Clause 21 - Using vehicle in dangerous condition etc.

Road Safety Bill – in a Public Bill Committee at 10:15 am on 27th January 2005.

Alert me about debates like this

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs) 10:15 am, 27th January 2005

I beg to move amendment No. 36, in clause 21, page 24, line 39, at end insert

'and the offender was not an employee driving a vehicle owned by his employer in connection with his employment.'.

I move this initially as a probing amendment to tease out of the Minister why he wants to make the change proposed in clause 21. Clause 21 would make disqualification for using a motor vehicle in a dangerous condition obligatory and not discretionary if the driver has committed a similar offence in the previous three years. Why should a good driver, who is not the owner of a vehicle but merely an employee, automatically lose his livelihood when there may be no culpability on his part? The courts should decide on the basis of the evidence before them, not be ordered by Parliament what view they should take on disqualification. Amendment No. 36 would seek to exempt any offender who was an employee driving a vehicle which was not his from the insistence that a second offender receives an obligatory ban.

There are certain circumstances in which, if one is driving some else's vehicle in the course of your employment, one knows that there is something wrong with it. The most obvious example is that if the brakes are faulty, one immediately knows one is driving a dangerous vehicle. There are many other vehicle defects, however, which are weighty enough to make the vehicle dangerous, but which the driver may not know about, particularly if it is not his vehicle. For example, a badly corroded chassis would not be immediately evident to the driver of a vehicle. If it was a commercial vehicle with a tipping facility on the back, one would not necessarily know if the tipping mechanism was in a dangerous condition. Why should an employee lose his license—and thereby, perhaps, his whole livelihood—when it is entirely the fault of the person who employs him?

Photo of David Wilshire David Wilshire Assistant Chief Whip, Whips

I am listening to my right hon. Friend with much care because, when I looked at this, it struck me that if someone could not reasonably be expected to know, they are still going to be held responsible. If someone says, ''Well, I really could not have found out without stripping the vehicle down,'' they are still going to be prosecuted. Is that the situation without the amendment?  

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

As I read it, without the amendment, the courts would be faced with a position where, if the man had previously been convicted of the offence, he would have to be disqualified from driving, even if it was not his vehicle and he did not know that the vehicle was in a dangerous condition when he was stopped by the police. This could potentially—I put it no higher than that—cause an injustice to an employee working for an unscrupulous employer.

I hope the Minister will tell us why, on the face of it, he wants to put a provision in this Bill which could, in certain circumstances, be an attack on an innocent working man working for a ruthless employer who did not properly maintain his vehicles. The worker could find that he loses not only his license but his livelihood because, if his only trade is being a driver, he would be taken off the road and out of work. The disqualification should not automatically follow. We should still allow the courts to look at the evidence before them. If it was a fault which experts would say would not necessarily be apparent to the driver of the vehicle at the time, why should that man receive an immediate ban?

I hope the Minister will respond to the real concerns that I have raised, which could, in some circumstances, lead to an injustice.

Photo of David Wilshire David Wilshire Assistant Chief Whip, Whips

I support my right hon. Friend. I wanted to be clear that I understood this, because it conjures up the example of the Royal Mail delivery offices in my constituency, with a large number of vans outside every morning. There is a relatively random choice of which van a driver uses on a given day—it could be any one of 20, 30 or 40 Post Office vehicles in the yard—and he gets into one in all good faith, believing that the Royal Mail is a responsible employer. I make no suggestion that it is not, because I am sure that it takes the greatest of care over their vehicles. Something could go wrong, however. A driver goes out with his mail to deliver, gets into a vehicle and off he goes. Unknown to him, it is faulty. It is a bit of a lottery. We cannot simply say that, because it is a second occasion, the person must have a track record of not bothering, so we should hold him responsible. It is a total lottery, because the same person could be caught twice out of a range of people and a range of vehicles.

It seems grossly unfair that a person cannot say ''I had no reason to know that''. I would not have a clue how to check every part of my car to see whether it was roadworthy. That is why I get it serviced. One cannot expect every person working for the Royal Mail to be an expert at checking vehicles. Therefore, it is a total lottery, which I believe is unfair. The defence, ''I could not reasonably have known in the circumstances'' should be available to individuals.

Another thing that concerns me is that occasionally—how can I put it gently?—people who work for a firm like the opportunity to be difficult. We are handing people the opportunity to say, ''My job is to get into one of these vehicles, but I won't go out this morning until it has been checked over by somebody   to guarantee to me, because I am not an expert, that it is roadworthy''. The net result is that we are providing an opportunity for industrial strife, if anybody is looking for one.

I know that both those issues are on the edge of what the Minister is trying to achieve. If a person were found to be blatantly doing something a second time, and it can be proved that they could and should have known and was being foolhardy at best, I should be with the Minister in saying that we must take serious steps to stop that. However, it can best be left to the court to decide whether it is somebody who is deliberately flouting the law or whose misfortune it was to get into the vehicle that morning, wholly unaware that it was not as unsafe as it turned out to be. I should be interested to hear what the Minister has to say.

Photo of Andrew Rosindell Andrew Rosindell Vice-Chair, Conservative Party 10:30 am, 27th January 2005

I entirely endorse the remarks by my right hon. Friend the Member for East Yorkshire (Mr. Knight) and my hon. Friend the Member for Spelthorne (Mr. Wilshire).

The labour market today is extremely flexible. People tend to take on jobs for short periods. Many of my constituents are drivers, driving vans and motor vehicles of all types throughout the week, often at different hours of the day, as well as at weekends and evenings. I find it worrying that, if the clause were accepted, many of them could lose their livelihoods, forfeiting the jobs that they depend on, because there is no flexibility. It makes sense to allow the courts to make a judgment in certain situations. If someone regularly offends and uses vehicles that are a danger not only to themselves but to the travelling public, the courts must act and appropriate penalties must be imposed, but to allow the clause to go on to the statute book without amendment would be irresponsible. Many people could be unfairly penalised.

Many employers who use vehicles every day of the week, employing people on an ad hoc basis, sometimes have great difficulty ensuring that every vehicle is roadworthy. There will be occasions when a vehicle used by a short-term employee proves not to be. How can it be justified that the employee can lose everything as a result of an employer failing to ensure that his vehicles are properly maintained?

I therefore endorse the amendment and hope that the Minister will address my points in his remarks.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

The clause amends the penalty for the offence of using a vehicle in a dangerous condition under section 40A of the Road Traffic Offenders Act 1988. The effect of the change is that if a person commits the offence within three years of a previous conviction for the same offence, he must be disqualified for six months.

I had some sympathy with the hon. Gentleman's amendment when I first saw it and I was interested to know how the existing law operated, because we are simply making a small alteration to it.

As I understand it, the police—in some cases it may be the Vehicle and Operator Services Agency—who may take one of these prosecutions forward are looking for the main culprit. In the circumstances that the hon. Members for Romford (Mr. Rosindell) and   for Spelthorne just mentioned, where a driver is allocated from a depot a vehicle that is in a dangerous condition—we are talking about serious defects, not just where a washer bottle is empty—the police would go for the main culprit. In this case it would be those who have responsibility for maintaining the vehicle and not the person who has walked into the depot to drive the vehicle.

The purpose of amendment 36 is to provide that where the offender is an employee driving a vehicle owned by his employer in connection with his employment he should not be subjected to the higher penalty for the repeat offence. I understand what is behind this but I am not clear whether the right hon. Gentleman wants the test of the employee to apply for the first or the second incident of the offence, or both. I wholly agree that employees should not necessarily be held to account for the transgressions of the company for whom they work. Nevertheless, it is the case that a professional driver, even more so than the usual responsible motorist, should have regard to the state of the vehicle that he or she drives, for their own sake and for the duty of care to other road users.

To commit the offence once may be a lack of diligence but to do it twice is approaching irresponsibility. The offence provides for the,

''use, cause, or to permit another person to use a motor vehicle etc''.

In this instance the case could be brought against the employer as they are permitting the use of the vehicle. Under the circumstances the prosecuting authorities would be concerned to deal with the actual person responsible for the dangerous condition of the vehicle in question. The private motorist has absolute responsibility for his own vehicle. It must be properly serviced and have the appropriate MOT certificate. The private motorist is also responsible for spotting a flat tyre or any deficiency in the vehicle. The vast majority do take this responsibility. But in the case that the right hon. Gentleman raises, there is not a case where drivers are being targeted rather than the employers, who are responsible for the vehicle. I have not had any complaint from the trade unions; were there any problems, they would certainly have raised them with me.

For the benefit of the Committee I have to hand a copy of ''Wilkinson's Road Traffic Offences''. I am sure that this tome is regularly at the fingertips of the hon. Member for Christchurch.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Yes indeed, I am sure that he refers to it regularly. It says,

''In the case of section 40A,''—

—he is talking about the motorist here.

''he must prove that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person.''

That is a defence that one could present. An instance where that could not be used as a defence would be if a driver got into a vehicle where the windscreen was partly broken and was obscuring his view. On the other hand, if there was some deficiency in the vehicle   which would require it having a careful examination by an engineer, that would not be in the scope of what would be expected of a driver walking into a depot.

The book goes on to say,

''The effect of this is to exempt from endorsement, driving test and disqualification, including the penalty points disqualification . . . a driver who shows that he had taken out his vehicle in reliance on his foreman's or its owner's assurance that the brakes, steering etc., were in order.''

That is also a defence that could be presented. It continues:

''It may well exempt sons and daughters who drive their parents' cars on the assumption that they are in good running order.''

Although, like the right hon. Gentleman, I was initially concerned about the matter, I am satisfied, first, that by habit and practice drivers are not being prosecuted for the sins of the employer and, secondly, that case law provides people who are so prosecuted with reasonable defences.

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

I am grateful to the Minister for his comprehensive reply to the debate, which has been interesting and worth while. I take his point that the police will generally go for the main culprit. That is indeed my experience. However, in circumstances such as those I have outlined they would probably also want to prosecute the driver. Our concern is that a guilty verdict should not mean that a driver who did not know would be judicially hammered.

I take the Minister's point about ''Wilkinson's Road Traffic Offences'' showing where a defence would lie, and I can see that that might be of assistance in some cases. However, there is a problem, as my two hon. Friends suggested, when an employee is instructed to use a pool vehicle. It is highly unrealistic in those circumstances to expect that when an employee arrives at work each day and must drive a different vehicle he should insist that the foreman or someone else inspect it in his presence before he takes it out.

Also, in cases involving vehicle pools, no assurance would be given that the vehicle was okay, which would amount to a defence. If a firm runs a fleet of vehicles most of them might be roadworthy. I am concerned that, if someone is convicted under the clause because the courts take the view that perhaps he should have inquired further, the courts should not be tied and should not have to take away his licence.

I am grateful to the Minister for explaining that he is sympathetic to what we want to achieve. All that we want is to move the offender in such a case, who, on the face of it, is not culpable, from paragraph (a) to paragraph (b). We do not say that he should be let off scot-free, but we want his case to fall into the group over which the courts have discretion. The courts would not then be forced to deal with him in accordance with paragraph (a), which would mean taking his licence.

I do not think that the Minister's argument runs contrary to ours. We are on the same side of the fence, but we differ in our conclusion about how best to handle such a case. It would do no harm, and might reassure trade unions and those who drive for a living, if the amendment were made.

Question put, That the amendment be made:— 

The Committee divided: Ayes 6, Noes 11.

Division number 4 Nimrod Review — Statement — Clause 21 - Using vehicle in dangerous condition etc.

Aye: 6 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 21 ordered to stand part of the Bill.