that is what it means. …the address of that body shall be either of the following:— (a) the registered or principal office of that body; and then the address in respect of the vehicle is a different matter. I suspect that some people might have phrased it differently, but I do not think that the word "and" should be replaced by "or".

Lord Mishcon

My Lords, may I make the most strong contribution that I shall be making the whole of the day to your Lordships, by suggesting that the grammatical way of dealing with the matter, in case the Government wish to consider it, is to say: and the address of that body shall be— (a) either the registered or principal office of that body: and". That makes it absolutely clear and, I believe, grammatical. As I said, that weighty contribution is the best I shall be able to proffer to your Lordships this afternoon.

Lord Lloyd of Kilgerran

My Lords, while supporting this amendment, I do not want to indulge at all in grammatical. As I said, that weighty contribution is the best I shall be able to proffer to your Lordships this larly to the courts of this country, is how best to collect the fines which the courts impose upon persons who appear before them, and it seems to me that this is an amendment which assists in that direction.

The Earl of Avon

My Lords, I think that I may intervene to say I am informed that it is a misprint. So it will be all right in the end.

On Question, amendment agreed to.

Clause 36 [Registration and endorsement invalid in certain circumstances]:

The Earl of Avon moved Amendments Nos. 32B to 32J en bloc.

Page 43, line 13, leave out ("this section") and insert ("subsection (1) above"). Page 43, line 28, at end insert— ("(15A) References in subsections (2) to (6) and (8) above to the relevant fixed penalty notice or the relevant notice to owner are references to the fixed penalty notice or notice to owner relating to the fixed penalty concerned."). Page 43, line 41, at end insert ("and"). Page 43, line 45, leave out from ("sum") to end of line 4 on page 44. Page 44, line 10, after ("in") insert ("the provisions or). Page 44, line 11, leave out ("this section") and insert ("those provisions"). Page 44, line 15, leave out ("this section") and insert ("those provisions"). Divide clause 36 into two clauses, the first to consist of subsections (1) to (6) inclusive and (8) to (11) inclusive (Registration and endorsement invalid in certain circumstances): and the second to consist of subsections (7) and (12) to (17) inclusive (Provisions supplementary to section 36).

The noble Lord said: My Lords, with the leave of the House. I should like to move Amendments Nos. 32B to 32J en bloc. They serve only to split the existing Clause 36 into two separate clauses. I am sure the House will agree that 17 subsections makes a fairly unwieldy clause. We have, therefore, carried out what is essentially an exercise to aid comprehension. The various amendments are necessary to tidy up loose ends caused by splitting the clause, but do not alter or affect its purpose in any way. My Lords, I beg to move.

On Question, amendments agreed to.

Clause 38 [Court procedure infixed penalty cases in Scotland]:

Lord Mackay of Clashfern moved Amendment No. 33: Page 46, line 28, after ("a") insert ("copy").

The noble and learned Lord said: My Lords, this is purely a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 42 [Amendment of Transport Act 1981]:

Earl Fortescue moved Amendment No. 33A: Leave out Clause 42.

The noble Earl said: My Lords, I move this amendment with the support of the noble Baroness, Lady Phillips, and the Magistrates' Association. This amendment seeks to delete Clause 42 of the Bill. Clause 42 was added to the Bill at Committee stage, as a result of an amendment moved by my noble friend Lord Lucas and was carried with a majority of eight. I make no apology for the present amendment which, if it succeeds, will reverse your Lordships' earlier decision. I make no apology, because I sincerely believe that if your Lordships had realised the implications of Clause 42 the amendment would not have succeeded at Committee stage; indeed, it might not even have been moved. The amendment was debated only very briefly and it is not—I stress "not"—a party issue.

Your Lordships may well be confused by these annual Transport Bills, as I am. Only part, and a small part, of the 1981 Act has yet come into force. Clause 42 seeks to amend the 1981 Act and only concerns the number of penalty points awarded for endorsement purposes in cases of speeding. The 1981 Act stipulated three penalty points if the offence was dealt with either by the fixed penalty procedure or by a court. Clause 42 of the Bill changes all this by awarding two penalty points if the offence is dealt with by the fixed penalty procedure but gives magistrates the discretion of a range of two to three points if the case goes to court.

The main object of Part III of the Bill, and also the relevant part of the 1981 Act, was to free magistrates' courts from having to hear so many of the less serious road traffic offences, including speeding. This was to be done by offering the offender the alternative of a fixed penalty and no court proceedings. Cases of speeding before the courts in 1980 numbered just under 385,000. At present, in the vast majority of cases the offender pleads guilty and offers a plea of mitigation in writing. The amount of court time taken up is not due to the length of time taken by each case but to the very' large number of cases coming before the courts.

One of the main objects of the 1981 Act and the present Bill was, and is, to reduce the amount of court time taken with minor road traffic offences. If Clause 42 is allowed to remain in the Bill, I suggest that it will defeat one of the main objects of both the 1981 Act and the present Bill. Many speeding offences which would otherwise have been dealt with by fixed penalty will go to court. The offender will plead guilty but much time will be spent by the defendant trying to persuade the court that for his particular offence the endorsement penalty should be two points rather than three points. Indeed, I think that if Clause 42 is allowed to remain the amount of court time taken in disposing of speeding offences will certainly be increased rather than decreased, as intended. If your Lordships will leave the 1981 Act as it stands by agreeing to this amendment, I suggest that justice will be better done and a lot of court time saved. I beg to move.

5.45 p.m.

Lord Lucas of Chilworth

My Lords, not surprisingly I rise to object to this amendment and I do so on a number of grounds. First, it is surprising that my noble friend did not see fit to move this amendment when we debated this matter at some considerable length last summer across the Floor of the Committee. He now comes along with this amendment. To say the least, this is unusual in your Lordships' proceedings.

My noble friend bases his argument. I think, on the fact that the magistrates appear to be under the impression that they have the last word and do not want to have to do some work. My noble friend has quoted 385.000 speeding cases, the majority of which are dealt with by letter and there is just the question of mitigation. He suggests that were the Bill to stand as it does now; namely, with the magistrates' discretion of two to three points but with a fixed penalty of two points, this would not diminish the amount of work in the magistrates' courts. If my noble friend will look at the law of probability, he will see that that is nonsense. Where an offender has a low option he will go for the low option. My noble friend has told us, and I do not disbelieve him, that the majority plead guilty but put forward a mitigating argument. So if the fixed penalty alone were two points, that would be the end of it. There would be no mitigating circumstances, no conviction. A lot of time would be saved. People would go for the fixed penalty because it is a real advantage. And saving the time of the courts is what we are after.

I do not want to rehearse all that was said during the earlier stages of the Bill, but may I just remind the House that however long the debate might have been there was agreement at that time to the amendment which I set down and which now appears in the Bill. This agreement came from noble Lords opposite, from noble Lords on the SDP Benches, from noble Lords on the Cross-Benches and from noble Lords on our own Benches. As the principle of the points system had already been established, it was generally felt that we could include this clause, because it was also agreed that there were circumstances in which speeding offences were serious and less serious and that there were even some which were purely technical. Both the Stewart Committee report and the interdepartmental working party's report record that this is so. Your Lordships may recall that it was my noble friend Lady Trumpington who described a technical offence which, happily, resulted in no conviction and no damage to anybody. We thought that that could happen elsewhere.

May I remind your Lordships that careless or inconsiderate driving has a penalty point range of two to five. It was the noble Earl, Lord Fortescue, himself who in the summer of 1981 said, and I quote Hansard of 8th June at col. 51: 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". We were talking then about careless driving. Another variable penalty is failing to stop after an accident: five to nine points. Another is failing to give particulars or to report an accident: four to nine points. Another is using, or ccausing, or permitting use of a motor vehicle uninsured and unsecured against third party risks: four to eight points. It was the noble Earl, Lord Fortescue, who said in the same debate that he supported this variable consideration: In my submission, the types of cases to which I refer vary greatly in their degree of gravity and therefore if justice is to be done the same number of penalty points should not be applicable in each instance". Only a few months ago the noble Earl did not disagree that speeding was one of those offences which had variable penalties.

Earl Fortescue

My Lords, I wonder whether the noble Lord would be good enough to give way. The offences which he has mentioned, including careless driving and no insurance, are not offences which carry a fixed penalty.

Lord Lucas of Chilworth

My Lords, I am not quite sure what relevance that has to the arguments. I am suggesting that the noble Earl has accepted the principle on variable points. That is all I said. This is one of them. It brings in an offence which all authorities—all authorities—recognise as having a number of facets.

I cannot see any good reason for reversing that Committee decision. As my noble friend admits, it was a substantial majority in a reasonably representative House. There has been widespread acceptance by the motoring public generally and specifically recorded by both of the motoring organisations. I know that one of those organisations has written to a number of your Lordships supporting the original decision of a Committee of this House. I submit that there can be no justification for reversing that decision, and I trust that your Lordships will reject this amendment out of hand.

Lord Somers

My Lords, I should like to support very strongly what the noble Lord, Lord Lucas of Chilworth, has just said, although I shall not be able to do so as ably as he has. One has only to think of the number of statutory speed limits which there are thoughout the country. Some are entirely justifiable. Those in built-up areas are absolutely justifiable. Those in semi-built-up areas are generally raised to 40 miles per hour, but they are still justifiable. But there are many which are entirely unjustifiable and are there simply because the local borough council has chosen to erect lamp posts along the road.

This clause as it stands does not make speeding a minor offence. Speeding, where it causes danger, is of course a very bad thing and should be dealt with as such. One could take the case, for example, of a man driving in a lot of traffic and swerving between two lanes at high speed. That man is really committing a crime because he is risking the lives and property of others. But take another example of a perfectly open road where there is no traffic at all but where, unfortunately, there is a statutory speed limit. There is no crime in exceeding the speed limit, which may be 40 miles per hour and one exceeds it by, say, five miles per hour; although, technically speaking, one is committing an offence. But it is entirely unreasonable, and surely one should take notice of the differences between speeding of a really dangerous kind which is risking other people's lives and that which is purely technical and causing no danger whatsoever. I certainly hope that the Government will not accept this amendment.

Lord Lloyd of Kilgerran

My Lords, I find myself in some difficulty as to which way to turn in relation to this amendment. The noble Earl, Lord Fortescue, said when moving this amendment that it had the support of the Magistrates' Association. In my submission, that adds great weight to his speech. He also said that his amendment had the support of the noble Baroness, Lady Phillips, whom I see in her place but who so far has been silent. The noble Baroness has great experience in relation to matters concerning the consumer. If I may add a personal note, for 25 years I was a county magistrate in the County of Surrey. I was put on the Bench because I knew nothing about criminal law and I learnt about all aspects of crime by sitting on the Bench in the County of Surrey and sometimes at Quarter Sessions, where I gave up acting as deputy chairman when they started to pay the people who presided over those august assemblies.

One of the important matters in relation to this amendment is that the noble Earl says, with the support of the Magistrates' Association, that this will save time in magistrates courts. I remember the hours and the days I have spent in dealing with petty crime of this kind. It seems to me that much of the jurisdiction could be simplified, and if the noble Earl says this and I can tempt the noble Baroness, Lady Phillips, to support him in this, then I should think it is worthy of consideration. I have listened to the noble Lord, Lord Lucas of Chilworth, for whom I have tremendous admiration, but your Lordships have to decide whether it is in the public interest that the time spent on this type of crime can be reduced by what the noble Earl, Lord Fortescue, says or by what the noble Lord, Lord Lucas of Chilworth, says.

5.56 p.m.

Lord Campbell of Alloway

My Lords, I came to this debate with an entirely open mind and it is still pretty well open. On balance, I wish to support this amendment, for these reasons. It is vital to reduce the work load on magistrates courts. Secondly, the proposer of this amendment has vast practical experience and speaks on behalf of the association which has the pre-eminent right to be heard in these matters. The argument between two and three points would, in submission, constitute an increase in the burden of that workload, which on balance would not be justifiable. Agreed, fixed penalties are generally unacceptable, but there is a points system for these penalties and we are saddled with it.

I take the point of my noble friend Lord Fortescue when we were dealing with the variables between two and five points, or between five and nine, four and nine, or four and eight points. He intervened to say they were not related to fixed penalties—and that seemed to be a valid point. But there is an even more valid point. It is the extent of the differential. The differential between two and five points is not the same as the differential between two and three points. On balance, I would have supported the amendment on the simple ground that it is unreasonable to saddle magistrates' courts with an extra burden on their workload on such a narrow differential. I stress again, before I heard the speeches of your Lordships I had no opinions on this matter whatsoever.

Baroness Phillips

My Lords, in reply to the noble Lord, Lord Lloyd of Kilgerran, who tempted me to rise, I have been trying to rise to speak for the past few minutes. Being a mere female, naturally I will not speak for as long as the males speak—although on this occasion I am happy to say that we have not had long speeches. Fortunately, I have not spoken before in this debate and so the noble Lord, Lord Lucas of Chilworth, cannot suggest that I am now saying something different. But I would take issue with him when he says that this was debated—or I thought that he said this—at some length. If it was, it was not recorded in Hansard. It seems to have been a remarkably short debate and everyone made a very few points, with the possible exception of the noble Lord, Lord Lucas of Chilworth.

I should also like to refute the idea that magistrates—unpaid as they are and serving the community as they do—are trying to avoid work. They are trying to avoid unnecessary work, and taking up the time of the courts which is costly enough already. I think we know only too well that anybody given a choice would always opt for the lower, and therefore the whole system of the fixed penalty will be immediately the subject of long debate which will take up the time of the courts quite unnecessarily. I think that we in this House, as makers of law, have to take some note of the practitioners of the law. I remember when I was a Minister in the Government speaking to the then Lord Chancellor about the duties of the magistrate. I said that one thing about being a law maker and also those who administer the law is that it is like a consumer test; first you make the laws and then see that they do not work. I think we should listen to comments from magistrates, who do not speak with prejudice but from the point of view of the practitioner.

I would make one point that I do not think has been made; I could not see it in the earlier debate. A lot of this legislation has been based on the report of the interdepartmental working party on the road traffic law. There it was specifically considered whether there should be any variation in number of points in the fixed penalty and this was rejected. I think it is worth reading what they said: In the case of speeding offences it is a feature of various overseas systems to graduate the point values according to the amount by which the limit is exceeded, we were concerned that this would lead to an increase in the number of cases contested in court, for the purpose of reducing the amount of points, which at present would simply be disposed of as a guilty plea. I am concerned that if we have an option we will have lots more work for counsel, no doubt, pleading various reasons, but I would suggest quite seriously that this Bill is seeking to tidy up the law and make things much more straightforward, and in the name of the practitioners of the law I would ask your Lordships to accept this amendment.

Lord Mottistone

My Lords, perhaps I might speak on behalf of the motorists who have been found guilty of speeding and had to pay fines. That is a view not expressed: all my very respectable noble colleagues who sit on the bench perhaps have a different view. I would suggest one particular point. It is assumed that if there is no variation of penalty the constable has made the right judgment in not offering the fixed penalty in the first place. Well, our police are jolly good but they are not always right. It could be that when the magistrates come to assess the situation they will say, "In this case it ought to have been a fixed penalty because it should have been a two points rather than a three point case. It would seem to me that is much fairer to the ordinary person than making it sure, if he is put before the magistrates, that it is three points or nothing.

There is another example in that kind of area which has been suggested to me. It may not always be possible for the driver to produce his licence; it may have been lost, or it may be buried in Swansea—and that can go on for weeks or months, as we all know—or anything else of that sort. It may be beyond his control that he cannot qualify for the fixed penalty although the constable in the ordinary circumstances would have no doubt about giving him that opportunity. It seems to me there are enough variants to make this reasonable as an alternative.

To take up one point made by my noble friend Lord Campbell of Alloway, the suggestion that there is going to be an enormous amount of extra work for the magistrates: that would, I think, be modified by the fact that it is only two points or three points instead of a vast range. If it were, say, between two and seven, to exaggerate, or between four and nine, may be there would be room for argumentation as to where it falls, but if it is only the difference berween two and three there is not much room for argumentation.

In cases where the accused may be unfairly assessed in the first instance—not because of the constable, but because he has not got his licence—I would have thought that on balance it is right in the interests of the vast majority of us who almost daily risk being caught for speeding that we should be given that chance and the magistrates should risk it. If in the event the magistrates find that they really are overburdened with work—and they will not have so many cases because a lot of cases will be dealt with by fixed penalty—they can come back to Parliament and say so and it would not be difficult to make an amendment. So I hope that your Lordships will join with those of us who seek to reject this amendment.

Lord Underhill

My Lords, I also hope the House will reject this amendment to delete this clause. Of course we must take heed of what the Magistrates' Association says, but that does not necessarily mean that we have to accept it. Many of us quote the views of various other associations but these are just as a test of opinion. The noble Earl, Lord Fortescue, said that this is a saving of court time, but this surely must not be a saving of court time at the risk of some unfairness coming into the matter.

Let us have a look at the effect of the Bill as drafted. It would mean that four speeding offences at three points each would make the motorist liable for disqualification. With the amendment, if it were only two points, it would mean six offences before disqualification. Bearing in mind the point put so effectively by the noble Lord, Lord Somers, about technical offences, there could be a risk of disqualification for four technical offences; although they are technical offences they are still offences. The only time I have ever been pulled up for speeding was on an occasion when I could not have done damage to anybody except myself. It was half-an-hour past midnight on a dry road with the moon shining, a 40 m.p.h. limit, with a derestriction sign 300 yards further on: I was doing 46 and got caught.

The noble Earl also said that this is a saving of court time, and my noble friend Lady Phillips referred to the extra work. May I quote what the noble Earl, Lord Avon, said at Committee stage in opposing the amendment which put this clause in. He said: On the one hand, it has the attraction of providing a further incentive to the motorist to accept a fixed penalty, and not take his case to court".—[Official Report. 14 7/82, col. 366.] It is very nice to have an argument to use to put the case and then having the same argument to put against it. On the one hand we are told that keeping this clause in will put work on the courts, but on the other hand the Minister said that it will be an incentive not to take the case to court. I hope we can have some clear indication of which is right. I prefer to accept what the noble Earl said at Committee, and I am sure he will stand by what he said.

What the amendment is trying to do is to be fair, to recognise that these are all offences and to decide that the more serious cases must go to court. The police constable has the first job of deciding whether it is a serious case or simply a technical case; if he decides it is a technical case he will, under this amendment, give two points. If it is a more serious case, he will not give a fixed penalty but say that it must go to the court. The amendment will enable the court to have a flexibility as to whether to award two or three points where, if the constable had treated this as a technical offence, it would have been two, but because the driver had not got his licence the case was sent to the court; this would give him the chance to have two and not three points. Surely, to take that away would be an injustice. I am certain that the Magistrates' Association would accept that position. I believe that logic, common sense and fairness is on the side of retaining this clause and I hope, therefore, that the House will reject the amendment.

Lord Lloyd of Kilgerran

My Lords, may I ask the noble Lord whether, as a spokesman for the Labour Opposition in this House, he is, as it seems to me, denigrating the Magistrates' Association, comprising as it does—

Several noble Lords


Lord Lloyd of Kilgerran

My Lords, let the noble Lord himself answer. In his opening speech he compared the Magistrates' Association with many other associations. The Magistrates' Association is comprised primarily of magistrates who are doing service to the community for nothing and in my view they are, therefore, in a different situation from many other associations. I am sure the noble Lord did not mean to denigrate the Magistrates' Association, but I ask your Lordships to attach far greater weight to the opinion of the Magistrates' Association than that of any other association that I can recall at the present time.

Lord Underhill

My Lords, anyone who knows me will know that I am not denigrating the Magistrates' Association. It is absolutely ridiculous to suggest it. I shall take offence at any such suggestion. I am saying that even though we take heed of what the magistrates say, we who have to make the law should not automatically accept their views, otherwise, we might as well not be here at all. We could just ask the magistrates what they think and that would be the end of it. We are making laws here and we must ensure that what the Magistrates' Association asks us to do is correct. I believe that we have been given sufficient evidence to show that on this occasion they are not correct.

May I make another point clear? Although I speak from the Dispatch Box as the Opposition spokesman, I made it clear in Committee, and I make it clear today, that on all these matters of road safety and traffic law we do not apply the Whip. Every one of our Members will have a free vote if any of these matters comes to a Division. I am putting this point forward as our spokesman and because I believe in this matter, but our Members will be free to exercise their own discretion.

The Earl of Avon

My Lords, perhaps I may speak now while the quotation of the noble Lord, Lord Underhill, is fresh in your Lordships' minds. Like so many quotations, he started with "on the one hand" but did not go on to say what I had said "on the other hand". What I said "on the other hand" was that: it represents a further relaxation of the effect of endorsement for this particular group of offences."—[Official Report. 14/7/82: col. 366.] I shall come back to that again in a moment.

I also underline what the noble Lord, Lord Underhill, said about Whipping. I noticed that on the last occasion the noble Lord, Lord Mishcon, came into—if I may say it—this Lobby, and I am delighted that on this occasion we shall probably have the noble Baroness, Lady Phillips, with us too. However, I cannot ask as there is no Whipping.

While treading this difficult tightrope, perhaps I may say to the noble Lord, Lord Somers, who introduced some fairly vivid examples, that one answer is that some of those offences he mentioned will be subject to two different offences. For instance, there will be speeding and dangerous driving if a man has been swerving around. In a way, therefore, he was exaggerating the case.

I shall be brief. Your Lordships will recall that, in Committee, I expressed serious reservations about this clause. The Government felt that it represented too great a relaxation of the effect of endorsement. I remind your Lordships that at the moment after three speeding offence endorsements one loses one's licence. It was wrong to start fine-tuning the penalty points system before it had even come into operation and experience of it had been gained. May I also remind your Lordships that the penalty point system was discussed in the House one year ago and it does not come into effect until next month, yet here we are fine-tuning our decisions of last year before we have any examples.

In a way that answers some of the points raised by my noble friend Lord Mottistone. I hope that when he reads Hansard tomorrow he may think that some of his criticisms of Swansea were a little too sweeping. I hope that if he does he will send the staff a nice letter.

To reiterate, there are two points that I do not think have been mentioned much today. Firstly, too great a relaxation and, secondly, it is wrong to start fine-tuning at this stage. The Government's view has not changed since July.

6.14 p.m.

On Question, Whether the said amendment (No. 33A) shall be agreed to?

Their Lordships divided: Contents, 78; Not-Contents, 46.

Airedale, L. Avon, E.
Airey of Abingdon, B. Aylestone, L.
Auckland, L. Balogh, L.
Banks, L. Mowbray and Stourton, L.
Beloff, L.
Belstead, L. Murton of Lindisfarne, L.
Boyd-Carpenter, L. Nugent of Guildford, L.
Briginshaw, L. Orkney, E.
Campbell of Alloway, L. Orr-Ewing, L.
Cathcart, E. Phillips, B. [Teller]
Cottesloe, L. Pitt of Hampstead, L.
Cullen of Ashbourne, L. Platt of Writtle, B.
Daventry, V. Rankeillour, L.
Denham, L. Rawlinson of Ewell, L.
Denington, L. Reigate, L.
Diamond, L. Renton, L.
Eccles, V. Romnev, L.
Elton, L. St. Davids, V.
Faithfull, B. St. John of Bletso, L.
Ferrers, E. Sandford, L.
Fortescue, E. [Teller] Sandys, L.
Gaitskell, B. Sempill, Ly.
Gladwyn, L. Skelmersdale, L.
Glanusk, L. Stewart of Alvechurch, B.
Glenarthur, L, Stewart of Fulham, L.
Gridley, L. Strathspey, L.
Hailsham of Saint Marylebone, L. Swansea, L.
Tanlaw, L.
Hale, L. Taylor of Blackburn, L.
Hives, L. Thomas of Swynnerton, L.
Kemsley, V. Thorneycroft, L.
Kinnaird, L. Trefgarne, L.
Lloyd of Kilgerran, L. Trenchard, V.
Long, V. Trumpington, B.
Lyell, L. Vaux of Harrowden, L.
McFadzean, L. Vivian, L.
McGregor of Durris, L. Wakefield of Kendal, L.
Ward of Witley, V.
Mackay of Clashfern, L. Willis, L.
Mersey, V. Winstanley, L.
Mishcon, L.
Beswick, L. Lane-Fox, B.
Bishopston, L. Lindsey and Abingdon, E.
Broadbridge, L. Llewelyn-Davies of Hastoe, B.
Brockway, L. Lovell-Davis, L.
Brougham and Vaux, L. Lucas of Chilworth, L. [Teller.]
Bruce of Donington, L.
Coleraine, L. Monson, L.
Collison, L. Morris, L.
Colville of Culross, V. Mottistone, L.
Colwyn, L. Pitt of Hampstead, L.
Cross, V. Ponsonby of Shulbrede, L.
Davies of Leek, L. Rochdale, V.
Ellenborough, L. Somers, L.
Ewart-Biggs, B. Spens, L.
Gainford, L. Stanley of Alderley, L.
Garner, L. Stedman, B.
Gormanston, V. Strathcarron, L.
Halsbury, E. Swinfen, L.
Hornsby Smith, B. Terrington, L.
Hylton-Foster, B. Teviot, L.
Inglewood, L. Teynham, L.
Irving of dartford, L. Underhill, L. [Teller.]
Jacques, L. Wallace of Coslany, L.
Jenkins of Putney, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 48 [Supplementary provisions]:

6.25 p.m.

The Earl of Avon moved Amendment No. 33B: Page 58, line 8, at end insert— ("( ) An order under section 81(3) of the 1967 Act may not authorise the employment of a traffic warden to discharge any function under this Part of this Act in respect of an offence if the offence appears to the traffic warden to be an offence involving obligatory endorsement.").

The noble Earl said: My Lords, your Lordships will be aware that I have long sought to persuade the House that the safeguards implicit in the fact that the Functions of Traffic Wardens Order can only be amended by affirmative resolution procedure are adequate, and that there is no need therefore to deal with the issue in this Bill. Conscious that I have not succeeded in this endeavour, I offer your Lordships this amendment. As your Lordships will see, its effect is that Ministers of the future may seek to extend the functions of traffic wardens listed in the order, but they will be unable to extend them to include any functions in this Act in respect of an endorsable offence. I do hope that I have met most noble Lords' concerns on this matter. I beg to move.

Lord Underhill moved Amendment No. 33C as an amendment to Amendment No. 33B: At end insert ("nor shall any such order authorise a traffic warden who is in a moving vehicle to discharge any function under this Part of this Act.").

The noble Lord said: My Lords, I beg to move Amendment No. 33C. Noble Lords will note that I also have down Amendment No. 34 to Clause 49, which I shall not move. I am delighted that the Government have realised the pressure that was exerted on all parts of the House regarding the position of traffic wardens and the fixed penalty section of this Bill. At the time we stressed, and I stress again, particularly in the light of what was said about the Magistrates' Association and myself, that we are in no way denigrating the valuable traffic warden service. But there are certain duties which it ought to undertake and duties to which it should not be extended. The effect of my amendment is to accept the Government's own amendment but to add to it, nor shall any such order"— issued by the Secretary of State— authorise a traffic warden who is in a moving vehicle to discharge any function under this Part of this Act". This seems such common sense that one need not argue it. I shall listen with great interest to why the Government cannot accept it. It was included in Amendment No. 34, which I have indicated I shall not move in the light of the fact that the Government have accepted part of the case in their own amendment. I beg to move Amendment No. 33C.

The Earl of Avon

My Lords, this issue, of course, links with what I have just said on the general issue of the Functions of Traffic Wardens Order. A power to exercise functions from a moving car does not amount to a power to stop other vehicles, which may be the thought at the back of some Members' minds. The House may not be aware that at present, however, the order itself already prohibits wardens from carrying out their functions from a moving vehicle. What this amendment is doing, therefore, is preventing Ministers in the future from seeking to alter this position by the affirmative resolution procedure. The Government have no intention of amending the order to achieve this at the moment, and I would hope that the House would leave the issue as it is. With that assurance, I hope that the noble Lord may feel able to withdraw his amendment.

Lord Underhill

My Lords, I am grateful to the noble Earl for his explanation and I readily accept his invitation.

My Lords, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, amendment agreed to.

Clause 49 [Interpretation of Part III]:

[Amendment No. 34 not moved.]

The Earl of Avon moved Amendment No. 34A: After Clause 49 insert the following new clause:

"(Guidance on application of Part III)

The Secretary of State shall issue guidance to chief officers of police for police areas in respect of the operation of this Part of this Act.").

The noble Earl said: My Lords, I have already spoken to this amendment. I should just like to add that clearly there was some difference of views on the exact scope of the amendment of the noble Lord, Lord Underhill, and the noble Lord, Lord Mishcon, and I shall take careful note of what was said and see whether anything can be done in the intervening stage. I beg to move.

Lord Underhill

My Lords, needless to say, I am most grateful for the very helpful and courteous comment made by the noble Earl and we shall look forward to Third Reading to see whether we can have something which amplifies the Government's amendment.

On Question, amendment agreed to.

Schedule 4 [Amendments of Transport Act 1968 relating to operators' licences]:

6.30 p.m.

The Earl of Avon moved Amendment No. 34B:

Page 87, line 42, at end insert— ("( ) Where a licensing authority is precluded by section 69B(5) of this Act from refusing an application for an operator's licence, the authority may not attach any condition to the licence under this section without first giving the applicant for the licence an opportunity to make representations to the authority with respect to the effect on his business of any condition the authority proposes to attach; and where the applicant makes any such representations the authority shall give special consideration to those representations in determining whether to attach the proposed condition on granting the licence.").

The noble Earl said: My Lords, this amendment relates to some discussions that we had in Committee on the new provisions for strengthening the powers of the licensing authorities and enabling them to take adequate account of environmental matters when dealing with road haulage operators' licences. I should like to express appreciation for what my noble friends Lord Lucas and Lord Stanley put forward on that occasion.

The approach in the Bill is to redefine the operating centre as the place where the vehicle is normally kept and these operating centres will have to be specified in licences. The grounds on which statutory objectors, such as local authorities, may object are extended to include environmental matters and owners and occupiers of land in the vicinity are given a new right to make representations about the environmental aspects of licence applications. We have stressed throughout the discussions on the Bill that in striking the right balance between the environment and business considerations, a licensing authority will have to form a balanced and reasonable judgment in each case if he attaches any conditions to a licence, and we shall also be prescribing the considerations to which the licensing authority shall have regard. But we recognise that there is genuine concern that the conditions attached to a licence could be so onerous as to prejudice the running of a business. This amendment to the Bill therefore provides that in cases where there is no material change in the operations to be covered, and therefore the licensing authority must grant a licence unless parking arrangements are unsatisfactory, he will not be able to attach any conditions to the licence without giving the applicant an opportunity to make representations about the effects on his business. He will have to give any such representations special consideration. The amendment makes clear on the face of the Bill our intention that the new provisions must be operated fairly and that full account must be taken of the rights to existing legitimate operators. With that short explanation, I commend this amendment to the House. I beg to move.

Lord Lucas of Chilworth

My Lords, I am most grateful to my noble friend the Minister for his explanation of this amendment, which goes such a very long way to meet some of the objections and criticisms that some of us made during the earlier stages of the Bill. The haulage industry generally is fairly happy now with this amendment, and while appreciating that a balance between the environmental necessities and the operation of a proper and legitimate business have to be weighed fairly finely, I am left with perhaps only one small niggling doubt in my mind. I wonder whether my noble friend could give an indication of how the Government would expect authorities to interpret the term: …and where the applicant makes any such representations the authority shall give special consideration to those representations, et cetera. The success of this amendment depends very largely on the interpretation of this special consideration. Other than that, I would very much welcome the amendment.

Lord Stanley of Alderley

My Lords, this question concerning lorry operating centres has a considerable effect on farming and the rural scene. Therefore, I should like to thank my noble friend Lord Lucas for bringing it to your Lordships' attention and, moreover, to thank the Government for taking so much trouble and finally tabling this amendment which, I am glad to say, is proof that they too want to see villages as places where employment is encouraged and not just places for the retired to die.

This amendment is a small but positive step towards improving the chance of employment in the countryside, and I very much welcome it. I hope that my noble friend can say that those who will have to interpret the words "special consideration" will take into account the great importance of a virile working village.

The Earl of Avon

My Lords, I am grateful to my noble friends for their comments. In going some way towards answering my noble friend Lord Lucas perhaps I can add that in order to provide some protection for existing operators, the Bill includes a provision preventing a licensing authority from refusing an operator a new licence on environmental grounds if there is no material change in his operations. The one exception to this rule will be parking.

The Bill also extends the existing power of licensing authorities to attach conditions to a licence, to include conditions aimed at minimising effects on the environment. My noble friend Lord Lucas and other noble Lords voiced anxiety in Committee about the possible use of this power to undermine the protection which the Bill gives to legitimate existing operators. My noble friend Lord Bellwin emphasised at the time that it was no part of our intention that responsible road haulage operators should have their existence threatened as a result of our new measures. We understand the words "special consideration" to mean "careful and sympathetic", and we shall take into account all matters that are put forward. I hope that that answers my noble friend Lord Stanley when he mentioned the state and the life of a village. I beg to move.

On Question, amendment agreed to.

Clause 51 [Immobilisation of vehicles illegally parked, etc.]:

6.36 p.m.

The Earl of Avon moved Amendment No. 34C: Page 60, line 37, at beginning insert ("Subject to sections (Exemptions from section 51) and (Initial experimental period for immobilisation of vehicles) of this Act")

The noble Earl said: My Lords, this amendment, like one of the previous amendments, has the effect of making Clause 51 subject to two new clauses covering exemptions from the immobilisation powers and the provisions for an initial experimental period. The opportunity has been taken of splitting the clause, which was becoming overlong, into three. I beg to move.

Lord Underhill

My Lords, this is a very sensible division. I am grateful to the Government for doing it. At this stage may I say how grateful I am—and I am certain other noble Lords are—for the kind and courteous attention that the noble Earl has given to all the points raised on Clause 51 at the Committee stage. As we go through, we shall find that although some of us still have some amendments to make, basically the noble Earl has endeavoured to carry out the wishes of the House that were expressed in debates. I am grateful to him for that. I am also grateful to him for so kindly writing to me giving me some indication of the Government's intentions. I wanted to make that statement at this stage.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 34D: Page 61, line 3, at end insert ("or authorise another person to take under his direction any action he could himself take by virtue of paragraph (a) or (b) above")

The noble Earl said: My Lords, with the leave of the House I should like to move this amendment and to speak as well to Amendments Nos. 34J, 34K and 34L. I believe that to some degree these will be covering amendments to be moved by other noble Lords, which are Amendments Nos. 34E and 34M. I shall deal first with Amendment No. 34D.

This group of amendments has been tabled in response to a pont raised by the noble Lord, Lord Airedale, in Committee. He asked whether the use of the words "only by a constable" in subsection (4) meant, when read in conjunction with subsection (6), that the authority to release an immobilised vehicle could not be delegated. These amendments are tabled to put it beyond doubt that a constable may be assisted by another person to immobilise vehicles, to reposition them before immobilization, to affix the required notice, and to release vehicles. The only action which may not be delegated is the selection of vehicles for immobilisation. I am grateful to the noble Lord for drawing attention to the possible lack of clarity. I beg to move.

Lord Underhill moved Amendment No. 34E, as an amendment to Amendment No. 34D: Line I, leave out ("another person") and insert ("a traffic warden")

The noble Lord said: My Lords, Amendment No. 34E seeks to leave out the words "another person" and to insert the words "a traffic warden". One can see that we are confirming my view that we express appreciation for the services of the traffic wardens. This is a job that ought to be placed under their jurisdiction. In the Notes on Clauses to Clause 51, it states: The original subseciton (5) allows a constable to authorise another person to take under his direction any action authorised by the section. This will include immobilisation, release, and the collection of charges. I would put before your Lordships that those functions are not ones which should be given to any person. The words used here are "another person", and "another person" is not described at all. "Another person" could be any person. I therefore propose the amendment that "another person" should be deleted and instead we should put "a traffic warden" whom the constable can be authorised to ask to do jobs under this clause. I beg to move.

Lord Mishcon

My Lords, as one who participated in the debates last time—and who does not intend to pursue this course today—in order to express his own personal condemnation, on grounds of relationships between the ordinary citizen and the police and on many other grounds, of any idea of applying these devices to a vehicle so as to immobilise it, may I say that I still hold that view but will not oppress your Lordships with the repetition of it this afternoon? We have now reached the stage where we are trying to improve, if we can, the wording of any clauses which deal with the immobilisation device.

I noticed with great care that the noble Earl the Minister, when he explained this amendment, said that it would enable somebody—another person—to assist the police constable. If those were the words used in his amendment, I would be happier. The words "to assist" mean that the police officer is there and he is getting the assistance of somebody to move the vehicle or to take off the device. However, the words that appear in the amendment are, "under his"—the police officer's—"direction". Those words can be construed to mean that the police officer can go off somewhere else and say, "Look, I direct you to move this vehicle to another place, and I suggest it be over there", and then leave the site, and it would still be under his direction that it was done. This is dangerous and I think it is wrong. It must be implicit in the wording that is used that the police officer must be present at the time and therefore would be assisted by the other person. I therefore ask the noble Earl the Minister kindly to look at those words again, because the words used in his amendment do not appear to carry out the definition he gave in his helpful remarks.

Lord Airedale

My Lords, I am grateful to the Minister for his kind reference to me. I should like to support the words of the noble Lord, Lord Underhill, who was saying what a worthwhile Committee stage we had had on this part of the Bill because the Government have taken great trouble to deal with the points we raised. On this question of confining "another person" to "a traffic warden" I should have thought that this was too narrow.

In Committee, the example that I took was of a busy surgeon who commits a parking or obstruction offence and finds that his vehicle is clamped. He hurries to the police station and pays his line, whatever it is, and says, "For Heaven's sake, come and unclamp it". The police say, "We are very busy. We cannot drop everything, but we will come and do it as soon as we can". What surely is desirable in a case like that is that the police should get a mechanic from a motor vehicle testing station, for instance, to go under their direction and unclamp the car and allow the police to get on with their other urgent duties, and the surgeon can get on with his urgent work. That is why I feel that this amendment, which confines the "other person" to a traffic warden, is taking it too narrowly.

The Earl of Avon

My Lords, I join with the noble Lord, Lord Airedale, in saying that I equally was rather surprised by the traffic warden being put in here as the other person. I believe I said at Committee stage that what was envisaged was vehicle removal officers aiding the police in this particular case. They of course are the people who go around in the towing vehicles at the moment. When I say "envisaged", it is not sure that they will be able to do it or available for it, which is why the Government want to leave this as broad as possible.

When I saw our reply to this, I inquired why we could not instead of the traffic warden put in a vehicle removal officer, upon which I was informed that that was not a statutory term, so I was caught on that one. I hope that the noble Lord will withdraw "a traffic warden" anyway, but may I have a look at this again and see whether we can tighten it a bit, because I see the House's point in this particular case?

Lord Mishcon

My Lords, if I may speak for a second time with the leave of the House, I wonder whether the noble Earl can deal with the question of the word "direction" instead of "assisted by"?

The Earl of Avon

I would happily agree.

Lord Mishcon

I understood the Minister to say that he agreed with what I had to say.

The Earl of Avon

I said I should also look at that.

Lord Underhill

My Lords, I am grateful to the noble Earl for agreeing to have a look at this and I will readily withdraw. If there were a problem about getting a correct definition, maybe the Government could decide that they would ensure that there would be guidance given to whichever authorities have to administer this—whether it is going to be a narrow group or one extended later after an experimental period—on who "another person" should be. Something needs to be done either in the Bill or through clear guidance given. As the noble Earl says that he will look at this matter, I beg leave to withdraw my amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, amendment agreed to.

Lord Lucas of Chilworth had given notice of his intention to move Amendment No. 34F: Page 61, line 3, at end insert— ("( ) An immobilisation device may not be applied to a vehicle parked on an authorised meter bay unless that vehicle has remained there in contravention of any prohibition or restriction for longer than 2 hours more than that parking time for which payment has been made.").

The noble Lord said: My Lords, may I at the outset echo the words of the noble Lord, Lord Underhill, in thanking my noble friend Lord Avon for the great trouble he and his officials took to answer a number of my questions with regard to this clause. So much so that a number of letters have been exchanged, and in the main I have come to feel that the amendments that the Government have set down meet fairly well all the criticisms and objections I had at the earlier stages. It is therefore not necessary for me to retable any of those. That this particular amendment is down is unfortunate in that it was tabled before the Government's own amendments had been set down. In these circumstances, I shall not move this amendment and will not be moving a number of subsequent amendments concerning this matter.

[Amendment No. 34F not moved.]

The Earl of Avon moved Amendment No. 34G: Page 61, line 4, leave out subsection (2).

The noble Earl said: My Lords, with this amendment I should like to speak to Amendment No. 34N. These two amendments delete the orange badge exemption and definition from Clause 51. They reappear in our Amendment No. 34T in subsection (1). I beg to move.

On Question, amendment agreed to.

6.49 p.m.

Lord Underhill moved Amendment No. 34H:

Page 61, line 6, at end insert— ("An immobilisation device may only he fixed to a vehicle under this section if there is a record of three or more fixed penalty notices having been issued in respect of that vehicle within the preceding twelve months").

The noble Lord said: My Lords, this may seem a rather unusual amendment because it was not raised at all in this form at the Committee stage. Noble Lords will recall that I referred at Committee stage to a seminar which I had attended arranged by the GLC and attended by various representative bodies, including the Metropolitan Police. Both the GLC representatives and the Metropolitan Police referred repeatedly to aiming—I use the words "wheel clamps" instead of talking about immobilisation devices—the wheel clamps at persistent offenders. At that seminar, I questioned that rather cynically and asked if I was to assume that there was a possibility of the constable on the beat being able to contact his station—I also mentioned Swansea—to check whether it was a persistent offender. Needless to say I received no reply as to whether I was right or wrong about that. However, I am now informed that the police have commuter records from which they can speedily identify the registered keeper of a vehicle. I am told that at Stanmore the police have vehicle and driving licence information on computer records and that all police stations have direct access to that data. If that is correct, it means the police constable on the beat can contact his station by his personal radio, who in turn can speedily ascertain from Stanmore the information required.

I have before me an article from The Times of 12th October, only two days ago, which spoke about "this vital tool for crime fighters" and confirmed what I said about police records and the vast amount of information at Stanmore which can produce information speedily about the persistent offender. I was rereading the Notes on Clauses because they refer to the aim of the clause being the persistent offender. However, there is nothing in the clause which identifies that as the aim, and therefore my amendment would say that no action should be taken to fix an immobilisation device—in other words, a wheel clamp—unless, there is a record of three or more fixed penalty notices having been issued in respect of that vehicle within the preceding twelve months—. It may be argued that the vehicle could have changed hands, which would prevent this from being done. However, I understand that Stanmore can speedily check on the owner of the vehicle. As it is the desire of the Government, according to the Notes on Clauses, to aim at the persistent offender, as is the aim of the GLC, who first moved on this, and as the Metropolitan Police want the immobilisation device for that reason, the amendment would appear to be wise. I hope the Government will either accept it or examine the position with a view to inserting words on Third Reading to carry out the intention of aiming at the persistent offender. After all, it is the persistent offender to whom we must pay attention, the person who could not care less whether he impedes traffic, overstays on parking meters for long periods and so on.

Lord Harmar-Nicholls

My Lords, the spirit behind the amendment should commend itself, though I do not think we should accept it because it is too specific in that it would hinder the police by, for example, referring to "three or more", which might prevent them from carrying out the job we all want them to do of keeping the roads clear. However, I hope the police can have their attention drawn to the need to use sensible discretion. As the noble Lord, Lord Underhill, said, they have facilities now to enable them speedily to know who is a persistent offender. As I say, while we do not want to tie their hands, the spirit behind the amendment should be borne in mind by those who will have to administer the legislation.

The Earl of Avon

My Lords, I am grateful to my noble friend Lord Harmar-Nicholls for that intervention and to the noble Lord, Lord Underhill, for proposing the amendment because in some respects the thought behind it is attractive. There are, however, a number of difficulties and I am not such an optimist to think that all the records which Lord Underhill thinks are available are in fact available. The amendment relates to the record of the vehicle, rather than to the record of the vehicle owner or driver, and as the noble Lord said, it does not take account of the possibility of changes of ownership, which would be on another computer. It would mean that a driver who bought a used car in respect of which a previous owner had accumulated a number of fixed penalties could run an increased risk of immobilisation. There is, incidentally, no way we know of finding out the fixed penalty record of a car when it is offered for sale.

Another fundamental problem with the amendment is that it would create operational difficulties for the police. They would need to be able to make roadside checks on the fixed penalty record of every illegally parked vehicle before taking the decision to clamp it. This could be done only by radio link to a central computerised record, and this is not at present available. There is no national record of fixed penalties, and I am informed that the police national computer does not contain comprehensive information about fixed penalties, nor does the computer record at the Driver Vehicle Licensing Centre at Swansea. The metropolitan Police Central Ticket Office maintains a computerised record of fixed penalties issued in London, but the policeman or traffic warden on the beat can communicate with the office only indirectly or by telephone.

I am not trying to pour scorn on the amendment. I am merely saying that at present we do not feel it is acceptable because of the difficulties involved. However, we agree with my noble friend Lord Harmar-Nicholls that it is an attractive idea which we should consider, and I shall ensure that the police have it drawn to their attention, but I do not feel we are ready to write it into the Bill.

Lord Underhill

My Lords, as the House will recognise, I was hesitant about certain points in the amendment, although I believe it has been a valid matter to raise and I am grateful to the noble Earl for saying he will draw the attention of the police to it. Frankly, there is not much point the Metropolitan Police saying we are after the persistent offender—that is the justification for the clause, which I support—and then find that we cannot get at the persistent offender. The last thing we would want is to deal with the casual motorist, perhaps someone from the provinces who is visiting London, who suddenly finds his vehicle is clamped, or it might be a foreign tourist. It is one thing to deal with someone who is in this country on business for eight on nine months with his car from abroad, but none of us would like to find a wheel clamp attached to our car when visiting, say, Paris for the weekend, and they have wheel clamps in Paris. I repeat, it is the persistent offender we are after. I recognise the difficulties and I am sure that airing the matter in the House has been helpful. I am grateful to the Minister for saying that he will raise the matter with the police, and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.57 p.m.

The Earl of Avon moved Amendments Nos. 34J, 34K and 34L: Page 61, line 7, leave out from ("when") to ("shall") in line 8 and insert ("an immobilisation device is fixed to a vehicle in accordance with this section the constable or other person fixing the device") Page 61, line 19, after ("by") insert ("or under the direction or) Page 61, line 26, leave out subsection (6).

The noble Earl said: My Lords, I spoke to these amendments with No. 34D. I beg to move.

The Deputy Speaker (Earl Cathcart)

My Lords, I should advise your Lordships that if Amendment No. 34L is agreed to, I shall not be able to call 34M.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 34N: Page 62, leave out lines 17 to 21.

The noble Earl said: My Lords, I have already spoken to this with Amendment No. 34G.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 34P: Page 62, line 22, leave out from ("means") to end of line 24 and insert ("any device or appliance designed or adapted to be fixed to a vehicle for the purpose of preventing it from being driven or otherwise put in motion, being a device or appliance of a type approved by the Secretary of State for use for that purpose in accordance with this section")

The noble Earl said: My lords, with the leave of the House I will speak at the same time to Amendments Nos. 35N and 35P. In July I accepted the feeling of the Committee that the devices used by the police to immobilise vehicles should be subject to ministerial approval, and the amendment will so require. Approval will be given by order, and not by statutory instrument. I am sure the police would in any case have been responsible in their choice of equipment, but I hope the House agrees that this amendment will provide a useful additional safeguard.

Lord Underhill moved Amendment No. 34Q as an amendment to Amendment No. 34P: Line 5, after ("approved") insert ("in regulations made").

The noble Lord said: My Lords, in moving this amendment I should like, with the leave of the House, to speak also to Amendment No. 35R. Amendment No. 34Q is a simple amendment. It refers to line 5 of the Government amendment, No. 34P. After the words "type approved" I wish to have inserted the words "in regulations made". In other words, the device or appliance should be, of a type approved in regulations made by the Secretary of State…". This appears to me to be such commonsense that I am sure that I need not argue the point, and I hope that the Government agree. I hope that the Government will not say that they have no intention of issuing regulations in regard to this matter. I think that there should be regulations that will be subject to the normal parliamentary procedure. I beg to move.

Lord Airedale

My Lords, I support this proposal. I hope that we shall be given an explanation. Surely we need regulations, so that people can discover which devices are approved. If regulations are not to be made by statutory instrument—which is what Amendment No. 35P proposes—how are people to discover whether or not a particular device is approved? I suppose that they could write to the Ministry to ask, or they may assume that a device is approved; but surely it would be better to have a statutory instrument which is readily available in order for people to check these matters.

The Earl of Avon

My Lords, as I understand them, the noble Lord's amendments would require the ministerial approval of immobilisation devices to be set out in regulations, and would require the Secretary of State to consult interested organisations as he thought fit before issuing approvals. That goes a good deal further than the procedures for approval of other, perhaps very much more complicated, police equipment. For instance, the approval procedure as set out in Government Amendments Nos. 34P, 35N and 35P would allow the same approval procedures as for evidential breath testing equipment and radar guns. The approval order would be a formal document issued on the authority of the Secretary of State. It would not be subject to parliamentary proceedings. The Secretary of State would be free to consult interested organisations before giving approval, as I am sure he will. The Government see no case to adopt at this stage a more formal procedure for the less elaborate immobilisation devices.

Lord Underhill

My Lords, I should like to look very carefully at what the noble Earl has said and consider the matter with a view possibly to returning to it on Third Reading, if I am not satisfied. It seems to me that we need to have something more here. We need to have a regulation of some kind that can be approved or annulled, as the case may be. I hope that there will be consultations. If I heard correctly, it seemed that the noble Earl implied that there might not be consultations on the matter. Surely there need to be the widest possible consultations before the device to be used is approved. However, I shall look at what the noble Earl has said, and in the meantime I beg leave to withdraw Amendment No. 34Q.

Amendment to the amendment, by leave, withdrawn.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 34R. Page 62, leave out from beginning of line 27 to end of line 6 on page 63.

The noble Earl said: My Lords, this amendment deletes provisions that are replaced or reproduced in the new clause contained in Amendment No. 34U. I beg to move.

On Question, amendment agreed to.

[Amendment No. 34S not moved.]

Lord Denham

My Lords, I think that this is probably a convenient moment to adjourn for the dinner break; but before I move the adjournment, my noble friend Lord Avon will, with the leave of the House, make a Personal Statement.