Clause 5 - Giving of fixed penalty notices by vehicle examiners

Road Safety Bill [Lords] – in a Public Bill Committee at 7:00 pm on 21st March 2006.

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Photo of Greg Knight Greg Knight Chair, Procedure Committee 7:00 pm, 21st March 2006

I beg to move amendment No. 13, in clause 5, page 3, line 24, at end add—

‘()Schedule 1 shall not come into force until regulations introducing a code of practice for vehicle examiners have been produced by the Secretary of State and approved by resolution of each House of Parliament.

()It shall be a defence to any offence notified by a vehicle examiner to show that at the relevant time the examiner was in breach of the code of practice.’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments: No. 14, in clause 62, page 59, line 24, at beginning insert—

‘Subject to Section 5’.

No. 35, in clause 10, page 8, line 2, leave out ‘or vehicle examiner’.

No. 36, in clause 10, page 8, line 3, leave out ‘or vehicle examiner’.

No. 37, in clause 10, page 8, line 6, leave out ‘or vehicle examiner’.

No. 38, in clause 10, page 8, line 11, leave out ‘or vehicle examiner’.

No. 39, in clause 10, page 8, line 14, leave out ‘or vehicle examiner’.

No. 40, in clause 10, page 8, line 16, leave out ‘or vehicle examiner’.

No. 41, in clause 10, page 8, line 21, leave out ‘or vehicle examiner’.

No. 42, in clause 10, page 8, line 22, leave out ‘or vehicle examiner’.

No. 43, in clause 10, page 8, leave out lines 33 to 35.

No. 44, in clause 11, page 9, line 18, leave out ‘or vehicle examiner’.

No. 45, in clause 11, page 9, line 21, leave out ‘or vehicle examiner’.

No. 46, in clause 11, page 9, line 39, leave out ‘person’ and insert ‘constable’.

No. 47, in clause 11, page 9, line 40, after ‘requirement’, insert ‘must be in uniform.’.

No. 48, in clause 11, page 10, leave out lines 1 and 2.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I am well aware how, at this hour, harmony can descend into acrimony. We have all had a long day. The Minister has probably had the longest day of us all, as I understand he had an early-morning meeting and then oral Questions, so Opposition Members are grateful to him for his emollient and   conciliatory approach. I hope that that will continue until the end of our proceedings. I hope not to delay the Committee too long.

Amendment No. 13 would require the Secretary of State to introduce a code of practice for vehicle examiners. That is necessary if vehicle examiners are to have the powers envisaged by the clause and schedule 1. I think that we all accept that anyone employed as a vehicle examiner will have a broad and fairly detailed knowledge of motor vehicles, but why should such a person have any knowledge or experience of the rules of evidence or the need for justice and a sense of fairness when interfacing with members of the public?

A code of guidance would also focus the vehicle examiner’s mind when he is carrying out an examination. For example, I would argue that a vehicle examiner who is examining a vehicle by the roadside should not carry out any test for which that vehicle is exempt under the MOT testing regulations. The Minister may envisage, for example, that in future vehicle examiners will have the power to conduct emission checks. I am sure that he is aware that motor vehicles constructed before 1975 do not have the gases from their exhaust analysed. It is merely a visual check: is the vehicle belching out black smoke or is it not? If it is not, it has passed the test. One wonders, therefore, what code the vehicle examiners will operate under.

I hope that when the Minister replies he will say that he envisages a code of practice being in place. For example, a vehicle may be found to be defective and a member of the public may indicate to the vehicle examiner some genuine, mitigating facts. If a motorist is stopped by a police officer, after the interview with the motorist has been concluded, the officer will make up his notebook, which may be used in any subsequent court proceedings as a contemporaneous record of his discussion with the driver of the vehicle. In the absence of a code of practice, there will be no duty on a vehicle examiner to behave in a similar way.

When and where will the vehicle checks be carried out? Again, there should be some guidance to those carrying out the tests that, as far as possible, they should avoid adding to congestion by carrying out the checks on main arterial routes, particularly during holiday periods, certainly in parts of my constituency.

During the passage of earlier legislation that gave traffic wardens more power, the Government conceded the force of the argument that there should be a code of conduct for traffic wardens, which I think is about to be published. If vehicle examiners are to be given this greater power, they too should be subject to a code of conduct. It could act as a check list to the vehicle examiner, it could ensure that he follows a set routine when examining a vehicle and dealing with the motorist and it could include a requirement that anything said by the driver at the scene is recorded.

On Second Reading I asked the Minister a question that he did not answer. I hope that he will answer it today. If the Bill passes into law in its present form, will the vehicle examiners have the power to stop vehicles?

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport 7:15 pm, 21st March 2006

They already have the power to stop vehicles. The anomaly is that although they can stop vehicles at the moment, they must call a policeman if they want to issue a penalty notice or take proceedings against someone. The clause simply fixes that anomaly. They will not only be able to stop vehicles but to issue penalty notices. When doing so, they will have to follow the Road Traffic Offenders Act 1988, as policemen do.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

So the Minister is saying that in contrast with current practice—a police officer causes the motorist to pull off the road, perhaps into a lay-by, to have his vehicle examined—after the passage of the Bill, a police officer will no longer need to be present.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

In the case of heavy goods vehicles, particularly foreign lorries, which cause concern to many of us in this place, a Vehicle and Operator Services Agency officer normally pulls over the vehicle and inspects it. The policeman needs to be there only if a penalty notice is to be issued.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

The Minister’s answer reinforces the need for a code. In the present situation, a police officer is standing by to listen to what is said and observe how the vehicle is examined and how the motorist reacts. If the checks are to be carried out in the absence of police, what duty will the vehicle examiner be under to record accurately what the driver might say when it is put to him that his vehicle is defective? As the courts tend to view with suspicion a mitigating fact that is raised in court but was not raised at the scene of the crime, vehicle examiners ought to be under some duty to make a note of any remarks made by the driver that relate to the offence with which he is likely to be charged. Will the Minister tell us how on earth that requirement can be implemented if guidelines are not to be introduced?

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

I share many of the right hon. Gentleman’s misgivings. The crossover between offences within VOSA’s remit and those that are the responsibility of police officers should not be underestimated or blocked in any way. It is often the case, for example, that an initial stop relating to some construction and use regulation, which is the sort of thing that VOSA officers look for, will bring other matters to light—perhaps driving without insurance or while disqualified. Surely such matters would require the immediate input of a police officer. To divorce the police and VOSA in that way causes me some misgivings.

As the right hon. Gentleman said, VOSA officers presumably will not be under Police and Criminal Evidence Act 1984 obligations. Will the Minister confirm that? In Scotland, given that we do not have PACE, all officers will be subject to the same duties of fairness.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

I assure the hon. Gentleman that VOSA officials already prosecute. Anyone prosecuting has to conform to PACE. That is true of VOSA officials as much as it is of the police.

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

I am aware that under the system in England and Wales VOSA brings its own prosecutions. That is different in Scotland; VOSA reports to the procurators fiscal for a particular sheriff court district.

My personal experience as a procurator fiscal depute was that the police, because they daily provided good quality reports, were normally beyond reproach with their content, but other reporting agencies, which did not have the same range and depth of experience, often tended to supply us with reports that were not of the same quality—if I may put it like that, with a degree of delicacy. I feel uneasy that their role in prosecutions is to be extended as a result of the Bill.

I have a further concern. In the explanatory notes, unlike the fixed penalty system, which is available to the police and others, this system is to be operated by the Minister’s Department. I do not see any good reason for setting up a separate and parallel bureaucracy when the existing system seems to work fairly well.

Photo of Stephen Hammond Stephen Hammond Shadow Minister (Transport)

I support the amendments tabled by my right hon. Friend the Member for East Yorkshire. I too have considerable concerns about introducing the clause, which effectively introduces schedule 1, without testing the competence of the examiner—in a completely new extension of his areas of responsibility—in the rules of evidence and of justice. In that regard Conservative Members are much exercised by the movement away from the status quo. The hon. Member for Orkney and Shetland has just made the argument for the status quo.

Amendments Nos. 35 to 48 in the name of my hon. Friend the Member for North Shropshire and me would maintain the status quo. We are concerned why the Minister thinks that we should not be wary of enabling more people to be put into a position to prosecute or penalise motorists. We would be grateful if he explained why another group of people doing that more extensively than they can do so now is a good idea.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

I am just taking my lead from the previous Government, who established the legislation that appoints such people.

Photo of Stephen Hammond Stephen Hammond Shadow Minister (Transport)

Those people were appointed to stop and search vehicles. In almost all cases at the moment, the police are present to issue a fixed penalty notice. If power is to be extended to vehicle inspectors, we want to know what supervision there will be of those people. What standards will be set? There is some guidance, but who will monitor the inspectors to ensure that they comply with the rules of PACE? To what extent will there be someone to compare the practice with that elsewhere, so that we get a uniformity of standard, as with the current system where the police issue the fixed penalty notice?

As with speed cameras—which we discussed in great depth today—there will be great suspicion that an agency with the power to levy penalties will be notified to do so in order to fund its own activities. In short, we will have another self-financing regulatory authority. What guarantees is the Minister able to give us that   VOSA’s operations will not be dependent on funding achieved from the penalties that it imposes? I would also be keen for the Minister to give us some reassurances about how the tests of competence are to be put in place.

I will not detain the Committee much longer. Opposition Members are considerably concerned that under a fixed penalty regime that is not operated by the police, discretion will go out of the window. I hope that the Department does not intend that every breach of every regulation will be governed by schedule 1, and that a fixed penalty will automatically be imposed. We support the power of VOSA to stop, but we are deeply concerned about why the Minister thinks it is a good idea to extend the powers into areas where examiners have no real competence. We seek reassurances on that.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

I disagree with the hon. Gentleman that examiners have no real competence. First, who is responsible for appointing VOSA vehicle examiners and ensuring that they are properly trained? Under legislation passed by the previous Government, they are appointed by the Secretary of State, so responsibility ultimately lies with the Secretary of State. VOSA, the agency that examiners work for, is an agency of the Department for Transport, so it reports to me. It is my job to make sure that standards are maintained. The examiners can already stop and inspect vehicles without the help of a police officer. If they feel that a court prosecution is necessary, they can submit evidence under PACE and proceed to prosecute. The one thing they cannot do at present is issue a penalty notice—a standing penalty. That is what we are trying to change.

All the measures in the Bill—I suspect that they will get wide support in the Committee—for dealing with foreign lorry drivers who have substandard vehicles or who commit road traffic offences depend on our ability to issue a penalty notice when the vehicle is detected as having committed an offence, and then to take a deposit from the driver equivalent to the potential fine that they might have to pay if found guilty. If we do not give VOSA officers the power to issue fixed penalties, that arrangement simply will not work, and the thousands of lorries that VOSA examiners already stop and examine will go unpunished. That would be a rather perverse consequence of a Conservative party amendment.

Photo of Stephen Hammond Stephen Hammond Shadow Minister (Transport)

We shall indeed discuss the financial deposits later, and we will ultimately support that approach—and, I hope, tighten it up. However, I am not sure whether I agree with the Minister that not giving the powers to VOSA examiners will pervert that.

The Minister started to give reassurances in respect of the fact that at present he regulates VOSA examiners. He regulates them for their competence to examine vehicles, not for their competence in respect of the rules of justice or evidence. We now have the prospect of an extension of their powers. They can proceed to prosecution, but at present they have no powers to issue a fixed penalty notice.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

They do not have the powers to issue a fixed penalty notice at present. That is the distinction between VOSA and the police. However, under the powers in this Bill that we wish them to have, they will be able to issue such a notice. A separate code of conduct is not in my view required, because when issuing a fixed penalty notice they will have to comply with the requirements of the Road Traffic Offenders Act 1988 in exactly the same way as do the police. Therefore, it is the Secretary of State’s job to ensure not only that they are adequately trained in vehicle examination, but that they understand that Act, PACE and all the other statutes with which they have to comply when issuing these notices.

The point I make to Opposition Members is that these people are already responsible for stopping and inspecting thousands of vehicles. If we are going to insist on their having a policeman present whenever they do so, we will take police away from other roads policing activities and we will hamstring the very measures that we will debate later in the Bill.

Photo of Greg Knight Greg Knight Chair, Procedure Committee 7:30 pm, 21st March 2006

We are not arguing that the police should continue to have a presence, but what assurance can the Minister give that, once their presence is removed, vehicle examiners will behave in as just a way as police officers would when issuing fixed penalty tickets? How are vehicle examiners to know about the rules of evidence? Will they be sent on a course where the rules will be explained? Will they be told that they have to make a contemporaneous note? We were hoping that he would deal with those issues in responding to the debate.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

My argument is that vehicle examiners already work unsupervised by the police. They stop and inspect thousands of lorries, and they prosecute people if necessary. At present, they prosecute through the courts, so one could argue that ultimately the courts will measure their standards of training and compliance with the legislation.

In the future, vehicle examiners will issue fixed penalty notices. People can contest those notices in the courts. If they believe that they have been given one inappropriately, or if the rules of evidence or any other   rules have been breached, they can argue their case in court, and it will become clear whether the VOSA examiners are failing in their duties.

Perhaps there has been a misunderstanding among Opposition Members about what we will encourage examiners to do. We simply want them to have the same power to issue a fixed penalty notice that the police have in order to ensure that the police are efficiently engaged in clamping down on some of the serious breaches of the Road Traffic Offenders Act 1988 and, through the deposit scheme, in dealing with the problems associated with foreign drivers who avoid penalties. I hope that the right hon. Gentleman will ask leave to withdraw the amendment.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I am disappointed by the Minister’s reply. He downplays the importance of the presence of a police officer, which is required at present. On every occasion when I have witnessed vehicles being pulled over for examination, it is a police officer who has flagged down the vehicle and directed it into the inspection area. I wonder whether as many drivers will be willing to pull over for some character in overalls who may or may not have an authority card in his pocket. The Minister is misjudging the importance of a police officer in the context of vehicle examinations.

The Minister has done little to reassure me that the vehicle examiners will be anything other than swinishly ignorant of the niceties of dealing with someone who is about to be charged with an offence. At present, it is the police officer who would interface with the driver. Nevertheless, I would like to reflect on what the Minister said and perhaps use the gap between this Committee and Report to seek to bring further evidence to his attention, as I still believe that the amendment has merit. I would like to return to the matter on Report, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clauses 6 and 7 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Roy.]

Adjourned accordingly at twenty-five minutes to Eight o’clock till Thursday 23 March at Nine o’clock.