Standing Committee A
Tuesday 3 February 2004
[Mr. Nigel Beard in the Chair]
Fixed penalty offences
Mr. Christopher Chope (Christchurch) (Con): I beg to move amendment No. 45, in
page 18, leave out lines 39 to 41.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 46, in
page 19, leave out lines 1 to 3.
No. 47, in
page 19, leave out lines 4 and 5.
Mr. Chope: The clause deals with the vexed issue of fixed penalties. Amendment No. 45 would mean that proposed section 95A(2) of the New Roads and Street Works Act 1991 would be left out. The amendment was tabled to probe the Minister on why
''offences by bodies corporate and Scottish partnerships''
will not be subject to the fixed penalty regime.
Amendment No. 46 would remove the power of the Secretary of State to add fixed penalty offences to the schedule, or delete them from it. In that context, will the Minister explain a bit more about his thinking on which offences should be subject to the fixed penalty regime and which should not? I have severe reservations about the fixed penalty regime. On the face of it, the offences chosen as fixed penalty offences are not the critical ones. I have in mind, for example, the failure to comply with a section 66(1) duty
''to carry on and complete certain street works with all reasonably practicable dispatch''.
That offence carries a maximum penalty of level 5. However, it goes to the heart of what the Bill is about: speeding up work and avoiding undue delay. If the Minister feels that the offence is serious, and that the enforcement authorities should take it seriously but will be inhibited from prosecuting because of the fear that they will face substantial costs and will not get any income from the fines, why is the offence not included in the fixed penalty regime? Does he have it in mind to include it at a later stage—in regulation—when we cannot possibly scrutinise the proposal properly?
In addition, why is the failure to comply with duties under section 71—
''prescribed requirements as to materials and workmanship and performance standards for reinstatements''—
not a fixed penalty offence? It is an important and critical issue. Why is it not subject to fixed penalties, even though other matters that we might regard as rather trivial are?
Column Number: 200
Can the Minister explain the situation in relation to continuing offences? One of the big bugbears of the motoring public, who are subject to fixed penalty notices, is that they get a sticker on their car because it is parked in the wrong place or has overstayed the time allowed, and then a few minutes or hours later they get another sticker on the car because it is parked in the same place. Can we be sure that the fixed penalty regime will not be used iteratively against people for the same wrongdoing? I would be grateful to hear what the Minister can tell us about that.
The debate on this group of amendments gives us an opportunity to probe the Minister about the thinking behind the fixed penalty regime.
The Parliamentary Under-Secretary of State for Transport (Mr. Tony McNulty): It is a pleasure to be under your tutelage once again, Mr. Beard, but I hope—I mean this in the nicest sense—we will not be under it for too much longer.
The points made by the hon. Member for Christchurch (Mr. Chope) are entirely fair. I hope that I can address them. Amendment No. 45 refers to section 166 of the 1991 Act, which provides that when an offence is committed with the consent or connivance of, or owing to the neglect of, a director, manager, secretary, partner or similar officer of the body corporate or partnership—I mean of the body corporate—the individual as well as the body corporate or partnership is guilty of an offence.
Clause 40 inserts new section 95A(2) in the 1991 Act, which provides that in such cases the offence would not be dealt with by means of fixed penalty notice, but through the courts. It is important to recognise the two-tier approach of the fixed penalty notice and due course through the courts. Amendment No. 45 would allow such offences to be subject to fixed penalty notices after all.
The distinction that the hon. Gentleman seeks to draw out of me is essentially—not entirely—between the noticing offences that are subject to fixed penalties, which we discussed this morning, and the more serious ones that are not.
I am sure that that is not the thrust of the hon. Gentleman's amendment No. 45, but some offences might involve circumstances in which the negligence of an individual contributes to the death of a worker on the site of a works or road works. I am sure that nobody would think that a fixed penalty notice deals with that appropriately.
Mr. Greg Knight (East Yorkshire) (Con): Subsection (2) refers to
''(offences by bodies corporate)''.
In his introduction, the Minister said, ''bodies corporate or partnerships,'' and then corrected himself, effectively deleting ''partnerships''. Will he clarify the situation by telling the Committee whether partnerships fall within the ambit?
Mr. McNulty: If I gave the impression of correcting myself, it is because I read the wrong line in my speech, and I came on to partnerships subsequently. Partnership is there only in the same context as in section 166 of the 1991 Act, which refers to
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''bodies corporate and Scottish partnerships''.
Not being a lawyer, and certainly not being a Scottish lawyer, although there is nothing wrong with them, I can only assume that that is a reference to the context under Scottish law.
Mr. Knight: I am grateful to the Minister for that clarification. He is saying that bodies corporate and Scottish partnerships are not subject to fixed penalty offences. One might face a situation in which one particular firm that has committed an offence is a body corporate—a limited company. Mr. Smith and Mr. Jones who trade together then commit the same offence, but they are an unlimited partnership. Why should there be a difference in treatment when one is dealing with a small company, which has very little difference to a partnership?
Mr. McNulty: I have said once or twice before that I hope to get some inspiration from someone behind me, but I assume that the definition of body corporate is all inclusive. Neither the 1991 Act nor the Bill seeks narrowly to define body corporate as a limited company with liability guaranteed by its public status. I am pretty sure that that is the answer; if it is otherwise, I will get back to the hon. Gentleman. The important point is that a whole series of more serious offences warrant a different penalty to those in the fixed penalty regime.
The hon. Member for Christchurch rightly said that the thrust of the proposal is to hasten not delay the process. The noticing offences are important to the process of carrying out street works efficiently, but the distinction between what should and should not receive a fixed penalty notice is important, not least for the reasons I suggested—admittedly, in the most extreme circumstances. If there were pressing manslaughter or more serious charges, a fixed penalty notice would not cover the offence appropriately. If the hon. Gentleman wants to introduce body corporate matters, a fixed penalty notice may well be inappropriate—admittedly, in extremis. There are serious offences under the Bill and the principal Act that are important enough to be dealt with by the courts rather than a fixed penalty notice. As the hon. Member for Christchurch was suggesting, it would be taking a sledgehammer to crack a nut, or the reverse, if all the offences carried a fixed penalty notice. We might then stray into the realms of inefficiency and greater bureaucracy, which is not the Bill's intention.
Equally, because, as ever, the hon. Gentleman is right but for the wrong reasons, the list of offences in the Bill is not intended to be definitive. It has been arrived at largely as a result of the work done by the working party of utilities and local authorities, which roughly agreed the list of offences and agreed that some would be more suitable to fixed penalty notices and some better dealt with through the courts. However, we will have to resist amendment No. 46, because we want to retain flexibility—this is where the conspiracy theory comes in—to add to the list of offences carrying a fixed penalty notice, and equally, when we have seen how the list works in practice over
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time, to remove some offences. Amendment No. 46 would remove the flexibility to modify the list of fixed penalty notices.
I believe that amendment No. 47 is consequential on amendment No. 46 and removes a reference in subsection (4) of new section 95A to orders that add or remove fixed penalty notices being subject to affirmative resolution.
The hon. Gentleman's points are entirely fair, in a probing fashion. However, for some offences in the schedule, it is appropriate to go down the fixed penalty notice route, and for others it is not.
Mr. Chope: Before the Minister sits down, will he deal with the issue of iterative offences, which I raised?
Mr. McNulty: We do not intend to go down that route. The intention of the fixed penalty notice regime is to have the offence dealt with in summary fashion, so that the company and the street works authority can move on. It is not envisaged that more and more tickets will be put on the offending item, if the offence is continuous, although it is incumbent on people, once they commit an offence, to correct that situation. Therefore, while it sounds all very nice to talk about the poor, put-upon motorist having ticket after ticket put on their vehicle, ticket after ticket goes on because they are continuing to commit the offence. It is easy to suggest, in a populist way, that that is terrible, but if the offence continues to be committed, it is appropriate, in the case of motoring offences, that subsequent notices are given. It is not envisaged—I am sorry that I missed this point—that we should adopt that iterative process in the different circumstances of the fixed penalty notice regime and street works.
I am told that partnerships are joint and severally liable, so each individual is liable. If that makes sense to the right hon. Member for East Yorkshire (Mr. Knight), he can say ''Thank you'', and we can move on. However, I think that a fuller answer is required, and I shall make sure that he gets it.