Skip to main content

Road Safety (Financial Penalty Deposit) (Appropriate Amount) Order 2009

Volume 708: debated on Wednesday 25 February 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Road Safety (Financial Penalty Deposit) (Appropriate Amount) Order 2009.

Relevant Document: 5th Report from the Joint Committee on Statutory Instruments.

This order is a crucial part of a package of statutory instruments that are currently being made to strengthen the existing system for dealing with road traffic offenders under the Road Safety Act 2006.

The purpose of this order is to prescribe the amount of financial deposit that can be requested from an alleged offender by the police or by an examiner from the Department for Transport’s Vehicle and Operator Services Agency in respect of a fixed penalty offence or an intended court prosecution.

To be clear, the legislation provides for such deposits to be requested only from alleged offenders who are unable to provide a satisfactory UK address. Deposits would not, and could not, be requested from alleged offenders who have a satisfactory UK address. For brevity, I shall call this group of alleged offenders “non-UK-resident offenders”, although the scheme will apply to those who are resident in the UK but who do not have a satisfactory address, such as those offenders who do not have a fixed address.

The point is that UK-resident road traffic offenders are already liable to receive a fixed penalty, or, in Scotland, a conditional offer, or face court prosecution in respect of a road traffic offence. If they fail to pay the fixed penalty or a court-imposed fine, enforcement action can be, and is, taken against them. The same is not currently true in respect of non-UK-resident offenders, because there is no mechanism for enforcing the payment of fixed penalties or court fines outside the UK. However, in future there will be because once all the relevant provisions of the Road Safety Act are in force and implemented, the enforcement agencies will already have collected the appropriate amount as a deposit, in advance.

Although the principle of collecting payments at the roadside in respect of road traffic offences is novel in Britain, it has been in place elsewhere throughout Europe for many years. Its implementation in Britain will increase the effectiveness of our enforcement policy. To tackle the high levels of non-compliance, we have provided VOSA with an extra £24 million over the next three years to help it to boost further the levels of roadside enforcement activity. This extra expenditure, together with the order, will not only give VOSA an increased capability to detect offences, but an effective means of penalising all those so detected, whether resident in the UK or not.

The fixed penalty offences in respect of which deposits can be requested are set out in the schedules to the order. A complete list of the offences to which the scheme applies, which includes the majority of road traffic offences that are subject to summary court proceedings, is set out in the related statutory instruments. The details of the circumstances in which a financial penalty deposit can be requested and the details of how such a deposit is subsequently to be processed are also set out in those instruments.

The order says that, in the case of an offence for which the offender has been given a fixed penalty notice or, in Scotland, a conditional offer, the deposit amount that can be requested is the same as the level of the relevant fixed penalty, which may be £30, £60, £120 or £200. In the case of an offence that is to be prosecuted in court, the prescribed deposit amount is £300.

The way in which the scheme works in respect of fixed penalties and conditional offers is that, at the end of the 28-day period, if the non-UK-resident offender has not elected to have a court hearing in respect of the fixed penalty or conditional offer, the deposit is converted into payment of the fixed penalty. If a court hearing is elected in respect of the fixed penalty or conditional offer, the deposit will continue to be held until the outcome of the proceedings.

In circumstances where a case is taken to court, the financial penalty deposit will be used in payment of any court fine, leaving any balance to be refunded to the alleged offender. If the alleged offender is acquitted or not prosecuted within 12 months, or convicted but not fined, the deposit is refunded.

The purpose of prescribing the appropriate amounts is to put the non-UK-resident offender in the same effective position as a UK-resident offender. In summary, the net effect of this order is to ensure that non-UK-resident offenders end up paying fixed penalties and court fines in respect of road traffic offences. I beg to move.

I am grateful to the Minister for his explanation of the order. The order has been rather long in gestation since the Road Traffic Act was passed, but this is a new departure for the UK, although not for Europe, as explained by the Minister. It is really aimed at foreign lorry drivers, who have been particularly difficult to deal with. The order gives rise to several questions. I fully appreciate that there are several negative orders behind this order, which give all the detail.

What if the person who cannot give a reliable UK address has no money or means of paying a deposit and his vehicle has had to be removed, probably as part of a statutory removal process and as a result of an accident? It is no good immobilising his vehicle, because it has already been taken away, and it may be of very limited or even negative value, after the cost of recovery has been taken into consideration. The offence may be relatively minor and may not warrant custody. How will VOSA officials or the police persuade the driver to part with the deposit in those circumstances?

Almost by definition, Travellers often cannot provide a satisfactory UK address. I take it that they will be vulnerable to pay any deposit, because otherwise the order would be discriminatory against foreign drivers. What is to stop Travellers being required to pay a deposit several times in one day, once in each county through which they pass, as part of a process of victimisation?

Will it be possible to pay the deposit by credit card, or, if the mobile technology for paying by credit card is not available, to be accompanied by an official to an automatic teller machine to draw some cash—the driver may have plenty of money on his credit card but not the required amount of money in cash—or will the vehicle be immediately immobilised if the driver does not have the cash, which is a bit harsh? How will it work in practice?

How will a driver demonstrate a satisfactory UK address? Does he need to have something in writing, such as a driving licence or a utility bill, or will it be enough to convince the officials that he has a UK address, perhaps by knowing the registered address of the keeper of the vehicle and when he acquired the vehicle?

I note that the maximum cumulative amount of the financial deposit is £900. It is obviously sensible to have some limit, but how does this provision compare with the arrangements in other EU countries? I thought that the on-the-spot fines in the rest of Europe were considerably higher.

Touch wood, but I have never had any penalty points on my licence; I have been careful to avoid them. To me, they are a significant deterrent, especially with a totting-up procedure that could lead to the loss of my driving licence. However, my fear is that a foreign driver’s licence will not be endorsable or at risk under these procedures, so it will not be a particularly effective deterrent. The deposits will be seen simply as a cost of operation in the UK.

My most serious concern is the apparently very low level of deposits. If I drive in a bus lane in London, apparently I will pick up a penalty of £120 for what might be a momentary error or misjudgment. It certainly would not be a safety issue; it would simply be a bit anti-social to drive in a bus lane. I do not support doing so, but it is a minor matter. Yet it still picks up a £120 fixed penalty. If, for example, a foreign lorry driver uses a vehicle that is in a dangerous condition, contrary to Section 40A of the Road Traffic Act 1988, the deposit required is only £60. However, if a UK lorry driver is convicted of that offence or pays a fixed penalty twice in a given period, he will lose his licence under the Road Safety Act. In short, a UK driver will pick up an endorsement and a fine or fixed penalty, while a foreign driver will have to pay only the deposit, which might be turned into a fixed penalty.

If the matter is too serious to be dealt with by fixed penalty and has to go to court, the deposit is set at £300, as the Minister explained. The Explanatory Notes say that that amount has been determined by looking at the average fines imposed by the courts. However, this is seriously flawed. A large proportion of UK road traffic offenders are very young and of limited means. That depresses the level of the average fine imposed. The lorry driver must by law be over 21, and is probably over 25. The operator may be responsible for the offence rather than the driver, but legally the driver must have considerable financial resources to be able to operate the goods vehicle. Will the Minister say what is the average fine levied on a UK goods vehicle operator in respect of his vehicle operations? If he does not know, perhaps he will write to me because this is probably a bit of a surprise question. I suspect that the average fine imposed is considerably more than £300. I welcome the order as a first step to solving a tricky problem, but we need to monitor the effect closely, and I look forward to the post-implementation review mentioned in the Explanatory Notes at paragraph 12.2.

We, too, welcome this long overdue system of equalising the penalties faced by foreign lorry drivers. I take what the noble Earl, Lord Attlee, has said, but this is aimed mainly at HGV drivers who have been using our roads free of charge and then flout the law. Through Questions asked by my noble friend Lord Roberts of Llandudno, I have established that in north Wales many thousands of lorries flout these regulations each year. It is not a trivial problem. It goes to the heart of fair competition and is very unsafe. The Minister may recall that a Portuguese lorry driver was sent to prison two weeks ago—not for long enough, I believe—because his lorry ran into the back of a car carrying a family of six, including four children. That is the sort of unsafe behaviour we are trying to deal with here.

Many of my questions have already been asked by the noble Earl, Lord Attlee. Under the new order, the quoted fines in courts are too low for the reason given by the noble Earl. I am talking about fines imposed on lorry drivers, not fines imposed on motorists who have done something fairly trivial in towns. I believe that the penalties have to be proportionate. Perhaps the Minister will reflect on the fact that if a lorry is unavailable for a day’s work as a result of being immobilised, the penalty to the owner and/or the driver will be far more significant than any fine that might be imposed. Several hundred pounds of revenue will be lost each day the lorry is off the road.

How will the fine be paid? It has to be paid, otherwise the system will fall into disrepute. How are people who consistently and flagrantly breach the law to be dealt with? If the Minister goes back through Questions I have asked, he will find that some Irish drivers have been stopped, fined and prohibited as many as 10 times in a year. I would like to think that if the offence for which we are prosecuting people is repeated, there is a mechanism by which the gravity of the offence might be taken into account. We can dwell on the niceties of affecting the haulier or the driver, but people are being killed and seriously injured as a result of the fact that these regulations have not yet been introduced.

Finally, I turn to immobilisation, a nice term that I presume means clamping. There is talk about a fee for clamping, but there is no talk about a fee for unclamping. An officer might have to travel some distance, perhaps at night, at the expiry of the period of rest that the driver has to take, when the driver has adjusted his load or when he has put the mechanism defect right. I believe that the penalty for release should at least reflect in full the costs associated with the offence.

I shall touch on all the points made and I hope to get some sympathy for this. We have a pretty unsatisfactory situation; this is a good first step compared with where we are; and we intend to learn. The £300 is an average and it may well suffer from the defects pointed out by noble Lords. The commitment to a post-implementation review will, we hope, address that. We are getting there; we are starting to do something; and starting to learn.

We have the problem of what to do about multiple offences by foreign drivers. These measures do not, as I understand them—I shall write to noble Lords on this—increase the powers to address multiple offences. The effect of the relevant provisions of the Road Safety Act is to enable a record of those penalty points to be created so that we can start to build up a picture of multiple offences by foreign drivers. We will use that to enable further consideration of the development of this policy in the future. We are alive to the multiple offence point, but I accept that these instruments do not address the point directly.

Bearing in mind that someone will not receive any penalty points because he is a foreigner and the fact that the Irish road safety authority does not do anything about it, despite staff having been seconded to that authority, what confidence can we have that that will be effective?

The noble Lord is asking for a perfect system. I have already admitted that we do not have a perfect system. We are talking about getting this off the ground. We will continue to report offences to member states in which the vehicle originates. In addition, if a foreign lorry driver accumulates more than 12 penalty points in the UK, his UK driving record will show that and he will no longer be able to drive in the UK. We have a system, but I do not know how many people it catches. I believe we are going down the road that you desire.

The Minister said something very interesting about recording the penalty points imposed on a foreign lorry driver. To an extent, it deals with some of my concerns and those of the noble Lord, Lord Bradshaw. Where will that information be recorded? Will it be recorded by the DVLA?

The answer is the DVLA database. We are making progress. To develop the point made by the noble Lord, Lord Bradshaw, the serious offences issue is significant. Clearly, if the offence is extraditable—I believe that is where there is a penalty of more than one year’s imprisonment—the police can take those powers. If the offence is such that an individual is taken into custody, some powers are available. Nevertheless, it is an area where we shall have to continue to develop policy. We take the point.

The important point is that many of the offences we are talking of do not allow the vehicle to move. The real impact on this is the powers under this set of instruments which allow the immobilisation of the vehicle. If it is overloaded or unroadworthy or the driver has worked excess hours prohibiting further movement, there may be some discretion exercised to move the vehicle to a safer place. That aside, it will be immobilised until the issue is remedied. That is pretty serious stuff for an operator, as has been said. That will hit not only the driver, but also the capability. I believe we have made some progress there. The fee prescribed for the removal of an immobilisation device is set at £80. That level has been set following consultation with the police through ACPO.

I am sorry that it has taken so long to respond to the points raised by the noble Earl, Lord Attlee. I have spoken to officials on the point, which is complex. There has been a great deal of consultation and I have been convinced that it needed this amount of time. They felt that it was important to get right the technology that sits behind the systems and the agencies. They made a convincing case for the time and the consultation.

Travellers clearly would come under these rules. One should remember that the provisions are mostly about vehicles being fit to be driven and about loads and so on. They are the sort of offences in which, when detected, the vehicle cannot be moved, so the vehicle cannot go anywhere to pick up multiple offences. Not only does the deposit have to be paid before the vehicle can be moved, but the offence must be remedied in some form or other.

I have a wonderfully elaborate set of words here on the methods of payment. What it really boils down to is that you can use cash or credit cards. VOSA people will be looking for a chip and pin approach. Other bodies, as they extend, will develop systems. There is a clear intention to make this a practical piece of legislation.

I am grateful to the noble Lord for giving way. This is an important point. We are not too worried about foreign lorry drivers. Can the Minister assure me that a motorist will not have his vehicle clamped and immobilised if he has a credit card that works? Will the motorist be taken from where the vehicle is, go with the official to a cash point, draw some money out and then pay the fixed penalty? We do not want a motorist to find himself clamped and have his vehicle immobilised, with all the attendant inconvenience, simply because he does not have the required amount of cash in his pocket, when he can go to a cash machine with his credit card and the official and draw the appropriate amount of money out of the cash machine.

I understand that, given the way in which the instrument is drafted, it would be up to the officer on the spot to make that judgment. We do not want this to be a silly system. Therefore, we will be encouraging agencies to make considered and sensible decisions about that sort of thing. If it is reasonably practical, the trick is that they will be able to say, “Yes, we will take your card”, or whatever. I always back away from making absolute assurances because there is bound to be a case somewhere where it does not work. We are trying to make this a workable system.

On the point about a vehicle that crashes and so on, that really will be at the discretion of the police. The first objective in those circumstances is to make the road safe and to move the vehicle as required. The noble Lord is right; if the vehicle is a write-off, we are beyond the scheme and people once again will be trying to do the most practical thing.

We believe that the £900 is roughly comparable with overseas schemes. Once again, this is very much the first stage and we want to see how it works. I have touched on penalty points for foreign licences. We are sensitive to this, but we can only do so much.

A point was made about whether a £30 fixed penalty is properly comparable with a bus-lane fine of £120. I am very pleased that the noble Lord offends on neither base. I seek to offend on neither base as well. However, these instruments do not address that particular balance, so I can go no further on that.

The most powerful point is nothing to do with the order. It is clear that if a vehicle is in a dangerous condition, is loading or the driver is fatigued, which are the key things that we worry about with these people, the vehicle will not be able to operate until the issue is remedied. That will be a powerful, positive factor in improving road safety in the United Kingdom and addressing some people’s real fear that some foreign operators flagrantly flout the law. There are quite a lot of devices to stop that.

I am delighted that both noble Lords welcome the order in principle. There will be a review after we have experience of its implementation.

Motion agreed.

Committee adjourned at 5.41 pm.