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Earl Attlee: My Lords, does the noble Lord accept that the errant driver would still incur penalty points on his driving licence and therefore, if he had a bad driving record, he could eventually lose his licence?

Lord Bradshaw: My Lords, as the noble Earl well knows, the problem is that the chances of being caught are so small that very many people will take a risk. While enforcement activity remains so low, that will continue.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have contributed to this short debate, particularly since it has generated more controversy than I would be able to introduce from this side. For that we thank the noble Lord, Lord Bradshaw, who is quite right to mention his
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Question for Written Answer which highlighted the example of lorries coming in from Ireland and using the A55 in North Wales. I am afraid that a very high percentage of them were not fit for the road. That is an important consideration.

As the noble Baroness mentioned, we have discussed the issue previously and I understand the intention behind the amendment. I note the proper concern for the position of an employee who has the misfortune of working for an unscrupulous employer, but this Bill is about road safety and we have a duty to the public. Therefore there are obligations on those who take charge of a vehicle, to say nothing of the fact that one aspect of road safety is the hope that the driver will be safe. It is in his interest that we should reinforce the obligation to make checks on the vehicle. Our obligation to ensure the safety of the general public is quite clear and the reason we have the offence in the first place. Moreover, if we are considering the commercial transport industry, it is all the more important that we have these safety provisions in place.

The noble Lord, Lord Bradshaw, has highlighted the problem with the amendment. It would open a very wide loophole associated with circumstances in which someone might try to claim that they did not own the vehicle and were merely driving it on behalf of their employer.

The concerns expressed are adequately covered by the Road Traffic Offenders Act 1988, which states:

So we are covered by existing legislation.

The safeguard for the public is that we provide protection to the employee while requiring him to apply a reasonable amount of diligence when he is taking a vehicle onto the public highway. If a driver knowingly took out an unsafe vehicle only because he worked for an unscrupulous employer, he would deserve the punishment; he would be as guilty as the neglectful employer. If he can prove that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person, he would be likely to escape disqualification on endorsement when the court examined the case.

So we are covered by existing legislation. I would be very wary of any loophole that would be created which might help to explain some of the issues to which the noble Lord, Lord Bradshaw, referred when he mentioned the incidence of lorries—admittedly those coming from an external source—that do not match up to the proper specification. I hope that is a reasonable answer for the noble Baroness.

Baroness Hanham: My Lords, the Minister is over-egging the pudding because no one is arguing that the court should not have an option to disqualify a driver
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if it is satisfied that he was culpable in what was going on. I hear what the Minister says about Section 48 of the Road Traffic Offenders Act.

The clause makes it absolutely mandatory on courts to disqualify someone who has been prosecuted for taking out a vehicle which is an unfit condition for the second time within three years. The only aspect we are questioning is whether the court should have the right to make its own decision as to whether a case is serious enough to merit disqualification. It should have the option. I am sure the Minister will know that courts are less and less happy about the mandatory sentencing that is being passed down from Parliament because it does not leave them room to make their own judgments. That is the aspect we are questioning.

However, I hear what the Minister says. I hope that I have made our concerns clear. I am prepared for today's purposes to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Breach of requirements as to control of vehicle, mobile telephones etc.]:

Baroness Hanham moved Amendment No. 25:

The noble Baroness said: My Lords, we return to the subject of the use of mobile phones in motor vehicles, on which we enjoyed a stimulating debate in Committee. While I have no doubt that all noble Lords will join in the condemnation of those operating hand-held mobile telephones while driving a motor vehicle—as do I—it is important not unnecessarily to criminalise those drivers who use their mobile phones inside their vehicles but while not actually driving.

In Committee, my noble friend Lord Hanningfield illustrated the point with the example of a senior social worker who was stuck in a traffic jam but felt unable to make an important telephone call for fear of committing an offence. The current wording of this clause would render any driver of a vehicle that is not moving—even if the engine is switched off—who uses their mobile phone to make an urgent call, guilty of an offence that would result in a mandatory three point endorsement on their driving licence. The amendment is designed to address this absurd situation by providing a clear stipulation of the circumstances where a person is able to use their mobile telephone without fear of being penalised.

8.45 pm

When we last debated this issue, the Minister highlighted a number of difficulties inherent in the specific wording of the amendment. He spoke at length about the problematic distinction between being in control of a vehicle and driving a vehicle, and drew our attention to the peculiar fact that there is no definition before the law of what constitutes "driving". However, I believe that if you take the keys out of the car and put them on the back seat and are therefore unable to drive, you would possibly be considered not to be driving. The Minister also referred to the difficulties
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that stem from the advent of new technologies that automatically switch one's engine on and off in pursuit of fuel economy.

While I concede that the Minister cannot accept the amendment as it stands, that does not preclude the possibility of producing a form of words that would satisfy noble Lords. I simply cannot believe that there can be no room for this type of sensible flexibility within the legislation that we have all agreed to be so necessary.

I also remind the Minister that he gave the Committee an assurance that he would look at the issue again. I very much hope that he may be able to tell us tonight that he has done so and that there is a way out.

While there may be technical difficulties in the way in which the amendment is worded at present, something needs to be done. There must be some leeway to enable people to make a brief emergency telephone call if they are, for example, stuck in a traffic jam and are very late picking up a child from school. None of us holds any brief for people who drive round with one hand on the steering wheel and the other clamping a phone to their ear while trying to turn a corner. That is not what we are saying. Our amendment would cover someone, in extremis, who took the decision that they had to make a phone call, stopped somewhere safe to make it and then moved on.

If we do not have a provision of this sort that eases us through, the legislation will be deficient in this aspect. I beg to move.

Earl Attlee: My Lords, I support my noble friend Lady Hanham. If we do not make some progress on this matter, there will be a perverse effect. When I drive my vehicle, I always switch off my hand-held mobile phone, which I believe is the right thing to do. I should not be using a mobile phone. I do not want it to ring when I am driving; I want to concentrate on the driving. But if I cannot legally make a call when I am stuck in a traffic jam to tell whoever I am supposed to meet in two hours' time that I will not be there for two and a half hours, I cannot relieve the stress on me from the traffic jam. So the solution for me would be to fit a hands-free phone, in which case I might as well leave it switched on. Then I will start making or receiving calls while I drive along, which I am sure is not what the Minister wants.

There is a perverse incentive. If people cannot switch on their hand-held mobile phone for a few minutes to make a call and apologise because they will be late, they will be encouraged to go for hands-free phones, which they might as well leave switched on. The Minister is smiling because he knows this is an ingenious argument.

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