Sections 60-79
2 NOVEMBER 2005
60. MR LEWIS: I am very happy to do
so. The Promoters, I think, would not be willing to go down the
route of applying for an additional provision which is a procedure
governed by the rules of this House, where in the First House
an amendment would extend the scope of the Bill. I think you are
probably right in saying there probably is not very much between
us. I do not want to put words in Mr Lester's mouth, but I do
not think it is such an important issue that we would wish to
delay this Bill substantially by having to go down the additional
provision procedure which is not necessarily guaranteed success
anyway. I think that is what we would have to do if we agree to
such an amendment. I am pretty sure that is not what my instructions
would be. I see nodding heads.
61. MR SMYTH: Thank you for that clarification.
Just on one final point, it would have been simpler if you had
given the London Cycling Campaign more than ten days' notice about
this Bill so this could have been resolved beforehand, so that
interests would not have been prejudiced in this way, would it
not?
(Mr Lester) I do
not think that is a matter for me to answer.
62. Thank you. Moving on to Clause 13. Do you
remember writing a letter to London Cycling Campaign on 31 January
2005?
(Mr Lester) Indeed.
63. Perhaps I could read out a paragraph to
you, or would you like to see a copy?
(Mr Lester) I would
like to see a copy.
64. Do you remember this letter, Mr Lester?
(Mr Lester) Yes,
I do.
65. Do you still stand by it?
(Mr Lester) In
a general sense, I am not aware of any issue I would not stand
by.
66. I will just read out a passage from the
third paragraph, it says: "The aim of the Bill is to decriminalise
cycling on the footway to enable better enforcement to take place,
but this enforcement, like all decriminalised enforcement, would
remain fully under the control of the local highway authority?
(Mr Lester) I think
the word "decriminalise" is not correct in that instance
because the fixed penalty notice system is a criminal system,
but, in the sense of bringing it within the local authority enforcement
regimes, that is correct.
67. In fact, that is not correct because it
would not remain fully under the control of the local highway
authority, would it?
(Mr Lester) In
what sense would it not remain?
68. First of all, it was not under the control
of the local highway authority in the first place and, secondly,
the police would still have a role, as you say.
(Mr Lester) The
point of that paragraph is to say that any enforcement action
that would be taken, were this Bill to be enacted, by the local
authority would remain wholly under the control of the local authority.
The initial concern which had been raised by the London Cycling
Campaign was this would be left to contractors to decide how to
undertake, and the point of that paragraph was to make it very
clear that it would not be left to contractors to decide how to
undertake, but that any enforcement action taken by the local
authority would remain firmly and fully under the control of the
local highway authority.
69. That is not just saying that is confused,
is it, Mr Lester?
(Mr Lester) I am
sorry I do not think that is confused at all. I think that is
very straightforward.
70. Forgive me for saying, but this paragraph,
paragraph 3 that I read out, is simply wrong.
(Mr Lester) No,
I am sorry I think the point that you made is not correct. The
point that is in the paragraph, as I have explained, is absolutely
clear and straightforward and it is not wrong. Any enforcement
activity that was undertaken under this Bill, were it enacted,
would remain fully under the control to the local highway authority.
71. I will explain further, if need be. If
someone refuses to pay a fixed penalty notice, it is right, is
it not, that that goes to the magistrates' court if the CPS, that
is the Crown Prosecution Service, are willing to take matters
further?
(Mr Lester) When
you get to the issue of challenging any penalty notice, whether
it is a fixed penalty or indeed a penalty charge notice, it is
always undertaken under the oversight of the competent tribunal
or court and that is inevitable. That does not take away from
the point of this paragraph. Again, I emphasise the purpose of
this was to respond to a comment that the enforcement would be
undertaken by contractors.
72. We will have to agree to disagree on that,
Mr Lester. Could you turn to Clause 13, Sub-section 5, sub-section
(b)? "Notification of an intention to prosecute the recipient
of a penalty charge notice in respect of such an offence".
This is the clause of the amended Bill. Again, it is confused,
is it not? It mixes a fixed penalty notice, which is a criminal
penalty, and a penalty charge notice, which is a civil matter.
(Mr Lester) I think
it is very clear that Sub-section 5 is to avoid double jeopardy
and it is to make it absolutely clear that, if there has been
any instance of enforcement of the same offence by both the local
highway authority or the police, police enforcement takes priority.
73. You will not accept that Sub-section 5
is defective?
74. MR CLARKSON: It is. For "penalty
charge notice" it should be "fixed penalty notice".
75. CHAIRMAN: Thank you very much.
76. MR SMYTH: In fact, this whole thread
of confusion runs through all of the thinking on this Bill, its
correspondence and, now, the draft code of practice. Does it not?
(Mr Lester) There
certainly was a change in thinking at one point from a penalty
charge notice to a fixed penalty notice because we thought that
would be more appropriate in the context of this particular offence,
that it is currently a criminal offence and would remain a criminal
offence and be subject then to the same regime as at present.
In practice, even in setting out the word "decriminalisation"
in this letter, I do not think it detracts from the substance
of what is said at all.
77. Turning to the draft code of conduct, again,
this talks of PCNs and so on. It has simply been cut and pasted
from one of the other codes of conduct you have mentioned. Has
it not?
(Mr Lester) No,
not at all. You can see very clearly that is not cut and pasted
because no other codes would, for example, talk about policy towards
cycling on the footway and no other codes of practice would talk
about cycling facilities. It is very clearly not a cut and paste
job.
78. Apart from only three lines, I suggest,
it has been cut and pasted. For example, at the back of paragraph
5 it talks about dealing with representations and appeals. You
admitted a few minutes ago that that would be up to the magistrates'
court, not up to the council.
(Mr Lester) Yes,
but the issue that the code of practice would say, for example,
in that area, is about how a cyclist who is stopped and who wanted
to challenge the fixed penalty would make any representation on
appeal against a fixed penalty, and that would explain and enable
the officers to explain that if cyclists wish to challenge it
they have to do so through a magistrates' court.
79. In fact, that would not be an appeal, would
it not? That would simply be someone refusing the fixed penalty
and then having to go to court and risk paying costs of £300
or £400.
(Mr Lester) You
are technically correct but most people think about it as an appeal.
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