Clause 40 - Fixed penalty offences

Traffic Management Bill – in a Public Bill Committee at 2:30 pm on 3rd February 2004.

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Photo of Mr Nigel Beard Mr Nigel Beard Labour, Bexleyheath and Crayford

With this it will be convenient to discuss the following amendments:

No. 46, in

page 19, leave out lines 1 to 3.

No. 47, in

page 19, leave out lines 4 and 5.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

The clause deals with the vexed issue of fixed penalties. Amendment No. 45 would mean that proposed section 95A(2) of the New Roads and Street Works Act 1991 would be left out. The amendment was tabled to probe the Minister on why

''offences by bodies corporate and Scottish partnerships''

will not be subject to the fixed penalty regime.

Amendment No. 46 would remove the power of the Secretary of State to add fixed penalty offences to the schedule, or delete them from it. In that context, will the Minister explain a bit more about his thinking on which offences should be subject to the fixed penalty regime and which should not? I have severe reservations about the fixed penalty regime. On the face of it, the offences chosen as fixed penalty offences are not the critical ones. I have in mind, for example, the failure to comply with a section 66(1) duty

''to carry on and complete certain street works with all reasonably practicable dispatch''.

That offence carries a maximum penalty of level 5. However, it goes to the heart of what the Bill is about: speeding up work and avoiding undue delay. If the Minister feels that the offence is serious, and that the enforcement authorities should take it seriously but will be inhibited from prosecuting because of the fear that they will face substantial costs and will not get any income from the fines, why is the offence not included in the fixed penalty regime? Does he have it in mind to include it at a later stage—in regulation—when we cannot possibly scrutinise the proposal properly?

In addition, why is the failure to comply with duties under section 71—

''prescribed requirements as to materials and workmanship and performance standards for reinstatements''—

not a fixed penalty offence? It is an important and critical issue. Why is it not subject to fixed penalties, even though other matters that we might regard as rather trivial are?

Can the Minister explain the situation in relation to continuing offences? One of the big bugbears of the motoring public, who are subject to fixed penalty notices, is that they get a sticker on their car because it is parked in the wrong place or has overstayed the time allowed, and then a few minutes or hours later they get another sticker on the car because it is parked in the same place. Can we be sure that the fixed penalty regime will not be used iteratively against people for the same wrongdoing? I would be grateful to hear what the Minister can tell us about that.

The debate on this group of amendments gives us an opportunity to probe the Minister about the thinking behind the fixed penalty regime.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

It is a pleasure to be under your tutelage once again, Mr. Beard, but I hope—I mean this in the nicest sense—we will not be under it for too much longer.

The points made by the hon. Member for Christchurch (Mr. Chope) are entirely fair. I hope that I can address them. Amendment No. 45 refers to section 166 of the 1991 Act, which provides that when an offence is committed with the consent or connivance of, or owing to the neglect of, a director, manager, secretary, partner or similar officer of the body corporate or partnership—I mean of the body corporate—the individual as well as the body corporate or partnership is guilty of an offence.

Clause 40 inserts new section 95A(2) in the 1991 Act, which provides that in such cases the offence would not be dealt with by means of fixed penalty notice, but through the courts. It is important to recognise the two-tier approach of the fixed penalty notice and due course through the courts. Amendment No. 45 would allow such offences to be subject to fixed penalty notices after all.

The distinction that the hon. Gentleman seeks to draw out of me is essentially—not entirely—between the noticing offences that are subject to fixed penalties, which we discussed this morning, and the more serious ones that are not.

I am sure that that is not the thrust of the hon. Gentleman's amendment No. 45, but some offences might involve circumstances in which the negligence of an individual contributes to the death of a worker on the site of a works or road works. I am sure that nobody would think that a fixed penalty notice deals with that appropriately.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

Subsection (2) refers to

''(offences by bodies corporate)''.

In his introduction, the Minister said, ''bodies corporate or partnerships,'' and then corrected himself, effectively deleting ''partnerships''. Will he clarify the situation by telling the Committee whether partnerships fall within the ambit?

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

If I gave the impression of correcting myself, it is because I read the wrong line in my speech, and I came on to partnerships subsequently. Partnership is there only in the same context as in section 166 of the 1991 Act, which refers to

''bodies corporate and Scottish partnerships''.

Not being a lawyer, and certainly not being a Scottish lawyer, although there is nothing wrong with them, I can only assume that that is a reference to the context under Scottish law.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for that clarification. He is saying that bodies corporate and Scottish partnerships are not subject to fixed penalty offences. One might face a situation in which one particular firm that has committed an offence is a body corporate—a limited company. Mr. Smith and Mr. Jones who trade together then commit the same offence, but they are an unlimited partnership. Why should there be a difference in treatment when one is dealing with a small company, which has very little difference to a partnership?

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

I have said once or twice before that I hope to get some inspiration from someone behind me, but I assume that the definition of body corporate is all inclusive. Neither the 1991 Act nor the Bill seeks narrowly to define body corporate as a limited company with liability guaranteed by its public status. I am pretty sure that that is the answer; if it is otherwise, I will get back to the hon. Gentleman. The important point is that a whole series of more serious offences warrant a different penalty to those in the fixed penalty regime.

The hon. Member for Christchurch rightly said that the thrust of the proposal is to hasten not delay the process. The noticing offences are important to the process of carrying out street works efficiently, but the distinction between what should and should not receive a fixed penalty notice is important, not least for the reasons I suggested—admittedly, in the most extreme circumstances. If there were pressing manslaughter or more serious charges, a fixed penalty notice would not cover the offence appropriately. If the hon. Gentleman wants to introduce body corporate matters, a fixed penalty notice may well be inappropriate—admittedly, in extremis. There are serious offences under the Bill and the principal Act that are important enough to be dealt with by the courts rather than a fixed penalty notice. As the hon. Member for Christchurch was suggesting, it would be taking a sledgehammer to crack a nut, or the reverse, if all the offences carried a fixed penalty notice. We might then stray into the realms of inefficiency and greater bureaucracy, which is not the Bill's intention.

Equally, because, as ever, the hon. Gentleman is right but for the wrong reasons, the list of offences in the Bill is not intended to be definitive. It has been arrived at largely as a result of the work done by the working party of utilities and local authorities, which roughly agreed the list of offences and agreed that some would be more suitable to fixed penalty notices and some better dealt with through the courts. However, we will have to resist amendment No. 46, because we want to retain flexibility—this is where the conspiracy theory comes in—to add to the list of offences carrying a fixed penalty notice, and equally, when we have seen how the list works in practice over

time, to remove some offences. Amendment No. 46 would remove the flexibility to modify the list of fixed penalty notices.

I believe that amendment No. 47 is consequential on amendment No. 46 and removes a reference in subsection (4) of new section 95A to orders that add or remove fixed penalty notices being subject to affirmative resolution.

The hon. Gentleman's points are entirely fair, in a probing fashion. However, for some offences in the schedule, it is appropriate to go down the fixed penalty notice route, and for others it is not.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

Before the Minister sits down, will he deal with the issue of iterative offences, which I raised?

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

We do not intend to go down that route. The intention of the fixed penalty notice regime is to have the offence dealt with in summary fashion, so that the company and the street works authority can move on. It is not envisaged that more and more tickets will be put on the offending item, if the offence is continuous, although it is incumbent on people, once they commit an offence, to correct that situation. Therefore, while it sounds all very nice to talk about the poor, put-upon motorist having ticket after ticket put on their vehicle, ticket after ticket goes on because they are continuing to commit the offence. It is easy to suggest, in a populist way, that that is terrible, but if the offence continues to be committed, it is appropriate, in the case of motoring offences, that subsequent notices are given. It is not envisaged—I am sorry that I missed this point—that we should adopt that iterative process in the different circumstances of the fixed penalty notice regime and street works.

I am told that partnerships are joint and severally liable, so each individual is liable. If that makes sense to the right hon. Member for East Yorkshire (Mr. Knight), he can say ''Thank you'', and we can move on. However, I think that a fuller answer is required, and I shall make sure that he gets it.

Photo of John Redwood John Redwood Conservative, Wokingham

I have listened carefully to the Minister, but I have not quite understood how he has dealt with the real points made by my hon. Friend the Member for Christchurch.

Amendment No. 45 was designed to find out why bodies corporate and partnerships should be treated differently under the schedule, and I take that schedule to mean schedule 4A, which is mentioned in subsection (1). I do not believe that that relates to serious offences such as those to do with manslaughter or death. Of course such offences would be handled differently, as they would be if the offences were committed by individuals. The Bill would not allow a fixed penalty notice to be imposed on someone who had driven dangerously and killed somebody, so I did not understand that part of the Minister's reply. The question remains a fair one: why are the offences in that schedule to be treated differently if they are committed by

''bodies corporate and Scottish partnerships''?

My right hon. Friend the Member for East Yorkshire put the point well when he said that there may be little apparent difference, other than a legal one, between a

small body corporate and a typical English partnership, yet it is proposed that they be treated differently. So, I am inclined to vote for amendment No. 45, if my hon. Friend the Member for Christchurch gets permission to and wishes to press it, unless we have a better explanation.

I am also not satisfied with the Minister's response to amendment No. 46. It is much better that Parliament should control what goes into and out of the schedules, as we are seeking to do. It is beholden on the Government to come forward with a definitive list today. The Bill is, after all, building on legislation from 1991, so there has been plenty of operating experience on the issues. Should the legislation, in due course, turn out to be faulty, because of having too many or too few provisions in the schedule, the normal process should be observed to add or remove them. I am not very happy with the proposal in the Bill. So, if my hon. Friend wishes to and has leave to press his amendments to a vote, it would be a good idea for the Committee to support them in default of a more convincing reason from the ministerial Benches as to why the Minister should have the substantial power to play around with the legislation after Parliament has approved it.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs) 2:45 pm, 3rd February 2004

I am grateful to the Minister for his reply, but it did not answer my question. I am aware that where partners commit an offence in the name of the partnership, they are jointly and severally liable. What I was asking is, why are they being treated differently, if, as it appears, they are being? In other words, why are the partners likely to get the benefit of a fixed penalty offence and yet, if they decide to incorporate themselves into a company, they will lose the ability to be ticketed in that way?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

I was hoping that the Minister would respond to the points made by my two right hon. Friends. It is obvious that he has not yet persuaded the Committee on the subject. While my right hon. Friends have been speaking, the Minister has been bombarded with material.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

I think that the Minister is criticising his officials, which is not very sporting of a Minister, in saying that he has had only one flimsy bit of paper. Whatever is on that paper, I hope that the Minister will share it with the Committee. If that does not persuade us, I would seek your leave, Mr. Beard, to put both amendments Nos. 45 and 46 to the vote.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

I am sorely provoked to get up, not least because the one thing that I was not doing in any shape or form was criticising my officials, and, since I take that point seriously, I ask the hon. Gentleman to withdraw the claim. I do not do that in any shape or form. My criticism is of the hon. Gentleman. Receiving simply one piece of paper does not represent a bombardment.

I agree with the right hon. Member for East Yorkshire, and this is not a criticism of my officials either, but more my attempt to understand the more

arcane definitions of business law, that the reference in the Bill to

''bodies corporate and Scottish partnerships''

is a function of the different legal bases. Scottish partnerships means something clear in a Scottish dimension, and body corporate means something else in the English and Welsh dimension. I am not sure whether body corporate is a generic term that covers all forms of business organisation, so that what the right hon. Gentleman suggests does not prevail, or whether it means narrowly, as the right hon. Gentleman said, public companies. I will endeavour to find that out.

I do not believe that it is appropriate to have no fixed penalty regime, as has been alluded to if not suggested. Nor do I feel that all the offences in the schedule should be part of that regime. In that sense I am disappointed with myself that I have not managed to persuade the whole Committee of my arguments, even if I rather hope that I have at least a goodly part of the Committee with me, and that the hon. Member for Christchurch speaks not for the Committee in the body corporate sense, but for part of it only.

A fixed penalty offences regime is important, because it will speed up the process. Secondly, it is inappropriate to have the body corporate responsible for what are important, but principally noticing offences. None the less, those should not be swept up with section 166, and there should be a distinction between those that are covered by fixed penalty notice, and those that are not. The provision more or less, although not entirely, reflects the gradations to which we changed the levels of offences in the earlier clause. Lastly, Parliament will control any future list of fixed penalty notice offences, as the order adding or subtracting offences from the list would be affirmative and would be debated in Parliament. Where a strategic, broad, overarching legislative framework is put on the face of statute, and there are any number of subsequent statutory instruments, regulations, guidance and everything else, it is important that caveats and processes are put in place to allow Parliament further scrutiny some way down the line, long after the Bill has become an Act. This is not a post-1997 phenomenon, as the 1991 Act clearly shows.

I am told that the 1991 Act does not change the ordinary law of England and Wales in respect of partnerships, bodies corporate or sole traders, and nor does the Bill. I am not pretending that I have a full grasp of corporate law, but again I am not sure that that is entirely what the right hon. Member for East Yorkshire was after, so I shall write to him and the Committee, as fully as I can, to explain the difference and distinction, and quite what is and is not covered by the phrase ''body corporate''.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8

Division number 33 Adults Abused in Childhood — Clause 40 - Fixed penalty offences

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: No. 46, in

page 19, leave out lines 1 to 3.—[Mr. Chope.]

The Committee divided: Ayes 5, Noes 8.

Division number 34 Adults Abused in Childhood — Clause 40 - Fixed penalty offences

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

Perhaps this is a convenient moment to raise with the Minister some questions about this fixed penalty notice regime. Will he tell us to whom the penalty will be paid, and in what manner? What will the levels of the penalty and the discounted rate be? What use will the street authority be permitted to make of the money collected in penalties? What are the arrangements for undertakers to contest and appeal against the fixed penalty notices?

I understand that the Government are considering the possibility of authorities retaining some or all of the fine income to offset the cost of operating a fixed penalty notice scheme. Is the Minister able to say whether that has received the authority of the Treasury, and if so, what will the terms of the scheme be? We need assurances that the fixed penalty scheme is not going to be a revenue-raising regime akin to what many people think of the safety camera regime.

Photo of John Thurso John Thurso Shadow Secretary of State for Transport, Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Scotland), Liberal Democrat Spokesperson (Transport), Liberal Democrat Spokesperson (Culture, Media and Sport), Liberal Democrat Spokesperson (Scotland)

If the hon. Member for Christchurch were to press the clause stand part debate to a Division, I would support him. My reason is that I dislike intensely fixed penalty notices in such cases. When I was involved in business, I was struck by the fact that one often found one was making commercial judgments when dealing with the law. One weighed up the cost of going to law and the cost of settling, and nine times out of 10, irrespective of the merits of the case, one simply settled because it was the cheapest and fastest way out.

The same thing happens with fixed penalties. One looks at what might happen if one chose to go to law

and fight one's case. One may get a criminal record; one may well lose. There might be a 50:50 chance, or even a 40:60 one, of that happening. At the end of the day, one weighs up going through that process against paying a fixed, known amount of money, which has the merit of being a known cost that can be got out of the way, leaving nothing on the criminal record.

In an area such as this, there is an intense temptation for those in a position to issue fixed penalties to do so because it is much easier. We heard this morning how few prosecutions there have been, possibly because of the difficulty of securing a conviction, and because of the efficacy of the fine regime. If a situation arises where all one has to do is write a fixed notice and slap that on the offender, as it were, there will clearly be the possibility to give such notices in the case of many more offences, and I have severe doubts as to whether people in such cases are necessarily guilty of the crime of which they have been charged. I have great concern that that process may lead—unintentionally I am sure—to the fixed penalty regime becoming a revenue-raising mechanism. It is for that reason that I voted aye during the votes on the amendments, and I shall vote no on the clause.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs) 3:00 pm, 3rd February 2004

I am grateful to the hon. Gentleman, and I look forward to his support in the vote.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

As is clear from the regulatory impact assessment and other matters, details of the fixed penalty notice regime, appeals, fine rates, methods of payment and so on will be made by regulations. A working group of Department for Transport utilities and authorities will consider the matter and make recommendations to Ministers in due course, as I explained in relation to the earlier document that gave us a little road map for proposed regulations, schedules and so on.

We need to prepare the regulations, and work will start as soon as possible, but we want to proceed in a context of agreement, as with other aspects of the Bill. I have some sympathy with all the remarks of the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso), except his conclusion. Within his contribution lies the very reason we want to distinguish between—for want of a better phrase; they are still important—lower offences that will attract the fixed penalty notice regime and more serious offences. That is right and proper. The regulations, which are still to come, will, as the clause states, allow certain offences to be the subject of fixed penalties rather than automatic criminal prosecution. Of course, discussions still need to be carried out with other Departments on where all the moneys will eventually accrue, but I envisage at least an element going to the cost of administration of the fixed penalty regime, although I will probably be berated by another Department for saying so.

I do not accept for one moment that because the fixed penalty is an encumbrance for some people in business—it is self-inflicted if they commit an offence—that all of a sudden every single fixed penalty notice regime that ever existed, from safety cameras all the way through to parking and

incorporating what is contained in the Bill, is somehow a revenue-raising scam. That is not the case for these matters, for speed cameras or for most fixed penalty notices. It is said, albeit very politely—such comments are always couched in phrases such as ''Some may suggest'' or ''There are those who think that''—that speed cameras are merely for raising revenue, but the other side of the equation is not presented. Again, in this case as in others, we are not setting up offences or reinforcing those in the 1991 Act with the hope and prayer that people will commit offences. We would far rather the law was not transgressed and that no fixed penalty notices were issued.

Photo of John Thurso John Thurso Shadow Secretary of State for Transport, Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Scotland), Liberal Democrat Spokesperson (Transport), Liberal Democrat Spokesperson (Culture, Media and Sport), Liberal Democrat Spokesperson (Scotland)

I agree with the Minister on speed cameras. One virtue of the speed camera is that it provides incontrovertible proof that the offence took place. Consequently, it is extremely unlikely that there will be a miscarriage of justice. However, as I understand it, it is possible with the sort of offences in the Bill that there may be a much more subjective judgment as to whether an offence has taken place—there is far less proof. Therefore, leaving revenue raising completely to one side, my question is whether justice will actually be served, in that people may simply take the pragmatic approach of paying rather than seeking to clear themselves, because it is so much cheaper.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

I accept that, but, in a way, it is a matter for the individuals themselves. I would hope that as a result of our earlier actions in updating the levels of fines, that will not happen when going through the court process, and at least when we are considering them in the context of the regulations.

We must understand that the offences are not simply one-off occasions. I cannot remember the exact figure, but I believe that there are some 1.1 million incursions into our roads and streets every year. In each individual case, people may think, ''I can't be bothered, I might as well just pay the fine'', but if that happens on a recurring basis, the cumulative fixed penalty notices and fines or levies will mount up. The measure is not about putting impediments in front of people but about encouraging good practice and the efficient use of our streets. As I said, most of the offences in this category will be more on the noticing, co-ordination and liaison side, rather than for the far more serious transgressions that will be taken through the courts.

We think that this is the appropriate way to take things forward. There is a series of offences involving due notice given for various things. It will be fairly clear that the operator, for want of a better word, has or has not given due notice as required under the noticing offences. It is not as though one needs a digital camera or CCTV set up over every single incursion into the street to know whether the offences listed in the relevant schedule have been breached. Again, that reinforces why we want to keep very distinct those that are under fixed penalty notice and those that are left to the court. That is why the distinction, which we have discussed, is there. I ask the

hon. Member for Caithness, Sutherland and Easter Ross not to forge an unholy alliance with the official Opposition, but, in true Liberal Democrat tradition—

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

No. The right hon. Gentleman should wait. The hon. Member for Caithness, Sutherland and Easter Ross should either sit on his hands in true Liberal Democrat tradition, or vote with the Government. There are options.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.

Division number 35 Adults Abused in Childhood — Clause 40 - Fixed penalty offences

Aye: 8 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 40 ordered to stand part of the Bill.