Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 104, in

clause 55, page 36, line 26, at end insert new subparagraph—

'(g) state that there is written evidence that the offender has had adequate opportunity to defend himself and to gain access to legal advice'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 106, in

clause 55, page 36, line 32, at end insert 'written'.

Amendment No. 107, in

clause 56, page 37, line 20, at end insert

', and

(e) there is written evidence that the offender has had adequate opportunity to defend himself and to gain access to legal advice'.

Mr James Paice (South East Cambridgeshire, Conservative)

Non-UK residents are most likely to be residents of the foreign authority, but that is not necessarily the case. Amendments Nos. 104 and 107 are effectively the same, and would ensure that there was written evidence that the offender had adequate opportunity to defend himself and to gain access to legal advice.

The Minister was not here—that is understandable, and not a criticism—for some of the earlier proceedings when we debated the provisions for legal advice in the Bill. The difference in this context is that the provision concerns a non-UK resident, who might have to go back to their own country with a disqualification imposed by a British court. It is therefore important that the notice to that foreign authority should, in addition to all the other items listed in subsection (2), confirm that the individual had

the opportunity to gain access to legal advice and to defend himself. The amendment does not say that that person has received legal advice, but that they have had the opportunity to obtain it if they so wish.

Bearing it in mind that that non-UK resident may have a poor understanding of English, the issue of legal advice becomes even more important, because they must understand the implication of the action that has been taken against them in a British court. The two amendments are therefore straightforward, and I shall not detain the Committee in explaining them at length, because their purpose is self-evident.

Amendment No. 106 is a small amendment, and I suspect that the Minister will say that it is self-evident. It would require that, where an offender did not take part in the proceedings, a notice to a foreign authority issued under subsection (5) should be accompanied by evidence that the offender was notified—in other words, that the offender knew what was going on. We believe that it should be made clear that the evidence that the offender was notified should be in writing. It is a small, and perhaps pedantic, point, but we believe that it should be included in the Bill, so that we can be certain that things have been done properly.

The point behind the amendments is that, whatever happens in the UK, we are dealing with an issue that may have implications in another country and judicial system, so we need to adopt a belt-and-braces approach. We must ensure that when an individual returns to the country where the notice will be received, the system in that country is aware of all the implications of what has happened in the British judicial process. That is the purpose behind the amendments.

Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)

Clauses 55 and 56 deal respectively with the duty to notify foreign authorities of driving disqualifications imposed on their nationals in the UK and the recognition of foreign disqualifications imposed on UK residents as laid down in the EU convention on driving disqualification.

While I understand the concern reflected in the amendments to ensure that a driver subject to disqualification proceedings is treated properly and fairly, all EU member states, including the new member states, are signatories to the European convention on human rights, which guarantees the right to a fair hearing.

The convention allows the driver's state of residence to refuse to recognise a disqualification if it considers that the offender did not have an adequate opportunity to defend himself or herself, so that safeguard is already included. That decision should be made by the driver's state of residence, based on all the information provided by the state in which the offence was committed, or any additional information that the state of residence may request for the purpose.

In line with the requirements laid down in the convention, the Bill provides for the information transmitted to include either confirmation that the offender took part in the proceedings resulting in the disqualification or, if he did not participate, evidence that he was duly notified of those proceedings, and therefore had the opportunity to participate. That is

an important safeguard against proceedings in absentia, and will normally be sufficient to allow the authorities to reach a decision on enforcement of the disqualification.

Amendment No. 104 would extend the requirements for what is to be included in the notification sent to a foreign authority beyond the purely factual information required by the convention. A statement that written evidence exists of the adequacy of the opportunity afforded the driver to defend himself and to gain access to legal advice would involve a subjective assessment of the fairness of the court proceedings and, without the evidence itself being transmitted, would add nothing of value to the procedure. It would also introduce a test concerning access to legal advice, which is not provided for in the convention.

Amendment No. 106 would also go beyond the terms of the convention by requiring that evidence accompanying the notification, which shows that the offender was properly notified of the proceedings against him, be in written form. We would expect evidence normally to be given in written form, but the amendment is unnecessary and potentially restrictive, for example if we think about new forms of communication through electronic transmission. The convention requirement is that evidence be produced, and to go beyond that may create difficulties with recognition in other states.

Amendment No. 107 is along similar lines to the first amendment, and would make recognition of a foreign disqualification conditional on the existence of written evidence that the offender has had an adequate opportunity to defend himself and to gain access to legal advice. The Bill already makes recognition conditional on the offender having been duly notified of the proceedings and entitled to take part in them. That is a less subjective test than that envisaged by the amendment and recognises that the right to a fair hearing is already guaranteed by the European convention on human rights. It is certainly the case in this country—I think that it is the case in other European countries—that the decision over whether a defendant is getting a fair hearing and receiving adequate advice is a matter for the court to decide at the time that the defendant comes before it. The court will make a decision, and sometimes the case will be adjourned so that the person can find the relevant and proper legal advice. What is contained in the clause is adequate, and I shall resist the amendments.

Mr James Paice (South East Cambridgeshire, Conservative)

I find it ironic that some of the time we are tying to include in the Bill what is in the convention, then the Minister resists including something because it is not in the convention. It is somewhat perverse that we cannot understand why something is not in the Bill, despite the fact that it is in the convention, and yet the reverse argument is used against us. The amendments do not represent big issues, so I shall not detain the Committee any longer. I am grateful for the Minister's comments, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 105, in

clause 55, page 36, line 27, leave out subsection (3).

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 109, in

clause 58, page 39, line 16, leave out subsection (3).

Amendment No. 112, in

clause 59, page 39, line 40, leave out subsection (8).

Mr James Paice (South East Cambridgeshire, Conservative)

The common feature of the amendments in this group is that they are trying to address what the hon. Member for Somerton and Frome referred to earlier: sloppy drafting of legislation and vagueness in meaning.

Amendment No. 105 would leave out subsection (3), which states:

''A notice under this section may contain such other information as the appropriate Minister considers appropriate.''

We are back to the idea that the Minister can say anything that he feels like saying, as that subsection gives him the power to do so. Amendment No. 109 would remove a similar subsection from clause 58. That sort of catch-all provision is worrying. It is a sign that the Government have not thought through the implications of the legislation with which they are involved. They do not fully know the impact of it, or what they need to do when it is enacted. Therefore, they take such generic powers as are necessary to enable them to do whatever they like afterwards. The next group of amendments is similar, although I shall not trespass on those. It is all part of the same problem. The Government do not seem to understand fully the implications of their proposed legislation. Therefore, they take powers to deal with whatever may arise.

Clause 55(3) says:

''A notice under this section may contain such other information as the appropriate Minister considers appropriate.''

Apart from being dreadful grammar—two appropriates in four words—it is meaningless. The Minister ought to tell the Committee what the Government consider might be appropriate. We should bear in mind his criticism of my earlier amendment, in which I proposed a subjective statement, whereas all he wanted to put in the notice was facts; there is obviously a limit to how many facts there are. Yet he is trying to say that he will put in anything else he wants to include. Such things may, of course, be subjective, not facts. Having resisted an amendment because it is not factual, but subjective, he then takes a power that would allow him to put a subjective addition in the notice. That is extremely odd. The Minister must explain it.

I shall read clause 59(8) to the Committee—it is even more vague and it defies belief.

''The notice must . . . (a) be sent in such a manner and to such address, and . . . (b) contain such particulars, as the appropriate Minister may determine.''

I am fortunate to have been a Member of Parliament for a number of years. I have seen some pretty poor drafting under all Governments, but this comes fairly

high up the list. It is totally meaningless. It is the same problem as the one that I have referred to in the other amendments. Whatever the Minister decides to put in the notice, he can include; whatever he decides not to put in the notice, he may not include. In fact, subsection (8) is to do with sending the notice, not even what is included in it. There is extreme vagueness in this sloppy drafting—it is meaningless.

The Government ought to know what are the implications of what they include in Bills. The Minister must do a better job than the Bill does of defining, in the three different areas dealt with in the amendments, what the Government expect a Minister to do on notices and their content.

Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)

Perhaps I can be allowed to smooth the ruffled brow of the hon. Gentleman, who is clearly worried. He says that he sometimes finds Bills confusing. If it is any assistance to him, I always find them confusing.

The amendments would have an unduly restrictive effect on the content of notices given under clauses 55, 58 and 59. Amendment No. 105 would restrict the content of the notice of a disqualification given to another member state to only those details specified in clause 55(2) and no other information. That would impede the effective operation of the notification procedures by preventing the UK from including additional information that might assist the driver's state of residence in executing the disqualification. That might include information relating to the court proceedings, or to the period of disqualification already served in the UK, which the driver's state of residence must take into account, or information about any condition placed on disqualification, such as reducing the period of disqualification for attending courses for drink drivers.

That could also include extra information, as yet unforeseen, that would be important in executing the disqualification in the other country. I hope that that helps the hon. Gentleman.

Lady Lady Hermon (North Down, UUP)

I apologise to you, Mr. Benton, and to Committee members for being an hour late for this sitting. I was speaking to my right hon. Friend the Member for Upper Bann (Mr. Trimble) about our Ulster Unionist council meeting on the ramifications last night, so I am delighted to be here.

The Minister has just given us a list of additional information, which he thinks that the court should have. Is that list in the convention on driving disqualifications?

Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)

Yes, they are specified, as is the case in clause 55(2). What we are saying is that these parts of these clauses give the ability to provide additional information where that is appropriate.

Lady Lady Hermon (North Down, UUP)

I am grateful to the Minister for confirming that because clause 55(9) states:

''The appropriate Minister must provide—

(a) the central authority, or

(b) the competent authority of the State mentioned in subsection (1),

with any further information which it requires for the purposes of the convention on driving disqualifications.''

That Minister has an obligation to do that. This is already covered, so I do not understand why the Minister has just made the point that these additional matters should be listed.

Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)

This part of the clause gives the ability to do that. Member states may also have particular information requirements in order to give effect to disqualifications. Those will only become apparent in the course of the concluding agreement—the bilateral implementation of the convention—and we have to take that into consideration as well.

The hon. Member for South-East Cambridgeshire asked whether it is catch-all or not thought through, not knowing what is coming up. To some extent that is true, because we do not know what is going to be in those bilateral agreements. We could need that flexibility for arrangements that might arise. Flexibility for a changing circumstance is what we need to consider.

Amendment No. 109 concerns the notice given to a driver resident in the United Kingdom that a foreign disqualification is to be recognised here: it would restrict the content of that notice to those details specified in clause 58(1). That would be unduly restrictive in that it would prevent the appropriate Minister from including additional information, as he considers that to be appropriate, in a notice of disqualification sent to a UK resident disqualified abroad. Additional information would be included in the notice only where it is relevant to the offender in respect of the disqualification imposed on him. For example, the offender may be required to surrender his licence, if it was not seized by the state where the offence took place, and information on how to reapply for a licence might also be usefully included.

Amendment No. 112 could lead to inconsistencies in the information provided by courts in notifying the appropriate Minister of a successful appeal against disqualification. That would cause difficulties in updating the information held by the Driver and Vehicle Licensing Agency here and Driver and Vehicle Licensing Northern Ireland in respect of disqualified drivers. Under current procedures, courts use a format provided by the DVLA, which acts on behalf of the Secretary of State for Transport, for notifying the details of the successful appeal. The DVLA provides the court with a detailed instruction booklet covering those issues. It is important to the courts and the DVLA that the notification should have a consistent form and content and be determined centrally, so that the process works efficiently.

Mr James Paice (South East Cambridgeshire, Conservative)

Methinks the Minister protests too much sometimes. [Interruption.] I protest at the vagueness and sloppiness of the drafting and the fact that the Government do not have full cognisance of the implications of what they are doing. They want what the Minister interestingly refers to as flexibility—in other words, the powers that are here for Ministers to do what they want.

It is a worrying trend in legislation that this power is increasingly being taken. It has been around for a long while but every piece of legislation that I look at increases its usage—Ministers take powers to make

whatever decisions they may think fit if the Bill does not seem to work. This is an important point, and I intend to reflect on it and to study what the Minister has said when we read the record of these proceedings. We might need to pursue the matter at a later date. At this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 ordered to stand part of the Bill.

Clause 56 ordered to stand part of the Bill.