Monday 8th November 2021
(3 years 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)
“Alcohol limits
(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood,”.(4) For paragraph (c) substitute—“(c) 67 milligrammes of alcohol in 100 millilitres of urine,”. (5) In section 8(2) of the Road Traffic Act 1988 (choice of specimens of breath), for “50 microgrammes of alcohol in 100 millilitres of breath” substitute “31 microgrammes of alcohol in 100 millilitres of breath”.”
Lord Brooke of Alverthorpe (Lab)
My Lords, Amendment 157 would insert a new clause to lower the drink-drive alcohol limit in England and Wales from 80 milligrams to 50 milligrams of alcohol for 100 millilitres of blood and to make appropriate adjustments for breath and urine samples too.
I remind the House that I moved a similar amendment to the Road Traffic Act at Second Reading of a Private Member’s Bill on 29 January 2016. A full report is in Hansard of that date—in vol. 768, no. 102. I spoke then for 20 minutes. I reassure noble Lords that I am not going to do anything like that today.
Noble Lords
Lord Brooke of Alverthorpe (Lab)
However, on rereading this speech, I was so pleased with the evidence-based arguments that I had advanced—which, as I say, I am not going to repeat this evening—that the more I read it, the more I realised what a shame it was that although the Bill went through this House, and I remind my colleagues here that they voted for it last time around, the Government would not give it time when it went to the Commons for it to be dealt with there.
Since 2015, matters have got worse rather than better, particularly in the last two years. The figures plateaued between 2015 and 2018, but we saw some serious injuries and deaths in 2019—a total of 2,050. A total of 230 people died, up from 200 in 2015, when I last addressed this issue. There was also an increase of 8% in seriously injured casualties compared to 2018. Will the Minister confirm whether the figures I am quoting are correct? If I am not right then I would be pleased to be corrected, but I think I am on the right track.
This country had a very good record in the last century. We led most of Europe. We trailblazed in addressing injuries and deaths on the road and all the aspects of them. However, over the years our leadership has started to diminish. This is in part because we have been unwilling to change. Had we gone back to my 2015 data, I would have been talking about Baroness Castle and the way that she introduced it, and asking how we alighted on the 80-milligram figure. It was plucked out of the air with not a great deal of evidence behind it, and work done subsequently indicated that it was very high indeed and should have been lowered.
We have ended up here, where we see that the rest of Europe is at 50 or below, with some as low as 20, and only two countries—England and Wales and Malta—have retained the figure of 80. The question is: have we done the right thing in persisting with holding to 80? Some of the Scandinavian countries that are doing extraordinarily well in reducing deaths on the road are way down at the 20 milligrams level.
Why do these countries have lower limits? It is because all the evidence shows that 80 milligrams in the blood increases the risk of a driver’s involvement in a collision, by three times for collisions leading to injuries and by about six times for collisions leading to death. Even at the lower BAC level of 50 that I am advancing in my amendment, and I am grateful to my colleagues who are supporting me—the noble Baronesses, Lady Randerson and Lady Finlay, have put their names to this amendment—carries substantial risks for people who are inebriated at that level. It is not an easy ride; it is a risky one. Those levels of risk, if the Government are prepared to accept our figures, would be reduced respectively to about 1.5 and 2.5 times more, by comparison with the figure of 80 milligrams. That is a stark difference.
I ask the Minister to say why the Government declined in 2016 to make the change and whether these academic assessments are right that we are permitting people to legally drive at a limit that is a danger to life and limb and we refuse to change it. Where is the evidence for continuing with what we are doing at the moment?
The Scottish Government, as we are aware, cut the limit to 50 milligrams in December 2014, Northern Ireland has legislated to follow suit, and the Welsh Government would like to do the same if they had permission from us. Initially, Scotland saw a decrease in the number of deaths and injuries, but later reports show that what has been happening there is not quite so encouraging as they first experienced.
I will be very straight about the facts. I am not going to pretend that it produced as good a result in Scotland as we would have liked, but there are some other factors to be taken into account there. They did not run any particularly big advertising campaign to try to drive it home. They did not give any further resources to enforcement. There is a range of things they could have done to make it more effective. Initially, certainly, there was some beneficial change. Lives were saved. If a few lives were saved, I am sure they would argue that it was worth doing. They probably need to do more now. The Minister was nodding. I anticipate that he will quote Scotland and say that they need to keep an eye on it—the Scottish results are not convincing enough for us to change.
I have identified a weakness, and I share the view that enforcement is vitally important. With the help of the noble Earl, Lord Attlee, we have produced a solution on the enforcement front in Amendment 164, to which he will speak at greater length. We always try to be helpful. It is important to cut the number of deaths and the rising number of serious injuries. We must find any possible way to discourage people from drink-driving. Reducing the limit to 50 would be a discouragement. Support for the second amendment, to introduce random breath testing, need not necessarily mean incurring the use of greater resources. We believe that, on balance, it would provide a deterrent which would have a very dramatic effect on the way thatusb people who still continued to drink and drive would respond.
There is evidence from abroad. It has been particularly effective in Australia, where they have followed this practice. Australia had a very bad record on drinking and driving. The introduction of random breath testing has changed it quite dramatically. People no longer drink and drive as they used to do. Lifestyles have changed. We can do the same in this country.
The life of each individual is unique. It behoves us to take every opportunity to end the selfish killing and maiming by drunk driving. There is a particular category of repeat offenders. The reality is that the police often know who these people are, but unless they commit a traffic offence, the police cannot stop and breath-test them. If the second amendment is adopted, along with the first, I believe it would make a quite dramatic change in lifestyles and in respect for each other. Random breath testing would reduce deaths and injuries.
Driving under the influence of drugs is also an important issue to be addressed. We are not endeavouring to do this, or to complicate the issue here. In this context, we are simply dealing with alcohol. We will need to come back and look at people who take drugs. For the moment, this is about alcohol. It is about a relatively modest change with no great requirement for additional resourcing. It is about focusing on the area that really needs addressing. I trust that, this time round, the Government are prepared to support it, rather than to oppose it in the way that they did last time.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to this amendment. I declare that I chair the Commission on Alcohol Harm.
This amendment would simply bring us in line with other EU and Commonwealth nations. It has been estimated that this amendment alone could save at least 25 lives a year and prevent 95 casualties. This may not sound like a large number, but the majority of those who die on the road are young adults or children in accidents involving drink-driving. Men are far more likely to have been drinking: 78% of male drivers were involved in drink-drive accidents, against 69% of men in other types of accidents. Where casualties are involved, the numbers are also higher for men—67% where alcohol was involved, against 60% for all reported accidents.
Sadly, Wales does particularly badly, with a higher percentage of casualties in drink-drive accidents than in Scotland or England. When we look at the age of people involved, it is quite chilling. Most of the pedestrian casualties are children and young adults, most of the pedal cyclist casualties are children and young adults, and the motorcyclists are young adults. The car occupant casualty rate is higher when alcohol has been involved in the accident. The drink driver does not only kill themselves; the tragedy is that they will kill somebody else’s child or parent. If death is not the outcome, life-changing injuries often are. It has been estimated that around 5%—one in 20—of all casualties in reported road accidents involved alcohol in one way or another; often at least one driver or rider was over the drink-drive limit.
I look back in horror at my childhood, when “Have one for the road” was said as somebody left the house after coming round for dinner. The accident rate then was absolutely appalling; many people of my age can probably remember somebody who died in one of those accidents. However, if we look at 2019, despite Covid looming across Christmas and the festive season, there were 230 verified drink-drive fatalities, with a provisional estimate of 280 fatalities for that year involving drink. That constituted 13% of all casualties on the road, and there were 7,800 drink-drive casualties, accounting for 5% of all casualties on the roads.
In the report from the alcohol harms commission that I chaired we pointed out that in 2017, the Department for Transport estimated that 310 pedestrians and 110 cyclists were casualties in drink-drive accidents, including 60 children aged nought to 15. One police witness, Sergeant Mick Urwin, described the impact of drink driving. Apart from the perpetrators, who lose their licence and often their job and may be imprisoned, the greatest impact is on the family of someone killed or seriously injured by a drunk driver. It is devastating. He explained that
“delivering a death message to a parent, brother, sister, son or daughter to inform them that someone has been killed by a drink driver is not something I ever got used to.”
We had evidence from the ex-wife of an alcoholic about how difficult it was to persuade her children not to get in the car if they thought that daddy had had a drink. Fire officers told us that they now rescue more people from road collisions than house fires, and many of them are due to drunk-driving. A survey by Drink Wise, Age Well of 16,700 people over 50 found that drink-driving was commonplace among high-risk drinkers: 30% reported that they had driven when they thought they were over the legal limit in the preceding year. That is a huge number of people who are aware that they have drunk too much but who think they will get away with it.
If one young parent dies in a drink-drive accident, they are likely to leave orphaned two or three children. Those children’s life chances are seriously damaged, with higher rates of mental health problems and lower school attainment; they are less likely to get into higher education; and they are at a higher risk of suicide later in life—in other words, this year’s drink-driving fatalities leave decades of societal difficulties ahead. The tragedy is that these are avoidable accidents. The simple message: “Do not drink and hold the car keys” is the one to give the public. We all know that simple messages work. We all know that legislation gives messages. That, combined with the simple message that one in eight road deaths involves a driver over the limit, can be enough to bring about the change that we need across society. I do not know of anybody, other than perhaps those in the alcohol retail industry, who objects to lowering the drink-drive limit. We have an NHS that is struggling, a court system with backlogs, and terrible backlogs for psychological support services for young children who are bereaved.
We had a debate earlier about road safety. Nobody will be damaged by lowering the drink-drive limit, but every year hundreds of people will die, and thousands will be damaged, by not acting now. I hope the Government will see it is time to come in line with the rest of the Commonwealth.
Earl Attlee (Con)
My Lords, I rise to oppose Amendment 157 and speak to Amendment 164 in my name and that of the noble Lord, Lord Brooke of Alverthorpe. I am currently drinking only small amounts of alcohol, so I have no personal interest in this matter.
I have listened carefully to the arguments in support of Amendment 157, but I still do not believe it will have the effect desired. I think that all noble Lords in the Committee will agree that any consumption of alcohol will lead to a deterioration in driving standards and increase the risk of an accident. The noble Lord, Lord Brooke, asked where the current limit comes from. The Grand Rapids study of 1964 showed that the risk of having an accident rapidly increased at a blood alcohol concentration—BAC—of 80 milligrams per 100 millilitres of blood or the equivalent. That is why our current limit is set at that level, and I think that is the correct level.
My understanding is that compliant drivers feel uncomfortable driving with a BAC of more than 30 milligrams. My feeling is that the majority of drivers adhere strictly to a limit of 50 milligrams in any case, and when they are caught driving at more than 80 milligrams, it is often a stupid, but criminal, mistake which can arise for a variety of reasons which I will not weary the Committee with. The evidence for this contention is that when the 50-milligram limit was introduced in Scotland, the initial compliance improved by only 12% and I suggest that when a contravention occurred and was detected, it was often the kind of “mistake” I referred to. In this country, we rightly have severe penalties for exceeding the current limit; it is also socially unacceptable. Other countries, as observed by noble Lords, have a limit of 50, but without the severe penalties, at that BAC, that we have.
After the Scottish Government lowered their BAC limit, the noble Lord, Lord Brooke, and I were very keen to see the data, but, I suspect, for slightly different reasons. I was worried that I might be wrong. If that had turned out to be case, I would be supporting Amendment 157. The Scottish Government commissioned research to measure the effect of their changes to the BAC limit. The conclusions were that the change made no detectable difference to the accident rate in Scotland. I never expected it to, and I will explain why in a moment. The Committee will have been grateful for the frankness of the noble Lord, Lord Brooke, when he touched on this point.
The proponents of Amendment 157 will have to explain to the Committee why they think the results in England and Wales would be any different from those in Scotland. According to 2019 DfT statistics, of a sample size of 243 dead drivers, 34% had a BAC of 10 or more, so had been drinking, 25% had a BAC of 51 or more, 23% of 81 or more, 22% of 101 or more, 16% of 151 or more, and 5% were at 200. What these figures show is that most non-compliant drivers are not just slightly over the limit, but far over the limit.
I have argued from the government Dispatch Box that there is a cohort of drivers who are unregulated drinkers. They are clinically dependent upon alcohol, they do not know how much they have been drinking, and they pay absolutely no attention whatever to the legal limits—thus, changing the limit will have no effect on them. The police do not find it very difficult to detect drunk drivers who have made the criminal mistake I have already referred to. They tend to overcompensate and drive too cautiously, and so give themselves away, and thus can be legally stopped by the police. Unfortunately, an unregulated driver is much more difficult to detect. They will drive fluidly for relatively short distances, and therefore with a lower chance of even being seen by the police, let alone being caught.
As proposed by the noble Lord, Lord Brooke, the only way of dealing with and detecting these very dangerous drivers who are unregulated drinkers is for the police to undertake operations where they stop every driver to check that they have not been drinking. I accept that the amendment might not be perfectly drafted, and that some civil rights precautions may have to be put in. However, not only would the police detect more of these very dangerous drivers but the deterrent effect would be considerable. Although it may be imperfect, Amendment 164 achieves this.
Baroness Jones of Moulsecoomb (GP)
My Lords, I declare an interest as president of the Road Danger Reduction Forum. I support both these amendments. It is absolutely ridiculous that we have such high alcohol limits, and we really ought to bring them down. We should say that no alcohol is permitted when you are driving—when you are in charge of a tonne of metal.
I want to make a small point, but it is something that road safety campaigners care very much about. We have heard the word “accident” used a lot. Road safety campaigners ask that we do not use the word “accident”, because that presupposes that it was accidental. It prejudges the situation, and that is clearly not right when something might come to court. They ask instead that we use the words “incident”, “collision” or even “crash”, but not “accident”. There is also an argument for saying that we should not use the words “road safety”, because that is the solution to the problem; the problem itself is “road danger”. We have to get our head around these differences, because it changes the way we perceive such situations.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will not repeat what I said earlier about my own mother having been killed because of a drunk driver—though I did not mention at the time that I also lost my brother-in-law in a different accident. The people who did this were not dependent, unregulated drinkers at all; they were perfectly normal people, who got behind the wheel of a car when they had been drinking. As the noble Baroness just said, this is not accidental. It is deliberate: these people have a drink and then get into a car.
But things have altered in those 60 years. I mentioned seatbelts earlier, and there has obviously been the breathalyser. When I first started campaigning on this, the Government’s Christmas campaign that year was “Stay Low”—it was not even “Don’t Drink”. So we have made enormous progress, and we should not forget that. But it is a journey, and we have not got there yet. We ought to continue on that journey.
Listening to some of the earlier debate, I heard the argument that the way to solve this is not to use sentencing or to send more people to prison. I have a lot of sympathy with this. I think there are times when prison is right, but what we actually want is prevention: we want to stop people getting in a car after they have had a drink.
Just like the changes I have mentioned, we also have to celebrate the fact that the Government and industry have done a lot. There has been a really good dialogue. There is now zero-alcohol beer—my fridge at home is full of it—that tastes very good. It is not like the early stuff; it is very good. There has been a big investment by industry to make that available—you can now get my favourite tipple, Guinness, with zero alcohol. There is the acceptability of water with meals, and a number of pubs serve coffee. We have to accept that this has been a whole-society move, but, as I say, we should not just stop where we have got to; we need to continue on the journey.
Just as the industry has been very good, we should acknowledge what the Government did in the Budget, when they moved to what a number of us have been asking for—oh, for lots of years: that the tax on alcohol should correlate with the strength of the alcohol in the drink. The Government have done that. It will take time for it to be implemented, but we are moving in the direction of understanding that. All of those are great things. It means that there is a much greater choice of drinks, either in the pub or while drinking at home.
However, there is still a problem: people are getting into cars when they have been drinking. I find it extraordinary, even at 50 milligrams. I do not drink at all when I am driving because I know that my foot would simply not hit the brake as fast, even after one drink. I know it would not, so I do not do it at all. Driving round London at the moment, even at 20 miles an hour, I see some cyclists—and I am a cyclist—going round without lights on and wearing dark clothes; you often have to hit the brake very fast. We may need to continue to move that way.
Therefore, I really favour this drop to 50 milligrams. It works very well in France, where much more is done, with proper random breath tests—closing off a road and checking everyone going through. That is what I would like to see. You do not have to do it very often, by the way, just every now and again.
The other possibility—I know we have discussed it in earlier debates—is whether we could move at least to 50 milligrams for new drivers; say, in the first five years of being qualified. My guess is that, once they get used to driving without drinking at all, they would continue that through life. I think some thought and creativity could be given to that.
We need to go further. I hope the Government do not say that they are doing everything they can, that they have an advertising campaign, that everything is brilliant and that we do not need to move any further. While sometimes they have come through Private Members’ Bills, often the changes we have had have been from the Government, whether through Barbara Castle or others. There is a responsibility on the Government to take it a bit further. Therefore, I hope that the response we get will be “Yes, it is time to do more”. And these may be just the two amendments that we need.
Lord Paddick (LD)
My Lords, very briefly, from my professional experience, there is no safe level of alcohol for a driver. The message should be clear to all drivers that you should not drink and drive. I think that the limit should not be set at zero, because you can still have alcohol in your system the following day and there may be a need for some leeway, but at a level a lot lower than is currently the case. Certainly, the levels that are suggested in this amendment are reasonable. There needs to be a significant reduction in the alcohol limit, but perhaps not set at zero.
The other thing to say—I am sure the Minister will address the Committee on this—is that I am not sure that the second amendment is necessary, as the police are entitled to stop any driver to check their documents. If they then detect alcohol, provided the officer is in uniform, they can administer a breath test. I will leave that for the Minister to confirm.
Baroness Randerson (LD)
My Lords, I added my name to Amendment 157. I need to say very little following the speakers today, who have greater expertise than I have—and, of course, the noble Baroness, Lady Hayter, has her own tragic experience to bring to this debate.
I spoke about this issue during Oral Questions last week, and I just want to emphasise a couple of points that I made then. The limit we currently have is 54 years old; the science on which it is based has moved on, and it is outdated. We are not leading the world; we are lagging behind the rest of the world. From Australia to Scotland and the whole of the rest of Europe, we are behind.
Lord Rosser (Lab)
My Lords, I am sure that the House will be grateful to my noble friend Lord Brooke of Alverthorpe and his co-signatories for raising these issues again. This is a vitally important debate. We know that prior to the last election, a Transport Minister said that the Government had no plans to change the drink-drive limit. They did not believe that a case had been made and instead would focus on enforcing the current law. However, in January 2021, the Parliamentary Advisory Council for Transport Safety reported that the UK’s current system to prevent drink-driving was no longer adequate. It recommended a major review across the board on drink-driving, including lowering the legal limit.
Rather importantly, on the issue of enforcement, the PACTS report found that:
“Levels of police enforcement had decreased by 63% since 2009 and there are indications that drivers believe they are less likely to be caught.”
We know that drink-driving is one of the biggest causes of road deaths, at 13%, and that in the last decade 240 people have been killed each year where a driver was over the limit and that 17% of drink-drive offences are committed by a reoffender. We also know that levels of police enforcement have decreased quite substantially.
It is relevant to ask the Government what they are doing in this regard. Having said, prior to the last election, that they would instead focus on enforcing the current law, clearly that is not what has happened. Indeed, the situation appears in that regard to have got worse. Are the Government actively looking at international comparisons that have been referred to today, and the fact that we are higher when it comes to the legal limit than virtually every other country? Have they been looking at, for example, random breath tests? What do they make of the evidence? My noble friend Lord Brooke of Alverthorpe, has been open about Scotland having introduced a reduced drink-driving limit in 2014 which brought them into line with most other countries in Europe. My understanding is that it has been accepted by the public and, interestingly, it has not significantly impacted pubs and restaurants, which was one of the arguments against going down the same road as Scotland. It does not appear to have overloaded the police or the courts, which was another argument, and it seems that Northern Ireland may go even further, at least with a zero limit for novice and professional drivers.
I will listen with interest to what the Government have to say about why we should be so far adrift on international comparisons, and to what the Government have to say regarding the situation in Scotland. I appreciate that my noble friend Lord Brooke of Alverthorpe has given a very accurate statement of the situation, but those arguments which were advanced at the time for not bringing us in line with Scotland, in relation to impacts on pubs and restaurants and the police and courts, for example, have not materialised, as far as I know. I wait to be corrected if I am wrong.
The PACTS report recommended, among other things, mandatory breath-testing powers for the police, a reduction in enforcement levels to be reversed, a lower breath-test limit for England and Wales and for the Government to pay more attention to drink-driving, alcohol harm and night-time economy policies. When he was commenting on the report, the executive director of PACTS said that:
“After 10 years of declining levels of enforcement and social media campaigns aimed at young men, it is time for a new, more comprehensive approach to reducing the toll of drink drive deaths and injuries. Drink driving is often cited as a road safety success story, yet it remains a major killer and progress has ground to a halt since 2010. Not only is better enforcement important but also the problems of mental health and alcohol dependency need to be recognised.”
What has come across in our debate this evening is a recognition that we seem to have stopped making progress; and we are still much higher compared with most other countries involved in the international comparisons. Some of the things that were said about Scotland—that it would be a difficulty if we came down to their level—have not materialised in Scotland. Drink-drive deaths are still at an unacceptable level. We seem to have stopped making progress.
I hope that in the Minister’s response we are going to hear what plans the Government have to bring down the level of drink-driving. It is not good enough that somebody puts forward a proposal to lower the limit and the Government do not agree with it. If the Government do not agree with it, what do they intend to do to improve the situation? Arguments have been advanced tonight as to why bringing down the limit would improve the situation. You can certainly say with random testing that, if the limit is lower, the chances are the random testing is likely to have a more dramatic effect than if the limit is at the present higher level—where we seem to have reached a situation in which a number of those who drink and drive seem fairly convinced they will not be caught or get into difficulties as a result.
I hope we will hear from the Minister tonight what the Government are doing. I hope it will not just be a case of the Government saying, “We don’t agree with an amendment to bring it down to 50, we don’t agree with an amendment about random breath testing”, because if that is their response, it is purely negative. It is saying “We are not prepared to go down the road of the ideas that have been advanced, but we do not have any fresh ideas ourselves—we do not have a programme for reducing drink-driving”—and that, surely, is what we all want to do in view of the level of deaths. I hope we will get a positive response from the Government and a recognition that we need to do something, not rejection out of hand of every idea that has been put forward in our debate this evening.
Lord Sharpe of Epsom (Con)
I am grateful to everybody who contributed to this debate, and I am particularly grateful to the noble Lord, Lord Brooke, for setting out the case for these amendments. I reassure the noble Lord that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. The Government are committed to tackling drink-driving and ensuring that those guilty of this offence and all such offences are detected and punished. I am unable to confirm his precise figures, but for 2019 the final estimate was that between 210 and 250 people were killed—in deference to the noble Baroness, Lady Jones of Moulsecoomb—in incidents, where at least one driver was over the limit. If I can improve on those figures I will write to the noble Lord.
That number is broadly in line with recent years. We have a combined approach of tough penalties and rigorous enforcement along with highly respected and effective THINK! campaigns. This reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others. The Government are obviously aware that the drink-drive limit in England and Wales is one of the highest in western Europe, hence our approach, which I have just outlined.
Turning specifically to Amendment 157 to change the prescribed limits, it is unclear whether it would deliver the desired result—a point well made by my noble friend Lord Attlee. More work needs to be done to see if there will be any such benefit as a result of a reduction in the drink-drive limit. The recent academic study by Bath University demonstrated that there had been no benefit to road safety in Scotland as a consequence of reducing the drink-drive limit. This research highlighted there being no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland in December 2014.
The Government note—as the noble Lord, Lord Tope, predicted, I am afraid I have to say this—that the University of Glasgow published an independent evaluation of the impact of the reduction of the legal blood alcohol limit in Scotland in the Lancet in December 2018. This evaluation took advantage of the natural experiment created by the lowering of the limit in Scotland only and compared data on weekly road traffic collision rates and alcohol consumption, based on off and on-trade sales data, between Scotland, the intervention group, and England and Wales, the control group. The study found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated with a small reduction in per-capita alcohol consumption from on-trade alcohol sales, to the point from the noble Lord, Lord Rosser.
Another area that the Government would want to explore in detail is any effect of minimum pricing of alcohol on drinking and driving. We are aware that there is also a public health aspect to drink-driving in both prevention and rehabilitation of those convicted for such an offence.
Earl Attlee (Con)
If the police stopped every vehicle travelling along a certain road, how would that be unfair and disproportionately impact certain communities?
Lord Sharpe of Epsom (Con)
With respect to my noble friend, it would very much depend on the road and how the policy was being implemented, which would be an operational consideration, but I take his point.
I am very happy to put the noble Lord, Lord Brooke, and others who have spoken in this short debate in touch with the Road Safety Minister in the Department for Transport so that they can continue to discuss the further important issues raised by these amendments. I can sense the mood of the Committee, and the noble Baroness, Lady Randerson, quoted some very powerful statistics on public attitudes here, so I urge noble Lords to seek that meeting.
Finally, before I ask the noble Lord to withdraw his amendment, I associate myself with my noble friend Lord Wolfson’s remarks about the personal comments from the noble Baroness, Lady Hayter; she has my deepest sympathy. For now, I invite the noble Lord to withdraw his amendment.
Lord Berkeley (Lab)
Before the Minister sits down, would I be right in saying that, five years after my noble friend made his previous speech, which apparently lasted a bit longer, the number of convictions for drink-driving has gone up by 25% and all the Government can offer is that they will study the figures for a bit longer and do nothing else? Am I being unfair?
Lord Sharpe of Epsom (Con)
With respect, I do not know whether the noble Lord is being unfair, because I do not have the statistics. I will write to him.
Earl Attlee (Con)
My concern is that the Minister does not seem to have any policy that directly targets those drivers who I would describe as unregulated drinkers. His policy may have an effect on people who have made the mistake that I referred to and have around 80 milligrammes of alcohol in their blood, but for the unregulated drinkers who drive far in excess of the legal limit, his policies seem to be totally irrelevant.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to all noble Lords who have taken part in this short debate. Other than the noble Earl, Lord Attlee, who raised some objections, and I will come to them in a moment, the noble Lord, Lord Paddick, who raised a point about what the police can and cannot do, and the Minister, who had a different interpretation, I think everybody has been singing from the same hymn sheet. The evidence is there and it has got worse. The Government have the opportunity today to set out their stall on what they intend to do. While the Minister has done his best, he has been trying to make bricks without straw. I think the group is very happy to come together and have a meeting with appropriate people on the Government’s side. We will be very pleased to do that, but I give the Minister due notice that this is coming back on Report. It is not going to be left as it is at the moment; some change is required.
Regarding 50 milligrams, I would probably go for 20—the Scandinavian figure. I am sure that the Minister would argue it would make no difference. What matters is the message that is sent to the public at large about what is and is not acceptable. It is wrong that the Government permit a dangerous limit to be in force. Okay, 50 may not be the right limit, but it is less dangerous. I say to the noble Earl, Lord Attlee, that the evidence comes from the work to which we referred. It did not look just at the 80 but at 50, and the further down you go, the less the risk. It is a simple fact of life. The Government either accept it and live with it or change it. I believe that the public are ready for change and that it is wrong that so many people are being maimed and having serious injuries, and the number has been rising. This needs addressing. This matter will come back.
I was very reasonable. I did not make a great thing about Scotland, as I know that some of the evidence is not helpful. There are other counterarguments, which my noble friend Lord Rosser on the Front Bench, advanced in defence of the Scottish position but it is not as comforting as we would wish. The issue is about how we relate to the public at large and how the Government project what is needed to make a change. We are not looking to involve a great deal more police in it or to upset people by being disproportionate. We are looking to present a deterrent. Most people will change their attitude if they think they are at risk of being stopped, and we would start to see some change taking place. We will have the meeting but this will be back on Report.
I suggest to the Minister that he should explore being a bit more flexible. We are prepared to put a sunset clause in the amendment so that the Government can go back to 80 if they wish or to run an experiment, but it is time to make some change rather than leaving life as it was way back in 2015 and see a continual worsening of the position. I beg leave to withdraw the amendment.
Baroness Randerson
“Definition of “exceptional hardship”
In the Road Traffic Offenders Act 1988, after subsection 35(4), insert—
“(4A) In subsection (4)(b) above, the hardship that would be caused by an offender’s disqualification should be regarded as exceptional if and only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.(4B) In assessing whether the hardship arising from the offender’s disqualification would be exceptional, a court may take account of—(a) any circumstances relating to the offender’s economic circumstances or location of residence that would make it exceptionally hard for him to access key services such as grocery shops and postal, banking and healthcare facilities,(b) any hardship that would be incurred by the offender’s family or others who are disabled and who depend on the offender to provide care for them, and(c) any other circumstance which it believes would make the hardship genuinely exceptional.””Member’s explanatory statement
This new Clause provides a definition of “exceptional hardship” for the purpose of RTOA.
Baroness Randerson (LD)
My Lords, at various points in the Bill, the Government are seeking to increase penalties and create new offences, but it is fairly pointless increasing penalties on paper if you regularly allow people to avoid them through what has effectively become a legalised loophole. People avoid a driving ban under the totting-up procedure by pleading exceptional hardship. The problem is that this excuse is being used far from exceptionally. I recall, when in court as magistrates, that we would expect such a plea from some solicitors as a matter of routine for all their clients. The reality is that the definition of exceptional is very broad and applied unevenly.
To give an example, in 2015 Christopher Gard killed cyclist Lee Martin. It was the ninth time he had been caught using his mobile phone while driving. Magistrates had repeatedly accepted that a ban would cause exceptional hardship. There is a case on record of a man being allowed to continue to drive because of the “exceptional hardship” it would cause him if he could not walk his dog—he had to drive a mile to the local park to do that.
This amendment provides a definition of “exceptional hardship”. It is exceptional
“only if it is significantly greater than the hardship that would arise … if the same disqualification were imposed”
on the great majority of drivers. To assist, it gives examples of what the court can take into account.
For example, where you live: if you live 10 miles from the nearest shops and healthcare facilities, halfway up a mountain with no bus service nearby, the ability to drive is clearly very important to you—although, of course, if you live with other family members, you would not be likely to face exceptional hardship because they could probably drive you there instead. If you have to drive as part of your job and will presumably lose your job if you cannot drive, then that would be exceptional hardship; although one wonders whether any employer would want such a bad driver. At the moment, with the shortage of drivers, they might put up with it but in normal circumstances, not so. Clearly, if you are disabled, or a carer on whom a disabled person relies for being taken to the shops, to healthcare and so on, then you would experience exceptional hardship if you could no longer drive. The noble Lord, Lord Berkeley, and I are not being hard-hearted; we are, instead, seeking to ensure that the “exceptional hardship” proviso is used as it was intended to be used.
Finally, to give this some context, in 2020 in England, 33,196 drivers were disqualified under the totting-up procedure and 8,764 people are currently driving around with more than 12 points on their licence. Noble Lords will immediately see from those figures that the “exceptional hardship” plea is being accepted in such a high proportion of cases that it cannot be regarded as exceptional. I urge the Government to give consideration to the need to tighten up that definition.
Lord Berkeley (Lab)
My Lords, I support this amendment and I shall add just a few words to the noble Baroness’s excellent introduction. I have a friend in Cornwall who is quite famous and about a year ago he was caught driving at about 80 mph in a 50-mph zone. He already had 12 points on his licence, so he pleaded exceptional hardship because he had to visit his ailing mother every day. He was allowed to keep his licence. Two months later, exactly the same thing happened and he made the same plea. As noble Lords will know, you cannot make the same plea twice for the same offence and the magistrates took away his licence, which made him very angry. But he should not have been angry, because there is an easy solution to this: do not do it in the first place.
The noble Baroness gave many examples of exceptional hardship. I could give a lot more, but I am not going to at this time of night. However, there is a solution to this, which is, do not do it in the first place. Stick to the speed limit, do not go through red traffic lights or whatever else people might think about.
This is not a question of hardship. It is a question of not doing it in the first place so that you are not taken to court and maybe convicted. The definition that the noble Baroness has put in this amendment is a very good one. If the Minister does not like it, perhaps he can come back with an alternative before we get to Report, but we need to find a solution to the 83,000 drivers who have escaped driving bans in the past 10 years because, unless they learn to behave, driving is going to get more dangerous. I hope that the Minister will agree at least to look at the text and come back with something else before Report.
Lord Russell of Liverpool (CB)
My Lords, I support the noble Baroness, Lady Randerson.
In doing a little bit of research for this, I went on to the internet and put in “road traffic offences exceptional hardship”. I think I referred in an earlier intervention earlier to the huge legal business that exists to assist drivers who wish to contest some of the allegations against them for their driving. If you put that phrase into a search engine, first of all, you find a huge number of law firms giving you chapter and verse on the ways in which one can plead exceptional hardship. Pressing where it says “videos” gives a whole series of videos where very convincing lawyers, looking very smooth, tell you with a great degree of confidence—probably on the basis of some financially lucrative experience—just how it is possible to contest a ban and plead exceptional hardship. The very fact that it is so easy to find and is clearly a large and lucrative business tells us immediately that something is clearly wrong. The law is, to some extent, making an ass of itself. For those who are able to benefit from it, it is a very profitable endeavour.
Having a licence is not a right; it is a privilege. If people misuse and abuse that privilege, it is completely right that it should be removed. An awful lot of those people who do regard it genuinely as a right, and are deeply affronted at the idea that they should be stopped, are precisely the people against whom a ban is the most effective. In many cases, their driving and their ability to be seen by others driving, often rather flagrantly, is part of their persona and part of their identity. In a sense, removing their ability to drive is a form of emasculation. Despite being male, I am all in favour of emasculation when it comes to an egregious offence like that.
Again, we are looking at huge inconsistency. I will use only one example; it is such an egregious example that I hope your Lordships will forgive me. There is a gentleman called Alex McFarlane who, in only three months—between June and August 2014, so in one year—triggered safety cameras seven times and did not respond to a single penalty notice. In that three months, he managed to rack up a total of 42 points on his driving licence. When he came in front of the magistrates in Southend, what did he say? He said, “If banned, I will lose my job and my home, and I will be unable to pay off my debts”. The second point he made was the clincher. “Since the incident”, he claimed, “I have been treated for a nervous breakdown, which led to a spending spree and me incurring very heavy debts”. The magistrates accepted his plea. I rest my case.
Earl Attlee (Con)
My Lords, I rise to support the noble Baroness. My only complaint is that I do not think it is aggressive enough. I have driven for several decades. I have driven for hundreds of thousands of miles. Touch wood, I have never been prosecuted for a moving traffic offence. The penalty points system is a good system. If I picked up three points for speeding, or for some minor offence, I would be extremely careful not to reoffend. So I do not understand why, if people get a few points, they cannot take the lesson and be compliant. I strongly support the noble Baroness’s amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Earl, Lord Attlee, and actually agree with him for a change. The wording is not strong enough, so well done to the noble Baroness, Lady Randerson, for putting this amendment forward.
As the noble Baroness said, at the moment, “exceptional hardship” is anything but exceptional. I cite the case of a person who was exempted from a ban because he said that he had to walk his dog and drive to the nearest park, which was a mile away. I find that absolutely extraordinary; it leads me to think that magistrates ought to get a bit more tuition.
Essentially, points on a licence and the threat of losing that licence are an important part of ensuring that people drive safely and take care of other road users. Around 8,800 people are still driving despite having 12 or more points on their licence, and there is a whole industry of solicitors advising drivers on how to work the system in this way. It is very frustrating for the traffic police who care about enforcing the law and find themselves working hard to bring people to justice and get them convicted, only to see those people allowed to drive home after the case.
There are times when hardship may be truly exceptional, for example if an offender is the sole carer of a person with a disability who would suffer if the offender were unable to drive. Even then, it is a failure of the state if the only way a person with a disability can survive is by getting lifts from a person who is such a dangerous driver that they should not be allowed on the road.
Amendment 158 would ensure that “exceptional hardship” is a true exception rather than just a plea of convenience. Our current road traffic laws, as I started to say earlier, are based far too much on the convenience of drivers rather than justice and safety for other road users. This amendment would ensure that the very worst drivers on the roads do not have a convenient excuse to keep driving.
Lord Rosser (Lab)
This issue was also raised by my colleague, Ben Bradshaw MP, in the Commons. As has been said, exceptional hardship is the plea a person can use when charged with road traffic offences to avoid losing their licence if not being able to drive would cause them exceptional hardship. Obviously, as we have heard, the concerns about the system are that exceptional hardship is being agreed to too frequently for repeat offenders and in spurious cases.
What has quite clearly been asked of the Government —that is, what is being sought—is a tightening-up of the definition of exceptional hardship. I ask the Government to say in their response, first, whether, in their view, there is an issue with exceptional hardship being agreed to rather too frequently. Do the figures show that the number of times exceptional hardship is being agreed to is going up year by year? As I understand it, between 2011 and 2020, there were more than 83,500 cases where drivers did not receive a driving ban by pleading exceptional hardship. Do the Government have a feel for whether it is the case that instances of exceptional hardship being agreed to are increasing? Are they aware of any areas, perhaps in relation to courts, where there is what they regard as best practice, where the system is working well?
I remember once being told that “exceptional hardship” was something that people suffered, for example, at times of war. When it comes to the loss of a licence, perhaps we are talking more about a form of inconvenience than necessarily about hardship. Even in the more extreme case where somebody was able to persuade you that they would lose their job, presumably it is relevant to ask, “Well, that may be the case, but if it is for a short period of time, will the employer be prepared to live with it and give out other duties that do not involve driving?” Perhaps, if they are going to lose their job, it would suggest that the employer is not necessarily highly enamoured of their performance. But, even in a case where you might lose your job, it must surely be assessed against “exceptional hardship”: what would the individual’s prospects be at that time of getting another, completely different job that did not involve driving, if a ban would cause them to lose their job that involved driving?
I know that there are other instances where people come out with examples of it being almost impossible to get to work but where it turns out that, if they were prepared to get up an hour and a half earlier in the morning, they might be able to get there by public transport—but somehow it is regarded as an “exceptional hardship” to have to get up so much earlier to get there by public transport and it taking longer to get home. So I am aware of the way these arguments get used and put forward, and we need to be careful to draw a clear distinction between what is “exceptional hardship”, with a proper definition of “hardship”, and what may be closer to “exceptional inconvenience”.
I simply repeat what I asked earlier: do the Government have a feel for this one? Do they have any information on the extent to which “exceptional hardship” is being used and accepted more as an argument? Do they have any examples of where the wording is being applied in perhaps a more realistic manner, and are they looking to take action in this area? What is being asked for in this amendment is that we should tighten up the definition of what constitutes exceptional hardship. I await the Government’s response with interest.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords, and particularly the noble Baroness, Lady Randerson, for her explanation of this amendment, which seeks to define the term “exceptional hardship” that applies in the context of a court’s decision on whether to impose a driving ban.
I reassure the Committee that the Government take road safety extremely seriously. Drivers who reach 12 points should automatically be disqualified from driving, to protect themselves and others. However, sentencing, including the imposition and length of a driving disqualification, is properly a matter for our independent courts, based on the facts of each case—we have heard of a number of interesting and diverse cases this evening. Courts have the discretion not to disqualify, or to impose a reduced disqualification, if they are satisfied that there are mitigating circumstances justifying a claim of “exceptional hardship”.
This amendment to introduce a definition of “exceptional hardship” is unnecessary, detrimental to judicial discretion and of questionable utility in assisting a court in applying the “exceptional hardship” test. It would introduce a narrow definition that would not be able to account for all circumstances that were presented to the courts and would remove the courts’ freedom to use their experience to reach decisions accordingly.
It might assist the Committee if I read out the sentencing guidance that is already in practice—from my mobile phone. It says:
“When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following … It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn … Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence … Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive … If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account … Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.”
It concludes by saying:
“Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.”
I hope the Committee found that guidance helpful.
Baroness Randerson (LD)
I thank the Minister for her response and also thank noble Lords who have taken part in this short debate. I respond by pointing out that 12 points do not come out of nowhere; they are the result of repeated offences. In other words, drivers who acquire them have been ignoring the signs for a long while, in most cases.
I take issue with the Minister’s characterisation of this as interfering with judicial discretion. The amendment says that it would be exceptional
“only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.”
That is a simple indication of what “exceptional” means. It goes on to talk about the things the court could take into account, including
“economic circumstances or location of residence”
and any hardship to the family, especially to people who are disabled or for whom the offender provides care. Finally, it includes
“any other circumstance which it believes would make the hardship genuinely exceptional.”
That is about the broadest definition I can imagine.
Courts are used to having and following sentencing guidelines. The Minister indicated that to us, in some detail. I urge the Government, despite the Minister’s reaction, to look again at the sentencing guidelines to see what can be done. Of course, this is a probing amendment, but the statistics say it all: for one reason or another, the courts are not applying this in an exceptional manner, and the Government ought to look at why that is the case. I will of course withdraw the amendment.
Baroness Randerson
“Review of road traffic offences
The Secretary of State must carry out a review of all road traffic offences and penalties.”Member’s explanatory statement
This amendment requires the Secretary of State to carry out a review of all road traffic offences and penalties
Baroness Randerson (LD)
My Lords, this amendment simply calls for a review of road traffic offences. It refers back to the debate we had earlier. My amendment is very broad—and deliberately so. Other amendments are much more specific and deal with worthwhile issues, but the haphazard range of amendments laid to the Bill is a result of its broad coverage of topics. The amendments that have been laid are just a snapshot of a wide range of issues that require attention and modernisation. I do not believe that this Bill is the place for any kind of systematic look at road traffic offences; they need their own Bill.
The Government undertook a consultation and review in 2014 with that kind of action in mind, but nothing happened. Of course, that 2014 review is now hopelessly out of date and would have to be undertaken again. I want to run through a few of the issues that are significant today but which were hardly worthy of note in 2014. The first is e-scooters. The Government have dozens of so-called pilot schemes under way, but wherever you live in the UK, e-scooters are visible nowadays. They pose problems and need regulation. The situation has gone way beyond any form of government control. I suggest that the Government will find it difficult to impose regulations now after such a period of a lax approach, but they really have to do something about them. In practice, e-scooters are sold with no attempt to explain to people that they are illegal on public roads and pavements outside the pilot scheme areas.
E-scooters pose a danger. In 2020, 484 casualties were officially recorded as the result of e-scooter accidents. Of those, 384 were the users themselves, one of whom, a 16 year-old boy, was killed. Some 128 of those involved in accidents were seriously injured, including a three year-old girl who received life-changing injuries. Reports this year suggest that at least 11 people have been killed so far, but, of course, that has to be officially recorded.
Another issue that hardly featured in 2014 is smart motorways. I do not want to dwell on the details of those, because last week we had the report from the Transport Select Committee in the other place, but it recommended a halt to smart motorway developments until significant safety improvements had been made and more powers for the ORR to block schemes until safety concerns had been dealt with. Clearly the Highway Code needs amending to deal with smart motorways. Since only 29 miles of smart motorway have been running for five years or more, they clearly did not feature in 2014.
Other issues that need tackling are: autonomous vehicles—road regulations and layouts, driver behaviour and legal responsibility all need tackling as a result of those; the trend towards more 20-mile-an-hour zones, as we discussed earlier today; and the fact that, for environmental reasons, road layouts need to change to encourage more walkers and cyclists. Those are always put together in the same paragraph, but in fact their interests are not identical and can conflict.
Bikes themselves are not what they once were. The welcome increase in the number of people cycling, and more people using bikes to commute, means that cyclists are often in a hurry and there is often a conflict with pedestrians and other road users. Electric bikes, which are certainly a recent innovation, are on occasion ridden much faster than the legal limit of 15.5 miles an hour, because you can tamper with the maximum speed. Cyclists can and do injure and kill, as well of course as very often suffering in accidents themselves. Cyclists who cause accidents can be charged only under the 1861 Act, which I referred to earlier today, with “wanton and furious driving”. The fact that we have to refer to an Act that is more than 150 years old is an indication that there is a need for a proper and comprehensive review of road traffic offences.
For those reasons and a host of others, we need a review, not this Christmas tree of a Bill. This is a probing amendment and I will of course withdraw it in due course. However, my question for the Minister is simple: when can we expect a proper road traffic Bill? When can we look for a proper review to modernise our roads?
Lord Berkeley (Lab)
My Lords, I will speak briefly on Amendment 165 in my name and in the names of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Russell of Liverpool. We are grouped together with Amendment 159 in the name of the noble Baroness, Lady Randerson. I think we are both looking for the same thing, which is a review of road traffic offences, which we discussed a little earlier this evening. It seems that the time has come to put a time limit on this. We suggest two years from the date of the Bill’s enactment.
As I mentioned earlier, this started in 2014. In 2015-16, the Commons Transport Committee reported with an inquiry on road traffic law enforcement, the All-Party Parliamentary Group for Cycling and Walking reported in 2017, with an inquiry on cycling and the justice system, and in 2018 there was a Westminster Hall debate on road justice and the legal framework, which revealed a cross-party consensus on the need for wide-ranging reforms. Many of the amendments we have discussed tonight demonstrate the need for reform but also the very wide range, scope and potential, and to some extent the differing opinions, which is of course quite normal.
In addition to the groups I have mentioned, there needs to be discussion not just with road safety and road user groups but with representatives of the police, the legal professions and local authorities. It is interesting to reflect that, seven years on from 2014, we could have had that debate by now and we could be passing laws that would save lives by taking the most dangerous drivers off the road.
I hope I can persuade Ministers that there is time for such a review now. I suspect we will be told that there are no current plans. However, the amendments which we and other people have tabled to Part 5 indicate that a review is needed. I suggest that it is time to address the awful additional pain and deaths that so many people have suffered as a result of the failure to review and change the law, and I look forward to the Minister’s response.
Baroness Jones of Moulsecoomb (GP)
My Lords, I think we have made the point that there is a huge inconsistency between road traffic offences and other offences causing injury and death. The penalties are simply not similar in any way.
Many years ago, when I first started getting interested in traffic crime, I went out several times with the traffic police and saw a number of investigations and crashes. At the time, I was told about some incidents that had happened and the sentences that the drivers had got, and these were horrific crashes. A police sergeant working there said to me that if he wanted to kill somebody, he would use his car. He would either get off scot free or would get a minimal sentence because, finally, you can always claim that it is an accident.
Lord Russell of Liverpool (CB)
My Lords, I support both amendments, including that of the noble Lord, Lord Berkeley, of which I am a co-signatory. As discussed earlier, most UK road traffic legislation predates the modern era and lags some way behind. I am ancient enough to remember that in the 1950s, when travelling around probably at high speed with my mother in her two-seater red MG, RAC officers would stand to attention and salute as we went past, after seeing the RAC badge. That does not seem to happen any more. I can also remember the designer of the Mini, Sir Alec Issigonis of blessed memory. He had two rules when driving a car. First, he did not allow a wireless—as they were then called—in his car, because he thought that was a distraction. Secondly, if anybody was a passenger in his car, including Lady Issigonis, silence was required. He felt that any discourse was a distraction from driving. It is rather different now with the array of technology in one’s car, including technology allowing the car to talk back. Perhaps some people find that preferable to having their other half talk to them, but that is another matter.
I live in SW6, where the roads are like the wild south-west. I go around a lot by bicycle, and every day I see the most extraordinary and flagrant driving and bicycling. At a local Tesco Metro there is a security guard, who I know is there when his state-of-the-art electric bicycle is locked up outside. I spoke to him and looked at his bicycle, as it is a great deal more powerful than mine. I asked him, “How fast does it go?” and he said, “About 50 miles an hour.” I said, “Do you realise that’s illegal?” He said, “Oh yeah. I had it down the road the other day, and a couple of police officers came up admiring the bicycle, asked me how fast it would go, and were very impressed.” That is a strange state of affairs.
The noble Baroness, Lady Randerson, mentioned e-scooters, which I see all over the place. They are incredibly dangerous. The noble and learned Lord, Lord Hope, talked earlier about Edinburgh, where the bicycle lanes have been designed in such a way that they are now full of leaves. There is no equipment to clean them, so people are in mortal danger if they ride a bicycle in a bicycle lane. That is not good.
That is only part of the problem. As the Minister may recall, during the debate on some earlier aspects of the Bill, we talked in particular about a report from September by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It so happens that that same institution produced a report in July last year called Roads Policing: Not Optional. It looked at the state of road policing and the enforcement of the types of laws and regulations across England and Wales about which we are talking. If you are responsible for enforcement, it is not a happy read. It says:
“we found that the importance of roads policing has been in decline”
for many years. In some instances, it found police forces where the officers in charge of road policing were not familiar with the relevant road traffic laws which they were meant to enforce. It asked several questions about the state of enforcement of these laws:
“How effective are the national and local strategic approaches to roads policing? Roads policing in some forces is inadequate … How well are capability and capacity matched to demand? Often capability and capacity doesn’t meet demand … How well do the police engage with the public and partners? A lack of co-ordination hinders effective engagement with the public and partners … How well are police officers trained to deal with roads policing matters? Roads policing training should be standardised and accredited.”
It then made a series of 13 eminently sensible recommendations.
If we are to have a wholesale review of road traffic offences, it has to be done hand in hand with enforcement. There is no point in having laws and regulations if we are incapable of enforcing them consistently. You may say that the time is not now but, at some point in the future, we are going to have to do something before more and more people are killed and there are more and more complex remote vehicles, e-scooters and all the rest of it. Why not just acknowledge that and bite the bullet now, rather than kick the can down the road, which we have been doing for so many years?
Lord Rosser (Lab)
My Lords, I will be brief because I think that the arguments in favour of these two amendments have been made very powerfully. They are both intended to require the Secretary of State to carry out a review of road traffic offences and penalties. As has been pointed out, there have been so many changes with our roads and new vehicles in recent years as to justify in itself the need for the review which these two amendments seek. As I understand it, the Government promised a full review of road traffic offences and penalties back in 2014. So far as I know, this has not yet happened. In expressing our support for these amendments and for what they seek to achieve, I simply ask what has happened to the promised review so far as the Government are concerned.
Lord Sharpe of Epsom (Con)
I thank all noble Lords who have participated in this relatively short debate. As we have heard, Amendments 159 and 165 would require the Government to conduct a full review of road traffic offences. I shall make a number of brief points in response.
First, we do not consider it appropriate to include a requirement in legislation for the Government to undertake a review, especially in the case of Amendment 165 from the noble Lord, Lord Berkeley. The Government are concerned that this amendment sets out, without consultation or regard to practicalities, the terms of reference and timing of such a review. We are also concerned that the amendment does not fully grasp the range and complexity of the review which the Government would be required to undertake. Nor, might I suggest, does it consider who is best placed to conduct such a review—the Government, an independent body such as the Law Commission, or an expert panel.
Secondly, I point out the announcement of a review of driving offences and penalties in May 2014 by the then Secretary of State for Justice. The Government did conduct a review; I hope that goes some way towards answering the question from the noble Lord, Lord Rosser. As part of that internal review, we considered a range of concerns that had been raised by campaigners, victims and parliamentarians. In the debate on an earlier group of amendments, my noble friend Lord Wolfson committed to writing to the noble Baroness, Lady Jones of Moulsecoomb, and some of those concerned participants.
The review focused on the most serious offences that can result in death or serious injury, and the results are what we see now in Clauses 65 and 66 of the Bill. As we have already debated, the Bill includes provisions that will increase the maximum penalty for causing death by dangerous driving from 14 years’ imprisonment to life—again, I refer to the points made by the noble Baroness, Lady Jones of Moulsecoomb. Provisions in the Bill will also increase the maximum penalty for causing death by careless driving while under the influence of drink or drugs from 14 years to life imprisonment and create a new offence of causing serious injury by careless driving. These provisions have been long awaited, and they have widespread support. Those reforms also fit within the existing framework of road traffic offences. They are therefore consistent and proportionate responses and should be allowed to take effect before any further reform is considered.
I take note of the list that the noble Baroness, Lady Randerson, gave of other things she thinks should be considered, but, without going into detail on all of it, I will make just a couple of points. First, I mentioned in the group of amendments on pedicabs that there is a consultation on cycling which began in 2018 and is due to report towards the end of this year or the beginning of next year. I hope that will help to answer some of those questions about the changing nature of cycling. On e-scooters, they are of course illegal unless they are hired and, if the rider is not insured, they can be impounded. I take the points made by the noble Lord, Lord Russell, about enforcement very seriously—these rules are not being enforced, and they perfectly well should be. I also say to the noble Lord that I am extremely jealous of his mother’s red MG—my mother had a Ford Popular, and we used to have to hide on the back seat.
My last point is simply this: while we do not think it is necessary to legislate to require such a review, or to set out its terms of reference in such a restrictive way, the Government are not ruling out a wider review of road traffic offences in the future. As the noble Baroness, Lady Randerson, said, there will be a whole bunch of considerations when we have the advent of technologies such as autonomous vehicles—not just road traffic considerations but things such as who insures them, how you insure them, and whether you are insuring the car, the driver, the software or the hardware. There are a whole variety of different implications. We will, of course, keep the law under review both in terms of specific offences and where it is necessary to reform the structure of the legislation. But having had this opportunity to debate this issue, I invite the noble Baroness, Lady Randerson, to withdraw her amendment.
Baroness Randerson (LD)
I thank the Minister for his response and other noble Lords for participating in this short debate. I have to smile a little to myself because the Minister seemed to argue that the amendment would have been more acceptable if it had been more prescriptive and had tied the Government’s hands more. However, I realise that the Government have to find reasons not to accept an amendment.
I take issue with the haphazard approach of the Government’s transport-related clauses in the Bill. They are a series of unrelated issues plucked from dozens that need attention. I understand the problems that the police have in attempting to enforce the rules on e-scooters. E-scooters are sold in most cases with effectively no reference to what is legal and what is not. If a police force in area A has a pilot project and area B immediately next door does not, it puts the police force in area B in the difficult position of enforcing a series of rules about illegality that do not apply immediately next door or down the road. There are so many pilot projects that they have undermined attempts by the police to enforce the law.
Having said that, I hope the Government will bear in mind the need for review on so many fronts, and I will, of course, withdraw the amendment.
Lord Paddick
“Power of police to stop vehicles
(1) Section 163 of the Road Traffic Act 1988 is amended as follows.(2) In subsection (1), after “vehicle” in the second place in which it occurs, insert “, and switch off the engine,”.”Member’s explanatory statement
This new Clause to the Road Traffic Act 1988 would require a person to switch off their engine after being stopped by a constable in uniform or a traffic officer, and make it an offence not to do so.
Lord Paddick (LD)
My Lords, if the Committee will forgive me, I was not quick enough off the mark in the previous group when we were considering exceptional hardship. The Minister said that the Government opposed the amendment because it limited judicial discretion. As we will see in upcoming clauses, clause after clause of this Bill limits judicial discretion by means of primary legislation. I will remind the Government of what the Minister said in relation to that previous amendment when we come to those clauses.
I move Amendment 160 in my name and, in so doing, express my thanks to the Police Federation for raising this issue and for its assistance in drafting the amendment. Section 163 of the Road Traffic Act 1988 gives powers to the police to stop vehicles, which goes back to the previous group where we were discussing drink-driving. Section 163(1) says:
“A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform or a traffic officer.”
Section 163(3) says:
“If a person fails to comply with this section he is guilty of an offence.”
Similarly, Section 164 provides the power to require the driver to produce their driving licence. This poses several real dangers and unnecessary risks to our front-line police officers while dealing with such driver checks. The problem with the current legal framework is that an officer has to leave the relative safety of their own vehicle to make any request or to examine the driving licence. The driver of the stopped vehicle is under no obligation to get out of the vehicle or to switch off their engine.
The current law places officers in a vulnerable position in relation to the driver and occupants of the vehicle. They are permitted to remain in the vehicle to either flee when the officer is most vulnerable or even to use the vehicle as a weapon, as the noble Baroness, Lady Jones of Moulsecoomb, said in an earlier amendment. This is a common occurrence, even in my professional experience, where drivers try to flee after you have got out of the police vehicle and spoken to them. The risk to the officer would be minimised by creating an obligation for the driver of the stopped vehicle to leave the vehicle, but it is also important to ensure others who may be present in the vehicle are not able to then drive the vehicle away, or at the officer, after the original driver has got out.
This amendment is intended to highlight this gap in the law, although I accept that it is not suitable as drafted. I am grateful to my noble friend Lady Randerson for pointing out that electric cars, for example, do not have an engine that can be switched off in the traditional sense of the words and that other vehicles do not require a set of keys to be in the ignition to start the engine. However, noble Lords will see exactly what the problem is and how, potentially, the risk to police officers could be minimised if, for example, the driver was required to immobilise the vehicle and get out of the car, unless there was a reasonable excuse for not doing so, for example if the driver was disabled. I look forward to a sympathetic response from the Minister, and I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am sorry, but I am going to speak on this if the noble Lord, Lord Berkeley, is not going to.
Baroness Jones of Moulsecoomb (GP)
I feel very strongly about this. It offends my sense of justice that people who do hit and runs never pay for their crime. They are a menace to society, with only six months’ maximum sentence for leaving someone for dead having hit them with a car and, of course, the figures are going up year after year—
Lord Paddick (LD)
I think the noble Baroness may be speaking to the next group rather than this group.
Baroness Jones of Moulsecoomb (GP)
I am. Sorry, ignore that. Strike that from the record. I will come back to that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.
The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.
Baroness Williams of Trafford (Con)
My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.
The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.
Lord Paddick (LD)
I thank the noble Lord, Ponsonby of Shulbrede, for his support in principle. I think it would be problematic if the lone female driver was asked to get into the police vehicle, but I am not sure that the female driver would be in danger by getting out on to the roadside.
I am very grateful to the Minister for her support for the intention behind the amendment. As I acknowledged, more consultation is required, and I am very grateful that the Government are prepared to discuss these issues further with the National Police Chiefs’ Council and the Police Federation. On that basis, I beg leave to withdraw the amendment.
Lord Paddick
“Failing to stop or report accidents involving actual or potential serious or fatal injury
(1) After section 170(4) of the Road Traffic Act 1988, insert—“(4A) A person who fails to comply with subsection (2) or (3) when he knew that the accident had caused serious or fatal personal injury, or where he ought reasonably to have realised that it might have done so, is guilty of an offence.”(2) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts), after the entry relating to an offence under RTA subsection 170(4), insert the following—
“RTA section 170(4A) | Failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accident | On indictment | 14 years | Obligatory | Obligatory | 6-11” |
This amendment creates a new offence of failing to stop or report accidents where the driver knew that the accident had caused serious or fatal injury, or where he ought reasonably to have realised that it might have done so, with a maximum sentence of 14 years custody.
Lord Paddick (LD)
My Lords, Amendment 161 is in my name, supported by the noble Baroness, Lady Jones of Moulsecoomb—as we already know. I am grateful to Living Streets, British Cycling, RoadPeace, Cycling UK, and the Road Danger Reduction Forum for their joint briefing and suggested amendment on this issue.
Currently, the maximum penalty for the offence of failing to stop to report accidents is a six-month custodial sentence. This may be appropriate in cases where someone has simply driven off after scratching the paintwork of someone else’s parked car, but not when someone has been left for dead by the roadside.
The briefing provided by two noble Lords cites the case of Scott Walker, who was struck and killed by a driver who was driving without insurance, failed to stop at the scene of the collision, failed to report the incident and then tried to conceal his involvement by having his car repaired to cover the damage. The sheriff who heard the case said that the maximum sentence of imprisonment
“would not adequately reflect the gravity of the offence.”
The parliamentary petition calling for tougher laws when someone dies and the driver fails to stop attracted more than 104,000 signatures.
Section 170 of the Road Traffic Act 1988 as amended requires:
“where, owing to the presence of a mechanically propelled vehicle on a road or other public place, an accident occurs by which … personal injury is caused to a person other than the driver of that mechanically propelled vehicle … The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle … If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident … A person who fails to comply with subsection (2) or (3) above is guilty of an offence.”
The amendment would add a new subsection creating a new offence, where the driver knew or ought reasonably to have realised that the accident had caused serious or fatal personal injury, with a maximum penalty of 14 years’ imprisonment. As with the previous group, this amendment is intended to highlight the inadequacy of existing legislation.
Again, I accept that the wording may not be right; for example, the Road Traffic Act would need to be amended throughout, as other noble Lords have said, replacing the word “accident” with “collision” or “incident”, as some of these incidents involve deliberate acts, rather than being accidents, and the 14-year term may not be the right one. But the law is inadequate when someone fails to stop after a collision involving death or serious injury. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, as I said before, I support this amendment very strongly because hit-and-runs are a menace.
One of the problems is that the families who suffer from having somebody killed or injured rarely feel they get justice. That seems completely wrong. This amendment would mean that a judge has available the range of sentences necessary to reflect the severity of the offence. Sometimes the existing six months might be enough, and other times 14 years in custody would be the only option that can punish the wrongdoing and deter others from driving away from a serious collision. I am not big on increasing prison sentences, because I think we have far too many people in prison already, and many of them are there for the wrong reasons. But in this case, when you deliberately harm a person, prison is the place for that sort of violent person.
Judges should have the option of a lifetime ban for people who hit and run. There is no excuse for fleeing the scene—it is trying to escape justice. People should not be back on the road once they have done that. Hit-and-run is a cowardly thing; it is an attempt to escape and to not admit that you have done something wrong. Quite often, it can mean the difference between life and death for the person you have hit. This is a valuable amendment and will mean justice, not only for victims but their families and friends.
Lord Berkeley (Lab)
My Lords, I have added my name to this amendment. One of the most telling statistics is that there were 28,000 hit-and-run collisions in 2017, all involving failure to stop and report collisions that involved actual or potential serious or fatal injury. This number had increased by 43% since 2013—in only four years. That is a very significant increase and, as other noble Lords have said, the current maximum penalty for a hit-and-run collision is six months in prison which, as the noble Baroness said, might be all right in some circumstances, but not in others.
The other issue is that, now that most people have mobile phones in their cars, there should be a general duty to report collisions while at the collision scene. Yes, there are a few places in this country where there is not any signal, but very few compared to where there is; and if it is not possible, the driver or rider may subsequently report the collision and produce their insurance certificates, if appropriate, at a police station or to a constable. This should all be done within two hours of the collision, because 24 hours means that, if there were any risk of alcohol or drugs having an effect, that could be lost in that time. This is a really important amendment, and I would be interested if we could find some more up-to-date statistics on what has happened since 2017, because it is a very serious issue.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.
We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.
What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.
Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.
Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.
The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.
In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.
We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank noble Lords for contributing to this debate, including the noble Baroness, Lady Jones of Moulsecoomb, who contributed twice. I thank her for her support. I agree in principle with what the noble Baroness and the noble Lord, Lord Ponsonby of Shulbrede, said about sentence inflation; we are not in favour of that. However, the Minister talked about anomalies and this clearly is one—where someone causes death or serious injury and fails to stop after an accident but where no other offences are disclosed.
This is from memory, but in the case of the MP whom the noble Lord referred to, I think the incident in his part of the world in the south-west was a case of somebody who hit something, someone wandering in the road for example, and therefore an offence of careless, reckless or dangerous driving was not appropriate. However, the driver knew that they had hit something or somebody and still failed to stop or call the emergency services.
This is not about punishing the manner of driving that has caused death or serious injury, but about the dishonesty of knowing that you have hit somebody and knowing, from the speed that you were doing, that the person is likely to have received serious injury and, because you have failed to stop, what could have been survivable injuries become fatal injuries, because medical aid is not provided immediately or within a short space of time. As the noble Lord, Lord Berkeley, said, almost everybody who has a car has a mobile phone, and with the extensive coverage of mobile phone signals there is no reason why immediate assistance cannot be summoned in most cases. As the noble Baroness, Lady Jones of Moulsecoomb, said, failing to stop after an accident of this kind can mean the difference between life and death.
In my opening remarks I said that I was not sure that 14 years was the right punishment, that it needs to fit within the framework of punishment. In answer to the question asked by the noble Lord, Lord Ponsonby of Shulbrede, there could be circumstances, such as the one that I have referred to, where offences other than failing to stop were not present. In those circumstances—for example, if somebody in foggy conditions wearing dark clothing in the middle of the night stumbles on to a roadway and is hit by a car, and the person driving knows that they have hit that individual but fails to stop—the only offence could be the failure to stop, yet it could have fatal consequences for the pedestrian involved.
I am grateful to the Minister for saying that colleagues in the Department for Transport will be looking at this issue, but it goes to the heart of the previous group on how there needs to be an overall look at road traffic offences in the light of changes that have taken place. The Minister also talked about difficulties that might be created because the amendment refers to collision versus accident, whereas other parts of road traffic law refer to accidents, but I did say that throughout road traffic legislation “accident” needs to be changed to “collision”, because some of the incidents are not accidents. However, it is encouraging that the Minister’s colleagues in the Department for Transport have agreed to look at this. On that basis, for the time being I beg leave to withdraw the amendment.
Lord Berkeley
“Damage to guided transport structures
(1) A driver whose vehicle causes delays to operations of, or damage to, a guided transport structure or its systems is liable, on conviction of careless driving or a more serious offence, to at least 6 penalty points to be endorsed on the driver’s driving licence regardless of circumstances.(2) A haulier which is responsible for commissioning the journey of the driver is liable to—(a) a fine of up to £50,000,(b) the costs of reconstruction and other costs incurred by the owner of the structure, including compensation to its customers, train operator companies and other third parties, for delays and cancellation or damage to guided transport services.(3) In this section, “guided transport structure” means a structure which supports a guided transport system, including a railway structure.”
Lord Berkeley (Lab)
My Lords, in moving this amendment I shall speak to Amendments 169B and169C tabled by the noble Earl, Lord Atlee.
These amendments came as the result of a truck hitting a railway bridge near Plymouth about a month ago. It affected train services to the south-west quite severely, and I had a discussion with the head of safety at Network Rail to find the cause and what could be done to avoid it happening again. I got some very interesting information, which I will share briefly with the Committee.
As noble Lords probably know, an articulated lorry went under a railway bridge. Interestingly, the road was sloping upwards, so the top of the lorry hit only the far side of the bridge, because the clearance was less than when he went in. When I looked at it further with Network Rail, I was informed that there was an average of seven bridge bashes a day on the network; some are serious and others are not.
Earl Attlee
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, for moving his amendment. On its own, it would be unacceptable because it would unfairly penalise the driver of the lorry. The Committee will be aware that we are already exceptionally short of HGV drivers; I think the noble Lord touched on that. It would also be unfair to the operator because the incident may have been caused by the misconduct of the driver deviating from the appropriate route. I must tell the Committee that it is not always easy to determine the overall height of a vehicle. Mistakes can be made. The driver can be incorrectly informed of the overall height of the piece that he is carrying.
My amendments to Amendment 169A would require technology to be in place before the new penalties are available. Surely we can have electronic systems put in place to make these incidents entirely avoidable. Such a system would warn the driver, before he or she gets to the point of no return, that the vehicle will not safely pass under a bridge. This would enable the driver to take their vehicle on an alternative, safe route. With the data provisions of my amendment, it would also be possible for manufacturers to provide automatic GPS-facilitated warning systems; however, that system would rely on correctly knowing the overall height of the vehicle, whereas my proposals for static infrastructure would not. I will not weary the Committee at this late hour with further technical details.
I am grateful to the noble Lord, Lord Berkeley, for supporting my amendment to his amendment. He talked about the inconvenience that these incidents cause. He is of course correct. Most incidents involve large van-type vehicles and normally the bridge wins, although careful and time-consuming post-incident technical checks may still be necessary. That is what causes the inconvenience.
I operate a tank transporter on behalf on the REME Museum. The tank weighs 50 tonnes and the loaded transporter is 14 foot high. If the tank hits the railway bridge, the tank wins. If the train arrives shortly thereafter, a serious incident will inevitably arise. The reason why abnormal loads rarely hit railway bridges is that these movements are carefully planned in advance, in conjunction with the various authorities. Generally speaking, unauthorised route variations do not take place. However, heavy engineering equipment is also moved under normal construction and use regulations when it is not particularly heavy or wide. One day, a bridge will get hit hard by one of these loads. It is only a matter of time. An awful tragedy could then follow.
We can avoid this by agreeing to the amended amendment from the noble Lord, Lord Berkeley, or something like it. It may not be perfect but the Minister can attend to that. All we are asking is that he takes the steps to make sure that these incidents cannot take place. We have the technology in place. I appreciate that there is a difficulty in that Network Rail does not have any authority on the roads near the railway bridge, but the Minister will have to take the necessary powers to deal with that problem.
Baroness Randerson (LD)
My Lords, I thank the noble Lord, Lord Berkeley, for his introduction and the noble Earl, Lord Attlee. My noble friend Lord Bradshaw added his name to the amendment from the noble Lord, Lord Berkeley, but apologises because he is unable to be here this evening.
It strikes me that it is clearly not in the interests of hauliers or HGV drivers to hit a bridge. It costs a great deal of money all round. It is probably proportionately more damaging for a small haulage company that experiences damage to its vehicle, many hours of lost time and so on than it is for the train operating company. However, I have been on a Great Western train that was held up for some hours as a result of a bridge strike. If you multiply the two or three hours that we sat there by the number of people on the train, the cost of the whole incident becomes considerable.
Why is it is happening so often? Is it because there is not enough training of drivers? If that is the case, I am very concerned because the test for new drivers is becoming simpler and more streamlined, so things are not going to get better there. Is that there is a lack of adequate signage? Is it that the signage is in the wrong place? It has to be well in advance of the bridge because drivers cannot just stop on a sixpence in a large lorry. Is the signage not maintained or inspected? It would be interesting to hear from the Minister the solutions to this problem and how the situation can be improved. Clearly, seven incidents a day are not desirable and really should not be happening in those numbers. There is a particular problem with equipment such as cranes that are loaded on to a flatbed lorry, because the driver may not know the height of this particular lot of equipment.
Noble Lords have suggested lots of solutions. I am interested in the Government’s response.
Lord Coaker (Lab)
My Lords, it is good to be back from the Armed Forces Bill to join you all again for this group of amendments. I start with a comment that the noble Baroness, Lady Randerson, made about the haphazard nature of the amendments before us. This is the last set of amendments on Part 5 of the Bill on road traffic offences yet, despite being haphazard, some really important amendments have been proposed. That demonstrates to the Government that there needed or needs to be a new road traffic Act, which would bring together all the various comments that have been made plus numerous others that people would make. We heard on a previous group about a review of existing traffic offences: some are out of date, and some that did not exist a few years ago should have offences against them. I make that opening remark to the Minister, as he might wish to say that to his colleagues.
My noble friend Lord Berkeley did us a favour by bringing forward these amendments. It is easy to scoff at railway bridges, but we have heard that there are seven incidents a day and that 50% of drivers do not know the height of their vehicles. An issue raised by these amendments clearly needs to be considered. The least we want from the Minister is that he takes away these comments and speaks to his colleagues at the Department for Transport or wherever about them.
The noble Earl, Lord Attlee, is also right in saying that, in trying to solve one problem, you do not want to unfairly penalise another group—in this instance, lorry or other drivers. You have to be careful about the way that legislation is drafted and unintended consequences, so his amendments are important as well.
This is yet another serious amendment that has been put forward to deal with a very real problem, to set against all the other amendments that have been put forward which deal with serious issues on our roads. The legislation needs to be updated. This is a Christmas tree of a Bill. Part 5 on road traffic needs a separate Bill, as has been demonstrated by the debate this evening. I hope, at the very least, that the Minister will take that back to his colleagues.
Lord Sharpe of Epsom (Con)
I am grateful to the noble Lord, Lord Berkeley, and my noble friend Lord Attlee for explaining these amendments. I reassure them and other noble Lords that the Government take this issue seriously and think it important. We recognise the serious risk to the travelling public that results from drivers striking and damaging bridges.
It is my understanding that this amendment seeks not to create a new offence but instead to create a new and specific penalty, for striking guided transport system structures, most notably railway bridges, to be applied to broader offences such as careless driving. I do not think that is needed. The penalties available for the offences for which a driver can already be charged in these circumstances are adequate to reflect the seriousness of the offence. The offences include careless, inconsiderate and dangerous driving or, where appropriate, drink-driving or drug-driving. For example, an offence of careless driving attracts an endorsement of three to nine penalty points on the driver’s licence, an unlimited fine, and a discretionary disqualification from driving for such period as the court thinks fit. Damage to property is a factor in the sentencing guidance indicating greater harm, which can lead to a higher sentence. If a driver were found to be under the influence of drink or drugs, the penalties available would include custodial sentences, unlimited fines and driving disqualifications.
As my noble friend will be aware, warning and regulatory signs already exist to indicate low bridges and to ensure that drivers are given information about alternative routes in time to adjust their journeys. I take my noble friend’s points about routes and so on, which he made most forcefully. Those signs are prescribed in the Traffic Signs Regulations and General Directions 2016 and can be used by local authorities without reference to the Department for Transport. Local authorities are responsible for placing traffic signs on their roads, and the Department for Transport provides advice to them on the use of these signs in the Traffic Signs Manual. Disobeying a regulatory sign indicating a low bridge is already an offence that attracts an endorsable fixed penalty notice and may lead to the disqualification of the driver. Network Rail can reclaim some of the cost of repairing any damage from the insurer of the vehicle that hits the bridge. The Government are satisfied that the existing offences, penalties and route to a claim for damage are sufficient.
I am afraid that I cannot answer the questions from the noble Baroness, Lady Randerson, about why this happens so frequently. I imagine there are a whole variety of factors. As to the concerns from the noble Lord, Lord Coaker, I will of course take those back; we need at least to understand this issue a little better, so I will commit to doing that. That being the case I urge the noble Lord, Lord Berkeley, to withdraw his amendment.
Earl Attlee (Con)
My Lords, I am afraid the Minister’s response is a little disappointing. I was hoping he would say a bit more about what use we could make of technology and whether Network Rail would experience any difficulties in putting some of its infrastructure, say, half a mile away from its bridges. Does Network Rail have the power to put infrastructure on the road system, perhaps half a mile away from a bridge, in order to provide a warning for a driver that he is over height —something similar to what is done at the Blackwall tunnel?
The noble Baroness, Lady Randerson, talked about training. It occurred to me that we could make it a part of HGV driver training that the driver of a lorry was required to compare his vehicle’s height to that of any infrastructure that he went under. On approaching a railway bridge he could say, “My height is 14 feet and the height of the bridge is 15 feet, so we’re fine.” If every time he went under a bridge he considered orally whether he could get under it, that might be a good starting point and might actually make a difference.
Lord Berkeley (Lab)
My Lords, I am grateful to all noble Lords who have contributed and to the Minister for his response. I am afraid my view is that, however much he may say there is existing legislation, it is not working. That is clear. It is quite difficult for a driver to find the height of his vehicle. I spent several decades working in the rail freight sector, and trying to get a container on a rail wagon under a road bridge going over a railway was difficult because all these vehicles, be they rail or road, have suspensions so, depending on the load, the wagon or vehicle goes up and down. Still, given the rules that affect the railway sector, what we have in the road sector is frankly pretty weak.
I fully support the idea of the noble Earl, Lord Attlee, that there should be much greater emphasis on putting the information on to electronic GPSes, which I think most lorries have. One has to assume that the driver can read; that is probably not always the case but it is something to start from. He asked whether Network Rail had the power to build something away from the network. My answer is: in most cases, no. It would have to talk to landowners, seek planning permission and so on, although putting up a post with an electronic beam going across would be all right. On the continent, people do something rather better, and in France it is particularly evident: on a low bridge there is a steel structure, a portal frame, with bells and spikes on. It is clearly marked with its height, but if you see something up ahead with spikes and you are driving a lorry with rather a valuable load, you will probably stop and think before going through it. A few of those on the worst-offending bridges would be quite good.
Lastly, I suppose, I hope that the Minister will encourage Network Rail to take proceedings to reclaim as much of the cost as seems relevant, because some of them behave like a good old-fashioned nationalised industry and say “Well, you know, this is one of those things: let’s try to get a bit back.” They should be quite aggressive about it, while making sure that their own information is on these electronic guides and maps and everything like that.
I will look carefully at what the Minister says, and we may come back with something on which to seek a meeting before Report. I am conscious that the wording in my amendment is rather amateur, and after listening to what he has said it would be good to talk to him and Network Rail again, as well as to other colleagues, to see whether we can come up with a solution that encourages and educates but also takes action against people who do not do as they should. On that basis, however, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
“(6A) Before this section (other than this subsection) may be commenced the Secretary of State must by regulations amend subsection (6) to list all excluded offences on the face of the Act.(6B) The Secretary of State may by regulations amend the list of excluded offences.”Member’s explanatory statement
This, along with another probing amendment to Clause 99 in the name of Lord Falconer of Thoroton, would list the excluded offences on the face of the Bill.
Lord Falconer of Thoroton (Lab)
We move to Part 6 of the Bill, which is important. It creates two new types of caution: diversionary cautions and community cautions. These are described by the Government as
“the least onerous types of disposal a person can obtain for offending.”
Both types of caution must have one or more conditions attached to them. These can include requirements to do unpaid work, attend a specified place for a specified purpose, and pay a financial penalty.
This is an important part of the Bill. We are reaching this stage of the debate at 11.12 pm, which is one hour and 12 minutes after our normal stopping time. We have, I am very happy to say, the noble Baroness, Lady Finlay of Llandaff, in the Chair, but she is not permitted to speak on issues; she may only call speakers and announce whatever the Motion may be. There is not one Cross-Bencher here, apart from the noble Baroness. There is only one Back-Bencher here for this debate on the introduction of two important new measures into the criminal justice system. It is a mockery of proper consideration.
The proper way for the Government to deal with this is not by extending the debating hours to a point where very few noble Lords take part. They should instead make extra days available. That is the consequence of having a Bill like this, which lays open to debate the whole criminal justice system. We should not do this. I understand that it is proposed that on Wednesday the Committee sit for another three hours beyond its normal stopping time. If the Government wish to hold the reputation of the House up for scrutiny, they should not do this; they should make proper arrangements.
Turning to the amendment itself, the first group we deal with in Part 6 relates to the delegated powers. I remind the Committee, which has been told this on a number of occasions, that the Delegated Powers and Regulatory Reform Committee took a very unfavourable view of this.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.
Lord Falconer of Thoroton (Lab)
I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.
To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:
“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.
The Government put forward a memorandum to justify this approach which said as follows:
“The list of offences which may not be suitable for”—
a community caution—
“is likely to change regularly”
and
“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.
The Delegated Powers Committee report states:
“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”
The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.
The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.
The Delegated Powers Committee report says:
“We consider that the Government’s justification for its approach”—
applying only when penalties are increasing and not when they are decreasing—
“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”
Again, we agree with that. The committee continues at paragraph 75:
“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.
That is simply to quote what the Delegated Powers Committee says.
The final group relates to Clause 129 and Schedule 13, which gives the courts power
“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”
such orders. The memorandum that the Government presented to the committee says that
“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.
The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.
The committee report points out:
“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—
and it sets out certain things they can take into account in relation to it. The report continues:
“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”
That is what the Government said in their memorandum.
The Delegated Powers Committee disagreed with that, saying that
“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”
That is what our third set of amendments does in relation to that.
I apologise for taking so long to go through this, but these are important issues.
Lord Paddick (LD)
My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.
The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.
He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.
Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.
We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.
Lord Wolfson of Tredegar (Con)
My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.
I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.
Lord Falconer of Thoroton (Lab)
I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.
Lord Wolfson of Tredegar
It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.
Lord Paddick (LD)
If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.
Lord Wolfson of Tredegar (Con)
We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.
Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.
I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.
With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.
I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.
Lord Falconer of Thoroton (Lab)
First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.
What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.
The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.
I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.
Lord Paddick
Member’s explanatory statement
This amendment, together with Lord Paddick’s amendment to page 72, line 37, ensures that a person may only be authorised to give a discretionary or community caution if they have been authorised by a prosecuting authority for those purposes; and requires a prosecuting authority to be satisfied that that person has received adequate training and is suitable to carry out those functions.
Lord Paddick (LD)
My Lords, I will also speak to Amendments 171 and 190 in my name. I will then move to Amendment 186A which I support. The noble and learned Lord, Lord Thomas of Cwmgiedd, who cannot be in his place, has asked me to speak to it on his behalf.
As I have said, I apologise in advance for the length of my remarks. The only consolations I can offer the Committee are that the Government wanted to group these amendments with other groups. Secondly, I do not take responsibility for the length of the remarks of the noble and learned Lord, Lord Thomas, which I have undertaken to read on his behalf.
These amendments are designed to do two things. First, they question the whole new system of police out of court disposals proposed in Part 6 of the Bill. These include, but are not limited to, cautions. Secondly, they attempt to try to make any system of cautions where conditions are attached more effective.
No doubt, the Minister will say that the new system of diversionary and community cautions is based on the existing system of conditional cautions. To some extent, the Minister may be right. Conditional cautions look very similar to diversionary and community cautions, except that, in the case of community cautions, failure to comply with the conditions of the caution cannot result in the prosecution of the offender for the original offence. The only way in which a recalcitrant offender can be punished if they fail to comply with the conditions of a community caution is for a financial penalty to be imposed instead. This can then be enforced through the courts. The Minister will tell me if I have any of this wrong. I look to the Minister for reassurance. Apparently, I am doing all right so far.
First, I cannot find any data on how many conditional cautions have been administered; the proportion of conditional cautions, compared with simple cautions where no conditions are attached; or conditional cautions as a proportion of other types of disposal. Considering the complexity of deciding on, arranging, administering and monitoring compliance with the conditions attached to a conditional caution, I can only imagine that most custody sergeants would avoid them like the plague, particularly when sending the case to court. Simpler, and arguably as effective, out of court disposals are available. Perhaps this is why the proposals in this Bill as drafted attempt to cut off any other form of out of court disposals. If agreed, these proposals would mean that police custody sergeants could avoid administering a diversionary or community caution only by deciding to take no further action or by sending the accused to court, despite an admission of guilt. I can assure the Committee that we would see a significant increase in these alternatives being adopted.
The House of Commons briefing paper 9165 on these proposals is illuminating. I am afraid that I am going to quote it at length, but I assure the Committee that it will be worth it. It states:
“The Government estimates the policy will cost a total of £109.19 million over ten years. It thinks the criminal justice system will incur extra operational costs of around £15.58 million per year. It also thinks the system will cost the police around £13.70 million to implement (over two years) … The actual costs are likely to be higher because some costly features of the proposed system, like proposed restrictions on the use of OOCDs”—
out of court disposals—
“for certain offences, were not present during the pilot.”
It goes on:
“The Government hopes the proposed system will help reduce reoffending. Available data does not suggest short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot … found no statistically significant difference between the short-term re-offending rates of OOCD offenders”
in the pilot areas
“to those in comparable areas not using the framework.”
It continues:
“The Government also hopes the new system will improve victim satisfaction because more victims will be involved in the OOCD process.”
I have already cast doubt on that, because I am convinced that the police will “no further action” a lot more cases as a result. However, the paper states:
“It is true that more victims will be involved in the OOCD process under the new system, but this is unlikely to have a big impact on victim satisfaction rates. This is because the victim satisfaction rate for OOCD cases is already good. In 2019/20 84% of victims whose offender was issued a caution said they were satisfied with the police, a similar rate to victims whose offenders were charged (83%).”
The paper summarises by saying that
“the available evidence suggests the system … may result in a further decline in the use of OOCDs … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”
Can the Minister explain to the Committee why the Government are proposing to spend more to achieve nothing?
Turning to Amendments 170 and 171, a 2018 paper by Dr Peter Neyroud—a former chief constable of Thames Valley Police and now a distinguished academic—published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence, concluded:
“In order to be effective OOCD’s with conditions must be implemented well and three areas require particular attention: the eligibility screening of offenders; the needs assessment to match conditions to the offender; the setting and tracking of conditions”.
More specifically, he said:
“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions. Whilst the provision of further training and more guidance improved the situation somewhat, the cost of … an investment within a more general implementation of OOCD’s with conditions would be prohibitive and, in any case, did not completely resolved the problems.”
On the issue of whether out of court disposals were more or less effective when they had conditions attached, he said, bearing in mind that this was a review of all the available evidence:
“Making a direct comparison between OOCD’s with conditions”—
both community cautions and diversionary cautions are OOCDs with conditions—
“and OOCD’s without conditions is difficult: none of the research makes this direct comparison.”
Let me summarise. The provisions in this Bill propose getting rid of all out of court disposals except for cautions, all of which will have to have conditions attached. There is no evidence that cautions with conditions attached are any more effective than cautions without them. Where conditions have been attached to cautions in the past, there was
“a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”
Amendments 170 and 171 suggest that only those adequately trained officers who are considered by the prosecuting authority to be suitable to decide on diversionary and community cautions can administer them. Amendment 190 is consequential.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.
In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.
Lord Falconer of Thoroton (Lab)
I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.
I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.
Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?
Lord Wolfson of Tredegar (Con)
My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.
The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.
The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.
These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.
In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.
Lord Falconer of Thoroton (Lab)
What is the method of scrutiny of that code of practice by Parliament?
Lord Wolfson of Tredegar (Con)
I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.
Lord Ponsonby of Shulbrede (Lab)
If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.
Lord Wolfson of Tredegar (Con)
Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.
I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.
Lord Paddick (LD)
My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.
Lord Wolfson of Tredegar (Con)
To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.
Lord Paddick (LD)
In that case, I point out how completely inadequate the Minister’s answers have been. He completely did not address the research, which shows that there is no evidence that cautions with conditions attached are any more effective than simple cautions—there is no evidence. The noble Lord himself admitted that there cannot be any evidence because the Home Office does not keep any figures. It does not differentiate between conditional cautions and simple cautions; it just aggregates all cautions together. It also keeps no record of what conditions are applied in cases of conditional caution, so the Government have no evidence upon which to base this system, in which all cautions have to have conditions attached. They cannot demonstrate the efficacy of that system, and the research in the pilot forces also shows no impact on reoffending rates, little or no impact on victim satisfaction and significant increases in cost. The Minister has provided no reassurance on those issues at all.
As far as the amendments are concerned, conditional cautions are supposed to be about rehabilitation and reparation. How can an untrained police officer be an expert on what sort of rehabilitation a particular offender should undertake to have maximum impact on their reoffending? As both the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Ponsonby, said, the problem is not only the inconsistency of whether the conditions that different forces attach will have any efficacy at all—the Minister admitted that there would be inconsistency between forces—but a lack of public confidence in the system the Government are proposing. In one force area, someone will have very stringent rehabilitation and reparation conditions attached; for almost exactly the same type of individual and the same sort of offence, a completely different system or set of conditions will be applied. How can that provide the public with any confidence that justice is being done, when completely different conditions are being attached to very similar offenders and offences in different parts of the country, unless the officers who are giving out these conditions have been specifically trained, told what the standard approach is and approved by the Crown Prosecution Service, as my amendments suggest?
The noble Lord said that the safeguards and checks and balances will be included in codes of practice. I will tell the Committee why such an approach is not acceptable. With the Covert Human Intelligence Sources (Criminal Conduct) Act, it turns out that, despite the arguments that we made against the safeguards and checks and balances being relegated to codes of practice, the Government now accept that any police inspector, whether specifically trained in dealing with covert human intelligence sources or not, can authorise a CHIS to commit a crime. That person will be immune from prosecution, even though that inspector is not authorised by their force or trained to give that authority —it is in the codes of practice. But the Government have admitted, in a letter to me from the noble Baroness, Lady Williams of Trafford, that, if an untrained, unauthorised inspector authorised a CHIS to commit a crime, it would not be unlawful. That person would therefore be immune from prosecution. That is the danger of relegating safeguards, checks and balances to codes of practice and not having them in legislation.
The only thing I can take from what the Minister said is that this is really about saving court time and CPS time; I think I quote him accurately. It is not about preventing reoffending because we know that this system does not reduce it. It is about trying to take pressure off the courts, and that is no way to administer justice. We should give the criminal justice system the resources that it needs rather than taking the shoddy short cut to justice proposed in this part of the Bill. For the moment, I beg leave to withdraw the amendment.