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Lord Hanningfield: I understand what the Minister is saying. But, unfortunately, we live in a country in which at least twice a week those of us who have to get around spend about quarter of an hour stationary in traffic jams, particularly if you live out of London in a county such as Essex. We have a whole group of people who have to get about to support other people. An ambulance with a flashing light will get through, but many people have to travel to support others. We are talking about not only saving lives on roads but saving lives generally. In my job in local government, I want to save children's lives and older persons' lives, which means supporting them at times. If people are stuck in traffic jams for quarter of an hour, half an hour, or sometimes an hour if there has been an accident ahead, they would be unable to inform others either to stand in for them or support the system, which would be totally wrong.

In referring to cars that stop automatically, I think that the Minister is leading us up the garden path. I have been in a situation of having to get through a timetable of meetings and have not used a mobile phone. People do not like it if you are late. So there is a real problem for those of us who have to get round the country for very important matters such as saving lives and supporting other people.

Baroness Gardner of Parkes: If the Minister will allow me to intervene also, I would like to know more about these cars that stop automatically. I believe that that is a most terrifying thought. Many years ago I had a very famous British brand of car whose engine stopped automatically the moment a drop of rain hit the car. If you were on a motorway and the engine
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suddenly cut out in the middle of nowhere, it was quite terrifying. In considering road safety, we should think about when and where the so-called automatically stopping cars will stop, because I think that it sounds unbelievable, and it does not take away my very strong support for this amendment.

Lord Lyell of Markyate: Perhaps the Minister will reflect on this pointbefore Report, on the basis that one is looking at the mischief with which the legislation seeks to deal. With drunken driving and related offences, it is a very grave mischief to have the keys in your pocket and to intend to enter the car, and that should be quite sufficient. However, if you are in a car with a mobile phone, the mischief depends on what you seek to do and where you are. If, for example, you are stuck in a traffic jam, everyone is brought to a halt, you switch off the engine as a symbol that you do not intend to drive further at least until you have switched it on, and you then use a mobile phone for a sensible, humanitarian purpose, it seems to me that there is no mischief.

Likewise, following the Minister's arguments, if you pull into the kerb, switch off the engine, put the keys in your pocket, which is what I do when I want to use a mobile phone, and then use it for whatever sensible or other purpose, I cannot see that any mischief is created. Three times in the past year, in a car with an electronically controlled engine, which can go wrong, I have had the engine die on me in the middle lane of the M1, in the rush hour, with traffic passing at 60 miles per hour. That is very frightening. If it were unlawful for me to use my mobile phone to alert the police and the rescue authorities in such a situation, it would be absolutely absurd. The car will not move. Consequently, it seems to me that there is some room for flexibility here, and I would ask the Minister to think further about it.

The Earl of Mar and Kellie: Listening to the debate so far causes me to ask the Minister whether at present the legislation is so written that it would be an offence to have a hand-held mobile phone switched on in one's pocket.

Lord Davies of Oldham: First, I attest the obvious—that I am no lawyer, and therefore these questions leave me gasping for air in terms of answers. I hear the suggestion made by the noble Lord, Lord Lyell, that we think about this debate before Report stage. We certainly think about these debates whenever a genuine controversy develops and arguments are presented that are worthy of consideration. This is one such occasion.

The point I want to emphasise is that, as the noble Lord suggested, these issues require some flexibility because we are talking about prosecutions. Even the excellent illustration of whether one has the keys in one's pocket and how close one is to the car is a question of evidence before the court. If you are five miles away travelling home on a bus, as drunk as some people can be on such occasions, you are clearly not in control of a vehicle, although your vehicle may be stationary elsewhere. The police may have good reason to look into
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that. On the other hand, if you are in very close proximity to your car with the keys in your pocket, and the police are able to establish that there was a clear intention to drive—certainly, if you are sitting in the driving seat—you are in serious trouble. The judgment will be made on that basis.

I sought to suggest that these matters need to be defined by the court. I tried to emphasise—as I sought to do with the previous group of amendments—that we do not define in statute the concept of driving. We define offences in statute but not the concept of driving because we cannot distinguish—to take the most obvious example—whether the engine has been switched off because the driver has suddenly become very ill, whether the driver has had too much alcohol or whether the engine has been switched off not by the driver but has automatically switched off. I hear what the noble and learned Lord said about advanced technology malfunctioning. We are all used to innovations not being perfect; in fact, I do not believe that any technical innovation has ever been perfect. Of course mishaps occur. However, there are increasing sales of vehicles with technical innovations because the technology is fairly secure. You would never sell a car if it continually demonstrated the fault to which the noble and learned Lord referred. The police will scarcely prosecute the noble and learned Lord for using his mobile phone to avoid a serious traffic incident obtaining. Of course this is a question of what the police define as an offence. All I seek to emphasise is that it is not easy to define.

In moving the amendment the noble Lord, Lord Hanningfield, gave the excellent example of being stuck in an hour-long jam on a motorway and wanting to make a humanitarian call—I take it with the aim of helping other people rather than getting in contact with one's bookmaker or whatever—but how on earth are the police supposed to know whether it is a humanitarian call or a trivial one? A few moments ago we heard why the use of a telephone while driving might be extremely dangerous. How can we have a situation where someone says, "Because the vehicle is stationary it cannot under any circumstances be dangerous"? People can be in control of a stationary vehicle but constitute a real hazard to others. It depends where the vehicle has stopped. Given that we are concerned to maintain calmness and good order on our motorways, I venture to suggest that someone who is a little slow to get their car going again because he or she is busy talking on a mobile phone after the vehicle has been stationary for a while on the motorway will scarcely be conducive to good behaviour on the part of fellow drivers.

I emphasise that there are hard cases but they make bad law. I certainly give the Committee an assurance that we shall look at this issue again but I emphasise that the concept we are addressing concerns not that of driving but of being in control of a vehicle. All kinds of new technologies make it absolutely clear that in a stationary car you do not have plenty of time in which to switch off the engine, relax completely and make the appropriate phone call. That is how the modern technology in some cars operates. However, if we accepted the noble Lord's amendment, we would drive
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a coach and horses through the legislation. Anyone who drove a car with the technical innovations that we have discussed could say, "At the moment when you allege that I committed an offence, the car was stationary and the engine was off, because when it is stationary, the engine is always off; therefore I cannot be guilty of the offence".

I will reflect upon this important debate. I recognise the wealth of contributions that have been made to it. However, I hope the noble Lord will recognise that there is no way that I can accept the amendment as it stands. I believe that other Members of the Committee also have reservations about it. I hope, therefore, that the noble Lord will consider that we have had a constructive debate and that he will withdraw the amendment. We shall return to the matter.

6.45 pm

Lord Bradshaw: Before the noble Lord, Lord Hanningfield, addresses those comments, I should say that I do not think that what the Minister said was good enough, although I listened to him very carefully. I believe that motorists need guidance. They have been told that they are not to use a mobile phone while driving and that they will incur penalty points if they do. I hope that motorists will be advised not to use a hands-free mobile phone while driving. However, at the same time you must tell motorists what they can do. It is a matter of what you cannot do and what you can do. I hope that any publicity that is issued tells motorists what is permissible. That has to be done whether it is done in law or in guidance. The noble Lord referred to leaving matters to the court to decide. I am not a lawyer either. However, I am not very keen that every time we discuss a difficult issue, whether it is using mobile phones while driving or dealing with terrorists, we should shuffle it off to the courts to let our learned friends spend huge sums of taxpayers' money deciding issues that we ought to decide here. I ask the Minister to reflect very carefully on the matter and return at Report with a form of words that will better satisfy noble Lords.

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