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These notes refer to the Driving Instruction (Suspension And Exemption Powers) Bill as introduced in the House of Commons on 25 February 2009 [Bill 65]
DRIVING INSTRUCTION (SUSPENSION AND EXEMPTION POWERS) BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Driving Instruction (Suspension and Exemption Powers) Bill. They have been prepared by the Department for Transport with the consent of Willie Rennie MP in order to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND
3. The provision of paid instruction in the driving of a motor car has been a regulated activity for around forty years. The relevant legislative provisions are set out in Part V of the Road Traffic Act 1988 (the RTA), and in regulations dealing with details such as the content of qualifying tests and the level of fees to be charged. The Road Safety Act 2006 introduced a number of changes to these arrangements including scope for the regulation of instruction in vehicles other than motor cars. These arrangements (set out in section 42 of, and Schedule 6 to, the 2006 Act) have not been commenced and no date has yet been set for this.
4. Under the RTA only Approved Driving Instructors (ADIs) and licence-holders may give paid instruction in driving a car. ADIs are required to have their names entered on the Register which is administered by the Registrar, an official of the Driving Standards Agency (DSA). In order to gain entry to the Register, instructors must pass a series of examinations and be “fit and proper” persons. A licensing scheme under section 129 of the RTA enables partially qualified instructors to gain experience in order to prepare for the final
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examination in the qualifying process (the test of instructional ability). When the RSA changes are commenced, it will be possible for regulations to be made exempting categories of person from the registration requirement. In
particular it will be possible for regulations to exempt persons gaining experience. Currently any person giving paid instruction in the driving of a motor car whose name is not on the Register, or who is not licensed under section 129 of the RTA, is guilty of an offence.
5. Under the RTA, the Registrar has a power to remove persons from the register if the Registrar is satisfied that they have ceased to meet certain conditions including, among other things, ceasing to be a “fit and proper” person, failing to pass a periodic test of competence in instruction or being disqualified from driving. Before a person can be removed from the register, however, they must be given notice that the Registrar is considering this and of the relevant grounds. They then have 28 days to submit representations. If, having considered any representations, the Registrar is still minded to remove the person from the Register, then the Registrar has to give notice of this decision. A minimum of a further 14 days must then elapse before the decision can take effect. There are then further rights of appeal to the Transport Tribunal.
6. In practice, allowing for time to consider representations, it therefore takes a minimum of around 45 days between the Registrar notifying the ADI that the Registrar is minded to remove that ADI from the Register, and that removal taking effect. In the vast majority of cases this procedure causes no difficulty. However, there is a concern that in serious cases there is a need for more immediate action, on an interim basis, to prevent an ADI continuing to give instruction during this period. There have been a number of cases of inappropriate behaviour towards pupils by driving instructors where the Registrar was unable to intervene quickly and effectively. In one case a driving instructor who had been convicted of a sexual offence involving a pupil was able to continue giving instruction while the deregistration process continued. The main purpose of this Bill is to address this concern by enabling the Registrar to suspend an instructor’s registration at the same time as informing the ADI that the Registrar is minded to remove that ADI’s name from the Register. The effect of a suspension will be immediately to prevent the ADI from giving paid instruction. However, the Registrar will be able to suspend an ADI’s registration in this way only if the Registrar also believes that the ADI would pose a significant threat to the safety of members of the public if the person’s registration were not suspended.
7. The power to suspend would therefore be available only in the most serious cases; for example, where an ADI had been convicted of a serious criminal offence, such as a sexual offence or an offence to the person, or where the ADI had repeatedly failed to pass periodic qualifying tests in instructional ability, or ability and fitness to drive, or had achieved a very low mark in such tests.
8. The Bill also places an obligation on the Secretary of State to introduce a compensation scheme by regulation. This would, in particular, apply where suspension did not ultimately lead to removal of the ADI’s name from the Register, or where such removal was overturned as a result of an appeal. In those circumstances, the instructor would be entitled to claim for lost income and other losses resulting from, and occurring in, the period of suspension.
STRUCTURE
9. The clauses and schedules are grouped as follows:
- Clauses 1-7: Suspension of Registration and introduction of compensation arrangements under provisions in the RTA as amended by the Road Safety Act 2006
- Schedule 1: Suspension of Registration and introduction of compensation arrangements under provisions in the RTA as it stands without the amendments made by the Road Safety Act 2006
Territorial Extent
10. The provisions of the Bill extend to England and Wales, and Scotland (see clause 7). The Bill amends the Road Traffic Act 1988 both as it currently stands, and also as it is amended by the Road Safety Act 2006 when section 42 of that Act is commenced. The relevant provisions of the Road Traffic Act 1988, both with and without those amendments, extend to Great Britain only (see section 197(3) of the Road Traffic Act 1988 and section 62(4) of the Road Safety Act 2006).
11. This Bill does not contain provisions that trigger the Sewel Convention in Scotland. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought from them.
12. This Bill confers no powers on Welsh Ministers.
COMMENTARY ON CLAUSES AND SCHEDULES
Note on abbreviations
13. In these Notes the following abbreviations are used:-
“the RTA” means, in relation to Clauses 1 to 3, the Road Traffic Act 1988 as amended by section 42 and Schedule 6 of the Road Safety Act 2006 and, in relation to other parts of this Bill, the Road Traffic Act 1988 prior to amendment by section 42 and Schedule 6 of the Road Safety Act 2006.
“RSA 2006” means the Road Safety Act 2006
“the Register” means the Register of Approved Driving Instructors.
“the Registrar” means the Registrar of Approved Driving Instructors.
Clause 1: Suspension of registration
14. Subsection (1) inserts new section 128ZA into the RTA to enable the Registrar to suspend a person’s registration to give driving instruction where the Registrar believes that person to present a significant threat to the safety of members of the public. The suspension must be associated with proceedings leading to, or potentially leading to, the removal of the person’s name from the Register. The notice may therefore be given only if the Registrar is already considering terminating that registration and has given notice of this or, having given such notice, has already decided to terminate.
15. Subsections (2) and (3) of the new section 128ZA provide for written notice to be given of the suspension and for the suspension to take effect on giving of the notice.
16. Under subsection (4) of the new section 128ZA, notice of suspension cannot be given unless notice that deregistration is being considered has also been given, but the two notices may be given at the same time.
17. Subsection (5) of the new section 128ZA sets out the circumstances in which a suspension imposed by the Registrar is terminated. In particular, the suspension will automatically terminate if the Registrar fails to make a decision on whether to remove the person’s name from the Register within 75 days of giving the notice that the Registrar is minded to deregister.
18. Subsection (6) of the new section 128ZA requires the Registrar to inform the affected person of the termination of a suspension in writing as soon as practicable.
19. Under subsection (7) of the new section 128ZA a person’s name remains entered on the Register during the period of suspension and that person is therefore treated as a registered person for the purposes of Part 5 of the RTA.
20. Subsection (2) of Clause 1 of the Bill amends section 123(1) of the RTA to impose an additional requirement upon persons giving paid driving instruction, or carrying on business in the provision of paid driving instruction, so that not only must they be registered but their registration must not be suspended. It is an offence to give instruction in contravention of section 123(1) (see section 123A(1) RTA).
21. Subsection (3) amends section 123A(3) of the RTA so as to provide for a defence in proceedings where the person providing driving instruction, their employer, or franchiser, did not know and had no reasonable cause to believe that the registration of the person giving instruction was suspended.
22. Subsection (4) is a consequential amendment to section 142 of the RTA.
23. Subsection (5) is a consequential amendment to section 18(1) of Road Traffic Offenders Act 1988.
Clause 2: Compensation in respect of suspension
24. Clause 2 inserts new section 128ZB into the RTA.
25. Subsection (1) of the new section 128ZB provides that the Secretary of State must introduce a compensation scheme through regulations. A scheme may, in particular, cover income and non-income losses incurred by a person whose registration is suspended by virtue of section 128ZA.
26. Subsection (2) limits the circumstances in which compensation may be payable under the scheme.
27. Subsection (3) provides that, where the Registrar’s decision to remove the person’s name from the Register is overturned on appeal, any compensation can only relate to the period of suspension.
28. Subsection (4) provides that the compensation scheme may specify descriptions of income and non-income losses but does not oblige the scheme to make payments in respect of all such losses or the full amount of such losses.
29. Subsection (5) provides that a scheme may specify how losses will be valued, the person who may decide their valuation and the amounts to be paid in compensation or how they will be calculated. The scheme may also provide procedures for making claims and their determination.
30. Subsection (6) provides for the right of appeal to the Transport Tribunal of a person aggrieved by a decision of the Secretary of State regarding entitlement to compensation payments or the amounts of any such payments. Any appeal must be made in writing to the Transport Tribunal within 28 days of notification of the decision being made.
31. Subsection (7) provides, in the case of appeal, for the Transport Tribunal to make such order as they consider appropriate.
32. Subsection (8) provides that the Transport Tribunal may refer the decision back to the Secretary of State for reconsideration if evidence emerged during the course of the appeal that had not previously been made available to the Secretary of State.
33. Subsection (9) defines “income losses” and “non-income losses”.
Clause 3: Exemptions from prohibitions concerning registration
34. Clause 3 inserts new subsections (3) and (4) into section 124 of the RTA.
35. Section 124(1) of the RTA provides a power to make regulations under which circumstances can be prescribed where the requirement to be registered to give paid driving instruction shall not apply. Section 124(2) provides that those circumstances may, in particular, include where the purpose is to enable persons to gain experience in driving instruction.
36. The new subsection 124(3) RTA, added by Clause 3, provides that the circumstances which can be prescribed under section 124 can include the exercise of a discretion by the Registrar or another person. An exemption from the requirement to be registered could therefore be made dependent on a discretionary decision by the Registrar or another person.
37. The new subsection 124(4) RTA provides that regulations prescribing the circumstances in which a person can make use of an exemption (from the requirement to be registered) may also provide for the procedure to be followed in relation to any decision resulting from the exercise of the discretion provided for in new subsection 124(3) RTA, the review or revocation of such a decision, an appeal in respect of such a decision, the time when such a decision has effect and the suspension of exemptions (including provisions akin to those made by or under section 128ZB).
Clause 4: Transitory amendments to existing regime
38. Subsection (1) of Clause 4 introduces Schedule 1 making transitory changes to the Road Traffic Act 1988 without the amendments and repeals introduced by RSA 2006.
39. Subsection (2) introduces Schedule 2 listing repeals consequential to subsection (1).
Clause 5: Consequential Provision
40. Subsection (1) enables the Secretary of State to make supplementary, incidental or consequential provision in connection with this Bill.
41. Subsections (2) and (3) provide that an order under this section shall be made by statutory instrument, may include transitional, transitory or saving provision, may amend, repeal or revoke or otherwise modify any provision made under by or under an enactment (including any Act passed in the same session as this Act and an Act of the Scottish Parliament).
42. Subsection (4) provides that, subject to subsection (5), an instrument may be made under Clause 5 only if a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament.
43. Subsection (5) provides that an instrument made under Clause 5 which does not amend or repeal an Act or an Act of the Scottish Parliament is subject to annulment by either House of Parliament.
Clause 6: Power to make transitional, transitory and saving provision
44. Clause 6 enables the Secretary of State to make transitional, transitory or saving provision by statutory instrument in connection with the coming into force of any provision of the Bill.
Clause 7: Citation, commencement and extent
45. Clause 7 gives the citation of the Bill; states that sections 5 and 6 will come into effect on the date that the Bill is passed as an Act; provides for sections 1 to 4 and Schedules 1 and 2 to come into force on a date (or dates) appointed by the Secretary of State by order and defines the territorial extent of the Bill as being only England and Wales, and Scotland.
Schedule 1
46. Schedule 1 makes provision for necessary transitory amendments to the current arrangements in the RTA, to apply until section 42 of RSA 2006 is commenced.
Suspension of registration
47. Paragraph 1 of Schedule 1 inserts new subsections (7A) to (7G) into section 128 of the RTA.
48. New subsection 128(7A) gives the Registrar power to suspend a person’s registration to give driving instruction where the Registrar believes that person presents a significant threat to the safety of members of the public, and requires that the suspension must be associated with proceedings leading to, or potentially leading to, the removal of the person’s name from the Register. Notice of suspension may only be given if the Registrar is already considering terminating that registration and has given notice of this or, having given such notice, has already decided to terminate.
49. New subsections 128(7B) and 128(7C) require that notice of suspension must be given by the Registrar in writing and takes immediate effect.
50. New subsection 128(7D) prevents notice of suspension being given before the Registrar gives notice of the potential removal of that person’s name from the Register, but the two notices may be given at the same time.
51. New subsection 128(7E) sets out the circumstances in which a suspension imposed by the Registrar is terminated. In particular, the suspension will automatically terminate if the Registrar fails to make a decision on whether to remove the person’s name from the Register within 75 days of giving the notice that the Registrar is minded to deregister.
52. New subsection 128(7F) requires the Registrar to inform the affected person of the termination of a suspension in writing as soon as practicable.
53. New subsection 128(7G) provides that a person’s name may remain on the Register during the period of suspension.
54. Paragraph 2 of Schedule 1 amends section 123 of the RTA to impose an additional requirement upon persons giving paid driving instruction, so that not only must they be registered but their registration must also not be suspended. It also provides for a defence in proceedings for offences under section 123(4) where the person giving instruction, or their employer, had no reasonable cause to believe that a registration was suspended.
55. Paragraph 3 of Schedule 1 makes a consequential amendment to section 18(1) of the Road Traffic Offenders Act 1988.
Suspension of licences
56. Paragraph 4 inserts new subsections (7) to (13) into section 130 of the RTA.
57. New subsection 130(7) provides for the Registrar to suspend a person’s licence where the Registrar believes that person presents a significant threat to the safety of members of the public and requires that the suspension must be associated with proceedings leading to, or potentially leading to, the revocation of the licence. The notice may only therefore be given if the Registrar is already considering revoking the licence and has given notice of this or, having given such notice, has already decided to revoke.
58. New subsections 130(8) and 130(9) require that notice of suspension must be given by the Registrar in writing and that suspension takes immediate effect.
59. New subsection 130(10) prevents notice of suspension being given before the Registrar gives notice of the potential revocation of the licence, but the two notices may be given at the same time.
60. New subsection (11) sets out the circumstances in which a suspension imposed by the Registrar is terminated. In particular, the suspension will automatically terminate if the Registrar fails to make a decision on whether to revoke the person’s licence within 75 days of giving the notice of potential revocation.
61. New subsection 130(12) requires the Registrar to inform the affected person of the termination of a suspension in writing as soon as practicable.
62. Under new subsection 130(13), where a person’s licence is suspended, that person may continue to be a licence-holder.
131A: Compensation in respect of suspension
63. Clause 4 inserts new section 131A into the RTA to require the Secretary of State introduce a compensation scheme.
64. Subsection (1) of the new section 131A provides that the Secretary of State must introduce a compensation scheme by regulation in respect of income and non-income losses and any other matters which relate to such a suspension and are provided for in the scheme. The losses must be incurred by persons as a result of their registration or licence being suspended by virtue of section 128(7A) to (7G) or (as the case may be) 130(7) to (13).
65. Subsection (2) of the new section 131A limits the circumstances in which compensation payments may be made under the scheme.
66. Subsection (3) of the new section 131A provides that, where the Registrar’s decision to remove the person’s name from the Register or revoke their licence is overturned on appeal, any compensation may relate only to the period of suspension.
67. Subsection (4) of the new section 131A requires the compensation scheme to specify descriptions of income and non-income losses but does not oblige the scheme to make payments in respect of the full amount of any losses.
68. Subsection (5) of the new section 131A requires the scheme to specify how losses will be valued or a person to decide their valuation and to specify the amounts to be paid in compensation or how they will be calculated. The scheme may also provide procedures for making claims and their determination.
69. Subsection (6) of the new section 131A provides for the right of appeal to the Transport Tribunal of a person aggrieved by a decision of the Secretary of State regarding entitlement to payments or the amounts of any such payments. Any appeal must be made in writing to the Transport Tribunal within 28 days of notification of the decision being made.
70. Subsection (7) of the new section 131A provides, in the case of appeal, for the Transport Tribunal to make such order as it considers appropriate.
71. Subsection (8) of the new section 131A provides that the Transport Tribunal may refer the decision back to the Secretary of State for reconsideration if evidence emerges during the course of the appeal that had not previously been made available to the Secretary of State.
72. Subsection (9) of the new section 131A defines income and non-income losses.
Schedule 2
73. Schedule 2 lists repeals, which include the provisions inserted into the Road Traffic Act 1988 by Clause 4(1) and Schedule 1. The Government intends that these repeals will be brought into effect at the same time as the amendments made to Part 5 of the Road Traffic Act 1988 by the RSA 2006 together with those made by Clauses 1 - 3 of this Bill are commenced.
FINANCIAL EFFECTS OF THE BILL
74. The Bill could entail a very small amount of additional public expenditure as a result of the compensation scheme. The number of cases where compensation is likely to be payable is expected to be minimal but, if there were five per annum, the Government estimates the cost as some £49,000 per annum.
75. There would also be one off costs estimated at some £3,000. These would be for systems changes for administration of the scheme and appeals to the Transport Tribunal.
76. The Bill also contains provision in the compensation scheme for a person to be appointed to decide the valuation of losses in compensation. The Government estimates this as some £300 per case. The estimated maximum therefore would be £1,500 per annum.
77. This expenditure would be most unlikely to have any effect on the Consolidated Fund or the National Loans Fund. The Driving Standards Agency, which would operate the scheme, is a Trading Fund under The Driving Standards Agency Trading Fund Order 1997, made under the Government Trading Fund Act 1973.
PUBLIC SERVICE MANPOWER IMPLICATIONS
78. None of the Bill’s provisions has significant implications for public service manpower. Such cases would already be investigated pending removal from the Register. The suspension power would simply add the requirement to write to an individual instructor where the Registrar decided to suspend. The cost of this would be negligible. Similarly, sub-delegation of the Registrar’s functions would be to the Deputy Registrar, which is an existing post.
EUROPEAN CONVENTION ON HUMAN RIGHTS
79. The Bill engages rights at Article 1 of the First Protocol to the Convention and may also engage Articles 6 and 8.
80. Suspension of a driving instructor’s registration or licence may interfere with their right to peaceful enjoyment of goodwill in their business under Article 1 of the First Protocol. The suspension power may be exercised only where the Registrar believes that the affected driving instructor would pose a significant threat to the safety of members of the public if urgent action is not taken, and any driving instructor whose suspension is not followed by removal of their name from the Register or revocation of their licence will be entitled to the benefit of a compensation scheme. Any such interference will be in accordance with the law, necessary in the public interest (for the reasons discussed above) and proportionate to the public protection benefit sought.
81. Article 8 may be engaged by the suspension of driving instructors, as suspension may affect adversely the instructors’ relationships with co-workers, clients and others. A risk of significant and imminent harm to the public is required for suspension to be possible. This minimises the risk of arbitrary and unjustified interferences, and helps to ensure that the overall procedure is fair. Any interference with instructor’s Article 8 rights will be in accordance with the law and necessary in the interests of public safety, and suspension is proportionate with the need to protect the public from a significant risk of harm.
82. Article 6 may be engaged to the extent that the suspension of the right to give instruction could be seen as the determination of a civil right. Nevertheless as an interim decision only there is a clear argument that Article 6 is not engaged here. A scheme with some similarities was recently considered by the courts in R (on the application of Wright and others) v Secretary of State for Health and another 1. There Article 6 was found to be engaged and the scheme was found to be incompatible.
83. But the procedure provided by the Bill is very different from that in Wright. In Wright, the period for which a provisional listing preventing someone from being a care worker could be in force before a final decision could be taken was much longer than would be possible under the Bill. In Wright, suspensions could typically last 9 months whereas under the Bill they can last for no longer than 75 days and would typically be likely to last rather less than that (perhaps nearer 45 days) before a final decision was reached. The effects of a suspension under the Bill’s provisions would be much less likely therefore to have irreversible or incurable effects (as was found to be the case in Wright). The right to compensation if suspension is not followed by termination of registration or revocation of licence also reinforces this conclusion. On that basis the scheme under the Bill has much more of the character of an interim decision to which Article 6 would not apply.
84. If and in so far as Article 6 may nevertheless apply, it meets the criteria set out in Wright for a compliant ex parte procedure (one where urgency precludes prior representations being heard). It contains safeguards to ensure that suspension will only occur in those cases where the need to protect the vulnerable is sufficiently urgent as to justify an ex parte procedure, and is followed by a swift method of hearing both sides of the story. The Registrar’s final decision can then be appealed to the Transport Tribunal for a full merits hearing. A further right of appeal from decisions of the Transport Tribunal lies to the Court of Appeal on points of law.
85. In Wright, interim suspension required a lower threshold of evidence than the final decision. The reverse is true for the system under the Bill: the new suspension power in the Bill will be available only where the Registrar already has sufficient evidence to be satisfied that a good case for removal or revocation exists, and there must be an additional, urgent reason to take immediate action. In contrast, under the procedure in Wright provisional listing was a duty, not a discretion, and required less evidence than a final listing.
86. In Wright, interim suspension was not based on an analysis of the underlying facts and evidence, but on the nature and seriousness of allegations. Conversely, under the procedure prescribed by the Bill, the Registrar must be satisfied that a driving instructor, unless suspended, presents a significant threat to public safety based on evidence to that effect.
SUMMARY OF THE IMPACT ASSESSMENT
87. The Impact Assessment considers the costs and benefits of the proposed suspension power. The costs involve one off systems changes for administration of the scheme and appeals to the Transport Tribunal - estimated to be some £3,000. The main cost is for compensation where a person has been suspended and subsequently their name is not removed from the Register or their licence is not revoked, or where the suspension was overturned on appeal. The Government expects cases such as this to be extremely rare. The figure for this cost included in the Impact Assessment is £49,000 per annum, but the Government expects the sum to be far lower than this.
88. There will be no financial benefits associated with the proposal. But the non-financial benefits are considered to be significant. This will improve safety of learner drivers and other road users and offer reputational benefits to the ADI industry - members of the public will be assured that a potential ADI has not been identified by the Registrar as a person who would pose a significant threat to the safety of members of the public if the person’s registration were not suspended.
89. The Government has identified no carbon impact or other effect on the environment.
90. The Government has been unable to identify disproportionate impact as a result of race, religious beliefs, ethnicity, colour nationality and ethnic origin. A driving instructor who is suspended is likely to find it more difficult to find alternative work if they are disabled, but if that individual presents a serious threat to members of the public; this should not affect the decision to suspend their registration. Men are more likely to be affected by the proposal than women, but if an individual presents a serious threat to members of the public, this should not affect the decision to suspend their registration.
91. On the basis of the available information and in particular the low costs of the proposals, the Government considers that these changes in procedure give net overall benefits to the UK. A full impact assessment is available to Members from the Vote Office and to the public by written request from Robin Massey, Policy Unit, Driving Standards Agency, The Axis, Upper Parliament Street, Nottingham NG1 6LP, telephone (0115) 936 6098, e-mail robin.massey@dsa.gsi.gov.uk
COMMENCEMENT
92. Clauses 5, 6 and 7 of the Bill will come into force on the day the Bill is enacted. The remaining provisions of the Bill will come into force on such day or days as the Secretary of State may be order made by statutory instrument appoint.
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