Road Safety Bill [HL]

– in the House of Lords at 7:04 pm on 1st November 2006.

Alert me about debates like this

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

commons amendments

[The page and line references are to Bill 113, as first printed for the Commons.]

1: Leave out Clause 2

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

On 15 December 2005, the Secretary of State announced that the current "netting off" funding arrangement for safety cameras operating within the national safety camera programme is to cease at the end of March 2007. From April 2007, all fines from speeding offences will go to the Treasury in the same way as any other fine, so there will no longer be a surplus of fine revenue. This means that the provisions in this clause will no longer be appropriate and, as such, the clause will not be needed.

Under new funding arrangements, local authorities will receive additional money for road safety through the local transport plan process—some £440 million over four years. The money will be available for funding safety cameras, but equally it will be available for funding any other form of road safety initiative. So, the Government will deliver the level playing field on funding that may be one of the purposes of Clause 2.

This new arrangement will mean that safety cameras and other road safety measures will be funded in exactly the same way. Also, it will integrate safety cameras into the wider road safety delivery process and give local authorities and road safety partners greater flexibility to implement whichever locally agreed mix of road safety measures will make the greatest contribution to reducing road casualties in their area.

Furthermore, the revised funding arrangements that the Government are introducing from 1 April 2007 have two clear and important advantages as compared with the provisions of Clause 2. First, Clause 2 could give an incentive to local authorities to seek to increase the fine revenue generated by safety cameras, because that would increase the surplus funding which Clause 2 would make available for other local transport purposes—whereas, under the funding arrangements being introduced by the Government, there would be no possibility of such a perverse incentive.

Secondly, the arrangements being introduced by the Government will give to local authorities and their local partners much greater stability and certainty about the amount of funding available. If local authorities had to rely on surplus fine income from safety cameras, that could be unstable and uncertain, because the objective of the camera programme, which we all share, is to improve compliance with speed limits, which will reduce the level of fines over time and hence also reduce the level of any surplus—and very possibly lead to a deficit, where the costs of operating cameras are greater than the income from fines generated from camera detections.

I must ask the noble Lord, Lord Hanningfield, whether it is really his intention that local authorities which succeed in improving compliance with speed limits, thereby reducing the income from speed cameras, should be penalised by receiving less money for other transport purposes. Is it his intention that local authorities which succeed in driving up fine income from cameras by whatever means should be rewarded by receiving more funding for other transport purposes? Those would be the effects of Clause 2.

In the Government's view, the clause would create perverse and dangerous incentives. As it is, some motorists suspect that the safety camera scheme is a revenue-generating device. That is a widespread misapprehension among motorists and others. There is currently no justice in that suspicion, but if Clause 2 were enacted, there would be real grounds for it. That would be damaging, because it is important that the Government's road safety policies should command the respect of the great majority of road users, including motorists.

Finally, I must advise the noble Lord that Clause 2 is technically defective in at least three respects. First, it refers to,

"income from the enforcement of offences under subsection (2)", which is an inaccurate phrase of uncertain ambit and could well extend to income from offences detected by police officers as well as offences detected by cameras. Secondly, it refers to a "relevant national authority", which is a strange and undefined notion; by contrast, Section 38 of the Vehicles (Crime) Act 2001 confers powers on the Secretary of State. Thirdly, there are other undefined terms such as "safety camera scheme", "relevant local transport authority" and "local transport facilities". The noble Lord may think I am nitpicking—he does—but this legislation is at a very late stage and our obligation is to ensure that it is as accurate as possible.

The crucial point is that Clause 2 is no longer necessary. Given the changes which the Government are making as from next April, Clause 2 would also create dangerous and perverse incentives. The clause is seriously defective. I hope the noble Lord, having pursued these issues with his customary assiduity, will on this occasion feel that he can safely not move his amendment.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Davies of Oldham.)

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I shall be as brief as possible. It is interesting to note that it is exactly one year ago this month that we first discussed this amendment in your Lordships' House. I declare an interest as leader of Essex County Council, as this amendment is relevant to local government.

Noble Lords will recall that this new clause is designed to enhance local road safety measures by permitting the hypothecation of surplus income from safety camera enforcement for expenditure by relevant local transport authorities on road safety measures. In short, it is intended to provide a source of funding that will enable local expertise to be translated into local road safety initiatives in a manner that is both responsive to and commensurate with the character of local problems.

The figures are quite striking. In 2000-01, there were only seven camera partnerships which took just over £10 million in fines and spent just under £9 million, leaving a balance of a little over £1 million, which went into the Consolidated Fund—better known perhaps as the Chancellor's black hole, which the Minister has just mentioned. That balance was 13 per cent of the funds in 2001. What is fascinating is that there has been a spectacular increase in income and in the number of partnerships. There were about 35 partnerships in 2003-04 with receipts of £112 million and an expenditure of £92 million, leaving £20 million going to the Chancellor. Not only have receipts increased approximately tenfold, but the balance going to the Chancellor as a percentage of total receipts has increased from 13 per cent to 18 per cent.

Ten years ago around 200,000 speeding fines were issued. That figure has now rocketed to 2 million. At the same time, the number of traffic policemen has fallen from 9,000 in 1997 to 7,000 in 2005. Therefore, we are worried that there is too much dependence on mechanical, fixed forms of enforcement and not enough on human beings—policemen—who can take account of varying conditions. We are also concerned about the serious failing in the Government's strategy. That very point was echoed by the report published yesterday by the Transport Select Committee, which stated that the country needed greater numbers of traffic officers to enforce existing traffic laws. The committee chairman, Gwyneth Dunwoody, went further and said that cameras are a useful tool but could not replace officers. It is exactly that type of electronic policing, blunt and arbitrary as it is, that is causing rather a lot of anger around the country.

This amendment is not about whether cameras save lives or reduce accidents—clearly evidence suggests that in most cases they do—but about bringing greater transparency and openness to the process of road enforcement and allowing people the chance to see that surplus revenues are being spent directly on road safety measures. Speaking of my own county, we could be as much as £6 million better off, and that money would provide so many more road safety projects. I am quite happy that the money should be hypothecated to road safety. That would be much more transparent compared with it going to the Consolidated Fund and not knowing whether or not we get that money.

A few months ago, in some press articles, the Government hinted that they were interested in operating a scheme that we had been suggesting. I believe that it is not too late for the Government to table their own amendment to this Bill. I hope that they will give some serious thought to it. I am sure that we would work with them to tidy up the amendment to make it appropriate. This is an important transparency issue. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Hanningfield.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 7:15 pm, 1st November 2006

My Lords, I support what the noble Lord, Lord Hanningfield, has said in contra-distinction to what the Minister said. Being a member of the Thames Valley Police Authority and Oxfordshire County Council, I am well aware of the new funding arrangements. The amount of new money which is available to county councils for road safety schemes from the new scheme to which the Minister referred is very little. There are many schemes in the county which would save lives but for which no funding is available. Contrary to what the Minister said, I believe that although motorists are not happy about being fined when caught by speed cameras, they will be much more content knowing that the revenue accruing to a local or national authority will, as the noble Lord, Lord Hanningfield, said, be spent on improving road safety. There is a multitude of schemes but insufficient money. That is why I support the amendment.

Photo of Baroness Gardner of Parkes Baroness Gardner of Parkes Conservative

My Lords, I support the amendment. I particularly want to emphasise my noble friend's point about transparency. I do not agree with the Minister that people are under a "widespread misapprehension" about how they are being clipped by the so-called safety cameras. As he will know, Marlow Hill in Wycombe is one case on which I often comment, and the Bucks Free Press has attempted to get the facts of the case. I think that transparency is necessary. The reply received from the authority that receives the money is that, under the Freedom of Information Act, it does not have to give any details or information about the case because it is exempt. Why should the revenue from such cameras be exempted? Why should there not be transparency so that people know the figures?

I then tabled a Question in your Lordships' House but the reply was, "Sorry, we cannot tell you; only the local people will be able to tell you". If the first group is hiding behind the protection of an exemption from the Freedom of Information Act and the Government are saying that they have no information, what will be the position when, next March, we change over to the system being suggested? Are we to have no idea how much money is being raised, where it is going or how it is being spent? I strongly support my noble friend's amendment because of the transparency it will bring.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am grateful to noble Lords who have spoken in support of the amendment, defective though it is, as I have explained. Although we have a difference of perspective, on one thing we are agreed: cameras are about improving road safety and they have that effect. All motorists feel at times that they have been caught somewhat unawares by a camera—that is often the complaint but not often justified by the evidence—and will express a concern that they have been prosecuted or fined. Nevertheless, they recognise that they are likely to be more careful in future. Road behaviour changes in those circumstances.

In case it is thought that while representing the Government at the Dispatch Box I might be guilty of undue bias with regard to the efficacy of cameras and other constraints, let me say that the country where the greatest transformation has taken place in the past few years has been France. Anyone who motored in France in the not-too-distant past will be aware that for the French speed limits existed as some form of entertainment to see by how much they could be exceeded. But that is no longer the case. Now there is the most rigorous observation by the French of motoring restrictions in villages—and a consequent improvement in their accident rate—because it is known that prosecution is pursued with great vigour.

I am sure the noble Lord agrees with me that cameras play an important part in road safety. The question is: would people be even more satisfied with the activity of cameras if they could see where the resources went? That is also the burden of the noble Baroness's view: she would like to know where the resources go. We do not normally extend to any other infringement of our law the general proposition, "Well, you'll be a lot happier with the fine imposed on you if you know where the money is going". We think that the fine and the punishment are related to the offence, rather than to any desirable development afterwards to which the resources are put. The noble Lord is introducing into legislation an interesting concept, but I cannot subscribe to it.

I have enjoyed contributions which, let me say, I heard at Third Reading, on Report and in Committee—some of them I heard at Second Reading. We are now dealing with Commons amendments, when the debate is still as protracted and the amendment still as wrong and as defective.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I, too, thank noble Lords who have taken part in the debate and I thank the Minister for replying. I was hopeful that we would not be debating this issue again a year later because there were indications in newspaper speculation that the Government would do what I am suggesting. We all agree with the Minister that speed cameras have improved road safety and reduced speeding, but they are not the most loved things—shall we put it that way? Often lives can be saved by a small amount of money spent on a crossing. I know that because I have to live with it all the time as leader of Essex County Council. If, instead of putting that small amount of money in a local transport plan and waiting two years for it to be agreed, we had a certain amount that the public could see was hypothecated from speed cameras and put into local road safety measures, it would suddenly transform the area and save lives. I repeat that there are a dozen in Essex that I could name straightaway. It would be a popular measure and would help the public's acceptance and the whole road safety process.

I cannot accept the Minister's reply. I had hoped that the Government would think again and I hope that even after today we can agree that this money can be seen to be spent locally rather than going into the Consolidated Fund when people have to bid for it. I therefore wish to test the opinion of the House.

On Question, Whether the said amendment (No. 1A) shall be agreed to?

Their Lordships divided: Contents, 129; Not-Contents, 101.

Division number 3 Private Parking: Ports and Trading Estates — Road Safety Bill [HL]

Aye: 127 Members of the House of Lords

No: 99 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

2: Clause 11, page 12, line 44, at end insert—

"(8) Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles) to the Road Safety Act 2006 makes provision about the immobilisation of vehicles the driving of which has been prohibited under this section and about their removal and disposal."

3: Page 13, line 47, at end insert—

"(3) Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles) makes provision about the immobilisation of vehicles the driving of which has been prohibited and about their removal and disposal."

4: After Clause 11, insert the following new Clause—

"Prohibition on driving: immobilisation, removal and disposal of vehicles

(1) In section 99A of the Transport Act 1968 (c. 73) (powers to prohibit driving of vehicles in connection with contravention of provisions about drivers' hours), after subsection (5) insert—

"(6) Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles) to the Road Safety Act 2006 makes provision about the immobilisation of vehicles the driving of which has been prohibited under subsection (1) of this section and about their removal and disposal."

(2) In section 3 of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27) (prohibition on driving of foreign vehicles: enforcement provisions), after subsection (7) insert—

"(8) Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles) to the Road Safety Act 2006 makes provision about the immobilisation of vehicles the driving of which has been prohibited under section 1 of this Act and about their removal and disposal."

(3) In section 73 of the Road Traffic Act 1988 (c. 52) (prohibition on driving of unfit or overloaded vehicles: supplementary provisions), after subsection (4) insert—

"(5) Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles) to the Road Safety Act 2006 makes provision about the immobilisation of vehicles the driving of which has been prohibited under section 69 or 70 of this Act and about their removal and disposal.""

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 7:34 pm, 1st November 2006

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2 to 4. I shall deal with those amendments first, together with Amendment No. 27.

The purpose of the deposit scheme, inserted into the Road Traffic Offenders Act 1988 by Clause 11 of the Bill, is to put on an equal footing with enforcement against others enforcement against those who are currently able, in practice, to avoid the penalty for failing to comply with British road traffic law. At present, when summonses are issued to non-UK resident drivers for road traffic offences, offenders seldom return to face the court and they therefore avoid the fine in practice. Likewise, non-resident drivers issued with fixed penalty notices are likely to leave the jurisdiction before payment is due.

New Section 90D of the Road Traffic Offenders Act provides for the possibility that a driver on whom a financial penalty deposit is imposed may be unable or unwilling to pay the deposit. In such circumstances, the enforcement officer may prohibit the driving of the relevant vehicle on the road. These amendments would strengthen that sanction of prohibition, not only under Section 90D but also under existing powers of prohibition, by giving enforcement agencies the powers physically to immobilise the vehicle. Immobilisation would enforce the requirements of the prohibition notice by preventing the driver from driving off, despite the prohibition notice, until payment of the deposit had been received, the fine had been paid or the prohibition had otherwise come to an end.

Amendment No. 25 is a standard provision relating to extent. It deals with the geographical extent of the provisions concerning immobilisation in Clause 11 and the associated schedule and validation of level crossing orders made by the HSE.

Moved, That the House do agree with the Commons in their Amendments Nos. 2 to 4.—(Lord Davies of Oldham.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I should like to ask the Minister one question. He will know that I have asked several questions about the penalties imposed on drivers from the Irish Republic who grossly exceed drivers' hours. I refer to repeat offenders—the same drivers from the same firms. I hope that the amendment will enable enforcement officers to impound the vehicles of those haulage firms.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am grateful to the noble Lord. As he said, he has raised this issue both through Questions and in debates on many occasions in the past. The amendments certainly increase the powers—that is the whole point of them.

On Question, Motion agreed to.

5: Leave out Clause 16

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5. In speaking to this amendment, I shall also indicate why I think the House should reject the noble Lord's Amendments Nos. 5A, 5B and 5C.

I understand the noble Lord's wish to raise the profile of the retro-reflective tape issue and to see the fitting of reflective tape to all heavy vehicles at the earliest opportunity. However, I remind the House that use of the tape is already permitted and that many vehicles are already fitted with it. The tape is helpful in the hours of darkness and in conditions of poor visibility. But UK trucks are already equipped with various conspicuity aids, such as side marker lights and rear reflective number plates, so we are not convinced that the tape's road safety effects will be as great in the UK as they might be in other countries where lorries have less conspicuous aids, apart from the tape.

I recognise the noble Lord's sincerity in wishing to bring about sooner rather than later what appears to be a sound road safety measure. But, as I have tried to explain before, if we were to regulate to require fitting of the tape in advance of changes to international requirements, we would be at risk of infraction proceedings from Brussels.

In addition, I must point out that Clause 16 is deeply flawed in that, unlike the existing powers that it reflects, it does not have any teeth. In theory, therefore, the Secretary of State might make regulations requiring the fitting of retro-reflective tape to trucks and trailers but, if owners and operators failed to comply, they would face no penalties. It would be far better to rely on the powers that we already have. They are tried and tested, they include provision for enforcement and penalties, and we have undertaken to use them as soon as international law permits.

It might help if I clarified the position on this subject further. Powers to make regulations about retro-reflective tape already exist, and regulations allow its use. Tape E-marked to UNECE Regulation 104 specification is acceptable throughout the UNECE, of which the European Union is a member, and many vehicles are already fitted with it. A UNECE amendment to mandate fitting of the tape for trucks seeking Regulation 48 certification is in hand and is expected to come into effect in 2009 or 2010.

I know that the noble Lord, Lord Hanningfield, finds that unacceptable and that the delay is there. The noble Lord will also recognise the advantages of having regulations which extend to vehicles which traverse the whole of Europe. There are great benefits in getting agreement on standard requirements for all trucks. Although I recognise the noble Lord's impatience, he ought therefore to acknowledge the Government's intention to move as quickly as we can. Nevertheless, we need this regulation.

In addition, the UK must accept vehicles approved to the European Commission directive on lighting installation. At this time, retro-reflective tape is optional under the directive. There are plans to amend it to refer directly to UNECE Regulation 48 which is due to be amended to mandate fitting of tape. Until that time, I am afraid that the UK would be open to infraction proceedings if we introduced national requirements that were more stringent than the current optional fitting.

Once Regulation 48 and the directive on lighting installation are amended to mandate retro-reflective tape, the UK will be able to mandate fitting on all new trucks, including UK vehicles not approved to Regulation 48. I remind the noble Lord that we have already committed to do this as soon as we can.

However, European whole-vehicle-type approval for trucks and trailers is currently being developed and is well under way. This is a massive and important undertaking. The noble Lords, Lord Hanningfield and Lord Bradshaw, have been vocal about the necessity for Europe-wide regulations. It will harmonise the technical requirements for these vehicles, as has already been done for cars and motorcycles, and thus create a single market where vehicles which have been type-approved in one member state will automatically be accepted in all other member states.

Trucks will include, among many other requirements and vehicle types, mandatory compliance with the directive on lighting installation and therefore fitting of retro-reflective tape for new N2 and N3 vehicles and O3 and O4 trailers. It is expected to come into force on 1 January 2010. Even if we ignored possible infraction procedures and set out to make specific early regulations to mandate the tape, not only would the process take considerable time but it would, I suspect, wastefully duplicate existing ECWVTA work.

We are also required to notify the European Commission of new or altered technical regulations; failure to do so renders that regulation unenforceable. The notification process itself takes time, and I am convinced that such regulations—even if they were not thrown out as a result of the notification procedure—would be likely to come into effect so close to the expected coming into force of the international requirements I have just described that our regulations would have little impact. In any case, such regulations would apply only to UK-registered vehicles and would have no effect on the foreign vehicles on our roads, whereas a European directive would be all-embracing.

In 2005, Loughborough University carried out a study on retro-reflective tape. The final report noted that,

"the effect of the addition of retro reflective tape markings may not result in similar [accident] reduction rates [in the UK] as those observed in America", in different circumstances. It also pointed out that calculating cost benefit ratios was difficult because limited data were available, and that the data used may, for various reasons, have resulted in an over-estimate of the reduction in the number of accidents which could be attributed to the tape.

Nevertheless, that is a marginal argument. I have sought to convey to the noble Lord that we are as one with him on the advisability of the tape and the benefits it will bring. Under our regulations, we cannot avoid possible infraction proceedings or act much in advance of the date that Europe is setting as a target for the delivery of the requirements we need, which will govern all vehicles on British roads. That is why I hope that the noble Lord will accept the Government's case and, having moved his amendment, will consider withdrawing it after the usual useful debate.

Moved, That the House do agree with the Commons in their Amendment No. 5—(Lord Davies of Oldham.)

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 7:45 pm, 1st November 2006

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out from "House" to end and insert "do disagree with the Commons in their Amendment No. 5, but do propose the following Amendments in lieu—"

5B: Clause, 16, page 21, line 18, at end insert-

"(2) The Secretary of State must make regulations under this section no later than 31st December 2007.""

5C Page 59, line 6, after "1," insert-

"(aa) section 16,"

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I listened with great interest to the Minister's reply. It is interesting how many different things can be said about, for example, the Loughborough report. The Department for Transport's 2005 road casualty statistics, published on 28 September, show that despite a 1 per cent drop in fatalities from road accidents, deaths from accidents involving heavy goods vehicles increased by 8 per cent to 485 in 2005, even though there are proportionally fewer goods vehicles on the roads.

These figures represent 15 per cent of all road deaths and clearly demonstrate that new measures are required as soon as possible to reduce this disproportionate number. Research by the Darmstadt University of Technology—the Minister did not produce that report—has found that adding retro-reflective contour markings reduced accidents involving trucks and passenger cars under poor visibility conditions by 95 per cent. The Loughborough University report, published in May 2005, to which the Minister referred, also concluded that,

"there is a cost benefit for fitting retro-reflective line markings to newly registered vehicles greater than 7.5 tonnes".

A subsequent consultation by the Department for Transport also indicated that there was overwhelming public support for introducing this measure. However, the Department for Transport's own research shows that this would be an effective means of saving lives and would prevent 385 collisions involving heavy goods vehicles each year. As we have heard from the Minister tonight, the Government continue to oppose its immediate introduction.

The Minister has cited the European position, but I direct him to an earlier discussion in the House of Commons when the Transport Minister was Stephen Ladyman. He stated that if the Government were to introduce this measure it would certainly be breaking EU law and action would be taken against us, which I think is what the Minister was referring to as "infraction proceedings".

The European Commission disputes this and has now confirmed that this measure is likely, as the Minister said, to become mandatory across the European Union from 2010. But it has stated that member states are free,

"to lay down national requirements concerning the use of retro-reflective markings", in the mean time, so we would do nothing to offend EU law if we introduced them as from now. That is the point of the amendment today.

During the same debate, Dr Ladyman claimed that the European Commission had "started the preliminary stages" of infraction proceedings against Italy as a result of its decision to introduce this measure in 2003. The Minister even stated that there were objections to Italy's decision,

"not only from Great Britain, but from France and Germany".—[Hansard, Commons, 9/10/06; col. 93.]

The Commission also disputes that, stating that there are no grounds to take action against Italy and that it has,

"not received to date any complaints concerning the Italian legislation".

The Government also stated that the UN Economic Commission for Europe regulations do not allow contracting parties to make the ECE104 mandatory before 2010. However, Italy, like the UK, is a contracting party to the regulations but has suffered no action as a consequence of introducing the measure. Indeed, the United Nations ECE secretariat has also confirmed that it,

"has not been informed about complaints on the Italian national legislation".

If you introduce it, it does not seem to infringe any European directive.

The final argument that the Government raised against introducing this measure is that it would damage the competitiveness of the UK haulage industry. Not only would this amendment reduce the number of accidents involving heavy goods vehicles, enabling more heavy goods vehicles to remain on the road and reducing the cost of repairs, it would require only newly registered HGVs to fit retro-reflective markings at present. The Loughborough report again estimated this would cost about £100 or 0.001 per cent of the total cost of a new vehicle. Surely that is a very small price to pay for saving lives.

The amendment has received cross-party support in both Houses. It is now clear that there is nothing to stop the Government taking action. In the light of this, I hope that the Government will support the immediate introduction of this life-saving measure and allow this amendment to stand.

There is some disagreement about the interpretation of what the EU said and what it believes would happen, but it seems to us that there is nothing, except the Government's intransigence, to stop the fitting of these reflectors on new vehicles as from today or as quickly as the regulations can be produced. We all know that some regulations can arrive quicker than others. The time for action is now. If the Government wait until this measure is introduced across the EU, more than 1,100 collisions involving heavy goods vehicles could occur, and they could involve serious injuries and fatalities which this amendment would prevent.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out from "House" to end and insert "do disagree with the Commons in their Amendment No. 5, but do propose Amendments Nos. 5B and 5C in lieu."—(Baroness Hanham.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I believe what the Minister has said is a misinterpretation of European law and that we could introduce these provisions. If the noble Baroness presses the amendment to a Division, I shall support it.

Photo of Viscount Simon Viscount Simon Deputy Speaker (Lords)

My Lords, my noble friend will be aware that I fully support the fitting of retro-reflective tape. I am not certain whether he made a conscious error in his penultimate sentence, but he said that it would apply to all vehicles. If so, whoopee, but if it is only for vehicles in excess of 7.5 tonnes, what a shame.

Photo of Lord Monson Lord Monson Crossbench

My Lords, the Minister pointed out that the amendment was defective in that it did not include a provision for any penalty in Clause 16. However, if this House were to pass the amendment of the noble Baroness and send the amended clause back to the other place, could it not rectify that before sending it back again to this House?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, again I am grateful to noble Lords and in particular for how the noble Baroness presented her case. Italy did not get off scot-free. A letter was sent to Italy indicating that its law was outwith the EU requirements. It might be thought that, if all that will happen is a rap across the knuckles, the British Government should be prepared to take the same action.

However, should a second infraction of that kind occur—particularly if we were the nation that did it, with our reputation for scrupulous commitment to European regulations—it is less likely that it would be regarded as acceptable. After all, the European Union would otherwise be faced with a growing accretion of each country tackling this bit by bit and not producing the European-wide perspective which it seeks to achieve. If we carried out what is required by this amendment, we do not think that we would be able to complete this process much before the European position became rationalised.

In passing, let me reassure my noble friend that of course when I said "all vehicles", I meant it in the sense of all vehicles in every part of Europe. I was not indicating every size of vehicle. We are clearly talking about trucks.

I find it a little strange that the Official Opposition are so cavalier about costs. The noble Baroness seemed to indicate that the costs were marginal—£100 per vehicle. She then costed that as a minute percentage of the total costs of the vehicle. Vehicles have to be off the road while the tape is being fitted. That cost must be taken into account. If it is suggested that it is just £100 for that alone, it is a somewhat extraordinary valuation.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, will the noble Lord give way?

Photo of Earl Attlee Earl Attlee Conservative

My Lords, how can the vehicle be off the road if it is under construction in the factory?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, if it is under construction in the factory, that is the case. What is being argued here is that we should seek to get compliance across the board with vehicles, so we would expect other vehicles to come on-stream with the provision. Certainly, that is the European intention. There is no point in having safety regulations which apply only to a limited number of vehicles.

I have heard what the noble Baroness said. I recognise that she thinks, first, that these costs matter very little to companies and, secondly, that her amendment would substantially improve road safety in this country in advance of European action on this. I merely contend that we are talking about very limited gains indeed.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I am sure that the Minister will agree that any limited gains that mean that people are not killed are more than a limited gain—they are a very great attribute. I do not have much more to say, except that I clearly stated that our amendment refers to new vehicles. As my noble friend Lord Attlee said, it would not cost very much to put this tape on as vehicles were constructed.

It is quite remarkable that this country, which implements EU legislation in a way well beyond that ever demanded or implemented by any other part of Europe, cannot go ahead a little on this and make a regulation that would require this road safety measure. The Minister's reply seems puny, so I beg to test the opinion of the House.

On Question, Whether the said amendment (No. 5A) shall be agreed to?

Their Lordships divided: Contents, 112; Not-Contents, 96.

Division number 4 Private Parking: Ports and Trading Estates — Road Safety Bill [HL]

Aye: 110 Members of the House of Lords

No: 94 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

6: Page 24, line 36, column 4, leave out "the statutory maximum" and insert "12 months (in England and Wales) or six months (in Scotland) or the statutory maximum, or both"

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 8:11 pm, 1st November 2006

My Lords, I beg to move, That the House do agree with the Commons in their Amendment No. 6.

The House will recall that we discussed this issue at considerable length when we first considered the Bill. An amendment was made to Clause 20 to the effect that, where the offence was tried summarily by either a magistrates' court or a sheriff court, the court could not impose a custodial sentence. The maximum penalty of five years for conviction on indictment was unaffected. That amendment was reversed in Committee in the other place.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, I looked this up to see what happened. I do not know whether the Minister saw what happened, but the Chairman at the time simply asked whether Amendments Nos. 5 to 8 were not moved, and someone replied, "Not moved". That was plainly not in accordance with the whole tenor of the debate, and I am very grateful to the Government for coming back on the substantive issues.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, we are coming back on the substantive issues, but we are where we are. I described to the House the effect of the amendment that was passed and the change to the Bill that the other place then considered. The noble and learned Lord disagreed with the Government on the issue of principle, and I am sure that he is likely to express that disagreement in some form this evening. The Government stand by the principle behind this part of the Bill. We had a manifesto commitment to,

"introduce much tougher penalties for those who cause death by careless driving".

The effect of the noble Lords' amendment would be that the penalty available on summary conviction where a death has occurred would be no higher than the penalty available for simple careless driving. That is not an acceptable position, so far as the Government are concerned.

Public anxiety about careless driving that results in death is very well documented. We made it clear at the last general election that we thought that there was sufficient public disquiet for us to put to the nation our intention to toughen the penalties. The amendment would take that away. We maintain that there is great public anxiety about the amount of careless driving that results in death. Although I shall argue about certain aspects of the amendment in detail, the issue between us is one of principle, and I will not gain a great deal by articulating that principle at great length this evening. I did not achieve a great deal last time, although I spoke at great length. Nor, might I add, did all those who contributed at length last time persuade the Government to adopt a different position. What the Government are expressing at this stage, and what I am stating from the Dispatch Box, is that the amendment strikes at the heart of a principle on which we have based this legislation and which we feel justified in pursuing.

Certain aspects of the noble Lords' amendment should cause the House disquiet. The discontinuity between the maximum sentence available summarily and on indictment could have unfortunate effects. One possible consequence of the amendment is that any case that magistrates thought might warrant a custodial sentence, however short, would be sent to the Crown Court for trial. Trying more cases in the Crown Court would add to the expense and would run contrary to views expressed during the consultation exercise, principally by the legal profession, that the magistrates' courts should continue to be able to deal with most of these cases. Indeed, this is what prompted us to make this offence triable either way.

In addition, under changes made to magistrates' powers under the Criminal Justice Act 2003, which have not been implemented yet but shortly will be, if a magistrates' court decided to accept jurisdiction in a contested case but found, on trying it, that a custodial sentence was justified after all, it would, under the amendment, cease to be able to commit that case to the Crown Court for sentence where it considered its sentencing powers to be insufficient. We would therefore be presented with a real and obvious difficulty. I appreciate noble Lords' concerns—how can I fail to after the articulate way in which those concerns were expressed when we last discussed these matters in this House?—about the ability to impose a custodial penalty for this offence and the factors that would warrant such a sentence.

That is why, as a result of the very informed debate and the cogently argued case that was put, for which I pay tribute to the House, we have asked the Sentencing Guidelines Council, which is charged with publishing definitive sentencing guidelines for all criminal offences in England and Wales, to consider this issue very carefully. It will also review the existing guidelines for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. This will ensure that the courts are aware of how these offences work together and what factors to consider when sentencing.

It is crucial that sufficient sentencing options are available to the courts—I emphasise that sentencing options are what are being provided. That is why I hope that the House will agree to government Amendment No. 6, which restores the drafting of Clause 20 to its previous state. It is strongly supported by the Magistrates' Association, which wrote to the Home Office, following the acceptance of the noble Lords' amendment, to express its view that that decision should be reversed. That, of course, is what the Government are seeking to do today. It is also supported by the Parliamentary Advisory Council for Transport Safety.

To conclude, not only has this issue been the subject of considerable interest and debate at a general election that gave the Government a clear mandate to act in this area, but we have very substantial support from interest groups concerned with these issues. There are real attendant disadvantages to Amendment No. 6A, which the noble Lord, Lord Hanningfield, will shortly move.

Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord Davies of Oldham.)

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 8:15 pm, 1st November 2006

My Lords, I beg to move Amendment No. 6A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".

We return to probably the most contentious clause in the Bill. I will keep my comments mercifully short because we know the arguments quite well and other noble Lords wish to participate in this debate.

Of course we all offer our deepest sympathy to families who have lost a loved one, but I passionately believe that we have a duty to frame a law that is workable and will deliver justice. Under the clause, a prison sentence can be imposed for something that was purely an accident and simple carelessness. Jail is not a suitable punishment for an act of carelessness. The provision will result in the criminalisation of many ordinary members of society. Of vital importance is the absence of criminal intent, which is necessary in the conviction of other crimes that carry similar custodial sentences. Careless driving is very different from dangerous driving and from carelessness resulting from taking drink and drugs, even though the effects of those offences may be similar.

Under the current wording, a person would be guilty of careless driving if their driving fell below what would be expected of a careful and competent driver. That is markedly different from the test of culpability for dangerous driving. To be convicted of dangerous driving, a driver must have been driving in a way that, to a competent and careful driver, would be obviously dangerous—in other words, doing something that they know they should not be doing. There is no such requirement for the new offence of causing death by careless or inconsiderate driving. Instead, a person may commit the offence not only without intent but without even realising the nature of such carelessness.

We are not arguing for this new offence to be struck from the Bill; we are trying to ensure that the punishment fits the crime. Importantly, the punishment should reflect the standard of driving, not the consequences. We therefore cannot and will not support this excessive punishment proposed by the Government. A custodial sentence is a completely disproportionate punishment for such an offence. This amendment therefore would remove the custodial element from the Bill. Furthermore, it should be left to the courts not the Government to decide the severity of the punishment and the actual offence committed.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".—(Lord Hanningfield.)

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I remind the House of my interest as president of the Heavy Transport Association; I am also close to other trade associations. I believe that transport Ministers of all Governments, including this one, have made the right decisions over the years and that is why we enjoy one of the best road safety records in Europe. But the Government have gone wrong on this one.

The Minister talked about support from interest groups, but he will recognise that, because nearly all the key personnel in these interest groups have suffered personally from road traffic accidents, they are not exactly neutral. The whole of Clause 20 is highly undesirable; it will have unintended consequences, which I described in detail when the Bill passed through your Lordships' House and we considered this government amendment. But we need to remember that the provision was not in the Bill when it started in the House of Commons before the general election; it was not even included when it came to your Lordships' House after the election, despite the manifesto commitment and the fact that it was relatively easy to draft.

The Commons amendment provides for prison sentences, even at the magistrates' court; this would be on top of automatic disqualification. The problem is that, because some of the penalties—a fine, disqualification and prison—are mandatory rather than optional, so that the court would have to disqualify the driver, for example, the defendant would be encouraged to plead not guilty and opt for trial at the Crown Court. Worse still, if the driving error was very minor, the jury might well acquit, if only because they know that disqualification is automatic but inappropriate because the error was so minor.

Finally, when a motorist who is normally very careful, competent and a perfectly decent member of society loses his licence for a momentary lapse—no matter how tragic the consequences—confidence in the system of motoring justice will crumble and we will run the risk of seeing lower levels of compliance in general. The Government have failed to explore other means of meeting the needs of the bereaved and perhaps of making it easier to secure conviction for dangerous driving.

Realistically, the Minister has Clause 20 in his pocket because it is already in the Bill—we cannot stop that. He may eventually succeed with his amendment, but I believe that in the long term he will regret insisting on the Commons amendment. I hope that my noble friend takes it to a Division; I will support him in the Division Lobby.

Photo of The Earl of Mar and Kellie The Earl of Mar and Kellie Spokesperson in the Lords, Transport, Spokesperson in the Lords (Scottish Home Affairs), Home Affairs, Whip

My Lords, I continue to be unnerved by the issue of intent and therefore must continue to oppose the Government's position.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, I have always been grateful to the Minister and his colleagues for the courtesy with which they have accepted my opposition to this Bill and the help that they have given me in meeting Ministers, Home Office officials and the families of those whose genuine bereavement and upset is driving this clause.

This clause will do two things. It is wrong in principle and is likely to do serious injustice. A third point is that it is likely to confound expectations—people will be disappointed at the extent of its effect, because it will be terribly unjust. To put unjust measures on the statute book is a deep mistake which devalues the effect of justice for those who have been rightly sent to prison for dangerous driving. They will simply say, "It's a lottery".

Why is it wrong in principle? Nowhere in this country, except in the most arcane areas, do we send people to prison for ordinary negligence. I was astonished to read the Secretary of State say in the other place, as the basis of his argument, that taking a life is taking a life, no matter how it is done—in other words, the fact that, tragically, careless driving leads to a death means that there ought to be a prison sentence available. We do not take that view. Will that view apply to industry, where employees are sometimes tragically killed because of a breach of the Factories Act? Will it be taken in construction, or education when people take children on trips? Will it be taken in medicine or in transport generally? It is contrary to principle in this country to send people to prison unless you reach the broad standard of gross negligence. Ordinary negligence—ordinary carelessness—sad though it is and tragic though it can be, is something for which we do not send people to prison, and we are entirely right.

Secondly, there is likely to be serious injustice because the clause blurs the at present very clear distinction between dangerous driving and careless driving. Dangerous driving is driving that falls far below the standards to be expected of a competent and careful driver in circumstances where it would be obvious to a reasonable driver that what they were doing was dangerous. In other words, it has an element of intention or recklessness. If that is the case, it would be perfectly right and proper that a prison sentence should be available and sometimes imposed—and, indeed, that sometimes a very severe prison sentence should be imposed.

I am in no way soft on this issue. I commend the Government's actions in relation to speeding, which are doing a lot of good. When I was Attorney-General, I—like my predecessor—brought a number of cases before the Court of Appeal and sentences in practice were greatly increased. A lot of right and proper things have been going on and are being maintained by this Government, but this is a very serious mistake. How will defendants know how to behave? They will find themselves accused of dangerous driving, but they will be equally likely to be sent to prison if found guilty of careless driving. How will they know what the ingredient of dangerous driving is and where the line comes between that and careless driving? How will they know which aspect the prosecution is saying is the real nub of the matter?

At present and very properly, the Crown Prosecution Service has to decide whether there is sufficient credible evidence to give rise to a realistic prospect of conviction for dangerous driving or careless driving before bringing such a case. When the case is presented, the essential ingredients are stated to the court, the defendant knows what he has to meet, and justice can be done. This will blur that situation. The defendant will not know until the sentence is given where the nub of the matter lies. As my noble friends have said—I strongly support what they have said from their practical experience—this will have unintended consequences. There is a serious danger that more people will be unwilling to plead guilty. There is also a danger that juries, thinking that this is an unfair law, will acquit in circumstances where someone might even have pleaded guilty if they had not felt it necessary to air the whole matter.

It saddens me tremendously to see the Government going down a route that will lead to serious injustice. The hour is late and I have put the essential points. I very much hope that the Government will not sit on what was a purely technical oversight in this House and cling to their five years in the Crown Court simply because an amendment was not moved. I had not understood that that was remotely the Minister's intention. I thought that we were at least being allowed to debate the matter so that it could be handled properly one way or the other. It would be a great mistake to introduce a prison sentence for careless driving when, very sadly, a death has followed a case of carelessness. It does not help a tragedy to compound it with an injustice.

Photo of Lord Monson Lord Monson Crossbench 8:30 pm, 1st November 2006

My Lords, however well it may play with a section of the tabloid press, the Government's plan to send still more people to prison in a week when the British prison population has reached an all-time high is surely the height of folly. At this rate, we will need not only prison ships but also prison railway carriages parked in disused sidings. The Minister said that if the amendment is carried, the penalty would be no more severe than that for simple careless driving. But the Minister is wrong, as the noble Earl, Lord Attlee, pointed out, because there would be automatic disqualification for at least a year. Simple careless driving hardly ever results in disqualification, which is quite a severe penalty, and rightly so.

It is true that because of a truly ghastly procedural blunder after the Lords' amendment to Clause 20 was carried in the summer—whose fault it was I do not know—the power of Crown Courts to impose a prison sentence for this offence was not removed as had always been intended. Despite what the noble and learned Lord, Lord Lyell, said, I do not suppose that it is possible in this Session to do anything about that. But at least a quarter of a loaf is better than none.

Photo of Viscount Simon Viscount Simon Deputy Speaker (Lords)

My Lords, I think that the noble Earl, Lord Attlee, said that certain pressure groups have an axe to grind. I do not have an axe to grind, but noble Lords will recall that among various things that I do I am heavily involved with the traffic police. I have attended fatal accidents. I have been to mortuaries to identify bodies with the families of those involved and I have stayed with them for as long as necessary. They all react differently. The results of the police investigations and the CPS have also resulted in different actions being taken.

The noble and learned Lord, Lord Lyell, has said that the wrong message will be sent out, which of course is quite possible. But the other way of looking at it is that if this goes through as the Government want, the right message will be sent out and people will take more care with their driving and will not do the careless things that they do now.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I have listened carefully to some of the speakers on the Opposition Benches. I take from this that the definition of "careless" is that it is just a momentary lapse; that it does not really matter; that we are all careless at some stages in our lives; and that if our carelessness happens at the wrong moment and someone gets hurt or killed, it is very sad. And that is it: we certainly do not want to go to jail, which would be unheard of for a middle-class crime. I worry about this. If a person is driving a car or vehicle, it should not be any different from driving a train or flying an aeroplane. People are trained, although some training is more than others. In any event, a person is in charge of lethal equipment which could hurt not only you and your passengers, but other people. Whether that is careless or just bad luck, as some people might say, I do not know. I do not accept that just because a person had a momentary lapse, it does not matter, which is the impression that I am getting—perhaps wrongly.

The noble Earl, Lord Attlee, said that we have the best road safety record in Europe, which may be true, but we are still killing 3,500 people every year and heaven knows how many hundreds of thousands of people are being seriously injured. I do not accept that the Magistrates' Association or PACTS, of which I am a member, have given opinions based on their personal sufferings. I know that other groups might do that, but those two organisations should be listened to because they are objective. I believe that if they have thought about it carefully and think the Government's view is right, we should support them.

I support this provision, as I have all along. We should support anything which makes drivers think carefully, so that they have to concentrate the whole time they are at the wheel, looking for things that might possibly go wrong just around the corner or checking for people crossing the road or whatever—just as train and aeroplane drivers have to. We must get away from the amateur view that anyone can drive however they like. I certainly support the Government's position on this.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, would the noble Lord, Lord Berkeley, like to see a train driver banned from driving if he skidded his train for about 50 metres?

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I know of a case involving a particular train driver. One of his kids was ill. He was driving a train and he had forgotten to switch off his mobile phone. He got a call from the hospital. An inspector was with him in the cab. The driver did not take the call, but switched off his phone. He still got the sack, which proves the point. I shall not go on about mobile phones, but whether we think it right or not, that case proves that a very high standard of driving is expected on trains. If you do not perform to the standard, you get the sack.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

My Lords, I support everything said by my noble friend Lord Berkeley and I shall not repeat it. I have also listened carefully to other noble Lords. One Monday evening at twenty to nine I had a father. At a quarter to nine I did not have a father because he had been killed in a road accident. It may have been a little lapse on the part of the driver, but it was a great thing in a person's life. I shall be supporting the Government.

Photo of Baroness Gardner of Parkes Baroness Gardner of Parkes Conservative

My Lords, I am slightly puzzled about how the decision is made on which charge will be brought against a driver. If, for example, as in cases that we read about all the time, a driver backing out of his garage tragically kills his own much-loved child who somehow has got behind the car, would that person be charged with careless driving? It certainly should not be dangerous driving because there would have been no intention, but would a charge of careless driving be brought in a case like that where the last thing in the world the driver wanted to do was to harm someone they loved? If not, are we talking about someone whose mind is distracted for a moment? I am confused about the issue of carelessness and I would appreciate some clarification.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, as anticipated, this has been an interesting debate and it would be difficult for me to reply without undue length to every single point. On the question put by the noble Baroness, the circumstances she has identified would invite a series of other potential charges beyond careless driving. My noble friend Lady Gibson has made a very important contribution to the debate. It is of the greatest significance when a death is caused by people not taking sufficient care when in their motor cars. Further, my noble friend Lord Berkeley is absolutely right. I mentioned in my opening speech the interest groups that support the legislation. The Magistrates' Association and the Parliamentary Advisory Council for Transport Safety are not motivated by emotion beyond the proper human emotion we all have when considering these matters, but their members have not been personally affected by these issues. They seek to influence and improve the law. I am happy to give way to the noble Earl, Lord Attlee.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, the Minister puts great weight on the decision reached by PACTS, which does an awful lot of good work. But how was the decision arrived at? Was it a decision reached by a vote of all the PACTS members? I attend meetings of the council, but I have never voted on this issue. Perhaps it was a small group of PACTS executives which made the decision.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, it is not for me to go into the decision-making processes of groups such as PACTS, but let me say that it enjoys a high reputation because its members support what it does and the Government take seriously representations from that source. I sought to disabuse noble Lords of the notion that this is all based on emotion; the issues have been established on other grounds.

In moving the amendment the noble Lord, Lord Hanningfield, said that the punishment should fit the crime. Let me make one point absolutely clear: there is nothing about mandatory penalties in the Bill. The clause certainly proposes maximum penalties, but it would be for the courts to decide which is appropriate. It might be that a community penalty or fine is imposed. In cases where those are not considered appropriate, a custodial sentence may be passed. The courts will decide.

The noble and learned Lord, Lord Lyell, must accept that the Government have addressed themselves to the Bill which had been passed by this House. They take at face value, as they are bound to, what the law would be if the Bill was enacted and they had not effected any changes to what it contained when it was returned to them.

I have listened to what the noble and learned Lord said with the greatest care and I take his views very seriously, but let me make it absolutely clear that the amendment—and noble Lords should consider this seriously—would restrict the ability of magistrates' courts to impose a custodial sentence but the Crown Court would still be able to impose a maximum sentence of five years. That is why I indicated that one of the difficulties which would occur if the amendment was carried would be that magistrates' courts—although it is expected and hoped that they will deal with large numbers of these cases—the moment they had the slightest inkling that a serious penalty might be appropriate, would be more likely to pass cases on to the Crown Courts because they would not be able to deliver it. That is what the amendment would do it if were passed and those who vote for it—with all the best intentions in the world—would be creating what we regard as a serious weakness in the Bill.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative 8:45 pm, 1st November 2006

My Lords, I am extremely grateful to the Minister. If the House were persuaded by the arguments that a prison sentence was inappropriate for careless driving, is it within its procedural power on the ping-pong to come back with a clause which would reflect that? I believe it is.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am dealing with the amendment before the House. It is not for me to enter into conjecture about what might be done at future stages.

If noble Lords went into the Lobby on the basis that there is a broad intention to which they subscribe but aware that the amendment will produce a nonsense which at some other stage ought to be tidied up, that would be acting in an irresponsible way. If we did that we would be continually living in a land of conjecture as to the intent of amendments and Motions. We are dealing with legislation. This House prides itself on the fact—and rightly so—that it is concerned with the detail and revision of legislation which comes from the other place. It should not be suggested, particularly at this late stage, that the legislation may not be quite right but some other opportunity should be taken to amend it. We are not talking about the Committee stage of a Bill but the considered view of the other place as to what should happen to it. An amendment has been tabled which, in my view, is clearly faulty.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, is the Minister really saying that if the Government believe an injustice is likely to be done he does not have to give his mind to it? I can quite understand if he gives his mind to it and says, "No, we believe this is right", but to take advantage of what was obviously a slip and to do something which this House may well decide—I hope it does decide—would lead to an unjust result would seem to me to be wrong. Does the Minister agree?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I indicated at the beginning that I knew the noble and learned Lord, Lord Lyell, and I would collide over this Bill on a matter of principle—and so we have; we are quite explicit about that. I have tried to explain the Government's position as accurately as I can and he has ably explained his own.

It is also my task to identify the fact that if this House should vote for this amendment it would have an indefensible and unacceptable consequence. It may not be intended by the movers of the amendment, but that will be the effect. That is one of the reasons why the amendment should be rejected.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, as I expected, we have had a long debate on the amendment. As I said at the beginning, it is a very contentious issue and there are some very strong feelings about it. I regret the last part of the discussion because we all know that if the House agrees to my amendment today we will get another chance to discuss it again. Unless the other place accepts the amendment, there will probably be another chance to discuss it. We got a bit bogged down on the technicalities of when we table amendments. Of course, we take advice. We do not always have the advice that the Government have, but if we have to discuss this matter again we can take further advice.

The issue is not resolved. No one in this House would disagree that people should receive the sort of punishment that suits the crime. However, some of us feel that this potential new legislation might sometimes stop that happening and that courts would acquit people when they should be convicting them, due to the fine dividing line between something that should not have happened because of a person's action and something that did happen. Parliament is not the place to make these judgments. We have heard some rather emotional speeches in which people have said that Parliament should be the place that decides on this matter—but the courts should decide. We feel very strongly that this legislation is not, as the Minister has said, leaving the power with the courts; it is taking power away from courts and giving it to Parliament, which it should not do. That is why there are strong feelings about it.

With that, I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 6A) shall be agreed to?

Their Lordships divided: Contents, 104; Not-Contents, 89.

Division number 5 Private Parking: Ports and Trading Estates — Road Safety Bill [HL]

Aye: 102 Members of the House of Lords

No: 87 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

7: Page 44, line 26, after "tests"," insert—

"(aa) in paragraph (b), after "conducted" insert ", conditions which must be satisfied during the currency of an appointment, the charging of reasonable fees in respect of applications for appointment or appointments or in connection with any examination or assessment which may be required before appointment or during the currency of any appointment","

8: Page 44, line 27, leave out "paragraph (b)" and insert "that paragraph"

9: After Clause 38, Insert the following new Clause—

"Compulsory surrender of old-form licences

(1) In the Road Traffic Act 1988 (c. 52), after section 98 insert—

"98A Compulsory surrender of old-form licences

(1) The Secretary of State may by order require the holders of licences of a specified description, or any specified description of the holders of such licences, to surrender the licences and their counterparts to the Secretary of State. (2) An order under this section may specify as the description of licences to be surrendered— (a) licences which are not in the form of a photocard, or (b) licences in the form of a photocard of a description no longer specified by the Secretary of State as a form in which licences are granted. (3) An order under this section must specify the date by which the licences to which it relates (and their counterparts) are to be surrendered; and may specify different dates in relation to different descriptions of licence holders. (4) An order under this section must include provision for the grant of a new licence to every holder of a licence surrendered (with its counterpart) in pursuance of the order who— (a) pays such fee (if any) as is specified by the order, and (b) provides the Secretary of State with such evidence or further evidence as the Secretary of State may require (which may include a photograph which is a current likeness of him). (5) A replacement licence granted pursuant to provision made by virtue of subsection (4) above expires on the date on which the surrendered licence would have expired had it not been surrendered (but subject to subsection (6) below). (6) Where the period for which the surrendered licence was granted was based on an error with respect to the licence holder's date of birth such that (if the error had not been made) that licence would have been expressed to expire on a different date, the replacement licence expires on that different date. (7) A person who, without reasonable excuse, fails to comply with any requirement to surrender a licence and its counterpart imposed by an order under this section is guilty of an offence. (8) An order under this section may— (a) make different provision for different cases, and (b) contain such incidental and supplementary provisions as the Secretary of State considers appropriate. (9) The power to make an order under this section is exercisable by statutory instrument. (10) Before making an order under this section the Secretary of State must consult with such representative organisations as he thinks fit. (11) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament."

(2) In Schedule 1 to the Road Traffic Offenders Act 1988 (c. 53) (offences to which certain sections apply), after the entry relating to section 94A of the Road Traffic Act 1988 (c. 52) insert—

"RTA section 98A(7) Driving licence holder failing to surrender licence and counterpart. Section 6 of this Act."

(3) In Part 1 of Schedule 2 to that Act (prosecution and punishment of offences: offences under the Traffic Acts), after the entry relating to section 96 of the Road Traffic Act 1988 (c. 52) insert—

"RTA section 98A(7) Driving licence holder failing to surrender licence and counterpart. Summarily. Level 3 on the standard scale.

10: Insert the following new Clause—

"Fee for renewal of photocard licence and issue of certain alternative licences

(1) In section 99 of the Road Traffic Act 1988 (c. 52) (duration of licence)—

(a) in subsection (7) (grant of new licence free of charge on surrender of photocard licence after ten years, in cases of error and on change of name or address), omit "and any licence granted under this subsection shall be granted free of charge", and (b) After that subsection insert— "(7ZA) The Secretary of State is not required by subsection (7) above to grant a new licence on the surrender of a licence and its counterpart by a person in pursuance of subsection (2A) above unless the person has paid the fee (if any) which is prescribed; but any other licence under that subsection is to be granted free of charge."

(2) In section 117A(2)(c) and (3) of that Act (disqualification etc. of holders of Community licences: issue of alternative licences), for ", free of charge," substitute ", on payment of such fee (if any) as may be prescribed,""

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 9:03 pm, 1st November 2006

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 to 10.

Section 89 of the Road Traffic Act on tests of competence to drive enables the Secretary of State to make regulations about tests of competence to drive. Section 89(3)(b) provides for those regulations to cover the qualifications, selection and appointment of persons to conduct driving tests. That provision is used to enable employees of certain organisations, such as the MoD, police, fire brigades and some bus companies to conduct driving tests on behalf of the Secretary of State as delegated examiners.

In the modern environment we need flexibility in terms of the training that a person may need to undertake in order to become, and remain, approved as a delegated examiner. For example, as delegated examiners need to maintain and develop their expertise following their initial appointment, we would wish to discuss with them the introduction of continuing professional development.

Amendment No. 7 amends Section 89(3)(b) so as to make the scope of the regulation-making powers more explicit. It also permits the Secretary of State to charge reasonable fees in connection with the initial and continuing approval of delegated examiners. This links with Clause 36(5) of the Bill. The combined effect of these two provisions is to create an environment in which we can move away from the existing arrangements for recovering the costs incurred by the Driving Standards Agency (DSA) in the appointment, and subsequent quality assurance, of delegated examiners. The DSA currently charges delegated examiners for the supply of the test result certificates they issue for the driving tests they conduct. These charges are intended to cover the costs the DSA incurs in respect of delegated examiners. This is an unsophisticated and blunt recovery mechanism as the agency's costs are not directly related to the number of tests conducted by an individual examiner. It is, therefore, inequitable and at odds with the "user pays" principle.

Amendment No. 8 is a consequential amendment arising from Amendment No. 7.

Moved, That the House do agree with the Commons in their Amendments Nos. 7 to 10.—(Lord Davies of Oldham.)

On Question, Motion agreed to.

11: After Clause 47, insert the following new Clause—

"Immediate suspension and revocation of drivers' licences

(1) Part 2 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) (hackney carriages and private hire vehicles in England and Wales outside London) is amended as follows.

(2) In section 61 (suspension and revocation of drivers' licences), after subsection (2) insert—

"(2A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section. (2B) If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2)(a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver."

(3) In subsection (3) of that section, after "under" insert "subsection (1) of".

(4) In section 77 (appeals), after subsection (2) insert—

"(3) Subsection (2) of this section does not apply in relation to a decision under subsection (1) of section 61 of this Act which has immediate effect in accordance with subsection (2B) of that section.""

12: Insert the following new Clause—

"Abolition of "contract exemption"

In section 75(1) of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) (hackney carriages and private hire vehicles in England and Wales outside London: savings), omit paragraph (b) (vehicles used only for carrying passengers for hire or reward under contract for hire for not less than 7 day period)."

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 and 12.

These are the principal amendments dealing with taxis and private hire vehicles, sometimes known as minicabs. They introduce two new clauses. The remaining amendments in this group are consequential to the two new clauses. They both have the same objective—to make travel safer for people who use these modes of transport. Against the background of the Bichard report and the legislation that we have brought forward in that regard, we have looked carefully at whether we should use the opportunity presented by the Road Safety Bill to deal with any urgent safety concerns in taxi and PHV legislation. The result is these new clauses to deal with two worrying aspects of the legislation that we identified.

Amendment No. 11 addresses our concern about a taxi or PHV driver's right to continue working while appealing against a decision to suspend or revoke his licence, even if he is considered to present an immediate threat to public safety. The clause provides local licensing authorities in England and Wales, outside London, with a new power, which will enable them to suspend or revoke a taxi or PHV driver's licence with immediate effect on safety grounds. This power has already been available to the licensing authority in London—Transport for London—for a number of years.

A driver's automatic right to continue working pending appeal has been a source of justified concern to many taxi and PHV licensing authorities. They want to use their licensing powers to ensure that passengers are safe using local taxi and PHV services. They play a tremendously important role in protecting residents and visitors who make use of taxis and PHVs in their areas. The amendment will equip them to do so even more thoroughly in circumstances, for example, where a driver has committed a serious offence or is suffering from a medical condition that makes it unsafe for them to continue working.

Amendment No. 12 addresses our concern about what is commonly known as the "contract exemption"; the provision that exempts drivers, vehicles and operators outside London from licensing if the vehicles are hired only under contracts lasting seven days or more. During the earlier passage of the Bill, concerns were raised about what is now Clause 47. The House will be aware that this clause tightens the definition of a private hire vehicle in London and will bring vehicles dedicated to contract work within the London PHV licensing regime. One of the points made in the earlier discussion was that the clause would be inconsistent with the retention of the contract exemption outside London. Ministers promised to consider this matter. Having done so, the conclusion that we came to is that public safety, and indeed consistency, require that we ensure that contract private hire work is licensed both in London and elsewhere. That is why we have brought forward the new clause in Amendment No. 12.

There are no compelling reasons why private hire services provided under long-term contracts should be outside the arrangements for ensuring public safety that are considered to be essential for other private hire work. The need to ensure public safety remains the same regardless of whether the hiring is a one-off or part of a long-term contract. For a passenger possibly at risk, the method of hiring is scarcely relevant; what is important is that there is no doubt that all the necessary checks and procedures have been comprehensively and effectively carried out. There are good grounds for removing the contract exemption to ensure a level playing field in the industry; unlicensed contractors have a commercial advantage over their licensed counterparts, which cannot be justified.

Both these new clauses are strongly supported by those who have responsibility for taxi and PHV licensing, and they have been welcomed by many in the industry. I commend them to the House as being necessary to safeguard the public, and I urge the House to agree to these amendments.

Moved, That the House do agree with the Commons in their Amendments Nos. 11 and 12.—(Lord Davies of Oldham.)

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am sure that these amendments are very sensible and desirable. Will the Minister either say what the appeal arrangements are or undertake to write me a short note to explain how any appeal against the revocation would work?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I will write in full to the noble Earl. He will recognise that the first part of the process is to deal with the issue of appeal. Obviously, in those circumstances the rights of the individual need to be protected, and we have guaranteed that. I will write to him in detail about that.

On Question, Motion agreed to.

13: Insert the following new Clause—

"Safety arrangements at level crossings

(1) Section 1 of the Level Crossings Act 1983 (c. 16) (safety arrangements at level crossings) is amended as follows.

(2) For paragraph (a) of subsection (2) substitute—

"(a) may require the operator of the crossing or the local traffic authority (or both) to provide at or near the crossing any protective equipment specified in the order and to maintain and operate that equipment in accordance with the order;".

(3) In paragraph (b) of that subsection, after "impose" insert "on the operator".

(4) In subsection (3)(b), omit "barriers or other".

(5) In subsection (5)(b), for "include requirements as to" substitute "impose requirements as to protective".

(6) For subsection (6) substitute—

"(6) The Secretary of State may make an order under this section in respect of a level crossing on being requested to do so by the operator of the crossing or without a request by the operator. (6ZA) The Secretary of State may not make an order without a request by the operator unless— (a) he has consulted the Office of Rail Regulation and the local traffic authority about the order he proposes to make; and (b) having done so, he has sent to the operator, the Office of Rail Regulation and the local traffic authority a copy of a draft of the order he proposes to make and a notice specifying the period (not being less than two months) within which they may make representations to him in respect of his proposal to make the order."

(7) For subsection (8) substitute—

"(8) Before making a request the operator— (a) must consult the Office of Rail Regulation and the local traffic authority about the draft order he intends to submit to the Secretary of State; and (b) having done so, must give written notice to the Office of Rail Regulation and the local traffic authority of his intention to make a request. (8A) A notice given under subsection (8)— (a) must be accompanied by a copy of the draft order which the operator intends to submit to the Secretary of State; and (b) must specify the period (not being less than two months) within which the Office of Rail Regulation and the local traffic authority may make representations to the Secretary of State in respect of the request."

(8) In subsection (9), for "(6) or (8)" substitute "(6ZA) or (8A)".

(9) In subsection (11)—

(a) omit the definition of "local authority", (b) before the definition of "operator" insert— ""local traffic authority", in relation to a crossing, means the authority which for the purposes of the Road Traffic Regulation Act 1984 is the local traffic authority for the road crossed by the railway at the crossing;", and (c) in the definition of "protective equipment", after "includes" insert "barriers,""

14: Insert the following new Clause—

"Delegation of power to make level crossing orders

(1) In paragraph 7 of Schedule 3 to the Railways Act 2005 (c. 14) (agreements by Secretary of State and Office of Rail Regulation for that Office to carry out on his behalf functions other than powers to make instruments of legislative character), after sub-paragraph (3) insert—

"(4) Sub-paragraph (3)(b) does not prevent the Secretary of State and the Office of Rail Regulation from entering into an agreement for that Office to carry out on his behalf the function of making orders under section 1 of the Level Crossings Act 1983."

(2) Subsection (2) of section 13 of the Health and Safety at Work etc. Act 1974 (c. 37) (agreements by Health and Safety Commission with Minister to perform functions on his behalf not to be taken to authorise performance of powers to make instruments of legislative character) is not to be taken to have prevented the performance by the Health and Safety Executive (on behalf of the Health and Safety Commission), in reliance on an agreement under subsection (1)(b) of that section, of the function of making orders under section 1 of the Level Crossings Act 1983 (c. 16)."

15: Leave out Clause 49

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. In doing so, I ask the noble Lord, Lord Bradshaw, not to move his Amendments Nos. 16A and 17A, but I shall of course seek to reply to any points that he makes.

We think that we have now produced a position with regard to the safety of level crossings that should commend itself to the House. The first new clause seeks to improve the safety of level crossings by making clear that a level crossing order can impose obligations on traffic authorities as well as on the level crossing operator and so better provide for road traffic measures to control the behaviour of motorists. The other new clause is a technical amendment which provides for the making of level crossing orders to be delegated to the rail safety regulator rather than be made directly by the Secretary of State, and prospectively validates orders made by the Health and Safety Executive on his behalf. Amendments Nos. 23, 24 and 32 are consequential on those two new clauses. The remaining amendments remove clauses which the Government do not think are necessary and which were not supported in the other place.

When the Bill was introduced into this House, much concern was expressed about safety at level crossings. Now that other safety concerns have been tackled, level crossings represent the greatest risk to safety on the railway. In the main, however, the risk arises not from the actions of rail users but from those of pedestrians and motorists who misuse crossings in a reckless way. A number of amendments were tabled by noble Lords to tackle the problem. The Government position was that those amendments were either defectively drafted or that we were not convinced of the need for further primary legislation.

We did, however, undertake to think about the issue and I am pleased to report to the House that in the other place an amendment was introduced which seeks to tackle the problem of misbehaving motorists by clarifying that a level crossing order may put obligations on road traffic authorities as well as on the level crossing operator. The amendment was introduced after agreement with Network Rail on the wording.

Level crossing orders set out the protective measures to be provided at a level crossing. "Protective measures" means the types of signs, barriers, lights and so on needed to ensure the crossing is safe both for road and rail users. The general process has been that, after consultation with the local authority, the level crossing operator applies to the Secretary of State for an order setting out the necessary measures. The proposals are considered by Her Majesty's Railway Inspectorate and the order made by the inspectorate on behalf of the Secretary of State.

The protective measures have traditionally been rail measures but the amendment makes clear that road traffic measures can also be considered. This means that there will need to be discussions between local traffic authorities and the crossing operator, usually Network Rail, on a package of measures. These could include rumble strips to slow traffic on its approach to the crossing, additional signage, cameras and central barriers to stop motorists attempting to zig-zag around half-barriers. Network Rail has agreed to fund these measures, so there will be no additional call on the resources of local authorities.

The Government have looked at the other amendments introduced into this House but are not persuaded of the case for special offences in respect of breaching red lights at railway crossings and bridge strikes. Regarding red lights, there are many instances where a violation can have catastrophic consequences for motorists and pedestrians just as much as where collisions occur on railway crossings. As the roads Minister made clear in the other place, where the violation is blatant and dangerous, the driving can and should be prosecuted as such with a significantly higher penalty, including custody, than that which applies to breach of a red light. If there is real evidence of a problem the Government would be prepared to consider using subordinate powers under Clauses 3 and 4 of the Bill, subject to the agreement of Parliament, to set a higher fixed penalty and higher penalty points tariff for breaches of red lights where they occur at railway crossings.

Bridge strikes greatly interest several noble Lords.I believe the current offence of careless and inconsiderate driving, with a maximum fine, subject to parliamentary approval for Clause 22 of this Bill, of £5,000, is sufficient. In extreme cases, where danger is caused to other road users, it may be appropriate to prosecute for dangerous driving with the possible attendant penalties.

The possibility of a custodial penalty is a significant elevation of the gravity with which society views an act of irresponsible driving. It is a very tricky path when we start to designate very specific actions in their own right as being as serious as those for which custodial penalties presently exist. I have heard it argued for when people use mobile phones when driving, for example. But how do we balance all these different circumstances? My response is to say that it should remain a matter for those who charge and those who sentence. Sentencing guidelines indicate that use of a mobile phone might be considered an aggravating factor when sentencing for dangerous driving. I think it would be appropriate for the Sentencing Advisory Panel to take a look at the level crossing and bridge strike situations. The Government are willing to make that request and I hope the noble Lord will recognise that that is the basis on which constructive action can be taken, which is the burden of his amendments.

The other new clause is not concerned with the content of level crossing orders but is a technical amendment about who has the power to make level crossing orders. With the transfer of the HMRI from the Health and Safety Executive to the Office of Rail Regulation earlier this year, we had intended that the rail inspectorate would continue to make level crossing orders. But doubt was cast on whether the wording of the Railways Act 2005 would allow this. In turn, doubt was cast on whether the delegation to the Health and Safety Executive in 1990 was sufficiently robust. The Railways Act 2005 and the Health and Safety at Work etc Act 1974 (under which the 1990 delegation was made) permit the delegation of administrative functions but not legislative functions. We have concluded that the making of level crossing orders is a legislative function.

We are, therefore, seeking to put beyond doubt that the making of level crossing orders can be delegated and to make clear that orders made by the rail inspectorate inspectors when they were in HSE are valid. If approved, the amendment would confirm the legal position as that which absolutely everyone thought it always was, and which has worked well in terms of level crossing safety.

Moved, That the House do agree with the Commons in their Amendments Nos. 13 to 15.—(Lord Davies of Oldham.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 9:15 pm, 1st November 2006

My Lords, I wish to speak to Amendments Nos. 16A and 17A as amendments to the Motion that this House do agree with the Commons in their Amendments Nos. 16 and 17, and to leave out "agree" and insert "disagree".

I am grateful to the Minister for what he has said about level crossings. I still have to point out that they now represent 42 per cent of the accident risk faced by train operators. Many causes of train accidents have been eliminated, but this one has not, and it is getting worse. There were 229 near misses last year, 16 collisions at level crossings and 120,000 minutes of delay were caused. At bridges there was even more delay: 340,000 minutes. There were 2,000 incidents which cost £10 million to deal with and the figure is going up.

The only point between me and the Minister in examining this matter is the level of penalties that are applicable to people who breach level crossings. He has said that people who bash into bridges should be charged with dangerous driving if it can be shown that they have driven without regard to the size of their lorry into a bridge which is clearly marked. Can he give me an assurance that that would be classed as dangerous driving? In that case the penalties would be worth inflicting because they would have some effect.

As regards level crossings, I am sure that the Minister has seen the films that I and the noble Lord, Lord Hanningfield, have seen. The behaviour of some motorists—it is a small minority—is criminally insane at level crossings. There is a strong case for giving serious thought to lifting the penalties under, I believe, the Road Traffic Act 1991. They are level 3, which means that a maximum fine of £1,000 can be imposed for such acts, unless they are elevated to dangerous driving. I am well aware that in that case other penalties would accrue. I would like to hear what the Minister has to say before deciding what we should do.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I support everything the noble Lord, Lord Bradshaw, has said. Perhaps the Minister could further clarify the matter. In previous debates we have spoken of accidents, and we need to ensure that in the legislation we have properly tackled the recklessness at level crossings. I would like to hear the Minister comment further on that.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I, too, thank my noble friend for the Commons amendments on level crossings. We have had long discussions about them and I think that they are really good. I am pleased about the way in which Network Rail has accepted them and I am sure that it will be a good step forward.

I worry still about these penalties—as the noble Lord, Lord Bradshaw, said, there have been 2,000 incidents of bridge-bashing. People think that you just get delayed in your train for half an hour until the engineer comes, looks at it and says it is all right. However, let us take the scenario of a lorry hitting a steel-deck bridge and moving it six inches sideways towards the track just before a high-speed train goes over it. We are talking about hundreds of potential deaths—especially if a train is going in the other direction. It may not happen often—I hope it never happens—but there is a need for a deterrent.

We are not talking about careful driving here; we are talking about intent. Not to check the height of your lorry or to wriggle through half-barriers to save a few minutes is done with intent and sometimes it will go wrong. In these circumstances, custodial sentences should certainly be possible. The deterrent does not exist at present, as the evidence of the number of incidents given by the noble Lord, Lord Bradshaw, surely shows. I hope that my noble friend can put my mind at rest and agree that the deterrent must dramatically increase before we have a serious accident.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, the noble Lord, Lord Berkeley, talked about bridge-bashing by lorries. It is a serious problem. In my opinion, it is inevitable that we will have the kind of accident he describes. It is only a matter of time. The penalties might not be sufficient, but I am disappointed that we have dropped Clause 52—and I am told that here I might be slightly out of order. That clause provided for physical barriers to protect the bridge from an over-height vehicle hitting it. You can have all the penalties you like, but eventually someone will foul up and hit the bridge hard just at the wrong moment. We cannot return to that issue, but I am disappointed that we do not have legislation providing for physical barriers to stop a driver inadvertently hitting the bridge.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am doomed to disappoint noble Lords this evening, even when, it is fair to say, the Government are being at their most constructive. We have had extensive debates on level-crossing safety and bridge strikes. I indicated to noble Lords the significant progress we made on this, not least with regard to cost factors, the relationship with local authorities and the way in which the roads will be treated to protect level crossings. Now the noble Lord, Lord Bradshaw, as is his wont, is seeking to push me one stage further. He is asking whether I will prescribe the nature of the offence and the attendant sentencing that should apply. I cannot do that. I cannot go any further than I have. I said that we regard these as serious issues. I indicated that the use of a mobile phone when driving can be a serious issue at times: it can lead to a charge of dangerous driving. I said that we will look to the Sentencing Advisory Panel to consider the appropriate sentences where strike situations involving level crossings and bridges occur.

I cannot go further than that this evening. I recognise the commitment of the noble Lord, Lord Bradshaw, to road and railway safety, which he holds very much to his heart. He has contributed significantly to the Bill in that area. I hope that he will understand that I cannot go as far as he would like in that regard this evening, and that he will appreciate that it is for the police and the Crown Prosecution Service to determine the charge. The maximum penalty for careless driving is £5,000, but for dangerous driving it could be a custodial sentence of a maximum of two years. That range, which we leave to the courts, is not insignificant. I hope that the noble Lord will feel that he does not need to press me any further this evening.

On Question, Motion agreed to.

16: Leave out Clause 50

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16.

Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Davies of Oldham.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 16, leave out "agree" and insert "disagree".

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I thank the Minister for what he has said. I still do not understand why it is not possible to move the penalties for abusing a level crossing up the scale. I am sure that the level of penalty available determines what the courts decide: they have the freedom to use that. Therefore, I should like to seek the opinion of the House on this issue.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 16, leave out "agree" and insert "disagree".—(Lord Bradshaw.)

On Question, Whether the said amendment (No. 16A) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 81.

Division number 6 Private Parking: Ports and Trading Estates — Road Safety Bill [HL]

Aye: 70 Members of the House of Lords

No: 79 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

17: Leave out Clause 51

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

[Amendment No. 17A not moved.]

18: Leave out Clause 52

19: Leave out Clause 53

20: Leave out Clause 54

21: Leave out Clause 55

22: Transpose Clause 58 to after Clause 47

23: Page 59, line 17, after "Sections" insert "(Delegation of power to make level crossing orders),"

24: Page 59, line 19, after "but" insert—

"(a) section (Delegation of power to make level crossing orders)(2) does not affect anything done or omitted to be done before that day, and (b) "

25: Page 59, line 25, leave out "Section 15 extends" and insert "Sections 11(3) and Schedule (Prohibition on driving: immobilisation, removal and disposal of vehicles), section 15 and section (Delegation of power to make level crossing orders)(2) extend"

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

26: Page 59, line 32, leave out subsection (2)

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

27: Insert the following new Schedule—

"PROHIBITION ON DRIVING: IMMOBILISATION, REMOVAL AND DISPOSAL OF VEHICLES

Cases to which regulations may apply

1 The Secretary of State may make regulations with respect to any case where, on or after such date as may be prescribed, the driving of a vehicle has been prohibited under—

(a) section 99A(1) of the Transport Act 1968 (c. 73) (powers to prohibit driving of vehicles in connection with contravention of provisions about drivers' hours), (b) section 1 of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27) (powers to prohibit driving of foreign goods vehicles and foreign public service vehicles), (c) section 69 or 70 of the Road Traffic Act 1988 (c. 52) (powers to prohibit driving of unfit or overloaded vehicles), or (d) section 90D of the Road Traffic Offenders Act 1988 (c. 53) (power to prohibit driving of vehicle on failure to make payment in compliance with financial penalty deposit requirement). Immobilisation

(1) The regulations may provide that an authorised person or a person acting under his direction may—

(a) fix an immobilisation device to the vehicle, and (b) move the vehicle, or direct it to be moved, for the purpose of enabling an immobilisation device to be fitted it.

(2) The regulations may provide that on any occasion when an immobilisation device is fixed to a vehicle in accordance with the regulations the person fixing the device must also fix to the vehicle a notice—

(a) indicating that the device has been fixed to the vehicle and warning that no attempt should be made to drive it or otherwise put it in motion until it has been released from the device, (b) specifying the steps to be taken to secure its release, and (c) giving such other information as may be prescribed.

(3) The regulations may provide that a vehicle to which an immobilisation device has been fixed in accordance with the regulations—

(a) may only be released from the device by or under the direction of an authorised person, but (b) subject to that, must be released from the device if the first and second requirements specified below are met.

(4) The first requirement is that such charge in respect of the release as may be prescribed is paid in any manner specified in the immobilisation notice.

(5) The second requirement is that, in accordance with instructions specified in the immobilisation notice, there is produced such evidence as may be prescribed establishing that the prohibition has been removed.

(6) The regulations may provide that they do not apply in relation to a vehicle if—

(a) a current disabled person's badge is displayed on the vehicle, or (b) such other conditions as may be prescribed are fulfilled, and "disabled person's badge" means a badge issued, or having effect as if issued, under any regulations for the time being in force under section 21 of the Chronically Sick and Disabled Persons Act 1970 (c. 44).

(7) The regulations may provide that an immobilisation notice is not to be removed or interfered with except by or on the authority of a person falling within a prescribed description.

Offences connected with immobilisation etc.

3 (1) The regulations may provide that a person who fails to comply within a reasonable time with a direction under provision made under paragraph 2(1)(b) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) The regulations may provide that a person contravening provision made under paragraph 2(7) is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(3) The regulations may provide that a person who, without being authorised to do so in accordance with provision made under paragraph 2, removes or attempts to remove an immobilisation device fixed to a vehicle in accordance with the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) The regulations may provide that where they would otherwise have applied in relation to a vehicle but for provision made under paragraph 2(6)(a) and the vehicle was not, at the time at which they would otherwise have applied, being used—

(a) in accordance with regulations under section 21 of the Chronically Sick and Disabled Persons Act 1970 (c. 44), and (b) in circumstances falling within section 117(1)(b) of the Road Traffic Regulation Act 1984 (c. 27) (use where a disabled person's concession would be available), the person in charge of the vehicle at that time is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) The regulations may provide that where—

(a) a person makes a declaration with a view to securing the release of a vehicle from an immobilisation device purported to have been fixed in accordance with the regulations, (b) the declaration is that the prohibition has been removed, and (c) the declaration is to the person's knowledge either false or in any material respect misleading, he is guilty of an offence.

(6) The regulations may provide that a person guilty of an offence for which provision is made under sub-paragraph (5) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both. Removal and disposal of vehicles

4 (1) The regulations may provide that where such conditions as may be prescribed are fulfilled an authorised person, or a person acting under his direction, may remove the vehicle or direct it to be removed.

(2) The regulations may provide that where such conditions as may be prescribed are fulfilled an authorised person, or a person acting under his direction, may deliver the vehicle, or direct it to be delivered, into the custody of a person—

(a) who is identified in accordance with prescribed rules, and (b) who agrees to accept delivery in accordance with arrangements agreed between that person and the Secretary of State,

and the arrangements may include provision as to the payment of a sum to the person into whose custody the vehicle is delivered.

(3) The regulations may make provision for such persons as may be prescribed to be informed that a vehicle has been removed and delivered into a person's custody and may, in particular, include provision requiring—

(a) the publication by an authorised person of such notices as may be prescribed, and (b) the giving of notice by an authorised person to such persons as may be prescribed.

(4) The regulations may provide that the person into whose custody the vehicle is delivered may dispose of it, and may in particular make provision as to—

(a) the time at which the vehicle may be disposed of, and (b) the manner in which it may be disposed of.

(5) The regulations may make provision allowing a person to take possession of the vehicle if—

(a) he claims it before it is disposed of, and (b) any prescribed conditions are fulfilled.

(6) The regulations may provide for a sum of an amount arrived at under prescribed rules to be paid to a person if—

(a) he claims after the vehicle's disposal to be or to have been its owner or to have been the person in charge of the vehicle when it was removed, (b) the claim is made within a prescribed time of the disposal, and (c) any other prescribed conditions are fulfilled.

(7) The regulations may provide that (whether or not a claim is made under provision made under sub-paragraph (5) or (6))—

(a) the Secretary of State, or (b) a person into whose custody the vehicle is delivered under the regulations, may recover from the vehicle's owner or the person in charge of the vehicle such charges as may be prescribed in respect of all or any of its release, removal, custody and disposal.

(8) In sub-paragraph (7) "person in charge" and "owner", in relation to a vehicle, means the person who was in charge of the vehicle or was the vehicle's owner when it was removed.

(9) The conditions prescribed under sub-paragraph (5) may include conditions as to—

(a) satisfying the person with custody that the claimant is the vehicle's owner or was the person in charge of the vehicle when it was removed, (b) the payment of prescribed charges in respect of the vehicle's release, removal and custody, and (c) the production of such evidence as may be prescribed establishing that the prohibition has been removed.

(10) The regulations may in particular include provision for purposes corresponding to those of sections 101 and 102 of the Road Traffic Regulation Act 1984 (c. 27) (disposal and charges) subject to such additions, omissions or other modifications as the Secretary of State thinks fit.

Offences as to securing possession of vehicles

5 (1) The regulations may provide that a person who fails to comply within a reasonable time with a direction under provision made under subparagraph (1) or (2) of paragraph 4 is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) The regulations may provide that where—

(a) a person makes a declaration with a view to securing possession of a vehicle purported to have been delivered into the custody of a person in accordance with provision made under paragraph 4, (b) the declaration is that the prohibition has been removed, and (c) the declaration is to the person's knowledge either false or in any material respect misleading,

he is guilty of an offence.

(3) The regulations may provide that a person guilty of an offence for which provision is made under sub-paragraph (2) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both. Disputes

6 The regulations may make provision about the proceedings to be followed where a dispute occurs as a result of the regulations, and may in particular make provision—

(a) for an application to be made to a magistrates' court or (in Scotland) to the sheriff, or (b) for a court to order a sum to be paid by the Secretary of State. Authorised persons

7 As regards anything falling to be done under the regulations (such as receiving payment of a charge or other sum) the regulations may provide that it may be done—

(a) by an authorised person, or (b) by an authorised person or a person acting under his direction. Application of Road Traffic Offenders Act 1988 (c. 53)

8 The regulations may make provision for the application of any or all of sections 1, 6, 11 and 12(1) of the Road Traffic Offenders Act 1988 (c. 53) to an offence for which provision is made by the regulations.

Interpretation

9 References in this Schedule to a vehicle include references to any trailer drawn by the vehicle.

10 (1) This paragraph makes provision about the meaning of "authorised person" for the purposes of this Schedule.

(2) Where the driving of the vehicle has been prohibited under section 99A(1) of the Transport Act 1968 (c. 73), section 1(2) of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27) or section 69 of the Road Traffic Act 1988 (c. 52), "authorised person" means—

(a) an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988 (c. 52), or (b) a constable authorised by or on behalf of a chief officer of police to act for the purposes of the provision under which the driving of the vehicle has been prohibited.

(3) Where the driving of the vehicle has been prohibited under section 1(3) of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27), "authorised person" means a person authorised to exercise the powers of section 78 of the Road Traffic Act 1988 (c. 52) with respect to the weighing of motor vehicles and trailers.

(4) Where the driving of the vehicle has been prohibited under section 70 of the Road Traffic Act 1988 (c. 52), "authorised person" means a person mentioned in sub-paragraph (2) or a person authorised with the consent of the Secretary of State to act for the purposes of subsection (1) of that section by—

(a) a highway authority other than the Secretary of State, or (b) a local roads authority in Scotland.

(5) Where the driving of the vehicle has been prohibited under section 90D of the Road Traffic Offenders Act 1988 (c. 53), "authorised person" means—

(a) an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988 (c. 52), or (b) a constable.

11 In this Schedule—

(a) references to an immobilisation device are to a device or appliance which is an immobilisation device for the purposes of section 104 of the Road Traffic Regulation Act 1984 (c. 27) (immobilisation of vehicles illegally parked), and (b) references to an immobilisation notice are to a notice fixed to a vehicle in accordance with the regulations.

12 In this Schedule "prescribed" means prescribed by the regulations.

13 (1) The regulations may make provision as to the meaning for the purposes of the regulations of "owner" as regards a vehicle.

(2) In particular, the regulations may provide that for the purposes of the regulations the owner of a vehicle is taken to be the person in whose name it is then registered under the Vehicle Excise and Registration Act 1994 (c. 22).

Supplementary provisions about regulations

14 (1) The power to make regulations under this Schedule is exercisable by statutory instrument.

(2) A statutory instrument containing regulations under this Schedule is subject to annulment in pursuance of a resolution of either House of Parliament."

28: Page 106, line 27, after "conducted" insert ", conditions which must be satisfied during the currency of an appointment, the charging of reasonable fees in respect of applications for appointment or appointments or in connection with any examination or assessment which may be required before appointment or during the currency of any appointment"

29: Page 113, line 8, after "evidencing" insert "the passing of an examination (or part of an examination) required by regulations under section 132 of this Act or"

30: Page 113, line 15, after "evidencing" insert "the passing of an examination (or part of an examination) required by regulations under section 132 of this Act or"

31: Page 126, line 16, at end insert—

"(15A) HACKNEY CARRIAGES AND PRIVATE HIRE VEHICLES

Short title and chapter Extent of repeal
Local Government (Miscellaneous Provisions) Act 1976 (c. 57) Private Hire Vehicles (London) Act 1998 (c. 34) Section 75(1)(b). In section 1(1)(a), in the definition of "private hire vehicle", the words "to the public"."

32: Page 126, line 16, at end insert—

"(15B) SAFETY ARRANGEMENTS AT LEVEL CROSSINGS

Short title and chapter Extent of repeal
Level Crossings Act 1983 (c. 16) In section 1— (a) in subsection (3)(b), the words "barriers or other", and (b) in subsection (11), the definition of "local authority"."

33: Page 126, leave out lines 26 to 29

34: Line 2, leave out "trunk road picnic areas and private hire vehicles" and insert "hackney carriages and private hire vehicles, and trunk road picnic areas"

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