On Thursday, my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) remarked on an interesting point relating to whether a driver is in control of a vehicle at traffic lights. It is important to retain flexibility when we interpret what is meant by ''driving''. The Department believes that it would be wrong to encourage people to think that they can use a mobile phone just because they have switched off their engine, perhaps at traffic lights. Clearly drivers must be alert to their surroundings whenever they are in control of the vehicle. We consider that the offence should apply at times when a driver has stopped but the vehicle can be expected to move off after a short while, as at traffic lights.
Some hon. Members suggested that a driver who is stationary for, say, 15 minutes should be allowed to use a mobile phone. That judgment is best left to the police and the courts. We cannot legislate for every eventuality, and an inflexible approach is likely to create more problems than it solves.
I also mentioned electric vehicles, which could give rise to the problem of whether an engine is off or on at traffic lights. I understand that hybrid vehicles, which combine an internal combustion engine and an electric motor, have the technology to switch off the engine to conserve power when travelling at very slow speeds or when stationary at junctions or traffic lights. It would certainly be inappropriate for somebody to circumvent the offence of using a mobile phone merely by claiming that their engine was switched off. I hope that in light of those comments the hon. Member for Christchurch (Mr. Chope) will withdraw his amendment.
I am more determined than ever to press the matter. What is the mischief that we are trying to address? It is people using a mobile phone when control of their vehicle is hampered because they are distracted. The Minister said that it is desirable to have a massive discretion as to whether, first, to prosecute and, then, to convict, and that that is best left to the police and the courts. Unfortunately, this offence will be the subject of fixed penalties, and we heard earlier that the only discretion in relation to fixed penalties was whether there should be disqualification. There is no discretion as to whether full penalty points should be imposed or, once the fixed penalty notice has been served, as to whether to proceed with a prosecution.
What the Minister said is slightly disingenuous in regard to the actual law. Last Thursday—this is the advantage of having the Official Report before us— she said:
''The term 'driving', to which the hon. Member referred, is used in much road traffic legislation without further definition.''
She went on:
''It is not necessary and any sensible person would recognise that if the car is stationary and the engine is turned off, no offence will be committed.''
The Minister has gone back slightly from that position. Again, last Thursday she said:
''if someone is stuck in a five-mile tailback because of an accident on the motorway and all the vehicles around them are stationary with their engines turned off, clearly it is fine to use a mobile phone, because the motorist is not about to drive off.''—[Official Report, Standing Committee A, 27 January 2005; c.188-9.]
The Minister said that a person who had been stationary for about 15 minutes would not automatically be not guilty of an offence. That would be subject to the decision of the police and the courts. I suspect that the reason why she has slightly modified what she said is that her advisers have been telling her what the law established by different court decisions is.
I want to refer briefly to the words of Lord Reid, one of the most senior Law Lords in the country's top judicial forum, in the case of Pinner v. Everett, reported in the House of Lords in 1969, as they are still highly relevant to this issue. He said:
''I must therefore consider in what circumstances a person can, by the ordinary usage of the English language, properly be said to be driving a car.''
He went on:
''Clearly the term cannot be limited to periods during which the car is in motion. Suppose the car is held up in a traffic jam and is stationary for five or ten minutes. No one would say that the driver is not driving the car during that period. He may have switched off the engine and be reading a book or a map; or he may have got out to clean his windscreen; and I do not think that it would make any difference if he got out to buy a paper from a newsvendor on the pavement.''
In all those circumstances the driver would still be driving. Under the Bill he would still be guilty of an offence that carried a mandatory three penalty points on his licence.
Lord Reid went on:
''But, on the other hand, suppose the driver pulls up at the kerb and leaves his car to go shopping. I do not think that it could be said that he is driving the car while he is buying groceries.''
That is one extreme. If a driver uses a mobile phone while buying groceries, having parked the car in a car park, he will clearly not be guilty of an offence, but if he leaves the car to speak to a newsvendor when he is stuck in a long traffic jam, he will still be guilty of an offence if, while purchasing that paper, he uses a mobile phone.
Another noble Lord in that same case, Lord Upjohn, said:
''A person in the driving seat preparing to drive by switching on is, in my view, driving. It is not necessary that the vehicle should be in motion. A person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol. But if the driver leaves his driver's seat it is more difficult. If the driver leaves his seat, removes the ignition key and locks up the car for the night, he is quite clearly . . . no longer driving''.
The reference to the learned words of noble former Law Lords has caused some wry amusement among members of the Committee, but we have the opportunity today to say, as legislators, that we do not believe a mandatory endorsement and penalty should follow if someone uses a mobile phone in a traffic jam when they have switched off the engine. We must legislate clearly. The decided case law that currently applies means that someone facing such charges would have to be advised by their solicitor, or their Member of Parliament, that they had no defence against the charges that have been brought, and would have to plead guilty and pay the fixed penalty. That is not what we intend. We should make it clear that an offence involving ''driving'' when the car is stationary with its engine switched off will not carry a mandatory endorsement.
A driver does not have to accept a fixed penalty notice because he can elect to go to court to fight the case. The hon. Gentleman's remarks on the 1969 case demonstrate that there are so many various cases that it is important to leave these matters to the discretion of the police.
I take completely the opposite view. If someone chose not to accept the fixed penalty and went to court, there would, in the light of the decided cases, be no defence at all. The magistrates would have to find them guilty on the facts. To suggest that some sort of discretion might apply is to mislead the public. The Government are seeking to change the law so that an endorsement and a fine are mandatory in the circumstances we have described. That is manifestly absurd.
If we do not make it clear that that is not our intention, we will be deemed to be accepting that the same rules apply to the use of a mobile phone while driving, as in the case set out in 1969. That may seem a long time ago, but it is still the leading case regarding the definition of ''driving''. What the Minister said in our previous sitting, and some of what she said today, could mislead motorists into thinking that they will not be committing an offence if they use their mobile phone in a long traffic jam with the engine switched off and they have left the car. If we do not accept the amendment, however, they will be committing an offence.
Unless the Government are prepared to come forward with another amendment to cover exactly that situation, members of the Committee should use some people power and common sense and support the amendment.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 10.
In the light of the Government's refusal to accept the amendment, it would be unconscionable for us to put on to the statute book a requirement that there should be mandatory endorsement for a driver using a mobile phone when stationary, with the engine switched off, on the motorway for a quarter of an hour or half an hour. That is mad and it will bring the law into disrepute. We are faced with no option but to oppose the clause in toto.
We have had a good discussion. There is clearly a difference of opinion, but I urge Committee members to accept the clause. It relates to the proper control of a vehicle, whether that is a matter of using a mobile phone or dealing with other distractions.
The only reassurance I have heard from the Government was offered in the last sitting, when the Minister said:
''Clearly, in such circumstances no police officer would prosecute a motorist simply because there was a long wait.''—[Official Report, Standing Committee A, Thursday 27 January; c. 189.]
Now we are told that it is reasonable to leave such matters to the police. I do not find that reassuring at all. If the police need to take action against a motorist, and that is the only way available for them to do so, the chances are that they will do it. We think that it is unreasonable to do certain things. The message I have got from the Government is that they acknowledge that we have a point, but that common sense can be applied by the police. If they accept the point in principle but will not make any concession, we have no alternative but to vote against the clause.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 11, Noes 3.