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This legislation has been considered carefully and was the subject of extensive consultation. The consultation itself was preceded by a review in which a wide range of stakeholders was consulted, including judges, the police and road safety campaigners. The policy is not being rushed. I realise that there is some concern that these offences were not included in the Bill from its introduction, but that was because they were still the subject of the consultation exercise we were carrying out and we did not want to pre-empt the outcome of that process. We made changes as a result of that consultation, and included the offences in the Bill as soon as we were able to do so.
The maximum penalties provided for this offence will be 12 months on summary conviction or five years on conviction on indictment. I emphasise that those penalties are the maximum that would be available to the court. If the court did not consider a custodial penalty to be appropriate, it would use other methods of disposal; for example, by imposing a fine or a community penalty. I did not respond directly last time when the noble Baroness, Lady Gardner, asked what would happen if a mother reversed out of her driveway and caused an accident to her child. I cannot conceive of any court prosecuting and passing a sentence against a mother in such circumstances, but in any case that would be for the court to make its judgment. Here we are merely seeking to establish maximum penalties where careless driving has clearly resulted in death, and is therefore serious.
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Some noble Lords may be concerned that sentencing will be inconsistent or unfair, but we are seeking to ensure that guidance from the Sentencing Guidelines Council will be available to inform sentencing decisions. The only obligatory elements of the penalty would be disqualification and endorsement, as is the case with other bad driving offences where death is caused.
This issue is not one to which we can return, as both Houses have now agreed. I realise that certain noble Lords are concerned about it, however, and I believe a mistake was made at Third Reading. I cannot say whether a mistake was made, only which amendment was voted upon. That is the only judgment I can make. We voted on whether this offence should have a custodial penalty attached to it on summary conviction. The Government lost that vote at Third Reading in this House by the very narrow majority of 159 to 153. I cannot assume that everyone who voted on that amendment did so in the mistaken belief that they were voting on the penalty for the offence as a whole. I wish to concentrate on the effect that our vote would have on the operation of this offence. On the previous occasion that we debated this matter, the noble and learned Lord, Lord Lyell, stressed that in his view a mistake had been made in the way the amendments had been dealt with, although he recognised that it was not a mistake on the Government’s part. I reiterate what I said to the noble and learned Lord on that occasion. The Government can deal only with the Bill as it is before us. If a mistake has been made, we are not in a position to correct it, nor dare we presume the basis on which noble Lords voted.
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The other place has insisted on its amendment that a custodial penalty should be available on summary conviction to avoid what I think the House will recognise as the perverse consequences of providing that a Crown Court only can impose a custodial penalty for this offence. It is those perverse consequences which I urge noble Lords to concentrate on and recognise today. The failure to provide for a custodial penalty on summary conviction would mean that any case that might conceivably warrant a custodial sentence would be referred to the Crown Court for trial. This would increase costs and anxiety for the defendant. This runs contrary to views expressed during the consultation exercise. The Magistrates’ Association is clear that in its view if it is to have the power to try this offence, it should have a full range of penalties at its disposal.
In addition, under changes made to magistrates’ powers under the Criminal Justice Act 2003, which are awaiting implementation, if a magistrates’ court accepts jurisdiction in a contested case but finds, on trying it, that a custodial sentence was after all justified, it will cease to be able to commit it to the Crown Court for sentence, even if it considers its sentencing powers to be insufficient.
I assure the House that the Sentencing Guidelines Council, which is charged with publishing definitive sentencing guidelines for all criminal offences in England and Wales, has asked the Sentencing Advisory Panel for advice on sentencing for the new bad driving offences that would be created by this Bill. It will also
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I noted the letter of the noble and learned Lord, Lord Lyell, in today’s Times. I am forced to recognise that throughout these long debates I have fallen short of persuading him of the Government’s case. That is not for want of trying; we have expressed our opinions clearly on several occasions. I pay great tribute to the way in which the noble and learned Lord presented his case. He and the Government fundamentally disagree on this matter. Nevertheless, the Government have gone as far as they can to implement a manifesto commitment and to see through that commitment by votes in the other place—votes which fully considered the careful scrutiny which this House gave to the issues, including not just scrutiny on the detail but the principled case which the noble and learned Lord, Lord Lyell, made supported by his Front Bench. Therefore, I hope that noble Lords will recognise that the Government have reached this position after the fullest possible consideration of the matter. The Government have a majority in another place. That majority has spoken. Therefore, I hope that the noble and learned Lord recognises that even if he again expresses his reservations about our position, it would not be appropriate for a further vote to be taken on the matter.
Moved, That the House do not insist on its disagreement to Commons Amendment No. 6, on which the Commons have insisted for their reason 6B.—(Lord Davies of Oldham.)
Lord Hanningfield: My Lords, I will not detain your Lordships for any longer than I strictly have to. Suffice to say, we know the arguments well. Sadly, we have been unable to reach any sort of agreement on the merits or suitability of this provision. It is of some concern given, as I said previously, that this is very much the most contentious part of the legislation, which we generally all support because we all support road safety.
As my noble and learned friend Lord Lyell of Markyate said so well in his letter today in the Times, to which the Minister referred, we run the risk of criminalising individuals for a momentary lapse of concentration. With your Lordships’ permission, I thank my noble friend for all the help and legal expertise that he has given me over the past months.
Of course, we have the utmost sympathy and respect for victims’ families, who have lost loved ones. We all know and understand the emotion that causes, and we had some debate on that in this House. That is not the issue. The issue in this House is that Parliament should
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When one has a collective legal expertise such as we are fortunate to have in this House, one tends to listen to and respect those views, yet the Government have chosen not to listen. We have cautioned against this clause time and again, yet the Government have chosen not to take any note. This is our right in this House. The Minister has given his arguments, and we still do not accept them. We will not be voting on this today, but we will watch this legislation as it moves on to the statute book and becomes operational. If we feel that it has unfortunate consequences, we shall look for some future opportunity to reverse it and create more suitable legislation.
Lord Bradshaw: My Lords, I thank the Minister for what he has said. The Bill has been closely examined by this House, and the other place has had the opportunity to reconsider it. It has chosen not to do so. I take fairly seriously the Minister’s remark that it is for the courts to decide what penalty to impose. We shall see in due course how that works out. In the mean time, I do not intend to pursue the matter any further.
Earl Attlee: My Lords, clearly, my noble friend Lord Hanningfield is right that we should not pursue this any further and we should agree to the Motion. If the Opposition make a mistake in voting or in procedure, we have to live with it; the Minister is right on that point. However, I am convinced that Clause 20 is misconceived.
Although the amendment does not concern the automatic disqualification of drivers convicted of this offence, we have touched on it. In my view, automatic disqualification for what might have been the most minor of errors, admittedly with very tragic consequences, is the fatal flaw. In those circumstances, a minor driving flaw will not result in a custodial sentence, but the six-month ban will mean that motorists prosecuted for this offence will fight like hell in the Crown Court. The way in which this provision was introduced is not the Minister’s fault, but equally I am quite sure that some Minister will have to come to this House and propose amendments to the provisions in Clause 20. You only have to think of the unintended consequences of a conviction in the Crown Court because a jury is reluctant to convict for a minor error of driving. The consequences will be loss of licence, which will inevitably lead to loss of employment for those who have to drive for their living. So I am disappointed in the way that this whole business was introduced at a late stage in the Bill. I am sorry that we have been unable to debate this matter as thoroughly as your Lordships would have liked, but, at the end of the day, we shall have to leave this one.
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Lord Monson: My Lords, the noble Earl was wrong in referring to a six-month ban. I think that the obligatory ban is 12 months, which, in my view—maybe not his—would be justified in that case.
Earl Attlee: My Lords, I am not sure whether it was a six-month or a 12-month ban, but either way a motorist who is prosecuted for that offence will fight like hell in the Crown Court.
Lord Lyell of Markyate: My Lords, we are in a sad position, as this is bad legislation that will do injustice. None the less, I thank the Minister because, although we have disagreed strongly on all these matters, he has been unfailingly courteous and his ministerial colleagues have given me a good deal of time to try to explain the position and to tease out what I believe are great flaws in this legislation.
I am sorry, but I cannot resile from the fact that this legislation has been rushed. A mistake was made on 10 January. I was certainly part of the mistake, which was made by everyone, including, I say with great respect, the House authorities, and I do not believe that the Government realised at that time that there had been a mistake. Let me just remind noble Lords what happened. After we voted on Amendment No. 4, which kicked out prison sentences from the magistrates’ courts, the words from the chair were, “Amendments 5 to 8 not moved? Not moved”—and the crucial Amendment No. 5 disappeared into the ether.
That is the difficulty of being rushed. Because the matter was not brought before your Lordships' House until Report stage, instead of there being three opportunities to consider and vote on it—in Committee, on Report and, if necessary, at Third Reading—there was an opportunity to vote on it only at Third Reading. If we had known about the matter at the beginning, at Second Reading, I am sure that it would have been corrected either in Committee or on Report. Therefore, I warn the House and, with great respect, the Government against bringing forward very important measures at this stage.
The Minister said that the matter had been carefully considered beforehand. I beg to disagree. There was a short consultation period, which lasted two and a half months. The Minister may tell me that that is normal, but it seemed to me to be very short. I find it very surprising that, despite being warned against the serious potential injustice of this matter by the Lord Chief Justice, the Council of Circuit Judges and the Justices’ Clerks’ Society, who all know exactly what they are talking about in this area, the Government should charge ahead.
Why is this going to cause injustice? The Minister said that it would somehow all be put right by the Sentencing Guidelines Council. I shall look with the greatest interest to see what the poor Sentencing Guidelines Council will say about this measure, which has filleted out the very well understood distinction between dangerous driving and careless driving. Dangerous driving falls far below the standards to be expected from a reasonable and prudent driver and applies to circumstances where the driver knew or
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Dangerous driving is massively more likely to cause death than careless driving is. Although statistics in this area are not extensive, they clearly show that dangerous driving is at least 20 times more likely to cause a death than careless driving is, yet 31,000 people are currently convicted of careless driving. It will be tragic for the victims and for the driver, but some of those incidents will lead to death. How is a court now to tease out in which of those cases of careless driving that cause death it would be just to impose a prison sentence?
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Nowhere in all our law, in any field of life, do we impose prison sentences for ordinary negligence. I was astonished to see Alistair Darling seeming to propound the principle that sounded like an eye for an eye, a tooth for a tooth. He said that a life is a life however it comes to be lost—I may not be quoting exactly, but that was the nub of it. Will that principle be carried to teachers who take children on outings or to doctors and nurses who have to administer drugs? Will it apply to industry and commerce? If people are to be sent to prison for ordinary negligence, we are in an uncertain and potentially unjust world.
I come back to careless driving—I will not go on for too long. When it is between dangerous and careless driving, whether it be in the Crown Court or the magistrates’ court, the prosecution must set out clearly what those dangerous ingredients are that justify a conviction for dangerous driving. In the right case, a sentence—possibly a severe sentence—would be justified for causing death or, indeed, for the dangerous driving itself. What are the ingredients of careless driving that will justify the prison sentence? Prosecutors in our world do not ask for sentences. It is contrary to our tradition.
The Countess of Mar: My Lords, I am sorry to interrupt the noble and learned Lord, but it is not normal practice at this stage to repeat all the arguments that we have heard over previous stages. Perhaps the House would appreciate it if he wound up.
Lord Lyell of Markyate: My Lords, I will wind up in a minute, but the Minister repeated these arguments and said that the matter had been carefully considered. It is probably one of the most important matters that has come before the House in this Session. The Government have made one of the most radical changes to our criminal law since I have been in this House. While I defer to the noble Countess, who has no doubt been here a great deal longer than I have, let me wind up quickly.
This is a very difficult matter for the Sentencing Guidelines Council, and it is very difficult for the defendant to know what case he has to meet and where the issue that might lead to his or her imprisonment will arise. I am sorry to say that this matter has not been properly considered. It is in a
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Viscount Simon: My Lords, I shall be very brief. Yesterday I received a DVD from a police officer serving in Leicestershire Constabulary showing three very short interviews for the local television about careless driving and various other matters. The final one, without prompting or priming beforehand, was an interview with two people who were involved to a large extent in car crime. They both said that, if they had known that a prison sentence was likely for any of the things that they had done, they would never have done them. That was the view from the sharp end.
Lord Davies of Oldham: My Lords, I am grateful to everyone who has contributed to this short debate. It was inevitable that I would be obliged to reiterate the fundamental argument of principle that we have had on previous occasions. My prediction of the response of the noble and learned Lord, Lord Lyell, proved all too accurate, and I congratulate him again on saying it with such clarity.
I dispute one point with the noble and learned Lord. He suggested that the Government had rather rushed this legislation. First, our intent to consider it preceded the previous general election. Our consultation period lasted for more than three months, which is the Cabinet Office guidance on the process of consultation. I was able to cite those who supported the legislation, and the noble and learned Lord expressed the view of those who had reservations about it.
If I can coin the phrase again, we are where we are. There is no doubt that our positions of principle are irreconcilable. That is not because the Government have not listened carefully or had the advantage of representations from this House at successive stages of the Bill. Those representations have been all too clearly expressed, and the other place is well aware of the arguments of principle against the Government’s proposals. The Government’s proposals, however, also rest on principle: a commitment made in the last manifesto. The other place, having considered the representations and amendments from this House, insists on its position. I give way to the noble and learned Lord, but briefly.
Lord Lyell of Markyate: My Lords, I am most grateful. I looked up the manifesto, and it did not commit to prison for death by careless driving; it committed to an increased sentence.
Lord Davies of Oldham: My Lords, that is so. We have introduced an increased sentence, which is what we were committed to.
The position is quite clear. We have had the benefit of extensive debates from which we have all learnt a lot. The Government listened carefully. The other place listened to and saw our debates, took them into account and has reached its position of insisting on the position that it adopted.
On Question, Motion agreed to.
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