Draft Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019

Debate between Yasmin Qureshi and Barry Sheerman

Wednesday 13th March 2019 General Committees

[Yasmin Qureshi (Bolton South East) (Lab)]

I reassure my hon. Friend the Member for Huddersfield, in the light of his questions to the Minister, that I have had the chance to go through this statutory instrument as a barrister and shadow Justice Minister, and that we have consulted the Law Society and the Bar Council. My hon. Friend has put his views about lawyers on the record, but I take no offence.

I do not wish my hon. Friend to think that somehow we are succumbing to what the Government want us to do. We have been doing our homework and have scrutinised this statutory instrument. My hon. Friend may be aware of the legal concepts of public international law, which is treaty based, and private international law, which is also known as conflicts of law. Conflicts of law are general provisions that set out the laws to be applied in the event of a dispute, such as a dispute over a transaction that has taken place, a custody dispute or any kind of dispute between people from two different jurisdictions.

Let me give an example of countries outside the EU, because these regulations will apply after we have left the European Union. The current position is that if the matter is a private, personal or family law issue, such as custody or divorce, the accepted norm is that the domestic domicile laws of the individuals will apply. If the issue is to do with business, the laws that apply could be to do with where the business took place or where the companies are based. There are already set rules determining different types of conflicts of law that arise outside the European Union.

The benefit of being part of the European Union was that we did not have to have any of these arguments about which law applied to which situation, or about how to get a judgment given in one country executed in another; these arguments do happen when countries are outside the European Union. Just as with goods and services, the European Union gave a seamless transfer of rights and contracts.

All the issues that my hon. Friend the Member for Huddersfield outlined are clear. When we are part of the European Union, the process is seamless. However, if and when we come out—depending on what happens —we will need to deal with such problems. The purpose of this statutory instrument is to address that lacuna—the gap that will be left if we leave without a deal.

As the Minister said, Rome I and Rome II regulations are the two basic treaties that currently cover this statutory instrument. If we leave the EU, Rome I and Rome II will not operate and that would cause all sorts of chaos.

[Mr Sheerman]

My hon. Friend is confusing me a bit. I am having an Alice in Wonderland moment. As far as I can see, the Minister and the shadow Minister are saying that this is such a little change that it does not really matter. Why are we here? Why are the Government producing this SI and why, once again, does the person representing the Opposition seem to be agreeing? A very small number of these Committees ever divide. I do not know what the purpose of having an Opposition is, if we are always going to agree with the ministerial position. The Back Benchers have to pick up the cudgels. I do not want this to be described as discrimination; to get the balance right, I do not like lawyers or accountants.

[The Chair]

Let us get back to the subject of the SI, if we can.

Road Safety and the Legal Framework

Debate between Yasmin Qureshi and Barry Sheerman

Tuesday 20th November 2018 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Betts. I thank my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury) for securing the debate. I also thank Cycling UK, Brake and RoadPeace for the considerable campaigning that they have done in this area over the years.

I agree with the good doctor, the hon. Member for Totnes (Dr Wollaston): walking or cycling is clearly far better for people’s health than driving. From the contributions that we have heard today, it is clear that many aspects of our road traffic laws are uniquely problematic. I declare that I was a prosecutor for many years—one of those people who make a number of decisions about whether to charge somebody with reckless driving, driving without due care and attention, dangerous driving or other offences of that nature. I will explain some of the challenges that we faced as prosecutors.

We have heard that it is all too easy for someone who is not an inherently dangerous person to drive in a manner that none the less causes obvious and foreseeable danger, which explains the apparent reluctance of some jurors to convict drivers of offences that they can easily imagine committing themselves. That possibly also applies to justices of the peace and magistrates in the lower courts. Many colleagues have mentioned examples where it appears that the law has not been applied properly. The framework for dangerous and careless driving is unclear; more importantly, it is applied inconsistently. That obviously sends a poor message to people—it shows that our justice system is perhaps not operating effectively. As a result, it causes distress to the seriously injured and to bereaved road crash victims. It also reinforces the idea that road danger is to be tolerated rather than eliminated.

Cycling UK has highlighted a case of a driver seriously injuring a pedestrian outside east London’s Westfield shopping centre in February 2017, for which he received just nine points on his licence after pleading guilty to careless driving. He then sent his friends a bragging WhatsApp video saying, “Nine points ain’t stopping me from driving.” Nine months later, he was swerving in and out of traffic at 68 mph on a 30 mph south London street, killing a 19-year-old woman who had crossed the road in front of him. Other videos found on his phone included one captioned “ripping the road at 146 mph”, suggesting that he enjoyed driving dangerously and illegally on a regular basis. The failure to treat his first offence as dangerous driving allowed him to keep his licence, with fatal consequences. Obviously not everyone is in that situation—we have to keep perspective on this—but it demonstrates one of the problems that occurs in courts.

We know that the current distinction between careless and dangerous driving depends largely on whether the court believes that the accused person’s actions fell below, or far below, what would be expected of a competent and careful driver or cyclist. As we know, those terms are highly subjective, and they allow for huge variation in interpretation by individual magistrates and jurors. The distinction is supposed also to relate to whether a defendant’s actions objectively caused danger that should have been

“obvious to a competent and careful driver”.

Evidently, however, prosecutors and courts continue to act as if the defendant’s state of mind were still relevant, despite the removal of reckless driving from the legal framework in the Road Traffic Act 1991. That suggests to me that there is a need for a review into the definitions of “dangerous” and “careless” offences in order to clarify whether the distinction relates to the level of danger caused by the defendant’s actions—an objective test—or to their state of mind, a subjective test.

I hope hon. Members will forgive me for being a bit technical with some examples. An objective test would be clarified by retaining “dangerous driving” but defining it as that which had caused danger that should have been obvious to a competent driver paying due care and attention, without depending on whether the defendant’s actions fell below or far below the standard expected of such a driver.

The lower-tier offence should perhaps be renamed “unsafe” or “negligent” driving, to clarify that the distinction has nothing to do with the driver’s state of mind. The need for that has been demonstrated in the car-dooring offences that hon. Members have mentioned. One example is cyclist Sam Harding, who was killed in August 2012 when a driver opened his car door into Sam’s path, knocking him under a bus. The driver had darkened his car windows with plastic tinting film, reducing their transparency to about 17% of normal levels. The CPS, concerned at the inadequate £1000 maximum penalty, charged him with manslaughter, but was unsuccessful. He received just a £200 fine.

That and several other fatal car-dooring cases, in which the drivers received fines of between £30 and £955, clearly indicate the need for tougher penalties and perhaps a review of legislation on the issue. It is shocking that between 2011 and 2015, 3,108 people—including 2,009 cyclists—were recorded as being injured by a vehicle door being opened or closed negligently. Eight of those incidents resulted in fatalities.

We must be serious about strengthening the role of the justice system in deterring irresponsible road use and removing unsafe drivers from the roads. It is only right that the Government set up a review of road traffic offences and penalties. I remind the Minister that in 2014, the Ministry of Justice promised a comprehensive review of road traffic offences and sentencing, largely in response to the representations of various road crash victims’ groups. After substantial delays, however, the scope of that review was later reduced to two proposals. The first was to increase the maximum penalty for causing death by dangerous driving, or for causing death by careless driving while under the influence of drink or drugs, from 14 years to lifetime imprisonment. The second proposal was to introduce a new sentence of causing serious injury by careless driving. Has the Minister considered the concerns about that? Has the new offence been created, or has anything been done in relation to that?

When the offence of causing death by careless driving came into effect in 2008, prosecutions and convictions for causing death by dangerous driving fell over the following five years by 46% and 51% respectively, as that charge was rapidly overtaken by the lesser new charge, even though the definitions of careless and dangerous driving remained unchanged. There are serious concerns that the proposed introduction of the offence of causing serious injury by careless driving would again lower the bar between dangerous and careless driving, with yet more inadequate sentences. In any case, the proposals would cause huge numbers of problems. We ask that the Law Commission look into this area properly.

I will give some background explaining one of the reasons why we have these anomalies. I remember that when I first started prosecuting a long time ago, in 1987, lawyers, prosecutors and judges—they and their sentencing guidelines were what the law was about—would not often look at the injuries, but would put the emphasis on the actions. There was the feeling that at a small lapse in judgment could cause fatalities, yet people who drive recklessly might cause no injuries or damage and would be dealt with in a very different way. That dynamic is what has caused some of the problems with traffic legislation since then. I know that things have changed and the laws are different now. As a prosecutor, I remember when the new legislation came in and we could look at fatalities and injuries caused. A number of new offences were introduced in order to deal with that matter.

Will the Minister support calls to launch a wide-ranging review of road traffic offences and penalties, as was promised in 2014? I suggest that some of that review be carried out by the Law Commission, so that it can clarify the definitions of dangerous and careless offences, or replace them entirely. It needs to be made clear whether the distinction is supposed to relate to the level of danger caused by the defendant’s actions—an objective test—or their state of mind, which is a subjective test.

The review should also consider the accompanying maximum sentences, and perhaps make greater use of driving bans for offences where danger has been caused by someone who is not obviously a dangerous person, while retaining custody as a sentencing option for more obviously reckless behaviour or for repeat offenders.

[Mr Sheerman]

Does my hon. Friend agree that some unscrupulous members of her profession specialise in getting high-profile people—David Beckham, for example—off their driving charges, and does she think that is good or bad?

[Mr Clive Betts (in the Chair)]

Order. The hon. Lady should know that she has only a minute or two remaining.