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Mr. Jamieson: The clause amends the penalty for the offence of using a vehicle in a dangerous condition under section 40A of the Road Traffic Offenders Act 1988. The effect of the change is that if a person commits the offence within three years of a previous conviction for the same offence, he must be disqualified for six months.
I had some sympathy with the hon. Gentleman's amendment when I first saw it and I was interested to know how the existing law operated, because we are simply making a small alteration to it.
As I understand it, the police—in some cases it may be the Vehicle and Operator Services Agency—who may take one of these prosecutions forward are looking for the main culprit. In the circumstances that the hon. Members for Romford (Mr. Rosindell) and
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for Spelthorne just mentioned, where a driver is allocated from a depot a vehicle that is in a dangerous condition—we are talking about serious defects, not just where a washer bottle is empty—the police would go for the main culprit. In this case it would be those who have responsibility for maintaining the vehicle and not the person who has walked into the depot to drive the vehicle.
The purpose of amendment 36 is to provide that where the offender is an employee driving a vehicle owned by his employer in connection with his employment he should not be subjected to the higher penalty for the repeat offence. I understand what is behind this but I am not clear whether the right hon. Gentleman wants the test of the employee to apply for the first or the second incident of the offence, or both. I wholly agree that employees should not necessarily be held to account for the transgressions of the company for whom they work. Nevertheless, it is the case that a professional driver, even more so than the usual responsible motorist, should have regard to the state of the vehicle that he or she drives, for their own sake and for the duty of care to other road users.
To commit the offence once may be a lack of diligence but to do it twice is approaching irresponsibility. The offence provides for the,
''use, cause, or to permit another person to use a motor vehicle etc''.
In this instance the case could be brought against the employer as they are permitting the use of the vehicle. Under the circumstances the prosecuting authorities would be concerned to deal with the actual person responsible for the dangerous condition of the vehicle in question. The private motorist has absolute responsibility for his own vehicle. It must be properly serviced and have the appropriate MOT certificate. The private motorist is also responsible for spotting a flat tyre or any deficiency in the vehicle. The vast majority do take this responsibility. But in the case that the right hon. Gentleman raises, there is not a case where drivers are being targeted rather than the employers, who are responsible for the vehicle. I have not had any complaint from the trade unions; were there any problems, they would certainly have raised them with me.
For the benefit of the Committee I have to hand a copy of ''Wilkinson's Road Traffic Offences''. I am sure that this tome is regularly at the fingertips of the hon. Member for Christchurch.
Mr. Wilshire: It is bedtime reading.
Mr. Jamieson: Yes indeed, I am sure that he refers to it regularly. It says,
''In the case of section 40A,''—
—he is talking about the motorist here.
''he must prove that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person.''
That is a defence that one could present. An instance where that could not be used as a defence would be if a driver got into a vehicle where the windscreen was partly broken and was obscuring his view. On the other hand, if there was some deficiency in the vehicle
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which would require it having a careful examination by an engineer, that would not be in the scope of what would be expected of a driver walking into a depot.
The book goes on to say,
''The effect of this is to exempt from endorsement, driving test and disqualification, including the penalty points disqualification . . . a driver who shows that he had taken out his vehicle in reliance on his foreman's or its owner's assurance that the brakes, steering etc., were in order.''
That is also a defence that could be presented. It continues:
''It may well exempt sons and daughters who drive their parents' cars on the assumption that they are in good running order.''
Although, like the right hon. Gentleman, I was initially concerned about the matter, I am satisfied, first, that by habit and practice drivers are not being prosecuted for the sins of the employer and, secondly, that case law provides people who are so prosecuted with reasonable defences.
Mr. Knight: I am grateful to the Minister for his comprehensive reply to the debate, which has been interesting and worth while. I take his point that the police will generally go for the main culprit. That is indeed my experience. However, in circumstances such as those I have outlined they would probably also want to prosecute the driver. Our concern is that a guilty verdict should not mean that a driver who did not know would be judicially hammered.
I take the Minister's point about ''Wilkinson's Road Traffic Offences'' showing where a defence would lie, and I can see that that might be of assistance in some cases. However, there is a problem, as my two hon. Friends suggested, when an employee is instructed to use a pool vehicle. It is highly unrealistic in those circumstances to expect that when an employee arrives at work each day and must drive a different vehicle he should insist that the foreman or someone else inspect it in his presence before he takes it out.
Also, in cases involving vehicle pools, no assurance would be given that the vehicle was okay, which would amount to a defence. If a firm runs a fleet of vehicles most of them might be roadworthy. I am concerned that, if someone is convicted under the clause because the courts take the view that perhaps he should have inquired further, the courts should not be tied and should not have to take away his licence.
I am grateful to the Minister for explaining that he is sympathetic to what we want to achieve. All that we want is to move the offender in such a case, who, on the face of it, is not culpable, from paragraph (a) to paragraph (b). We do not say that he should be let off scot-free, but we want his case to fall into the group over which the courts have discretion. The courts would not then be forced to deal with him in accordance with paragraph (a), which would mean taking his licence.
I do not think that the Minister's argument runs contrary to ours. We are on the same side of the fence, but we differ in our conclusion about how best to handle such a case. It would do no harm, and might reassure trade unions and those who drive for a living, if the amendment were made.
Question put, That the amendment be made:—
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The Committee divided: Ayes 6, Noes 11.
Division No. 4]
AYES
Chope, Mr. Christopher
Knight, Mr. Greg
Rosindell, Mr. Andrew
Thurso, John
Wilshire, Mr. David
Younger-Ross, Richard
NOES
Atkins, Charlotte
Byrne, Mr. Liam
David, Mr. Wayne
Fisher, Mr. Mark
Heyes, Mr. David
Jamieson, Mr. David
Kidney, Mr. David
Mahmood, Mr. Khalid
Merron, Gillian
Reed, Mr. Andy
Stinchcombe, Mr. Paul
Question accordingly negatived.
Clause 21 ordered to stand part of the Bill.
Clause 22
Breach of requirements as to control of vehicle, mobile telephones etc.
10.45 am
Mr. Chope: I beg to move amendment No. 13, in clause 22, page 25, line 14, after 'vehicle', insert 'or pedal cycle'.
The Chairman: With this it will be convenient to discuss amendment No. 14, in clause 22, page 25, line 18, at end add 'or pedal cycle'.
Mr. Chope: The amendment concerns the pedal cycle equivalence provision that I wish to incorporate into the Bill. From what the Under-Secretary of State for Transport, the Member for Staffordshire, Moorlands (Charlotte Atkins) said in Transport questions on 21 December, she is already wedded to the amendment.
If people are cycling and using mobile phones at the same time, they present a hazard, not only to themselves but to other road users. Indeed, only last Saturday I was driving through the village of Bransgore in the New Forest and I had to spend quite a long time following a cyclist who was negotiating the bends while using his mobile phone. He was completely oblivious to the traffic conditions surrounding him and was putting himself at danger. Had he not been in front of such a careful, considerate and patient driver, there might well have been an accident.
Ironically—and sadly—a fatality was caused in that same village last year as a result of a pedestrian using a mobile phone. She was so absorbed in the conversation that she stepped off the pavement into the path of another vehicle and was killed. We cannot legislate to require pedestrians not to use mobile phones. However, we can send out a strong message to all road users that the use of mobile phones can result in their not paying sufficient care and attention to what is happening and thereby putting themselves and others in danger.
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In answer to the points that my right hon. Friend the Member for East Yorkshire raised on 21 December, the Minister said:
''It is already an offence to be in charge of a cycle while not properly in control of it. I would argue that using a mobile phone while cycling demonstrates that the cyclist is not cycling safely. I understand that Conservative Members occasionally use mobile phones while cycling.''
Perhaps some do, but certainly not me. The Minister continued:
''I consulted my local community police officer, who informed me that he certainly considers cycling while using a mobile phone to be an unsafe practice.''—[Official Report, 21 December 2004; Vol. 428, c. 2048.]
If cycling while using a mobile phone is an unsafe and undesirable practice and the Minister thinks that it is already a breach of the law, why should there be a specific offence that applies to motorists but no specific offence that applies to cyclists? I would be grateful for any explanation to justify such a distinction.
The episode of the driver who was turning left while trying to catch up on her breakfast and eating an apple—following the Government's five-a-day principle, no doubt—was well reported in many newspapers, including the Daily Mail. The press response was one of surprise that the person concerned was committing an offence. The main outrage was that some £10,000 or more of public money was spent securing a conviction.
If driving while eating an apple and not paying attention is equivalent to driving while using a mobile phone, reading a newspaper or whatever, why are we singling out one particular example, rather than relying on the generality of the construction and use regulations, which are currently the law?
I fear that identifying a particular example as a specific offence might undermine the general message that people should have full control over their vehicles while they are driving and, indeed, full control over their bicycles while they are cycling. That is the import of the amendment, which would make it apparent that the Government accept that vulnerable road users, even though they do not happen to be at the wheel of a car, owe a duty to themselves and others.
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