Police, Crime, Sentencing and Courts Bill
Monday 8th November 2021
(2 years, 12 months ago)
Lords ChamberPolice, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII Seventh marshalled list for Committee - (8 Nov 2021)
Lord Garnier
“(11A) After section 68(3) insert—“(3A) In proceedings for an offence under this section it is a defence for the accused to show—(a) that they were not trespassing on the land, or(b) that the activity in response to which the aggravated trespass was committed was unlawful activity.””
Lord Garnier (Con)
My Lords, I am grateful to my noble friend Lord Shrewsbury and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for signing my Amendment 150 to Clause 63. Unfortunately, he is unable to be here today because of an unforeseen medical appointment, but has read my speech in draft and has told me that he agrees with it. Whether it comes out as I wrote it is entirely a different matter. In any event, it comes with the usual caveat—the mistakes are mine; the support is his, and I am grateful for it.
The amendment is simple and straightforward. There is no reason in principle or justice why it should not be accepted. That said, I am not so naive as to think that, just because I am arguing for it, it is perfectly drafted or that the Government or the majority of the Committee will agree with me. I will not press it to a Division, but I shall listen carefully to what my noble friend the Minister says in response before deciding whether and how to take the matter forward beyond Committee.
Clause 63 of the Bill amends Section 68 of the Criminal Justice and Public Order Act 1994. I have nothing to say about the policy behind Clause 63 but, since it is there, as I indicated at Second Reading, it gives me an opportunity to right a wrong contained in Section 68 of the 1994 Act. That section defines the offence of aggravated trespass. In so far as it is relevant to my amendment, it provides, first, that:
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.”
Section 68(2) says that:
“Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.”
Viscount Hailsham (Con)
Can my noble and learned friend clarify the standard of proof? I assume that it is the civil standard for the accused person, namely the balance of probabilities. Would it be wise to include that in the Bill?
Lord Garnier (Con)
Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.
Baroness Brinton (LD) [V]
My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.
Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:
“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”
However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.
“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,
“whose distress? Is it the landowner’s? Is it a perception?”
This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.
As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.
Baroness Chakrabarti (Lab)
My Lords, there is so much to get through. First, I disagree with the noble and learned Lord, Lord Garnier; secondly, I agree with the noble Baroness, Lady Brinton, about the clause not standing part.
The noble and learned Lord, Lord Garnier, has partly pre-empted my concern regarding his Amendment 150. Some of us in this Committee and more generally in your Lordships’ House have an allergy to reverse burdens in the criminal law because they generally go against the golden thread of English justice: that it is for the prosecution to prove its case beyond reasonable doubt and not for defendants to prove their innocence. That is a general principle which some of us hold dear. The noble and learned Lord, Lord Garnier, is quite right that over many years that principle has been eroded.
He referred to a number of regulatory offences, which I take to be offences in a confined area of privilege. Regulatory offences are appropriate for activities that might even be licensed, such as driving a vehicle or practising medicine. Regulatory offences are not the right analogy to make with just going about your life, including as a citizen who seeks to protest against issues such as GM foods or climate catastrophe. Therefore, his analogy seems quite wrongheaded. From a human rights perspective, he is aggravating the pre-existing damage of the problematic offence of aggravated trespass.
Trespass and nuisance ought generally to be a civil matter. Trespass is usually dealt with and resolved between reasonable citizens without recourse to law. I believe in civil legal aid if necessary, even though it has been all but obliterated in this country, but neighbour disputes generally ought to be a matter between me and my neighbour, not a matter for the criminal law, unless what my neighbour is doing to me crosses a line that offends all in society. I have a general problem with criminalising the civil law, but worse than that, in the context of aggravated trespass—aggravated by the intervention of the noble and learned Lord, Lord Garnier—certain types of trespass are singled out for criminal treatment, are they not? It is not the trespass of my neighbour who is polluting my land or building on my land, cutting over the margins of the boundary for reasons of profit or greed. It is the trespass of my neighbour who comes on to my land to protest and obstruct—for example, an environmental protestor—because in doing damage to my land I am damaging the environment. Therefore, with respect, the noble and learned Lord, Lord Garnier, is once more prosecuting a culture war in which people he may or may not disagree with are being treated worse in relation to their freedom of expression or, potentially, their property rights, than those who choose to pollute the land, for example. In my view, that is a mistake.
Finally on Amendment 150—again, to be fair, this has been pre-empted by the noble and learned Lord—subsection (a), on the reverse burden defence, suggests that in the offence of aggravated trespass, it is for the defendant to prove that they were not trespassing. That is astonishing: it is like saying that in my defence for assault, I must demonstrate to the civil standard that it was not me who assaulted my noble friend—who was sitting there quite innocently until I metaphorically assaulted him.
That is really quite rich indeed, and shows the underlying thinking here: some people, whose opinions are clearly not considered worthy by some Members of this Committee, are to be guilty until proven innocent, and they seem, in this context, to be demonstrators. In the broader context, in this Part of the Bill, the guilty ones are of course Travellers—as a job lot. This was put so well by the noble Baroness, Lady Brinton, and I will not repeat her reasons, save to say that there is something so inherently unattractive about discriminating against a particular group. We have seen it in many societies, including in our own over so many years. I thought we were in a better place than this.
If people are committing burglaries, let them be prosecuted for burglary. If people are perpetrating nuisances, let them be dealt with like anyone else; there are burglaries in urban and rural areas and there are nuisances everywhere. Let everyone be dealt with equally. Please do not single out one of the most vulnerable minorities, in size, economic power and everything else; do not single out a particular community for less favourable, targeted and demonising treatment. That is essentially why I do not think that Clause 63 should stand part of the Bill.
Viscount Hailsham (Con)
My Lords, may I just intervene very briefly? I agree with the noble Baroness when she says that, in general, trespass should be a civil remedy. I am absolutely clear that she is right about that, but it is important to keep in mind that securing a civil remedy is not a rapid process: it really takes quite a long time to get the required order from a court. I represented a rural constituency for more than 30 years, and I know that the kind of trespass to which my noble and learned friend is addressing his amendment, which is encompassed in Clause 63, causes an immense amount of distress to the rural community. There is a very special reason to abrogate the general rule, which does of course make the civil remedy the appropriate one for trespass. I commend this provision to the Committee, subject to the amendment, on which my noble and learned friend is entirely right.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I apologise to the Minister that I had to leave before the end of the debate on Wednesday due to the fear that I would not be able to get home.
I congratulate the noble and learned Lord, Lord Garnier, on this amendment, to which I have added my name. The noble and learned Lord set out his case very clearly: aggravated trespass interfering with farming activities should not be tolerated. Cutting hay versus planting GMO are some of the examples he gave. I am personally against GMO crops, but I would not support trespassers attempting to prevent this happening. There are other avenues for expressing views about the activity taking place. The freedom to express a view should not take the form of an illegal activity or aggravated trespass.
The noble and learned Lord, Lord Garnier, gives very powerful arguments, especially in relation to war crimes. There are others in this Chamber this afternoon far more knowledgeable on these legal aspects than me, including the noble Baroness, Lady Chakrabarti. I listened very carefully to the speech given on Wednesday evening by the noble and learned Lord, Lord Garnier, and have sympathy for the scenario he painted. It is right that the plight of landowners and farmers should be considered as part of the issues surrounding Part 4 of the Police, Crime, Sentencing and Courts Bill.
I also support my noble friend Lady Brinton in her comments on whether Clause 63 should stand part of the Bill. For a great number of years, Gypsy, Roma and Travellers have been stopping in what they consider to be their traditional resting places. They have done this often with the consent of the relevant landowner or farmer, and there has been little, if any, aggravation with local communities. They have sometimes stopped on common land, again with little impact. Over the years, landowners have changed, farmers have retired, and new tenants have come in. Attitudes have changed and what was once tolerated is no longer acceptable.
With no provision for smaller family groups in their habitual stopping places, encampments have sprung up in some unsuitable places, where farmers fear their stock and property may be at risk. Sometimes gates have been left open and stock escaped, to be rounded up later. Both these examples, and the more serious one that the noble and learned Lord, Lord Garnier, spoke about, are dealt with in this Part of the Bill. All this is inconvenient and there will often be rubbish to clear up after the Travellers have left. This is an inconvenience to the owner or tenant of the land, but is it really to be classified as a criminal offence?
If local authorities were to fulfil their obligations to provide sites for the Travelling community, both permanent and transit, the police, landowners and farmers would be able to direct the Travellers to these sites. Providing housing and accommodation is a legal requirement of local authorities, as is to plan for future numbers. It therefore follows that planning for Gypsy, Traveller and Roma sites should be part of this. The Minister, the noble Lord, Lord Greenhalgh, has reiterated several times that the Government are encouraging local authorities to do this. Just what does he mean by “encouraging”? It is a bit like the interpretation of “significant” in terms of causing nuisance and distress. Just how persistent are the Government in their encouraging?
Trespass has to be proved, and, certainly, aggravated trespass has to be proved to be an unlawful activity, but is it for the perpetrator to prove that they have done aggravated trespass? Either they were not trespassing on the land or they were committing aggravated trespass. Why has that got to be proved by the perpetrator? If the aggravated trespass has occurred, it is right that this should be dealt with properly. However, it is important that the causes relating to a classification of aggravated trespass have to be of a very serious nature and not just idiotic phrases such as “fear of walking close to an encampment” or “smoke from bonfires”.
As we debated during the Environment Bill, fly-tipping is a significant scourge for the landowner and farmer to have to clear up. For this to be a criminal offence against the Travelling community, it has to be “excessive”. It is often the case that the Travelling community will be blamed for crimes that have been committed without any evidence. On Wednesday, when a noble Lord said that he believed that damage and theft by Gypsies and Travellers had occurred, no evidence was provided to support this allegation. We were left to assume that there was a site for Travellers on the doorstep. Similarly, aggravated trespass is serious and must be proved in order for eviction to take place.
On Wednesday, the Travelling community were classed as being illiterate, innumerate, and unwilling to engage in economic activity. This is not the case. The Travelling community do wish their children to receive an education, but in order for this to happen, they need sites on which to reside so that their children can be admitted to school and learn to read, write and have numeracy skills. I have been on a Gypsy site and talked to the elders about the provision of sites. When one elderly Gypsy was required to read a document, he asked his son to do it for him, claiming that his eyesight was poor. I suspect he felt ashamed that he could not read but, like others in all communities, he sought to hide the fact. Lack of literacy is not confined to the Travelling community.
In her response on Wednesday evening, the Minister quoted the Conservative manifesto in relation to making intentional trespass a criminal offence. There will be a great deal in any Government’s manifesto that, for one reason or another, does not make it on to the statute. That same manifesto made a commitment to introduce an animal sentience Bill. That Bill has been duly introduced and had its Committee stage but, like this Bill and Part 4 before us today, it was very poorly drafted. The animal sentience Bill received a very rough passage during Committee, the majority of the criticism coming from the Government’s own Benches. There is no sign of it ever reaching Report stage and I suspect it will be quietly shelved. Hopefully, this section of the Police, Crime, Sentencing and Courts Bill will also be either radically altered or shelved.
Arguments against the provision of sites are that it will attract Gypsies and Travellers into the area where the site exists and that the local authority will be overwhelmed. This is nonsense. On Wednesday, we heard that 694 Gypsies and Roma are actually travelling, requiring transit pitches. This is a problem that could be solved by enforcing local authorities’ obligations to provide for this section of the community. Aggravated trespass is not a solution for anything.
Baroness Whitaker (Lab)
My Lords, I wonder whether the interesting amendment from the noble and learned Lord, Lord Garnier, might not have some unintended consequences that I, personally, would find very welcome. What if the “unlawful activity” included acts contrary to the Human Rights Act and the Equality Act? What if the landlord was trying to turf out Gypsies and Travellers who had no other home to go to? I believe that he will no doubt have an answer to that question.
More generally, on Clause 63—and I agree wholeheartedly with what the noble Baroness, Lady Bakewell of Hardington Mandeville, said—the openness of the terms, so eloquently laid out by the noble Baroness, Lady Brinton, amount to a tremendous allowance for prejudice. We should be in no doubt that this is very common. The hate crime reporting organisation, GATE Herts, funded by the then MHCLG, has ample evidence of explicitly Nazi sentiments being used whenever a Traveller or Gypsy community wanted to move on to a site. Stereotyping is the norm in these records. We heard examples in your Lordships’ House last week of whole communities being tarred by one incident. It is the same as somebody saying that white people should be barred from walking on the street at night because of a few incidents of night-time vandalism; it is that kind of remark, and it is prejudice. If such a remark urges violent action—the removal of Gypsies and Travellers—surely it is illegal.
Following the Minister’s remarks last Wednesday on police guidance in this kind of situation, she expressed some surprise at the use of the term “gold-plated”. Is “gold-plated” not a dog-whistle call to opponents of human rights? Most of us are proud of the Human Rights Act 1998, and how it reinforced our position as a leader in establishing a human rights culture after the Second World War. Be that as it may, the Human Rights Act, and behind it the European Convention on Human Rights, is our law—either one complies with the law or not. Gold-plating of human rights is not a term understood in law, and its implications, in this context, are to diminish any putative offence against the Human Rights Act. I think that Clause 63 is not helpful and should go.
Lord Paddick (LD)
My Lords, Clause 63 amends Section 61 of the Criminal Justice and Public Order Act 1994. Section 61 addresses the situation that the noble and learned Lord, Lord Garnier, alluded to on Wednesday—at Hansard col. 1313—when he told us that, 25 years ago, as a Member of Parliament, he was rung by a very distressed farmer in his constituency, whose land was being trespassed on. I make that 1996, but perhaps it was before the 1994 Act was effective.
As my noble friend Lady Brinton has said, Section 61 of the 1994 Act provides a power to remove trespassers on land. I will quote subsection (1):
“If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and … that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or …that those persons have between them six or more vehicles on the land, he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.”
Subsection (4) states:
“If a person knowing that a direction under subsection (1) … has been given which applies to him … fails to leave the land as soon as reasonably practicable, or … having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”
That is the law now, unamended by this Bill.
As many noble Lords said on Wednesday, what is the problem that Part 4 is trying to solve, when there are clearly adequate powers already in existence? Clause 63 simply brings Section 61 of the 1994 Act into line with the rest of Part 4 of the Bill. For the reasons so thoroughly and persuasively argued on Wednesday, this clause, like the rest of Part 4, should not stand part of the Bill.
Section 68 of the 1994 Act, as amended by the Anti-social Behaviour Act 2003, is the offence of aggravated trespass, where
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect … of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity … of obstructing that activity, or … of disrupting that activity.”
I am getting the sense of hunt saboteurs, HS2 protestors or, perhaps, those protesting against genetically modified crops, rather than Gypsy, Roma and Travellers. Section 68 appears to me to refer to deliberate interference with lawful activity by means of trespass, rather than coincidental interference; for example, ploughing a field that travellers are trespassing on. Unlike the noble and learned Lord, Lord Garnier, I am not a lawyer, but perhaps the Minister can clarify the difference between Section 68 and what we have been talking about up until now.
As far as Amendment 150 is concerned, as the noble and learned Lord, Lord Garnier, explained, it attempts to correct an error in existing legislation. I agree with the noble and learned Lord that the activity being disrupted should be and needs to be unlawful, rather than the trespasser simply asserting that he believes that it should not be happening. I am not sure that the accused should have to prove that they were not trespassing. As the noble Baroness, Lady Chakrabarti, has said, that seems to be going perhaps a bit too far. We support the amendment in principle, in as far as the activity on the land that is being disrupted needs to be unlawful, rather than just being asserted as being unlawful.
As we leave this part of the Bill, I want to again acknowledge the long and tireless campaign by the noble Baroness, Lady Whitaker, to defend Gypsy, Roma and Traveller communities. I fear that, at Report, we may need to adopt a different approach than simply removing all the clauses in Part 4 from the Bill, in the light of what the Minister said on Wednesday, at Hansard col. 1330, when she quoted from the Conservative Party manifesto:
“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence.”
That is very interesting wording. New powers do not necessarily mean more draconian powers. I respectfully suggest that on Report this House should bring forward new powers that provide the necessary protections for all our communities, including Gypsy, Roma and Traveller communities. For example—I quote from the manifesto—it could be argued that making
“intentional trespass a criminal offence”
entirely supports Amendment 135 in the name of the noble Lord, Lord Rosser, providing that, where Travellers have no suitable legal pitch on a relevant caravan site situated in the local authority’s area, the trespass should not be regarded as intentional.
It is absolutely right that we, and many others in this Committee, express our outright opposition to Part 4 as drafted but, when we return to these issues on Report, it will be with more sophisticated amendments to take account of the wording in the Conservative Party manifesto—and the convention of not blocking, at least not entirely, commitments made by the governing party in their manifesto—that protect all communities, including Gypsy, Roma and Traveller communities.
Lord Rosser (Lab)
My Lords, I will be relatively brief. We had a lengthy debate on the previous day in Committee about Part 4 on unauthorised encampments, and expressed our strong concerns about what is proposed in Part 4. I will just reiterate a couple of points. Certainly, our understanding is that the police seem to think the existing law adequate; indeed, so do local government officers who have direct involvement with the Gypsy, Traveller and Roma community.
The noble and learned Lord, Lord Garnier, put forward Amendment 150 on the basis that it is putting right a wrong. The obvious concern is that, in so doing, it creates new wrongs or new unfairness, not least in relation to the Gypsy, Traveller and Roma community. The noble Lord, Lord Paddick, probably quite rightly said that much of the debate might suggest that this amendment was aimed at others, perhaps those involved in protests over GM crops or HS2. Certainly, it involves a change as far as the onus of proof of the accused is concerned. The noble and learned Lord said that he is not going to press the amendment to a vote in Committee. I hope I am not misrepresenting what he said, but I think he said he would wait for the Minister’s response before deciding how and if to progress the matter further. We have our concerns about Amendment 150 and what exactly it might mean, but at this stage we stand in the same position as him: we will wait to hear what the Minister says on behalf of the Government in response to Amendment 150. At the moment we have fairly strong reservations about its implications, but we will listen to what the Government have to say.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for her apologies, which in fact I got the other night. It was very courteous of her to give them.
Before I turn to whether Clause 63 should stand part of the Bill, let me deal with Amendment 150 in the name of my noble and learned friend Lord Garnier, which relates to the offence of aggravated trespass, as he outlined. The effect of this amendment would be to introduce a statutory defence to the offence at Section 68 of the Criminal Justice and Public Order Act 1994, as he explained. It would require the defendant to show that they were not trespassing, or that the activity which they intended by their trespass to obstruct or disrupt or cause intimidation in respect of was unlawful.
Lord Paddick (LD)
I am grateful to the Minister for that explanation. With regard to the other examples that she has found over the weekend, showing that the law is not targeted at Gypsy, Roma and Traveller people, is it not the case that under the Equalities Act the law should not disproportionately impact on any particular community, not that they should not be the sole focus? Therefore, if the changes as drafted would disproportionately impact on the Gypsy, Roma and Traveller communities, would that still not be contrary to the Equalities Act?
Baroness Williams of Trafford (Con)
My Lords, I have said all along, and the proponents of the amendments that we have discussed have underlined, that the absolute majority of the Gypsy, Roma and Traveller community are law-abiding people, so this is not something that disproportionately impacts on them. It is about people who cause destruction to other people’s land and property.
Lord Garnier (Con)
My Lords, I am grateful to all those who have spoken in this debate. I am particularly grateful to the noble Lords, Lord Paddick and Lord Rosser, for their qualified support for the principle behind my Amendment 150.
The noble Lord, Lord Paddick, gently chided me—or if not me then a class of people—for being unsophisticated. It may well be that it was my lack of sophistication that annoyed the noble Baroness, Lady Chakrabarti, who, not for the first time—we saw it again last Wednesday—tilted at a windmill. I thought I had made it clear in the course of my speech that proposed new Clause 68(3A)(a) in my amendment was there in error and we should concentrate on proposed new paragraph (b). She is of course perfectly entitled to make whatever remarks she wishes, but the gravamen of my amendment was to reverse the burden of proof in relation to the unlawful activity point in paragraph (b) and not, as I think I had accepted, in relation to who should prove the trespass. Having cleared up that point, I think we can make a lot more progress.
I am also grateful to my noble friend Lord Hailsham for his support. Beyond that, I have nothing to say because, as I said in my opening remarks, the policy behind Clause 63 is for the Government to defend and to persuade this House and the other place about. However, there is some room for discussion. I know the Minister has had an enormous amount of work to do in dealing with the Bill, and indeed has a lot yet to do, so she has my every sympathy. However, if she can find time perhaps to have a quiet discussion with me and others of like mind about proposed new Clause 68(3A)(b) in my Amendment 150 regarding the unlawful activity point, I would be most grateful. That having been said, this debate has now reached its natural conclusion for today’s purposes and I beg leave to withdraw the amendment.
Lord Berkeley
“Causing death or serious injury by dangerous or careless driving when under the influence of drink or drugs
(1) The Road Traffic Act 1988 is amended in accordance with subsections (2) to (7).(2) In section 2A (meaning of dangerous driving)—(a) for subsection (1)(a) and (b) substitute “he commits a breach of one or more rules of the Highway Code in a way that causes inconvenience, intimidation or danger to one or more other road users that is sufficiently serious that it would result in a person being disqualified automatically if the person drove in that way during a driving test”;(b) omit subsection (3).(3) In section 3ZA (meaning of careless or inconsiderate driving)—(a) in subsection (2), for “the way he drives falls below what would be expected of a competent and careful driver”, substitute “he commits a breach of one or more rules of the Highway Code that causes inconvenience or intimidation to one or more other road users but which is not so serious as to amount to dangerous driving as defined in subsection 2A(1)”;(b) omit subsection (3).(4) Section 3A of the Road Traffic Act 1988 is amended as follows.(5) In the heading, for “by careless” substitute “or serious injury by”.(6) In subsection (1), omit “without due care and attention, or without reasonable consideration for other persons using the road or place”.(7) After subsection (1) insert—“(1A) If a person causes serious injury to another person by driving a mechanically propelled vehicle on a road or other public place, and the conditions in subsection (1)(a) to (d) are also met, he is guilty of an offence.”(8) Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts) is amended in accordance with subsections (9) and (10).(9) In the entry relating to section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), in column (4) (punishment), for “14 years” substitute “Imprisonment for life”.(10) For the entry relating to section 3A of the Road Traffic Act 1988, substitute—
RTA section 3A(1) | Causing death by driving while under the influence of drink or drugs | On indictment | 14 years or a fine or both | Obligatory | Obligatory | 6-11 |
RTA section 3A(1A) | Causing serious injury by driving while under the influence of drink or drugs | (a) Summarily (b) On indictment | (a) on conviction in England and Wales: 12 months, or a fine or both. On conviction in Scotland: 12 months or the statutory maximum or both.(b) 5 years or a fine or both. | Obligatory | Obligatory | 6-11 |
Lord Berkeley (Lab)
My Lords, we come to Part 5. I shall also speak to Amendments 167, 168 and 169. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Russell of Liverpool, for their support for some of these amendments. This group contains four of several amendments put forward by a coalition of groups, including British Cycling, Cycling UK, Living Streets, RoadPeace and the Road Danger Reduction Forum—I declare an interest as a former vice-president of Cycling UK—and they have one thing in common: the intention to protect the lives of vulnerable road users.
Before explaining the amendments, I should clarify that they are all examples of issues that I and these groups have been urging the Government to consider as part of the wider review of traffic offences and penalties that the Government promised in 2014, seven years ago, but have still not carried out. I will say more about that when we get to Amendments 159 and 165, but I shall make two comments now that I hope will provide some context. The first is that the call for a wider review is now backed by a growing list of road safety groups as well as motoring groups. The second is that without that review there is a real danger that the Government’s very limited proposals in the Bill to amend road traffic law could in fact be counterproductive.
Part 5 currently contains just three proposed changes. First, it increases the maximum sentence for causing death by dangerous driving from 14 years to a life sentence. Secondly, it does the same for causing death by careless driving when under the influence of drink or drugs; these are traditionally seen as equivalent offences. Thirdly, it introduces a new offence of causing serious injury by careless driving, with a maximum sentence of two years. These amendments were consulted on as part of a rather limited review of road traffic offences and penalties in 2017—that is four years ago—and a number of parliamentarians in both Houses have been urging the Government to enact them ever since.
Baroness Hayter of Kentish Town (Lab)
My Lords, I want to speak to Amendment 152, to which I have added my name. I welcome Clause 65, because it recognises the additional responsibility that a driver has who causes death by virtue of having drunk before she or he got behind the wheel of a car. It is always deliberate to do that. Every single person knows that it is dangerous to drive after drinking—it is never a mistake; it is never careless; it is never an oversight; it is never an unforced error. It is a deliberate act to get behind the wheel of a potentially lethal weapon, putting other people at risk, when under the influence. So it is quite right, as in the Bill, that the sentence for the most egregious of outcomes—killing someone—should carry the additional penalty when, quite unnecessarily, driving ability was impaired through drink.
I am personally and obviously most aware of this as a result of the actions of a drunken driver who killed my mother on the day before my 10th birthday. But another factor contributed, and that was the absence then of seat belts. There were years of campaigning, including an attempt in 1979 by the noble Lord, Lord Rodgers, who, as Secretary of State for Transport, said:
“On the best available evidence … compulsion could save up to 1,000 lives … a year”.—[Official Report, Commons, 22/3/79; col. 1720.]
After 13 failed attempts by Back-Benchers in both Houses, some 40 years ago, late in the evening of 28 July 1981, a Lords amendment in the name of Lord Nugent of Guildford succeeded in the Commons.
I was there to witness it, having an interest not just in drinking and driving but in seatbelts because of what happened to my mother. I recall my noble friend Lord Robertson, the chair of the National Seat Belt Survivors Club, speaking. There were many now in your Lordships’ House, including three in their seats today, who voted for that seatbelt amendment—I give a special call-out to my noble friends Lord Anderson, Lord Field, Lord Foulkes, Lord Campbell-Savours, Lord Clark, Lord Cunningham, Lord Dubs, Lord Prescott, Lord Soley, Lord Rooker and Lady Taylor, to the noble and learned Lord, Lord Clarke, and to the noble Lords, Lord Beith, Lord Baker, Lord Hailsham, Lord Horam, Lord Howell, Lord Hunt, Lord McNally, Lord Wigley, Lord Patten and Lord Patten of Barnes. Incidentally, I have a list of the others who voted the wrong way that night.
In 1982, the year before the new seatbelt law was enforced, 2,443 people were killed on our roads. By 2016, despite more cars being on the road, the figure had dropped to 816, so the estimate of the noble Lord, Lord Rodgers, was not an exaggeration. Why is that important to Amendment 152? It is because the sort of accident, caused by drink, which killed my mother might today, thanks to that seatbelt law, along with greatly improved rescue and medical interventions, have led not to death but to serious injury. But without Amendment 152, if death followed, the sentence would reflect the contribution of alcohol, but if the person survived, even with what are euphemistically called life-changing injuries, the contributing factor of alcohol would not be reflected in the sentence. That cannot be right, and that is what this amendment seeks to address.
Although I have not added my name to it, I support Amendment 168. It seems extraordinary that, where someone has either killed or injured someone though drink-driving, they could even think about driving again while disqualified. It seems like sticking two fingers up to society’s abhorrence of this irresponsible behaviour. A sentence of three years where people, disqualified, take to the wheel again seems a sensible measure. To get behind the wheel of a car having killed or injured someone, while being disqualified and therefore uninsured, seems a contemptible act. I hope that that is also an amendment that the Minister will feel able to accept.
Baroness Jones of Moulsecoomb (GP)
My Lords, I declare an interest as the president of the Road Danger Reduction Forum. I point out that our road traffic laws are quite outdated these days. The laws and the penalties have been patched together over the past few decades and the review is long overdue. I hope that Ministers will take that back.
At some point in history, it became acceptable for people to be killed by cars—pedestrians and cyclists. Other drivers just became collateral damage for our car-obsessed culture. I simply do not understand that.
I support all these amendments and am grateful to have worked with the noble Lord, Lord Berkeley, and the NGOs which put so much effort into pulling them together. There seems to be a horrific gap between the penalties for killing someone with your car and killing someone in any other way. Personally, I would like to see mandatory lifetime driving bans brought in for many road traffic offences. At the moment, you can be found guilty of killing someone with a car and be allowed to drive yourself home from the court—it is absolutely unbelievable.
We talk so often about “accidents”, which is completely wrong, because that pre-supposes the outcome of any investigation of a collision. If you are saying it was an “accident”, you are saying, “Oops, sorry, couldn’t help it”, but there is always a cause for such incidents. During my time on the Met police authority, I got the Met police to change its designation of those events from “road traffic accidents” to “road traffic incidents”. We cannot prejudge why it happened.
There is also a huge amount of victim blaming. The noble Lord, Lord Berkeley, mentioned the case of the person who accelerated away. When I was knocked off my bike by a motorist, I was on a green light and the motorist was not. He just did not look. I had life-changing injuries from that. I did not do anything about it or follow it through because I think he genuinely just did not look properly, and what is there to do about that? At the same time, we accept such incidents far too often, and we cannot blame the victims all the time; we have to, at some point, start blaming the person who is driving a tonne of metal and who is extremely well protected in the case of any collision.
Let us please replace these patched-up, ancient laws with something that fits today’s circumstances, especially when we are trying to encourage more people to get out of their cars and get on bikes, walk home or get on buses. This really needs to change.
Lord Russell of Liverpool (CB)
My Lords, I was very happy to put my name to all these amendments. As you will be aware, the Cross Benches do not suffer from having Whips to tell us what to do, but when a call comes from the All-Party Parliamentary Group for Cycling and Walking, which I have the privilege of being an officer of, that is as near to a three-line Whip as a Cross-Bencher would recognise.
I was a head-hunter for 30 years, so, during that time, one met a range of human beings, many of whom had a particularly high view of the value of their own contribution in a variety of ways. One learned that there were three things in particular that the male of the species thought they were extraordinarily talented at. One of them was making love—I will leave it to noble Lords and noble Baronesses to decide whether the males of their acquaintance meet that hurdle.
The second is that, when interviewing someone, most men, particularly senior businessmen, think that they are extraordinarily talented at telling—within about 30 seconds—whether they are any good. The evidence suggests that they are 100% wrong all the time.
The third thing that many men think they are extraordinarily talented at is driving. Most of us tend to think that we are pretty good drivers—above average—and while, like most human beings, we occasionally make a mistake or forget one or two things that we should not forget, we are pretty relaxed and generous towards ourselves.
In researching this group of amendments and others that follow, the most clear and consistent factor across the whole range of road traffic offences and behaviour is that they are dealt with in an almost entirely inconsistent manner. The inconsistencies jump out at you, because many of the terminologies used are open to interpretation. Many of these terminologies were created and put into statute or guidance in the 20th century—and we are now, in case noble Lords had not noticed, in the 21st century. In the last two decades, the influence of technology has increased hugely, as all of us who drive are very aware.
I, perhaps, have a high danger capability, but I have bicycled in London for 40 years, on and off, and I drive. When I drive, like most people I have at least one device working in my car. One such device cleverly tells you when there are speed traps coming up, or policemen lurking by the side of the road—or whether there’s been an accident ahead. Equally, however, one is often listening or talking, or, even worse, texting. When I bicycle, I have nothing in my ears and I have all my senses about me. What I see, day in, day out, is pretty egregious behaviour, whether by motorists, cyclists or people on e-scooters—including e-scooters ridden by parents taking their four to five year-old children to school, standing in front of them with neither of them wearing a helmet, something that I find fairly alarming. I see this all around: it has become normal.
Until and unless we are more consistent and clearer about how we define acceptable behaviour when driving, or using any form of transport, and what is unacceptable—what is legal, what is illegal, and the gradations between them—we will continue to have an unacceptable level of inconsistency and more heart-rendingly tragic stories. My goodness, you find a lot of them if you do your research.
It is difficult to find rhyme or reason for such inconsistency. The Minister, as a lawyer, is well aware of the dangers that arise when there is inconsistency in how the law is understood. The Minister will also be aware, as are many lawyers, of the many opportunities that inconsistency affords lawyers. When there is inconsistency, or lack of clarity, in the law, it benefits a huge and very profitable industry in this country consisting of law firms that specialise in enabling people to escape, in a variety of ingenious ways, what are almost certainly the right penalties. That industry exists because of these inconsistencies.
These are clearly all probing amendments, but my plea to the noble Lord is that there is real reason and logic behind them, which is that a lack of clarity leads to inconsistency and stories of human tragedy.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction to this group, and his outline of the problems. I also agree with much of what the noble Lord, Lord Russell, said about inconsistency. Unfortunately, however, the provisions in Clause 65 are rather unfair and disproportionate. This provision does not address the mischief. We already have the highest per capita rate of imprisonment in Europe, at 133 per 100,000, and this will not help.
I support Amendment 168, for the reasons outlined by the noble Baroness, Lady Hayter.
Clause 66 follows hard on the heels of Clause 65 in terms of its undesirability. Can the Minister confirm that these changes would increase the prison population, and if so to what extent?
One of the mischiefs is that, in the event of any road traffic accident, collision, or whatever you like to call it, the insurance companies and relevant contracts forbid policyholders from contacting the other party and, in particular, expressing any form of remorse or forgiveness. This totally flies in the face of the principle of restorative justice. The families, friends and victims can rightly feel aggrieved, due to the insurance regime and not the criminal law. There are other difficulties which I will not weary Committee with. The noble Lord, Lord Berkeley, was right to refer to serious injustices.
There is a problem with securing convictions for dangerous driving; convictions and prosecutions are often for the lesser offence of careless driving. I have much sympathy for the comments on careless driving and dangerous driving by the noble Lord, Lord Berkeley. I can say what the two offences are, but I have difficulty knowing how they are applied.
Clause 65 is about careless and dangerous driving in connection with drink or drugs. The maximum penalty for Clause 65-type offences is currently 14 years, and I have rarely seen anything like that applied. The Government are now proposing a more serious penalty—a life sentence—than for grievous bodily harm without intent.
The problem with the new provisions is that some of the substance thresholds for drug-driving offences are very low—well below the level causing impairment as advised by scientists. Furthermore, some substances can remain in the body for quite a while. Some people, such as noble Lords, never take recreational drugs. For some communities and socioeconomic groups, however, drug-taking is common. This could result in serious unfairness, with some offenders faced with a life sentence when their driving at the relevant time was not actually impaired by drugs.
Amendment 152, in the name of the noble Lord, Lord Berkeley, proposes a new definition and distinction between careless driving and dangerous driving, by reference to the standard required to pass the driving test. I remind Committee that I hold a qualification as an HGV driving instructor, albeit that it is a bit out of date.
It is surprisingly easy to get an automatic failure on a driving test, particularly under the heading “Examiner takes action”. Suppose that a candidate is driving along a main road but has left their left hand indicator on. Suppose that another vehicle is waiting to emerge from a side road and could be fooled into thinking that the test candidate intends to turn left off the main road. At that point, the examiner will say, “Cancel your signal”. That would be an automatic failure, because the examiner took action. I do not think, however, that any of us would call that dangerous driving. I think, therefore, that Amendment 152 is flawed.
However, I agree that it is too difficult to secure a conviction for dangerous driving. I wonder whether the careless driving offence ought to be confined to a momentary or short lapse in driving standards while the new offence of reckless driving ought to consider whether there has been a pattern of numerous, relatively minor contraventions that, taken gather, make for a much more serious offence. I suggest that the Minister sets up a meeting with relevant officials and subject matter experts so that we can discuss these important matters offline and understand them better.
Lord Hope of Craighead (CB)
My Lords, I want to provide my support for a remark made by the noble Lord, Lord Berkeley, in the course of his speech. He said that the emphasis should be more on disqualification than on imprisonment. One can understand that, when a jury or magistrate is considering what to make of the facts of the case, the threat of imprisonment may influence the decision to go for the softer option rather than the harder one, whereas disqualification does not have that connotation at all. There is a lot of force in the noble Lord’s point.
I also support the point made by the noble Baroness, Lady Jones of Moulsecoomb. She talked about the patchwork of offences and the need for a much more balanced approach that looks at all the various offences across the board, rather than fitting together one or two things. That is what this enormously long Bill, which, I suggest, is really not suited for this kind of treatment, does.
Having made those remarks by way of support, if one examines the wording of the proposed new clause, one can see that it is a little risky to try to find new wording to replace the well-understood, well-trusted and frequently used phraseology that we have at the moment. For example, in the new meaning of dangerous driving, we are told that that would be where somebody
“commits a breach of … the Highway Code in a way that causes inconvenience, intimidation or danger”.
The word “inconvenience”, which is one of the three alternatives, does not seem appropriate for dangerous driving. I suggest that, if this is to go any further, this word should come out because it is not descriptive of the effect of dangerous driving at all. Similarly, the next subsection defines “careless or inconsiderate driving” and includes “intimidation”, which does not really fit with what one is talking about when one talks of careless driving or driving without due consideration for other road users.
I draw these points to the Minister’s attention because they show that it is a quite a delicate matter to alter the existing wording, which I would wish to preserve instead of trying to introduce a fresh definition.
Finally on definitions, in subsection (4), the words “serious injury” are equated with
“causing death by careless driving”
and the proposal is to insert “or serious injury”. What amounts to a serious injury is difficult to define but, if one is moving in that direction, one would have to introduce additional words, such as “serious injury”. One finds an example in Clause 66, where there is a definition by reference to the existing standards in the criminal court.
I am not sure that that goes far enough when one considers the consequences of some of these offences and the threat of imprisonment, but one has to give very careful thought to what is really meant by “serious injury”. Is somebody breaking their wrist due to falling on the ground enough? Is something that requires them to go to hospital enough? Or is one looking at something much graver? That brings it closer to the idea that one is trying to bridge what might seem to be a gap, where somebody is injured so seriously that it is only by the skill of a surgeon that death is avoided—I can quite see that there is something that needs to be addressed there—but just using the words “serious injury” may mean walking into a trap that it would be better to avoid.
Lord Judge (CB)
My Lords, I will speak briefly. The Road Traffic Act and all its many successors have left us with a law in which a simple textbook, Wilkinson’s Road Traffic Offences, is about as fat as a successful marrow. It is absurd that our law is so complicated on something that everybody, or nearly all of us, does every day. Our children will learn it; the day they get to the age of 17, they will want to drive, and so on and so forth.
I entirely agree that this is a patched-up proposal. Personally, I strongly support the idea that we should get this review conducted and analyse exactly what it is that we want to achieve with a modern law relating to road traffic. That law should address not merely the conduct of a person at the wheel of a car but the conduct of a person on an e-scooter or a person riding a bicycle, some of whom are appalling in the way they ride. It should also include pedestrians who step out into a path and make a driver pull away, causing them to knock somebody else over. We need synchronisation of our laws on these issues, which is why I support the noble Lord, Lord Berkeley.
That said, I want to make a different point and indicate how strongly opposed I am to a proposal that would enable a prison sentence to be imposed on a motorist who was not driving dangerously or taking deliberate risks, and was not under the influence of drink or drugs, but simply made a mistake while at the wheel. I agree with the noble Baroness, Lady Jones, that “road traffic accident” is not the right phrase to use. It is a road traffic incident, which must be examined, as the evidence shows.
You can, perfectly reasonably, accuse someone who drives without due care and attention of being negligent, but criminal culpability is inevitably low because it is negligent. Driving without due care and attention is an offence; it is negligence. However, we do not send people to prison for negligent mistakes causing serious injury in the context of, for example, the medical profession. A mistake is made. It is negligent. There is an action. Various steps are taken in respect of the doctor, the nurse, or whoever it might be. The result to the victim is very serious. So, when we examine whether a doctor or a nurse may be prosecuted, we look not for evidence of negligence, a lack of due care or a mistake, but for something demonstrating that he or she fell far below the standards required by that profession of that individual in that job at that time. We must be careful not to introduce a different standard of approach to motoring offences. We must remember that this offence is also committed by the young mum whose children in the back of the car start howling because there is a wasp in the car, in the way that children do. Is she momentarily distracted? Yes. Should she have stayed rigidly looking to the front? I suppose so. Is it realistic to think that she, or most mums, would stay that way when her child is screaming in the back? No. Let us keep it realistic.
I am also troubled by the way we approach consequences in the whole of this road traffic law. We have situations where identical culpability can lead to completely different sentences because there has been a death. Of course a death is dreadful, but does the offence become more serious because there are two or three deaths? Personally, I think it does, but there is a question that needs to be answered: how far are we addressing the culpability of the driving as against the consequences? Death by dangerous driving is no trouble; after all, you are driving dangerously. Drink driving is no trouble; you choose to have a drink. Driving to take risks and show off to your friends is no trouble; you are driving dangerously. However, we need to be cautious about the introduction of prison sentences for people whose standard of driving amounts to negligence, not gross negligence.
Baroness Randerson (LD)
My Lords, I echo the sentiments of the noble Lord, Lord Berkeley, in thanking the coalition of organisations that have briefed us on Part 5, because they are experts in the field. The short debate we have had reveals the crying need for a comprehensive review of driving sentences. The Government’s push is towards increasing penalties—longer prison sentences—and each of these amendments tackles an issue that needs attention that the Bill is really not going to provide.
The four amendments in this group have little in common with each other. I agree with the local and learned Lord, Lord Judge, on the difference between different offences which could have a very similar outcome. There is a world of difference between causing death while drink-driving or drug-driving, which is a conscious decision that you make, and causing injury or maybe death by carelessly opening your car door: that is at the other extreme. By chance, I saw such an incident last week. I saw a motorist drive up carefully and park, then get distracted by their passenger who had left something behind and who leapt back into the car to retrieve it at the last moment. The driver opened the car door in the path of a cyclist who was not showing lights and it was at night. Now, no great injury was caused in that case, but it could have been. I was standing there waiting to cross the road and I have absolutely no doubt that it was nothing other than distraction and carelessness from a driver who was driving carefully. There is a general push in the Bill towards stiffer sentencing, whereas we should be looking at more effective and appropriate sentencing for drivers, the overwhelming majority of whom are not of the criminal classes and do not have a criminal intent when they drive.
We also need to be designing our roads in a way that makes them much safer. The number of amendments tabled to Part 5 relating to road traffic reinforces my view, and that expressed here today, that we need a thorough review of the laws and penalties that govern driving. I shall say more about this later on my own amendment on this issue. Finally, I refer to the comments of the noble Lord, Lord Russell, who drew attention to the inconsistency of the current legislation. Add to that the fact that it is wildly out of date and there really is a need for government action.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I had proposed to speak specifically to my noble and learned friend Lord Hope’s amendments, which are in another group but, frankly, these amendments are all mixed up together and I am rather surprised that they are not grouped. I agree with everything that the noble and learned Lord, Lord Judge, said. What it surely comes to, first, is that it is a good idea to look at the astonishing way the law has developed over recent decades.
When I went to the Bar 60 years ago, basically there was dangerous driving and careless driving, as there has been ever since. As now, there were well-recognised meanings and levels within the process of administering this law, and the courts—the magistrates’ courts particularly—and the practitioners know about that. There was also the very rare and very grave offence of motor manslaughter—manslaughter in the context of motoring. That applies to gross negligence cases and is a common-law offence. There is no maximum sentence but life is available. Then, gradually, over the years, sentences became more draconian. A two-year prison sentence was made available for death by dangerous driving. Then, in 1988, 14 years—seven times the original sentence—became the stipulated maximum sentence for causing death by dangerous driving. Now, of course, it is proposed to go from 14 years to life. Is it really contemplated that, short of some quite extravagant case of manslaughter, anybody really ought properly to go to prison for more than 14 years?
Lord Rosser (Lab)
I will, once again, I hope, be relatively brief. We welcome Clause 65 and the Government’s actions to increase sentences for those who cause death by dangerous or careless driving under the influence of drink or drugs. Here, at least, is one part of the Bill where we can support its intentions.
We also support the aim of the amendments in this group, which seek to improve road safety and keep dangerous drivers off our roads. I pay tribute to all those, including many noble Lords, who have campaigned to improve road safety and reduce deaths and serious injury. We particularly add our support to Amendment 152, which would widen those protections and increase sentences for causing serious injury while under the influence of drugs or alcohol. Having said that, of course, there can be a slim difference between serious injury with a life saved and serious injury with a life lost.
Clause 66 inserts an offence to fill a gap in the law of causing serious injury by careless or inconsiderate driving. I note some of the comments that have been made in respect of causing serious injury by careless or inconsiderate driving, but certainly we support the basic intentions of what is proposed.
The issue of car dooring has been raised for some years by cycling groups, and we have called on the Government to develop a comprehensive new national cycling safety campaign, aimed at not just cyclists but motorists. During the lockdown, cycling increased by, I think, as much as 200% at weekends, with significant increases during the week. We will not be able to build on that progress—I am sure we all regard an increase in cycling as progress—unless we take action to make our roads safe enough to cycle on. What plans do the Government have to look at road safety issues impacting cyclists, as well as other drivers?
I look forward to the Minister’s reply to this debate and to the amendments which we have been discussing.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, and others for speaking to these amendments. This group considers the sentencing of road traffic offences, and I propose to take each one in turn, if I may. I hope that the noble Lord will understand if I do not comment on the specifics of the particular cases he mentioned; not only do I not personally know about them but, as a matter of general approach, it is unwise for a Minister to comment on a court’s decisions in particular cases when they have obviously not heard the evidence and seen the facts. I do, of course, extend my condolences to the victims in those cases. I also acknowledge the moving contribution from the noble Baroness, Lady Hayter of Kentish Town, and her particular background in this area.
The noble and learned Lord, Lord Judge, reminded us that the law in this area is complex; it now fills a very weighty tome, Wilkinson’s Road Traffic Offences. I will come back at the end of my remarks to the question of an overall review, which the noble Lord, Lord Berkeley, also mentioned. Despite the fact that they perhaps take up more space than they ought to, I think it is fair to say that the current driving laws, while not perfect, work well in the vast majority of cases.
Importantly—this theme ran through the Committee’s debate and was a point made by the noble Baroness, Lady Jones of Moulsecoomb—we have to strike a balance between the culpability of the driver and the harm or consequences which they cause. That is particularly important in the area of driving, where a moment’s inattention can have such drastic consequences.
I will not comment on the other two areas of life which the noble Lord, Lord Russell of Liverpool, speaking unwhipped, put before us. However, it is often commented that the average person does think that they are an above average driver. Even my maths is good enough to realise that we cannot all be above-average drivers, at least not all the time.
The fact that some of these amendments seek to lower the culpability required before an offence is committed, and others seek to raise the level of culpability needed, might indicate that, broadly speaking, we have the balance about right at the moment. I will speak to the amendments in turn, but I can assure the noble Baroness, Lady Jones, that victim blaming is no part of my or the Government’s response to any of them.
Amendment 152, which aims to replace Clause 65 in the Bill, does two main things. First, it would replace—I think the noble Lord said it “redefines”, but it effectively replaces—the current objective test of what amounts to careless or dangerous driving with a new test which is, essentially, linked to breaches of the Highway Code. The new test would apply to all offences which relate to or incorporate careless or dangerous driving. Secondly, the new clause would replace the existing
“causing death by careless driving under the influence of drink or drugs”
offence with new offences of causing death “or serious injury” by driving under the influence of drink or drugs. The Government have serious concerns about the way this amendment would change the current law. We believe that it would render the current law inconsistent, unworkable and unjust. I will try to explain why we say that.
Given the particular nature of driving, bad driving offences are based not on establishing the intent of the driver but on considering the standard of the driving. The test in law compares the driving of the defendant to that of a notional careful and competent driver, so it is an objective test. If the driving falls below that of the careful and competent driver, the driving is careless; if it falls far below that standard, it is dangerous. This amendment seeks to replace that objective test based on the standard of a person’s driving, which is the current law, with a new definition of dangerous driving which applies to all offences of dangerous driving, including causing death or serious injury.
As we have heard, the proposed new test is linked to breaches of the Highway Code, and here the problem starts. Noble Lords will know that the Highway Code contains references to behaviour that gives rise to criminal offences, and that those offences are set out elsewhere in legislation. But it also contains advisory provisions which are not criminal offences. We should be clear that, when we talk about a breach of the Highway Code—when you do something which it says you should not be doing—you are not always referring to something which amounts to criminal offending. Indeed, often breaches of the Highway Code are not criminal offences.
As the noble and learned Lord, Lord Hope of Craighead, pointed out, under this amendment the standard for dangerous driving could be met by a breach of the Highway Code that causes no more than a little “inconvenience”—one of the tests in the amendment—to another road user. At the same time, the offences covered by dangerous driving attract significant custodial penalties, despite the attempt to limit this offence to “serious” breaches of the code. Serious breaches are, in turn—and, with respect, I suggest inappropriately and impractically—defined in relation to passing or failing a driving test. So where does that get us, when we put it all together?
Baroness Hayter of Kentish Town (Lab)
Is the Minister saying that if we drafted this slightly better, with “dangerous driving” included, he might accept it?
Lord Wolfson of Tredegar (Con)
I will be very careful here because the law in this area is really complex. I was going to say this later but will preface it now. I am very happy to have a discussion on these points. I am reluctant to reply to a drafting suggestion from the Dispatch Box but, if the noble Baroness writes to me, I will certainly write back and we can have a discussion. I hope that is helpful and answers her question.
On this part of Amendment 152, the five-year maximum penalty for causing serious injury also contrasts with the two-year maximum proposed for the new offence of causing serious injury by careless driving in Clause 66, although the culpability levels are broadly similar. Saying clearly what should not need to be said, we recognise the seriousness of driving while unfit to do so through drink or drugs, but we also must have laws that reflect the various levels of culpability of drivers across the piece. Perhaps it will be more useful to discuss this against another draft, if that is what the noble Baroness wants. This draft does not strike a fair balance and therefore we cannot support it.
Turning to Amendments 167 and 168, I assure the noble Lord, Lord Berkeley, that we take road safety seriously. The sanction of disqualification is a very helpful tool, an integral part of the overall approach to road traffic enforcement and, therefore, to promoting road safety. However, again the sanction of disqualification must be proportionate. He proposes amending disqualification periods for stand-alone offences from two years to five years. We are not persuaded that an increase of that magnitude is warranted for all the offences which the amendment would encompass. For example, two offences that would fall within the amendment involve causing serious injury to other road users, and another covers any offence where the driver has incurred a disqualification in the previous three years. The proposed increase is unduly harsh in these circumstances.
We would want to think carefully and coherently across the piece about amending the periods of disqualification for various offences. We want to keep sanctions at the right level, and we keep this under constant review. With respect, the noble Lord has much to contribute to the road safety debate. I would be very happy to meet him and others to discuss potential changes to the existing periods of disqualification. Perhaps we can arrange that. I heard what my noble friend Lord Attlee said, and recall that on the then Domestic Abuse Bill, we found that what we called a teach-in was quite useful. That might be a useful way of organising this, with specialist officials in the MoJ and/or the Department of Transport. I will be in touch with the noble Lord on that.
Also, in the context of disqualification, the noble Lord proposes reducing, from three years to two years, the timeframe for which offences would be regarded as repeat offences. As repeat offences, this would trigger a longer disqualification period, of two years rather than 12 months. Three years is the time for the totting-up process. We think that it is useful to keep the same period for repeat offences.
I turn to the amendments to the penalties for repeat instances of certain offences. The noble Lord proposes an increase in the minimum period of disqualification from three years to 10 years. Ten years is a considerable period of disqualification. It would affect not only the disqualified person but possibly their families in serious ways. We must remember that those convicted in these circumstances often also face a custodial sentence in addition to any driving ban that they receive. Therefore, one must look at the disqualification period in that context.
The length of a driving ban is at the discretion of the courts. They sometimes impose a lifetime ban. The noble Lord will know, but I will make it clear to the Committee, that the courts have a statutory duty to take into account the impact of a custodial sentence when imposing a driving ban, so it is not diminished by the period spent in custody. However, we do not think that a minimum period of 10 years would be proportionate in respect of the offences that currently carry a three-year minimum period of disqualification for repeat offences. The three-year period is a minimum. As I have said, the courts can disqualify in excess of that if necessary.
The noble Lord also proposes a minimum disqualification period of two years for drivers convicted of dangerous driving. A person who is convicted of dangerous driving is still subject to obligatory disqualification for a period of one year. That can be increased by a judge in light of particular circumstances. Again, we are not persuaded that a conviction of dangerous driving warrants a longer minimum ban, nor do we propose to accept the proposal to reduce the penalty for the offence of causing death by careless or inconsiderate driving from five years to two years. This is a good example of the balance I spoke about earlier. As the noble and learned Lord, Lord Brown, mentioned, when death results, the law often looks at things differently. When drivers cause the death of another person, a road user of any sort, through unacceptable behaviours such as careless driving, the penalties have to be sufficient to reflect the seriousness of their actions.
Turning to the amendments on the offence of driving while disqualified, if this sanction is to work effectively, people must be forced to adhere to the disqualification period. We know that that is not always the case. That is why we have a dedicated offence of driving while disqualified, which carries a maximum penalty of six months in prison. We consider that the right penalty for that offence. It is sufficiently effective in discouraging people from driving while disqualified and we do not believe that a longer period would be any more effective.
Finally, the noble Lord proposes an amendment which seeks to make it an offence to cause death or serious injury when opening a car door, with a penalty of a fine, imprisonment or both, obligatory disqualification from driving and obligatory endorsement of penalty points. We believe that the new offence is unnecessary, because causing death or serious injury when opening a door would already be covered by existing offences under Regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986, which is brought into play in this context by Section 42 of the Road Traffic Act 1988.
More generally, while I recognise the importance of checking the road carefully before opening a car door, the penalty must be proportionate. The penalty for the current offence is limited to a fine and we do not have any evidence base upon which to agree or accept that the new and much higher penalties for the offence proposed by the amendment are warranted or justified. However, we are updating the Highway Code to improve guidance for opening vehicle doors carefully and safely to minimise any risk this may pose. We have been promoting what I think is called the “Dutch reach”, where you reach across—I will try to give an example from the Dispatch Box—to open the door with the hand which is further from it, because that forces you to look around.
There is another point here. It is called the Dutch reach because it comes from Holland, where a lot of people cycle. To pick up a point made by the noble Lord, Lord Rosser, cycling is good for people not just when they are cycling but when they are driving. If you are a cyclist, you can also become a better driver, because you are more aware of cyclists on the road. We certainly appreciate the point and are looking at it.
I will pick up two further points from the noble Lord, Lord Berkeley. First, on the example he gave, I am not sure I took it down accurately, but my initial reaction was that alcohol is always an aggravating factor. However, I will check Hansard and can perhaps write to him with a specific response on that point. Secondly, on the 2014 review, that was announced and we have been working on it. We published a consultation on driving offences and penalties relating to causing death or serious injury and are now bringing forward proposals for reform of the law, which we committed to in our response to the consultation. My colleagues at the Department for Transport are taking that work forward on the broader issues of road safety.
Finally, the noble Baroness, Lady Randerson, said that she would pick up her point in a later group so, with respect, I or my colleague will respond to it then. My noble friend Lord Attlee asked about an increase in the prison population. The short point here is that people go to prison only when the court cannot impose another offence and they go to prison immediately only when it is sufficiently serious that the sentence cannot be suspended. I hope that gives him some reassurance. I am grateful for the support of the noble Lord, Lord Rosser, on Clause 65. I note his support for the amendments, but for the reasons I have set out, I hope those proposing these amendments will feel able to withdraw them.
Baroness Jones of Moulsecoomb (GP)
Before the noble Lord sits down, I point out that he is arguing for the status quo when we have already said that there is no rationale behind it. There is no rationale behind two years or three years. The fact that he thinks it sounds reasonable is really not good enough. It is urgent to get this review together. Which organisations have the Government taken advice from on this, before bringing in these new penalties? Who did they take advice from? It sounds as if they did not take it from people who understand the situation as it is on the roads.
Lord Wolfson of Tredegar (Con)
I am afraid that, with respect, the noble Baroness is wrong on both points. There are provisions in the Bill which change the law considerably; there are quite a few in this area. I am certainly not arguing for the status quo but rather for the provisions we have put in the Bill. I have sought to explain why, if we are going to change other parts of our road traffic offences, we need to do so carefully and make sure that there are no unintended consequences. I hoped my explanation of the new test for dangerous driving based on breaches of the Highway Code and the consequences that brings with it was a good example of that.
As to who we have consulted, I assure the noble Baroness that my department and the Department for Transport speak frequently to a range of stakeholders. Perhaps I can write to her with a list, exhaustive or possibly non-exhaustive, of the people we have spoken to.
Baroness Jones of Moulsecoomb (GP)
I also point out that when the Minister demonstrated the Dutch reach, he did so from the point of view of a Dutch car rather than an English one. Perhaps he would like to practise that at home.
Lord Wolfson of Tredegar (Con)
The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.
Earl Attlee (Con)
My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.
Lord Wolfson of Tredegar (Con)
I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.
Lord Berkeley (Lab)
My Lords, we have had a fascinating debate on these amendments and I have no regrets about tabling them. They came from the group that the noble Baroness, Lady Jones, mentioned—she has also thought about this very carefully. I would like some further information on whether they talk to each other. They will look at what the Minister has said tonight with great care and read the comments from the many other noble Lords and noble and learned Lords who have spoken. It has been fascinating to hear the different views.
One thing that we need to focus on is the need for safety. The Dutch reach is just one example. I have cycled in Holland quite often; motorists there tend to be much more careful when opening doors, but so are cyclists. In Holland, you do not get the kind of aggressive, Lycra-clad people who so many motorists in this country dislike. However, that is no excuse for causing any danger to them.
What also follows from the Minister’s comments is that there needs to a reflection on getting people to think before they offend, because a lot of people do not, and when they offend say, “Oh, it was a mistake,” or whatever. People need to be responsible for their actions.
Thirdly, there is a wide lack of enforcement, which noble Lords have alluded to, covering motoring, cycling and occasionally walking. Some of my amendments reflect the feelings of people at the vulnerable end of the spectrum that there is a lack of enforcement, and they would like to see things tightened up and balanced.
Lastly, I am concerned, and have been for many years, about how the Minister’s department and the Department for Transport work together, or occasionally possibly do not. I have no evidence that they have not worked together on this matter, but it would be helpful to hold discussions with both departments before Report. I see that the Minister does not like my amendments. We do not like some of his. We are a long way apart, but it would be helpful to try to move together. On that basis, I beg leave to withdraw my amendment.
Baroness Stowell of Beeston (Con)
My Lords, I will speak to this amendment and my other amendments in this group. First, though, I welcome my noble friend Lord Sharpe to the Front Bench, and I look forward to his response.
These amendments are about pedicabs. I will briefly explain the problem, and then come to the solutions and proposed way forward. For any noble Lords unsure about what I am referring to, pedicabs are passenger vehicles operated by a cyclist at the front pulling a small carriage at the back. Sometimes they are known as rickshaws. Noble Lords may have seen them lined up on Westminster Bridge touting for business from tourists. They are often covered in flashing lights and blaring out loud music. They are mainly found in the West End and other tourist hotspots, whether that is Oxford Street and other major shopping zones during the day, or Leicester Square, Soho and the theatre district at night.
We have an unacceptable situation. These vehicles are legal, but, believe it or not, they do not need insurance. There is no way to identify the drivers, there is no requirement for operators to undergo criminal records checks, most vehicles do not undergo any safety or maintenance checks, and there is no control over the fares charged. Pedicabs are the only form of public transport in the capital that is completely unregulated.
It may assist the Committee if I explain very briefly the history of how this unacceptable anomaly occurred. Nearly 20 years ago—lawyers here will be able to expand on this—pedicabs were defined in case law as stage carriages in Greater London under the Metropolitan Public Carriage Act 1869, so do not fall under Transport for London’s licensing powers. This is not the case elsewhere in England and Wales, where they are defined as hackney carriages and subject to local licensing and regulation.
The upshot is that pedicabs can ply for hire in any street or place in Greater London. They are acting with impunity and in competition with black cabs, and where appropriate with licensed taxis, for custom. To state the obvious, those vehicles are subject to a range of regulations and exacting standards. It will not surprise the Committee that this impunity and the full knowledge that they cannot be held to account leads to a wide range of safety and traffic incidents. This includes dangerous driving, such as going the wrong way up one-way streets—I have personally seen pedicabs come on to pavements—nuisance driving, parking in bus lanes, and impeding traffic. There is a range of passenger safety issues associated with roadworthiness, and some vehicles have motorised the bicycle at the front, creating more risks to passengers. Hit and runs are not uncommon.
Then there is the nuisance and anti-social behaviour, which has a detrimental effect not just on businesses and residents but on the reputation of our capital city. There is aggressive touting for business; ripping off passengers with outrageous charges; very loud music played all day and night; harassment of passengers, including women; violence between drivers; and even reports of facilitating drug dealing across the city.
The Anti-social Behaviour Crime and Policing Act 2014 has been useful to some extent, but it is only a short-term measure, as it takes a huge amount of evidence, time and police resource to apply. We need regulation to prevent those wishing to give our capital city a bad name having the chance to do so in the first place. Having said all that, there are some reputable firms that want regulation. Indeed, there is an environmental case for pedicabs to be part of London’s public transport system, but that can happen only if they come under the control of Transport for London.
What is the solution? Before I explain my amendments, I want to highlight a better solution. My honourable friend Nickie Aiken, MP for the Cities of London and Westminster, has been campaigning tirelessly on this issue since she was elected in 2019. She has cross-party support from London-based MPs, many of whom have campaigned on this issue since Labour was in government. Her Private Member’s Bill, due its Second Reading on Friday 19 November, would bring pedicabs under the remit of Transport for London and allow it to introduce proper regulations. That would bring London into line with the rest of England and Wales. The Bill, and what it will achieve, is supported by MPs, the Mayor of London, Westminster Council, Kensington and Chelsea Council, other affected councils, Transport for London, the Soho Society, the Marylebone Association, the Heart of London Business Alliance, and a wide range of other bodies that are members of the Regulate Pedicabs Coalition. No one is against this, so I know she is pushing at an open door when it comes to government support. For the last five years, Minister after Minister has promised to introduce legislation to make this regulation happen when an appropriate legislative vehicle is available, but so far none has arrived.
So, here is what I am asking. First, I would like the Minister to confirm that the Government will support Nickie Aiken’s Private Member’s Bill if it gets a Second Reading on 19 November. But notice that I said “if”, because, even with the Government’s support, we face a real risk of not getting that far. This is the third attempt to introduce legislation via a Private Member’s Bill. Nickie’s Bill is the fifth due to be debated on that day, so there is a real danger that it will not get a Second Reading and will fall again. To be fair, this Private Member’s Bill is a suitable vehicle because it is simply bringing London in line with everywhere else, where local authorities can already regulate. It is not introducing new policy; it is just correcting something which needs to be corrected.
Lord Pannick (CB)
My Lords, the noble Baroness has made a powerful speech, which I find entirely compelling. My only concern is that her amendments are far too modest. If the Private Member’s Bill does not proceed satisfactorily, I suggest that she brings forward on Report an amendment which makes it a criminal offence to operate such a vehicle in London without a licence.
Lord Berkeley (Lab)
My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.
I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is
“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—
I did not know that cycles were vehicles, but maybe that is right—
“in combination with a trailer, constructed or adapted for carrying one or more passengers.”
My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.
I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?
The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.
I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.
Earl Attlee (Con)
My Lords, I rise briefly to support my noble friend. It is ludicrous that pedicabs are regulated in some parts of the country but not in London.
Baroness Randerson (LD)
My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too agree that the noble Baroness made a compelling speech, with which a lot of people who live in London will have a lot of sympathy. I also agree with my noble friend Lord Berkeley, who raised the issues of cycles for freight, insurance and how the very rapid development of small electric vehicles and bicycles expanding their remit in London is a wider problem that needs to be addressed. The noble Baroness, Lady Randerson, also made that point.
As I have said to the Committee before, I sit as a magistrate in London, very often in Westminster. I remember dealing with pedicabs a number of years ago. Those offences were brought to our attention by Westminster City Council. From memory—this is a number of years ago—it was usually to do with pedicabs being parked on pavements, with the police bringing people to court through the council and impounding some vehicles. I have not seen those offences for several years now. I do not quite know what has changed—perhaps Westminster City Council does not feel it has the power to do that anymore, I do not know; it is a moving target. Nevertheless, I think the central point of the noble Baroness’s amendment is powerful.
I do not know whether there are any practical problems with harmonising the regulations with the rest of England and Wales, so I look forward to what the Minister says on that point.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to my noble friend Lady Stowell for comprehensively setting out the case for these amendments, which relate to the regulation of pedicabs. As she pointed out, Clause 66 relates to motor vehicles which are defined as “mechanically propelled”. They are the most dangerous and cause the most harm, so it is logical that they are the focus of this clause.
The noble Lords, Lord Berkeley and Lord Ponsonby, and the noble Baroness, Lady Randerson, mentioned other types of similar vehicle that might be caught by this, so it is perhaps worth mentioning what the Government are doing on cycling offences. In 2018, we held a consultation to consider cycling offences causing serious injury or death, as well as reviewing existing cycling offences. The Government feel that any new offences applicable to cyclists, with or without a trailer, are best legislated for as a package, rather than piecemeal. Moreover, we believe that there should be a separate framework of cycling offences, as compared with motoring offences, as it may not be proportionate to apply to cyclists offences intended for drivers of motor vehicles and their corresponding penalties. The response to the consultation will be published in due course—I hope before the end of this year, but early next year at the latest.
The wider question of the regulation of pedicabs, including that of noise nuisance caused by sound systems located on pedicabs—which I agree from experience can be ear-splitting—is not a straightforward issue. In England, pedicabs generally fall under the taxi and private hire vehicle licensing regime, as various noble Lords have mentioned, in that they can be regulated as a hackney carriage—a taxi. The exception to this is London, where, as my noble friend Lady Stowell explained, they fall outside the existing taxi legislation. It should also be noted that taxi and private hire vehicle legislation is a devolved matter in Scotland and Wales, although the legislation that applies in Wales is the same as that which applies in England.
The Government are aware of the long-standing concerns that pedicabs contribute to safety and traffic-related issues in central London. The current situation in London means that there are few existing powers to control pedicab operations effectively. This has meant that pedicab operators, drivers and their vehicles are not licensed, there are no requirements for drivers to undergo criminal record or right-to-work checks, as there are in other industries, and there is no fare control. And there may very well be insurance issues, as the noble Lord, Lord Berkeley, mentioned.
The Government agree that it is in the interest of safety and fairness to passengers to fix this legal anomaly and, as my noble friend Lady Stowell noted, a Private Member’s Bill that would enable Transport for London to regulate pedicabs in London is currently being taken forward by Nickie Aiken MP—the Pedicabs (London) Bill. I am pleased to confirm that the Government intend to join the very long list pointed out by my noble friend and support this Bill. I am therefore happy to offer her a meeting with the Minister, my noble friend Lady Vere, to discuss this further, if she would like. I commend my noble friend for raising this issue. We agree that it needs to be addressed, and I hope she is reassured that the Department for Transport is on the case. For now, I hope my noble friend feels free to withdraw her amendment.
Baroness Stowell of Beeston (Con)
My Lords, I will certainly withdraw the amendment. I am grateful to my noble friend the Minister for making clear that the Government support the Private Member’s Bill, and I will of course accept the offer of a meeting with my noble friend Lady Vere—although, if it is a meeting we have to have because the Private Member’s Bill has not been successful in its Second Reading on 19 November, I hope the Minister is ready and prepared for action to take us further forward.
I am grateful to the noble Lord, Lord Pannick, for his suggestion, which I will certainly consider, if necessary, and discuss with the Government in the first instance. I would very much prefer government support if it is necessary to take this step.
I also reassure the noble Lord, Lord Berkeley, that it is certainly not my intention, nor that of my honourable friend Nickie Aiken in her Private Member’s Bill, to include the kinds of vehicles he describes—the domestic arrangement where a parent may have a small trailer on the back, with small children in it. This is about vehicles that charge passengers to transport them.
I also take on board the points made about the nature of the new ways of transporting freight using cycles within London. That is why I emphasised in my opening remarks that, on pedicabs more generally, there was a time when there was a real effort to ban them altogether. Now we realise that, with today’s environmental challenges, there is scope for vehicles that use pedal power, as opposed to standard motorised power.
I am grateful to all noble Lords who spoke in support, and to my noble friend Lord Attlee. I hope that I do not need to come back on Report to detain your Lordships further on this but, if I have to, I will. I beg leave to withdraw the amendment.
Lord Hope of Craighead
“(3) A person is to be regarded as having caused a serious injury to the other person using the road or place only if it would have been obvious to a careful and competent driver that the way the person was driving at the time of the accident was likely to cause serious injury to that other person.”Member’s explanatory statement
This amendment would introduce a test for the words “causing serious injury”, which is needed as a conviction for this offence would attract a sentence of imprisonment.
Lord Hope of Craighead (CB)
In moving this amendment, to which the noble Baroness, Lady Randerson, has put her name, I will speak also to my opposition that Clause 66 stand part of the Bill, to which the noble Baroness, Lady Randerson, and the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, have added their names.
The essence of the point I wish to raise, which is about imposing sentences of imprisonment for the consequences of an act of careless driving, was put across with great clarity by my noble and learned friend Lord Judge, in his contribution to the previous debate. But if your Lordships will forgive me, I would like to take some time to explain my position on Clause 66, as it raises important issues that affect every driver, however careful and considerate they almost always are.
Clause 66 seeks to introduce a new offence of causing serious injury by careless or inconsiderate driving. As the law stands, causing death by careless driving is a separate, distinct offence but causing serious injury by careless driving is not. That might suggest there is a gap in our law that needs to be filled. Indeed, at one time, it was thought that the fact that a serious injury had resulted from careless driving was not to be taken into account at all when the motorist was being sentenced for careless driving, but that is no longer the case. Under the current sentencing guidelines, that harm has been caused to others is now a relevant factor when a court is sentencing for careless driving, so there is, in practice, now no such gap. It seems that the issue at the heart of this debate is whether the current sentencing approach goes far enough, whether it needs to be changed, and if so, how far, and in what respects.
The Minister in a contribution to the previous debate referred to the need for balance in sentencing. Under the current sentencing guidelines, one finds a balance. Cases are to be assessed in three categories according to the degree of culpability and the extent of the harm. A case where serious injury has been caused will be in the top category where the culpability is higher or the middle one if the culpability is lower. The maximum fine in both cases is I think £5,000. The appropriate fine level is higher for the top category, for which disqualification is possible but not mandatory, and it permits the imposition of seven to nine penalty points. Cases involving serious injury with lesser culpability, which are in the middle of the category, will attract five to six penalty points but no disqualification.
Clause 66 seeks to provide that disqualification is to be obligatory in all cases of causing serious injury by careless driving, that the upper range of penalty points be extended and that there be no limit on the fines that may be imposed. However, it also proposes that a conviction for this offence may result in imprisonment of up to 12 months if prosecuted summarily or two years if on indictment. The contrast between what the penalties are now and what they would be if this clause were to be enacted in its present form, given that serious harm is already a relevant factor under the current guidelines, is astonishing. That is why I thought it right to draw attention to the issue and to the need for the proposal to be explained and fully justified.
Careless driving is something that every competent motorist will seek to avoid but, human nature being what it is, they will not always be able to do so. Lord Diplock explained the difference between dangerous or reckless driving and careless driving in Regina v Lawrence in 1982—Appeal Cases 510. As he put it, driving is dangerous or reckless where it creates an
“obvious and serious risk of causing … injury … or … damage”.
However, he went on to explain that it is not necessary to show that a driver was conscious of the possible consequences of what he was doing for him to be guilty of driving without due care and attention. Section 3, he said,
“takes care of the kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without its necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road.”
The noble and learned Lord, Lord Judge, gave striking examples of situations that may arise that caused that kind of situation to occur—the wasp in the car with children, for example. Lord Diplock did not mention causing injury, but I suggest that the fact that a serious injury has resulted from that kind of driving does not alter his assessment of the culpability of the offence—the nature of the offence itself. Of course, the circumstances will vary from case to case, but the offence does not necessarily involve any moral turpitude, criminal mind or wicked behaviour at all. A moment’s inattention may be enough.
The fact that the punishments now being proposed for this offence include imprisonment of up to one year if the offence is charged summarily and up to two years if it is brought under indictment is particularly striking. That is a massive increase in the available penalties. Prisons, after all, are nasty, brutal and dangerous places. Quite rightly, imprisonment is reserved under our road traffic law for only the most serious cases where there has been a deliberate breach of the law of some gravity. This prompts me to ask a number of questions to the noble Lord. Why is such a severe penalty now being proposed for something that does not involve a deliberate breach of the road traffic law but which is mere negligence or inattention? What is the reason for this? What research has been carried out into the need for it, and what thought has been given to the consequences of imposing such a penalty for acts of mere carelessness, albeit that a serious injury has been caused?
One may take the example of the mother in the car with the wasp; something has happened because the children were alarmed and she had a moment’s inattention, and a serious injury resulted. Does a person in that situation really deserve a sentence of imprisonment, or even the severe worry of being faced with the possibility of imprisonment? After all, the imprisonment is one thing, but the fact that you are charged with an offence with a penalty of imprisonment is itself a very serious matter indeed, which is not to be taken at all lightly. I suggest that imprisonment as a punishment for such an offence on its own that is being posed here—of course, I leave aside situations where drink or drugs have been taken, which is a different situation altogether—is grossly excessive and wholly inappropriate.
The risk I fear most when I venture out on to the roads is that of accidentally hitting a cyclist. That risk increases as the days grow shorter, we have increasing hours of darkness and, let us face it, not all cyclists are very visible to people driving motor cars along the road, however careful they may be. They do not always wear Lycra and bright colours and it is sometimes extremely difficult to see them and indeed to be sure which direction they will take their cycle in as you approach them. I fear these cyclists when I see them. There are so many situations where it is not possible, despite one’s best efforts, to create the space that is needed when overtaking. You may have a bus coming towards you on the other side of the road. Of course you can slow down, as I often do, and wait for the cyclist to get to a broader place in the road, but it is not always possible to do that. One has to exercise judgment and take as much care as possible.
However, what if the worst was to happen? The cyclist has fallen off the bicycle and breaks a wrist, possibly an arm or a leg. Of course you stop, because there has been an accident resulting in injury. The police have to be called and, no doubt, an ambulance too. There is then the real possibility of a charge of causing serious injury by careless or inconsiderate driving. In a situation of that kind, almost always the driver will be blamed as the person who caused the accident—that is the way things turn out. Then there is this real prospect of a prison sentence. There is nothing in Clause 66 to tell the magistrates when that would or would not be appropriate. Is that really acceptable? Another question for the Minister: has any thought been given to what the Sentencing Council’s guidelines might be if this offence were to be introduced?
Many of your Lordships will have received an email from Cycling UK with recommendations as to how our current road traffic law should be reformed. The noble Lord, Lord Berkeley, with his amendments in an earlier group, has drawn attention to a number of its recommendations. Its interest in promoting these reforms is very obvious in view of the very real risks that cyclists undertake every day. However, I was particularly interested in its comment on Clause 66, and I hope that I have understood it correctly when I say that it suggests that there should be a greater focus on disqualification and less on imprisonment. Indeed, the noble Lord, Lord Berkeley, made that very point in his speech in an earlier group. Cycling UK suggests that the maximum sentence on summary prosecution should be reduced to six months—of course, I would say that it should not be there at all—and that account should be taken of other circumstances not mentioned here that would increase culpability. I would regard that as an improvement if one is to introduce this offence at all; you look for something else, such as taking drugs or driving without insurance or when disqualified. I do not support all that Cycling UK proposes, but there is an indication in what it is saying, which I endorse, that the Government need to think again, and much more carefully, about what needs to be done to alter the current approach to sentencing, which, as I have suggested, strikes a balance as to what is appropriate between the various degrees which may fall within the ambit of this offence.
Baroness Randerson (LD)
My Lords, as the noble and learned Lord explained very effectively, Clause 66 inserts a new Section 2C into the 1988 Act, introducing a new offence of causing serious injury by careless or inconsiderate driving. The offence is committed by driving
“without due care and attention, or without reasonable consideration for other”
road users. Serious injury is defined as physical harm amounting to grievous bodily harm under the terms of the Offences Against the Person Act 1861. As the noble and learned Lord set out, the proposed penalties are two years’ imprisonment and/or a fine on indictment and a maximum penalty on summary conviction of 12 months and/or a fine.
The noble and learned Lord, Lord Hope, and I are unashamedly having two stabs at this issue. Amendment 155 takes the narrow view, introducing a test for the words “causing serious injury”. This is needed because it will be an imprisonable offence. The Government have defined “serious injury” but not “causing”. Our amendment suggests a form of words which indicates that to be found guilty of this you have to have displayed blatant disregard for the normal rules of care on the road. It is important for us to remember that driving is the one day-to-day activity by which a law-abiding citizen can kill another law-abiding citizen through simple inattention. I expect most noble Lords are drivers and, if they search their hearts and memories, I am sure they can think of an incident in their driving history when they have done something careless—when they have failed, despite perhaps taking care, to notice a cyclist or another car. Usually that is a moment that passes without anything terrible happening, but sometimes there is an accident.
If we are going to move towards imprisoning motorists for being careless, we need to be extremely careful. Criminalising motorists is a dangerous direction. Most motorists involved in accidents which result in serious injury or death are stricken by an overwhelming sense of guilt. In many cases, it wrecks the rest of their life. Rather than needing imprisonment, they need to ensure that in future they are much better drivers. Why do we send people to prison? We send them to prison to protect society. It is not likely that we need to protect society from the normal careless driver. We need to send them to prison to punish them—to be punished for simple carelessness.
The suspicion must be that the Government are seeking to create a new offence to catch those motorists who are charged with, but not found guilty of, dangerous driving. For 20 years, I was a magistrate. It is, and was, normal for alternative charges to be brought: careless driving and dangerous driving. I well recall occasions when the CPS simply failed to prove dangerous driving for one reason or another. I believe we are in a dangerous position if we start creating new offences to cater for the failure of prosecutors to make their case. Just as there is a difference between murder and manslaughter, there is a clear difference between careless driving and dangerous driving. In opposing that the clause stand part, we are proposing that there is no need for this new offence. As an alternative, we offer Amendment 155, which provides much-needed clarity on the degree of carelessness that must be involved.
There is a tendency to a knee-jerk reliance on custodial sentences. Most drivers, even bad drivers, do not need prison to improve their behaviour. Prison costs the public purse massive amounts of money. It destroys marriages and families and the ability of the prisoner to get a job on release. It often destroys their mental health. Prisons are not called “universities of crime” for nothing; they create better criminals. Bad drivers need more appropriate sentences. Careless drivers need more appropriate sentences, such as driving bans, retraining, which is really important, community sentences, restorative justice or fines, but not prison, except in the most extreme and persistent cases.
Lord Pannick (CB)
My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.
Earl Attlee (Con)
My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.
Lord Thomas of Gresford (LD)
My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.
However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.
On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.
Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.
Lord Falconer of Thoroton (Lab)
The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.
Lord Thomas of Gresford (LD)
That is an interesting point. Manslaughter can obviously be by negligence.
Lord Thomas of Gresford (LD)
Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.
Lord Beith (LD)
My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.
It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.
As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.
Lord Berkeley (Lab)
My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?
Lord Thomas of Gresford (LD)
Driving is an activity which is universal. Equally, the mistake—or negligence—is also universal, and I do draw that distinction. I appreciate where the noble Lord is coming from, but that is the distinction I make.
Lord Marlesford (Con)
My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.
Earl Attlee (Con)
My Lords, there is an obvious difference between an offence of careless driving and a health and safety offence: the health and safety offence is ongoing—someone is operating a dangerous machine, they have not done proper risk assessments—whereas an offence of careless driving can be a momentary lapse.
Lord Judge (CB)
My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.
The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.
The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.
As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.
Earl Attlee (Con)
My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.
Lord Wolfson of Tredegar (Con)
My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only
“negligence with a vituperative epithet”
attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.
We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.
As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.
I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.
Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.
I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.
Lord Pannick (CB)
With his enormous experience of various areas of the law, can the Minister think of any example of where a sentencing court has decided that it is appropriate to send someone to prison, whether in a health or safety context or in any other context, merely because of carelessness? I ask this out of genuine innocence and ignorance.
Lord Wolfson of Tredegar (Con)
I wonder whether health and safety is not, in fact, an example. This is not my area of the law, and I am reluctant to give examples from the Dispatch Box, but I think we have to balance the degree of culpability with the consequences. As the noble Lord, Lord Beith, said, and as the responses to the consultation showed, it is very difficult to look in the eye the family of somebody who has been killed through careless driving, where the standard has fallen below that of a competent driver—not far below; that is dangerous—and say that the most we can do is fine the driver.
Lord Pannick (CB)
I understand the Minister’s argument. My question is whether there are any actual, practical examples of people being given a prison term because of carelessness. Maybe the Minister does not know. I entirely understand that. I would be grateful if he could write to me with an answer.
Lord Wolfson of Tredegar (Con)
Of course, and I will write to the noble Lord with an answer. I just want to be clear what exam question he is setting me. I assume that he is excluding recklessness. He is putting that in a separate box from mere carelessness.
Lord Pannick (CB)
I am considering the proposed offence of carelessness. To be clear, my question is whether there are practical examples of sentencing courts sending people to prison for acts of carelessness. Maybe the noble and learned Lords, Lord Judge and Lord Hope, know the answer. I do not. I suggest it may be relevant.
Lord Wolfson of Tredegar (Con)
The noble and learned Lord, Lord Judge, is very kind. I was going to say that, because I am standing up, I will spare the blushes of the noble and learned Lords, so that they do not have to get up. We will look at the exam question from the noble Lord, Lord Pannick. We have to be careful with our terms. It may come back to the point that I made to the noble Lord, Lord Thomas: we must be careful not to confuse “careless”, as in careless driving, with negligence. It is not necessarily the same concept.
I think I was about to sit down and allow—
Baroness Randerson (LD)
I simply wanted to add that, when the Minister writes to us, perhaps he could give due consideration to the word “inconsiderate”. One could, unusually, be sent to prison for it.
Earl Attlee (Con)
My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.
Lord Wolfson of Tredegar (Con)
I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.
Lord Hope of Craighead (CB)
I hope the Minister has sat down, because I thought it was time for me to wind up. I am very grateful to all noble Lords who have contributed to this debate.
I hope the Minister will appreciate—I think he does—that my Amendment 155 is simply an attempt. I said that it was not cleverly drafted, and he has made it clear that it has problems attached to it. The essence of my intervention is on Clause 66 and imprisonment. Disqualification is fair enough. I can see that taking people off the road meets almost every situation. The same is true with fines. It is quite remarkable that there are no other non-custodial penalties. What about other orders, such as retraining, community service, or something of that kind? They are not mentioned here. As the noble Lord, Lord Beith, pointed out, the emphasis on imprisonment as the alternative is endemic in the Government’s approach. It is seriously wrong in this situation.
Two phrases came up in the course of the discussion. The noble Lord, Lord Ponsonby, said that only in an “exceptional case” would a custodial sentence be thought appropriate; I understand that and entirely follow it, of course. The Minister said that he contemplated a “serious, life-changing injury” where he might find it difficult to look into the eye of the victim and say, “We cannot equate it to the sort of sentence that involves imprisonment. We cannot provide a custodial sentence to make up for the devastating consequences of the injury.”
The problem is that, as it stands, the clause is completely open-ended. There is absolutely no qualification to narrow down the situation described by both noble Lords. That is what I was trying to do with my Amendment 155, and is part of my complaint. If you introduce sentences of imprisonment, you really have to think about whether the nature of the offence or the circumstances that give rise to that kind of penalty should be more carefully defined. Otherwise, we are at the mercy of magistrates, who vary and may misunderstand the situation.
Of course, as I mentioned in my earlier speech, the mere threat of imprisonment is a devastating situation. I go back to example given by the noble and learned Lord, Lord Judge, of the mother in the car. Her children will ask, “Mummy, does that mean you’ll have to go to prison?” The family must live with the possibility of imprisonment and all its consequences until, eventually, the moment arises when the sentence is pronounced. Even when there is no imprisonment, the fact that this hovers over a family in that situation is devastating enough.
I hope that the Minister will think more carefully. Perhaps the noble Lord, Lord Ponsonby, will also think more carefully about his party’s approach to this problem, because there is more to it than was thought at first sight. I welcome the suggestion of ongoing discussions; I hope that, with the noble Baroness, Lady Randerson, we will be able to have a discussion with the Minister to see whether some attempt can be made to qualify the open-ended nature of this offence to make it a little less devastating.
For the time being, I beg leave to withdraw the amendment.
“(c) a local authority or traffic authority;”
Lord Tope (LD)
My Lords, in moving Amendment 156, I will also speak to Amendment 163.
First, I must declare my interest, particularly for these amendments. I am the co-president of London Councils, the body that represents all 32 London boroughs and the City of London Corporation. I am also a vice-president of the Local Government Association.
Amendment 163 is the substantive amendment. It seeks to start the legislative process that would enable London borough councils and/or Transport for London to enforce speed limits of 30 mph or below—I have in mind the 20 mph speed limits in particular—on roads for which they have responsibility and, if they so wish, to apply to the Secretary of State and receive consent.
Lord Berkeley (Lab)
My Lords, I have put my name to this amendment, because it is a really useful proposal from London Councils. The noble Lord, Lord Tope, has well outlined the purpose and the benefits. The idea of a target of zero road deaths—I think that Sweden has a target going back 20 years—is a really important thing to go for in London.
Noble Lords will have seen the changes that have happened in London and other places because of the Covid epidemic. A couple of years ago, London provided much better cycle lanes and reduced some car widths and, in the process, reduced speeds. As someone who cycles around London all the time, I welcome that personally. Hackney, which was one of the first boroughs to go for this, is a pleasant place to pedal around now. It is key that this is done on as great a devolved basis as possible. Devolving it to the London councils seems an excellent idea; I am absolutely persuaded that they are capable of doing it.
The noble Lord, Lord Tope, touched on the £445 million of revenue generated by parking fines in London alone. The RAC Foundation appears to criticise this as milking the motorist but, as the noble Lord said, those people have contravened a regulation so we should not have any sympathy for them. If they had obeyed the regulation, be it on parking or speeding or whatever else, they would not have deserved to be fined. If they do not like being fined, it is quite simple: they should obey the legislation. I look forward to hearing what the Minister has got to say on this but it would be a first step in devolving some of these issues, which should be decided locally. If it is successful, it needs to go to other cities as well.
Lord Sandhurst (Con)
My Lords, I support these amendments. I do so as a resident and ratepayer of the London Borough of Wandsworth; I declare that interest. I was encouraged to speak in this debate and support these amendments by the Conservative leader of that borough. He believes that they are desirable and will be beneficial to the residents of his borough, and he will be answerable to his electorate in due course.
In short, these amendments will, subject to the Secretary of State’s approval, enable but not oblige a borough to take up powers over speeding restrictions and traffic light contraventions. The aim is very simple: to stop people speeding. Because the boroughs anticipate that taking over the management of speed enforcement will create something of a virtuous circle, they will be more energetic about it than the police are. They will enforce speed limits because they have a financial stake in it directly and, because they enforce it and recover the costs, they will have to recycle the money they get in highway improvements, traffic calming and road safety generally.
What is there not to like about that? It will benefit residents and road users. Better enforcement will bring down speeds on residential roads. Lower speeds reduce the level of pollution and particulates. Better enforcement by boroughs will make residential roads safer for pedestrians and cyclists. It is a commonplace that an accident at 30 mph can kill; a pedestrian hit at 20 mph or less has a much more viable chance of survival without even serious injury. So, if these amendments are accepted, there will be immediate health and safety benefit to residents in any borough that chooses to adopt them.
Giving boroughs control over speeding and traffic lights is simply a no-brainer. I stress that boroughs will not be compelled to adopt these powers; it will be for each borough to do so when the time is ripe and it is in a position to carry them out. In summary, these amendments will bring great benefit to the citizens of London.
Lord St John of Bletso (CB)
My Lords, I am afraid that I take a converse view on this. London has a massive problem with increasing traffic congestion, and I do not believe that reducing the speed limit to 30 mph is going to bring the death rate down to zero. On the converse, one of the biggest problems in London is pedestrians crossing the road more transfixed on their mobile telephones than on watching oncoming traffic. I am not opposing this amendment; I am just saying that reducing the speed limit will not necessarily bring the death rate down to zero.
Baroness Hamwee (LD)
My Lords, I do not think that my noble friend is proposing to reduce the speed limit. It is about enforcement of whatever the speed limit is.
Baroness Randerson (LD)
My Lords, this is a very ambitious amendment from my noble friend. It would involve significant changes to the role of local authorities. Before people say that that is not appropriate, it is worth bearing in mind that local authorities already deal with parking issues, which are in the minds of the general public, very akin to the issue of speeding offences. They also have powers, in London and in my city of Cardiff, to deal with certain moving traffic offences, such as entering yellow boxes, driving in bus lanes and so on. It actually does not make local authorities any more popular, so it is important that it is thought through carefully.
Lord Rosser (Lab)
My Lords, like the noble Baroness, Lady Randerson, I do not intend to stand here and announce our 100% support for what is proposed. We are interested in the issues raised and certainly look forward to the Government’s reply. To state the obvious, I say that local councils are key partners and innovators in improving road safety and encouraging the use of different modes of transport. What is proposed is quite a major step forward from that.
I will add one point, to which the answer may well be that the solution is obvious. Simply, if we end up with new powers or duties in this area being granted to local authorities, they must be accompanied by funding. The reply may be, “Well, of course they’ll get the money, because they’ll get it from any fines they might impose”, but it may not be quite as straightforward as that. Making such a move might put a bigger burden and workload on local authorities than might be envisaged. If people are thinking of going down this road, they should make sure that, from whatever source it may be coming, the funding is available.
As I recollect, the Government have plans, for which local authorities have been waiting a little while, to increase local authority powers to manage local roads, under the Traffic Management Act 2004. If I am right, will the Minister give us an update on where we stand on that and what kind of issues the Government are considering as part of any such plans? As part of that, have the Government looked at the issue of speeding enforcement—as suggested in these amendments—at local authority level when looking at any planned increases to local authority powers in this area? As I said at the beginning, we are interested in the issues raised by these amendments and look forward to hearing the Government’s response.
Lord Paddick (LD)
I apologise to the Committee: I was not going to say anything, but I could not resist. There is clearly an issue with people receiving endorsements on driving licences and potentially being disqualified from driving not being dealt with in the criminal courts and through the appeal process that they provide. On the issue around lack of enforcement, does the Minister have any information about the potential use of speed cameras in 20 miles per hour zones to increase enforcement and to what extent speed cameras are self-financing, in terms of the money they generate versus the cost of running them?
Lord Sharpe of Epsom (Con)
I thank noble Lords for taking part in this short but very interesting debate. As the noble Lord, Lord Tope, has explained, Amendment 163 would afford local authorities greater powers in managing speed and traffic light offence enforcement on their roads. I take it that Amendment 156 then seeks to extend the National Driver Offender Retraining Scheme so that it also can be operated by local authorities in respect of decriminalised offences.
The most dangerous traffic offences are punishable by either immediate disqualification from driving—as with drink and drug driving—or endorsement. I am sure that noble Lords agree that, because of their seriousness, none of these offences has been decriminalised and nor should they be—a point that the noble Baroness, Lady Randerson, alluded to. The purpose of endorsements is to disqualify from driving people who show repeated dangerous behaviour and pose a threat to other road users, through the process of totting up penalty points, which of course is a key distinguishing feature of parking fines.
I remind noble Lords that speed offences are one of the types of offence referred to as the fatal four, along with mobile phone use while driving, not wearing a seat belt, and drink and drug-driving. Speed offences share a common feature with these other offences: they are prominent in the causation of fatal and serious collisions. We could not accept a situation where there were some speed limits that the police had no power to enforce.
Likewise, contravening a red traffic light can lead to serious and fatal collisions and that should not be decriminalised either. Traffic lights are provided to manage safety concerns at junctions, and offer safer places for people to cross the road. We have a good compliance record with red traffic lights in this country, and decriminalising enforcement would be likely to undermine that. That would impinge on the safety of all road users, but particularly vulnerable road users, including pedestrians and cyclists.
The Government are concerned that enforcement of civil penalties is not subject to the same rigorous scrutiny as criminal enforcement, and this would affect public confidence and their level of support. In particular, it would be likely to set back the growing public acceptance of speed and red light cameras. The public strongly agree that speed cameras save lives and are not there to make money. That is clearly demonstrated in the findings of the Department for Transport’s 2020 National Travel Attitudes Study, which showed that 59% of respondents agreed with the statement that speed cameras saved lives and only 41% agreed with the statement that they were mostly there to make money. Those figures are an improvement on those of 2011, when the equivalent numbers were 51% and 55% respectively. The Government, therefore, have no intention of decriminalising any of these offences: we believe that doing so would wrongly signal to the public that these dangerous behaviours had become less important.
Furthermore, the police are the primary enforcers of criminal offences, and have so far been responsible for delivering speeding courses. The National Driver Offender Retraining Scheme is run by UK Road Offender Education, a subsidiary of the Road Safety Trust, which is owned by the 43 police forces. This provides central governance, standards and consistency. UK Road Offender Education works with leading experts in road user behaviour to develop, review and deliver high-quality behaviour change courses—and I can personally attest that they work.
The scheme works alongside PentiP, the national Home Office fixed penalty processing system that is used by all police forces in England and Wales. This ensures that a repeat offender is not offered a second course within three years but is instead offered a fixed penalty notice and penalty points, otherwise court proceedings follow. We are not aware of a strong need to allow local or traffic authorities to charge for speeding courses, and there is a lack of evidence for the benefits, or indeed consequences, of doing so.
Unfortunately I cannot give the noble Lord, Lord Rosser, the update that he seeks, but I will write to him. I am afraid that also goes for the question from the noble Lord, Lord Paddick: I will write to him too. Given my answer, however, I hope that the noble Lord, Lord Tope, will see fit to withdraw his amendment.
Lord Tope (LD)
My Lords, I am grateful to the Minister, particularly for revealing how close he came to a criminal conviction on this. The fact remains, whether we like it or not, and generally the public do like it, that there are 20 mph speed limits not just all over London but all over the country, which are by and large not enforced, and drivers know it. Their being disregarded in such a way brings the law into ridicule. As I said in my opening comments, I accept that we have an issue here. I have discussed it with my noble friend Lord Paddick, who I first had discussions with when he was borough commander in Lambeth and I was chair of the Metropolitan Police Authority’s finance committee, when he told me Lambeth was not sufficiently resourced.
These issues must be tackled. We cannot go on with a lot of 20 mph speed limits which most motorists take no notice of, and absurd and ludicrous enforcement rates. I said this is the start of a process; I hope the Government will engage in debate and conversation about how to tackle this, and work with London borough councils and others—as this is a nationwide issue—to see how we can better solve this problem. We do not want this to be batted back and forth like the parking debate in London 30 years ago, when the Met believed they would be severely disabled if they were not enforcing parking in London. I bet they would not say that now. If we asked the Met to take back responsibility for parking in London, your Lordships know what the reaction would be.
I will withdraw my amendment, but this debate will not go away. I hope that the Government, local authorities and others engage in positive thinking about how we solve this and make local authorities, which are by and large responsible for getting the 20 mph speed limits introduced, responsible—I stress the word—for their enforcement too. I beg leave to withdraw the amendment.