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Simon Hughes:
The Minister will be aware of the conviction not long ago of a black cab driver, John Worboys, a constituent of mine, who had committed a
series of very serious offences and asked for many offences to be taken into consideration. Will the Minister have a conversation with colleagues in the Home Office or the police, so that information about people who have never been convicted but who have come up on the radar for serious offences is at least shared, so that that can be part of the consideration?
Paul Clark: I appreciate the hon. Gentleman’s point. I shall come to the processes that we have undertaken in conjunction with the Home Office to ensure that such cases are flagged up. It would be wrong for us not to discuss with colleagues in other Departments any lessons to be learned from cases that come up. We will develop guidance from the knowledge that we have so far, including learning from cases such as the one that he mentioned, and that guidance will be issued by the registrar.
It may help if I speak about administering the character and conduct assessment when someone is applying to join the register. We must ensure that there is provision to deal with those who are already registered, but then commit a serious offence. The 1988 Act contains provisions enabling the registrar to remove instructors from the register or revoke their licences where they cease to be “fit and proper” persons, but it is not a quick process. The registrar must inform the individual that he is minded to remove him from the register, allowing 28 days for representations to be made to the registrar.
The registrar is not permitted to reach a decision until those 28 days have expired and, before deciding whether to remove the instructor, must take into consideration any representations that have been made. That is a fair process. We understand why the approved driving instructor should be given a reasonable opportunity to compile and submit evidence to support the retention of their registration.
Mr. Brazier: Before the Minister leaves the significant point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes), will he read across to other areas of Government thinking? It seems odd that the concept of a fit and proper person, which is rightly central and which can take account of representations that go beyond convictions, has been taken out of so many other areas, such as that on licensees.
Paul Clark: I will not speculate on the detailed provisions of other areas. It is always right that there should be fairness and openness in our systems when we seek to take away someone’s livelihood. We must have that balance. That is why it is good that the Bill provides for a compensation scheme. However, it is equally important, as I know the hon. Gentleman agrees, that we protect people such as Lesley Anne Steele.
The time issue is important, because once the registrar decides to remove the instructor's name from the register after those 28 days, having considered the representations that have been made, there is a further period of at least 14 days before the notice can take effect. The instructor also has the right of appeal against the registrar's decision. Currently, the appeal is to the transport tribunal, but in future it will be heard by the new first-tier tribunal.
The statutory time scales mean that, taking everything into account, it takes a minimum of 45 days for an approved driving instructor's name to be removed from the register. So even where an instructor is found guilty of a serious offence but is bailed pending sentencing or receives a non-custodial sentence, the registrar has no means by which he can quickly prevent him from continuing to give paid instruction. Therefore it is essential that that loophole is closed.
I want to put on record the work and commitment of my hon. Friend the Member for South Thanet (Dr. Ladyman), and acknowledge his immediate recognition of the issue on meeting the hon. Member for Dunfermline and West Fife and his constituent, and the apology that he gave at that time. In November 2006, the hon. Gentleman secured a Westminster Hall debate to discuss the laws regarding driving instructors who commit sexual offences and obtained a commitment from my hon. Friend to look at whether the removal process could be shortened. That was followed by a series of parliamentary questions on the same issue.
In October 2008, the hon. Gentleman introduced the Driving Instruction (Sexual Offences) Bill under the ten-minute rule, which unfortunately did not get beyond First Reading. At the same, the Department for Transport and the DSA were actively considering options. They proposed a handout Bill in late 2008, the Driving Instruction (Suspension and Exemption Powers) Bill, the title of which may sound familiar. That was not taken up by those successful in the ballot, but the hon. Gentleman approached my immediate predecessor, who I am delighted is present—my hon. Friend the Member for Poplar and Canning Town (Jim Fitzpatrick), who has now flown to the Department for the Environment, Food and Rural Affairs, and we congratulate him on that—requesting details of the long and short titles of the handout Bill. Having been given the information he had requested, the hon. Member for Dunfermline and West Fife introduced this Bill on 25 February 2009. Since then, as he has recognised, he has been supported by the Government and their officials through its Second Reading and its Committee stage on 17 June.
It is also right that I should place on record the support that the hon. Gentleman has received from my predecessors, my hon. Friend the Member for South Thanet and my right hon. Friend the Member for Poplar and Canning Town. Both of them identified the need to amend the legislation so that cases such as those of Lesley Anne Steele should not happen in the future, and committed to doing so at the earliest opportunity.
The DSA had also been busy exploring non-legislative options for further improving the robustness of its procedures for ensuring that approved driving instructors are fit and proper persons on admission to the register and remain so. In February 2007, the agency succeeded in persuading the Home Office that the profession of driving instructor should be included within the notifiable occupation scheme. That was followed in July 2007 by its inclusion in the equivalent scheme in Scotland. Under the scheme and its Scottish equivalent, the registrar is notified of criminal convictions received by approved driving instructors. The registrar receives, on average, about five notifications a month, but the majority relate to minor crimes. The scheme is not perfect. For example, a court may be unaware that the defendant is an approved
driving instructor, particularly where the charge is not driving-related and where the approved driving instructor has more than one occupation.
Such a limitation does not significantly undermine the inclusion of driving instruction within the notifiable occupation scheme. However, it does mean that the volume of notifications received by the registrar may be an underestimate of the numbers of convicted instructors. It underlines the need for further information, such as that arising from criminal record disclosures, and that picks up the point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes) about learning the lessons from other cases.
In March 2007, the DSA introduced enhanced criminal record disclosures for new applicants starting the approved driving instructor qualifying process. That means that the registrar receives information for all applicants on past convictions—even those covered by the Rehabilitation of Offenders Act 1974. By the end of May 2009, more than 41,200 trainee instructors had been checked and 319 refused entry to the register on the basis of the information obtained via the disclosure.
Since April 2008, all approved driving instructors applying to renew their registration, which expires and must be renewed at least once every four years, have also been required to provide an enhanced criminal record disclosure. That is intended, in part, to verify that approved driving instructors are complying with the condition of their registration that requires them to notify the registrar of any convictions they receive during their period of registration.
Those approved driving instructors who joined the register prior to March 2007, and whose registrations have yet to come up for renewal, have been encouraged to supply voluntary enhanced criminal record disclosures for which the DSA has met the cost. As a result, almost 40,500 approved driving instructors, out of about 45,000 on the register, had been checked by the end of May 2009, and 42 have been removed from the register on the basis of information obtained through the disclosure.
The House may be wondering how the system of disclosures is funded. I can advise that the cost is met by the registration fee paid by approved driving instructors, which is £300 for four years. It increased from £200 in April 2008. Disclosures have become an essential part of the process conducted by the registrar to satisfy himself that an approved driving instructor, or someone seeking to join the register, is a fit and proper person. The DSA has publicised those changes, so instructors are aware of them. In 2008-09, 865 approved driving instructors resigned from the register, although that was for a variety of reasons, including ill health. Some approved driving instructors with serious criminal records may decide to leave the profession rather than supply a criminal record disclosure. However, as I indicated earlier, the discovery of a criminal conviction would not automatically mean that the registrar would commence removal proceedings.
Although those non-legislative measures have helped to give us greater confidence that only the most suitable instructors are able to gain access to the register of approved driving instructors and to remain on it, they do not address the problem of the registrar’s inability to take immediate and effective action as soon as a major risk to the general public is identified. As the hon. Member for Dunfermline and West Fife has identified,
the 45-day removal process, during which the approved driving instructor can continue to instruct, is a significant problem. If the Bill is successful, it will address that issue by allowing the registrar, while the statutory removal process is under way, to suspend an approved driving instructor immediately he presents a significant risk to the public.
Although the main focus of the Bill is, by necessity, on those convicted of serious sexual or violent offences, we do not wish to preclude other circumstances in which an instructor poses a significant risk to the general public and suspension is appropriate. For that reason, I should expect the suspension power to be used in cases where the approved driving instructor is found in a periodic-check test to have given woefully inadequate instruction to learner drivers—that is, when the instruction is so poor as to create a serious road safety risk to his pupils and other road users. I remind the House that suspension can be imposed only alongside other statutory processes. Suspension cannot be used in isolation; its purpose is to prevent an instructor from continuing to give paid instruction pending the completion of a separate but linked process.
I should also like to reassure the House that the suspension power would be used only infrequently. The Driving Standards Agency estimates that, in an average year, the power would be used on no more than five occasions, and Members should note that there are about 45,000 approved driving instructors on the register. On that point, I also remind the House that the overwhelming majority of approved driving instructors remain fit and proper persons throughout their careers and perform a valuable role in preparing our young people for driving safely.
Hon. Members may have concerns about granting the registrar the power effectively to deprive an approved driving instructor of his livelihood. The hon. Member for Canterbury made that point, and I regard such concerns as reasonable. We would not wish to support a Bill that resulted in approved driving instructors being suspended solely on the basis of allegations or rumours, which sometimes happens in other professions. Indeed, my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) raised that concern in Committee. There needs to be a balance to the suspension power, so that an instructor is suspended only when a clear need has been identified. In connection with that, I agreed in Committee that the registrar will publish details of the circumstances in which he will consider using the suspension power. That should provide further reassurance to the House that the power will be used sparingly and judiciously.
The balance is achieved by including a compensation scheme in the Bill. The scheme will cover an instructor who is suspended but not subsequently removed from the register, or whose removal is reversed on appeal. It will also apply in circumstances when a trainee is suspended but his licence is not subsequently revoked, or whose licence revocation is overturned on appeal. The compensation scheme will be introduced by regulation. It is important to do that by regulation, rather than in the Bill, because the regulation-making power will allow the Secretary of State to tailor the precise nature of the compensation scheme to the circumstances applicable
at the time. However, the Bill explicitly states that the Secretary of State “must” introduce a compensation scheme, and it is important that the provision of a compensation scheme be a mandatory requirement, rather than a discretionary provision, as it provides balance—to which hon. Members have referred—for the suspension power. It will not be possible for the registrar to use the suspension power unless there is a compensation scheme in place.
The compensation scheme will extend to all the circumstances in which an approved driving instructor may be suspended and in which a trainee licence may be revoked or suspended. Eligible applicants for compensation will be able to claim for two distinct categories of loss, and the likelihood is that a suspended person will have suffered income loss. Let us assume that he has been suspended for two months. He will not have received two months’ income and, if driving instruction is his main source of income, he may be significantly out of pocket.
There are also non-income losses, such as damage to the goodwill of the instructor’s business, as many driving instructors are self-employed. The circumstances resulting in the use of the suspension power may seriously affect an individual’s business, and in those cases it is right that compensation be payable for such damage. The suspended person may also have incurred additional costs as a result of having had to take out a loan to purchase essential items during the suspension period.
In addition, the Bill allows for the inclusion of
“any other matters which relate to such a suspension and are provided for in the scheme”.
That provides for the flexibility to adapt the compensation arrangements in the light of experience, but I remind the House that we will be dealing with a very small number of cases of suspension and potential compensation each year.
Inevitably, there might be disputes about the amount of compensation granted or whether any compensation should have been granted at all. In those circumstances it is important that there is an appeals mechanism and, indeed, that an independent third party be the arbiter. That role will be filled by the first-tier tribunal. There is a right of appeal in respect of most of the registrar’s decisions on whether someone should be admitted to the approved driving instructor register, or on whether an application for re-registration should be granted.
However, there is no such provision in respect of the registrar’s decision to suspend someone. Should an instructor who is suspended be able to appeal that decision of the registrar? We have considered the matter carefully and concluded that the answer must be no, as such a provision would be counter-productive. The registrar’s intent when suspending someone is to prevent them immediately from being able to continue to give paid tuition, because they present a significant risk to the general public. Introducing an appeal arrangement would simply negate that purpose.
However, the instructor would retain the right of appeal to the first-tier tribunal in respect of the registrar’s decision to which the suspension was linked—for example, the removal of the approved driving instructor’s name from the register or the revocation of their licence. We must not lose sight of the main purpose of the Bill: to protect the victims, whom we all recognise from the case of Lesley Anne Steele.
I said at the outset that I would need to return to the Road Safety Act 2006, as we need to amend some of its provisions if the suspension power is to be fully effective. As I have explained, under provisions in the Road Traffic Act 1988, partially qualified instructors may apply for a trainee licence issued by the registrar of approved driving instructors, but the provisions underpinning those arrangements will be repealed once the 2006 Act is fully commenced.
One significant change relates to trainee instructors. The 2006 Act replaces the trainee licence scheme provisions with those that support a system of exemptions from the requirement to be registered. That could be used to exempt particular groups of instructors from the requirement to be registered—for example, the police, who already enjoy a class exemption so that they can give instruction within the police force. Unfortunately, it would be very difficult to introduce an effective suspension scheme unless individuals were required to identify themselves before accessing an exemption and the registrar were able to make a judgment about whether they were fit and proper. Without that, the effectiveness of any suspension provision would be severely constrained.
To address that problem, the Bill amends the 1988 Act to retain a role for the registrar in supervising access to any exemptions once the 2006 Act is fully commenced. In addition, the Bill makes amendments so that the registrar may charge a fee in connection with applications for the granting of exemptions. That goes some way to replacing the 1988 Act’s trainee licence fee-charging provision, which the 2006 Act will repeal. That in turn is why we debated the Ways and Means motion on Monday evening, and I am grateful to the House for having approved it so that the Bill could be properly considered in Committee. The Bill is important and goes a long way towards making sure that a loophole in the current legislation is closed. It has come about thanks to the hard work and tenacity of the hon. Member for Dunfermline and West Fife.
The hon. Member for North Southwark and Bermondsey raised the issue of numbers. I say to him that there is no power to restrict the numbers on the register. There is no artificial level at which we cap; basically, commercial decisions drive the number of instructors. The evidence that we have is that there is no current shortage of approved driving instructors.
Simon Hughes: What about Northern Ireland?
Paul Clark: I will come to Northern Ireland, although I wanted to leave it to the very end. Since the hon. Gentleman has pressed me, I shall tell him now that the Bill does not cover Northern Ireland because it involves a devolved matter. It is as simple as that.
The Bill strikes the right balance between the need to protect the public and the rights of individuals to go about their business and earn a living. It allows the registrar of approved driving instructors immediately to suspend those who pose a danger to the public and thereby prevents them from continuing to give paid instruction, but it also contains provisions that will safeguard instructors, and those seeking to become instructors, from improper use of the suspension powers.
The Bill has received generous cross-party support and I hope that that will continue to be the case; I have no doubt that it will be. It addresses a genuine public concern in a proportionate and effective manner, and my congratulations go to the hon. Member for Dunfermline and West Fife. I look forward to monitoring the Bill’s progress and to seeing it become an Act.
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