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Lord Harris of Greenwich: Reference was made to the fact that my noble friend Lord Thomas of Gresford is not here. The reason is, as was the case with my noble friend Lord Meston, that he is involved in a case in the courts which unfortunately has been delayed. The case is in Birmingham. Otherwise, my noble friend would be on his feet now supporting the noble and learned Lord, Lord McCluskey.
Lord Monkswell: In rising to support the noble and learned Lord, Lord McCluskey, I wonder whether the Government have really taken on board the full implications of this idea. Until now the whole business of having a licence to drive a motor car has been to do with the process of driving a motor car. One pays a licence fee, one passes a test and one is permitted to drive a motor car. The licence is a piece of paper which says that the driver has the ability to drive a motor car. A driving licence can be revoked or withdrawn if the individual has demonstrated his or her unfitness to drive a motor vehicle.
The fact that one has committed a criminal offence in some area of activity completely unrelated to driving does not come into that category. What is proposed is a departure from the normal considerations that we have grown up with over the past 100 years of motor vehicle driving in this country.Is this the beginning of a whole range of punishments that are unrelated? Will the Government next bring in the ability to prevent someone having a dog but not because he mistreats the animal, which is the way the courts look at the issue at the moment? A person may be prohibited from owning a dog or even a horse because he has a history of maltreating animals. Will we see a situation where, because someone commits a crime in a completely unrelated area of human activity, he will be prevented from owning a pet?
Have the Government thought through the implications of what they are doing? I have mentioned before in the Chamber that there are two categories of offender. The first category is those who are basically law-abiding people who, after a fit of nervous attack, commit a crime, something of which they are mortally ashamed and would never think of repeating. If such people are deprived of their driving licence they will probably not drive a motor vehicle. They are innately honest, decent people. The other category is people who one might describe as of a naturally criminal bent, who think nothing of transgressing the law. If you take away their driving licence it will mean absolutely nothing to them. All they will do is carry on driving their car, as the noble and learned Lord, Lord McCluskey, pointed out. They will be uninsured and therefore will be a hazard to other road users.
The Government should think this through, take on board the criticisms that have been made from a number of directions and withdraw this element of the Bill.
The Earl of Mar and Kellie: I am not convinced that this proposal will prove to have a wide use in Scotland. I am in favour of the search for an ever increasingly wide variety of community sentences, but, like other noble Lords, I have reservations about these proposals. My reservations are in two areas. The first is the wide range of effects a driving ban will have on different convicted persons. The casual and leisure only driver is lightly punished, unless of course he or she is the sole driver in the family and lives at the head of a glen, which leads to problems with the children attending school and the family being able to get the shopping, often at great distance. For the at-work driver, such a sentence is a sentence to lose one's job. That is a direct equivalent of imprisonment. So long as these wide variations are taken account of during consideration of sentence the measure may possibly be okay, but only if the considerations are gone into in some depth and the sentence is not used casually.
My other consideration has to be about finding offenders who are drivers who will obey the driving ban. Like other Members of the Committee, I recognise that there is a risk of a new class of uninsured driver emerging and a new class of victim. As the noble and learned Lord,
Lord McCluskey, said, there will be people who are left to fight their way through the uninsured driver claim system, if something like that really exists.If this clause is to be accepted, I need to hear from the noble and learned Lord the Lord Advocate that the matter will be piloted extensively in both extremely rural areas as well as urban areas. I feel reasonably confident that the scheme could work in an urban area, but I believe that it will be very difficult to operate in remote rural areas. There is the risk of it being counterproductive, as other Members of the Committee have mentioned, as regards the link between the ability to drive and to get a job. That is significant and needs to be safeguarded. I believe that that is widely understood.
Lord Macaulay of Bragar: I had not intended to enter the debate at this stage because I believe the wording of Clause 14 requires a lot of consideration. So far as I can see, what has not been looked at are the social consequences of the removal of a driving licence from a person who may very well have not been doing very much in the anti-social sense of the word. Once that happens, we have a ladder. What happens if a person has a driving licence and he is a long-distance lorry driver who happens to be doing a little bit of poaching? I am sure that Members of the Committee know that nobody poaches illegally in Scotland; but let us assume that someone does and uses a vehicle to get to the river at midnight and is nabbed by the police. That person may have three, four, five or six children who depend on his livelihood for their existence.
The reason that I did not speak on this clause earlier is because I wanted to look at it very carefully before Report stage. It seems to me that it will drive people into the public sector for support. As regards the wife and the children, with no husband to support them because his job has gone as a long-distance lorry driver, is it fair to deal with them in this manner? There are already plenty of provisions within the law for confiscating anything that is used in the commission of a crime. I do not understand why this clause has been brought into the Bill unless again it is the old, macho politics which we are dealing in in this Bill, which I hope will never see the light of day, but we have to keep talking about it.
With great respect to the noble Earl, Lord Mar and Kellie, I was a little perturbed to hear him suggesting that we should have another pilot scheme. There have been so many of them suggested in the past three weeks in this Chamber that they will be crashing into each other in the sky. Let us look at things realistically. Why do we need a pilot scheme? Either the law is right or the law is wrong. We should forget about pilot schemes. I will not go beyond that. I do not accept the idea as regards pilot schemes. Let us have a clear definition of the law and let the noble and learned Lord the Lord Advocate come before us and say what is the purpose of this particular provision in Clause 14(1) and what it is meant to achieve.
If, for example, a family is driven onto social benefits, are the Government going to support it and accept that the provisions of Clause 14(1) may very well have dramatic social implications? I do not say this in any sexist sense, but as we all know--and I am sure the noble and learned Lord the Lord Advocate knows--sometimes a wife, in
looking after the children at home, does not know what her husband is up to, poaching or otherwise, and he is using the car doing this or that. Is the family to be penalised for the activities of the husband or do we try to keep some sort of civilised balance and perhaps penalise the husband, but not take the licence away unless it is necessary and has been used in the commission of a crime rather than follow the draconian measures contained in this particular part of the Bill?4.15 p.m.
Lord Mackay of Drumadoon: I very much regret that the noble Lord, Lord Macaulay, is not able to give this proposal the support which his English colleague, the noble Lord, Lord McIntosh of Haringey, was prepared to give. He said that he had some reservations about it, but he recognised that the sentence proposed is on a trial basis and can be withdrawn at any time if it does not work and that he would be prepared to give it a fair wind, which I understand to be the approach taken by the noble Earl, Lord Mar and Kellie, as well.
Lord Macaulay of Bragar: Perhaps I may interrupt the noble and learned Lord. Can I remind him that we are dealing with the Crime and Punishment (Scotland) Bill? I am not particularly interested in what happens south of the Border. We are dealing with a particular piece of legislation which applies north of the Border and let us get on with it and stop messing about.
Lord Mackay of Drumadoon: I am sure that Members of the Committee will have heard what the noble Lord has just said and no doubt they will bear that in mind in the event that this matter is pressed to a Division. I should like to be quite clear about this. This provision is designed to provide another alternative to the sentencing court the first time that the matter comes before the court for sentence, which is the purpose of the new Section 248A, and when one is dealing with fine defaulters. That is a common problem which besets the sentencing court. As I have already observed on this Bill on more than one occasion, the Government are always being encouraged to do what they can to keep people out of prison whether as regards the original sentence or instead of a fine. That is why this proposal has been put forward and is to be piloted to see whether it works and achieves the objective which the Government believe it will have, and certain Members of the Committee are prepared to give it a chance to prove itself.
A number of complaints are made about the lack of consultation. As the noble and learned Lord, Lord McCluskey, has said, it is correct that the matter first appeared as a proposal in October and November of last year. Since then it has gained a measure of support. It might be of assistance to Members of the Committee if I read what the Lord Justice General said in a letter of 7th November 1996 addressed to my right honourable friend the Secretary of State. I believe that the noble and learned Lord,
Lord McCluskey, advised the Committee last week that the noble and learned Lord, Lord Rodger, has a weekly meeting of judges at which matters of current interest are discussed. This proposal having been put to him by the Secretary of State, he replied in the following terms:
- "I was able to discuss the matter briefly with a good number of the other judges at our meeting this morning. I would not oppose the proposal since it adds to the range of non-custodial options open to a sentencing judge or sheriff and the penalty of disqualification may indeed be one which could be effective especially among young people who greatly prize their freedom to drive".
As I have said, the point about driving while disqualified is a valid concern which will require further consideration during the pilot schemes. However, as has been said, there is in existence the Motor Insurers Bureau, of which I have had a fair measure of experience over the years in acting for people who have been injured by an uninsured driver. The bureau was set up by the insurance companies to provide effective remedies where personal injury is suffered in such cases. Of course, such a risk always exists when periods of disqualification are imposed. Until now, I am not aware of anyone saying that there should not be such a penalty for driving while disqualified, driving without insurance, driving while under the influence of drink or for driving dangerously. It is a risk which is inherent in that penalty and which will clearly need to be examined as the pilot scheme proceeds.
The issue of rural areas is also a valid point to raise. The courts will have discretion over the period of disqualification that they can impose. That period has been limited under the amendments that I have just moved in relation to fine defaulters. Clearly, among the factors which a court will have to consider is where the offender lives, whether he is in employment--if he is, presumably he will be in a better position to pay a fine than someone who is unemployed and it may therefore be less likely that the penalty will be necessary in his case--and what arrangements require to be made to take children to school or older people to hospital. Those are all circumstances that will need to be laid before the sentencing court. One hopes that the courts will approach this in a sensible and all-encompassing manner. There is no reason to doubt that they will.
The noble and learned Lord, Lord McCluskey, questioned whether this might lead to increased arbitrariness in sentencing. No doubt it will take some
time for the sentencing judges to work out the best way to deploy the new sentencing procedure but, with guidance from the Appeal Court, there is no reason to doubt that it will work.I venture to suggest that a pilot scheme is a singularly good way to examine the proposal and to see whether it will work as opposed to having endless consultations and discussions. This is a new proposal. The Government acknowledge that it is innovative, but it has a measure of support and for that reason I hope that the Committee will find it possible to support Clause 14.
The noble Lord, Lord Monkswell, asked whether we had any proposals to ban the keeping of pets, especially dogs. I am happy to assure the Committee that we do not. The noble Lord also asked whether honest people would be more likely to abide by the disqualification than people with a natural criminal bent, as he described it. Clearly, first offenders who are punished in this way will in all probability abide by the disqualification, serve whatever short period of time is imposed and return to driving their car when their licence is returned to them. One suspects that some people in the other category may abide by the order while some may not. If they do not, as is frequently said in the courts, they will be defying not only the law of the land, but the order of the court and they are unlikely to attract leniency if they are brought back before the court.
The search must be on to find alternatives to imprisonment where appropriate. This has nothing to do with macho politics, as the noble Lord, Lord Macaulay, suggested. It is an attempt to develop a sentencing regime for reasons which we all support. In the light of the support which the proposals have received from the senior judiciary in Scotland, which has supported the views set out in the letter from the noble and learned Lord, Lord Rodger, and from the police, I hope that noble Lords will be content that the clause should stand part of the Bill.
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