My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, letters containing offers of recurrent grant were issued on 4th June.

My Lords, while thanking the Minister for that very welcome reply, may I ask whether Her Majesty's Government are aware that the voluntary youth organisations in Scotland were urged to put in, and did, their bids to the Minister for these grants at a very early date especially to avoid such a delay and that this delay has caused hardship and made future planning exceedingly difficult indeed?

My Lords, the Government sympathise with and appreciate the concern that has been expressed at the uncertainty which has been caused by the delay to which my noble friend referred. I would stress, however, that the department has treated very sympathetically any cases of hardship caused by the delay.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, when my noble friend the Foreign Secretary met the Spanish Foreign Minister in Brussels on 16th March he was assured of the Spanish Government's continuing commitment to the agreement of 10th April 1980, which provided for the restoration of direct communications between Gibraltar and Spain and the opening of negotiations.

My Lords, as it was indicated at the time of the agreement of April last year that it was the intention to raise the restrictions in June of last year, and as a year has now passed, may I ask my noble friend whether there is any reason to believe that the Spanish Government intend to honour their obligations? If they do not do so, does it not raise questions as to their reliability in other contexts?

My Lords, we believe the Spanish Government intend to honour their obligations and, as I said in the main Answer, they re-affirmed that intention as recently as 16th March.

My Lords, would the Minister give an assurance that so long as the Spanish Government continue to wage war against Gibraltar—because that is what it amounts to—Her Majesty's Government will veto the application of Spain to join the Common Market?

My Lords, we do not make any connection between Spanish accession to the European Community and the Gibraltar question, but, as has been said on many occasions, Spanish accession with the restrictions still in place is inconceivable.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, my right honourable friend has decided that it would be right to publish this report and has set in hand arrangements for this purpose. These will take a little time and it would not be right to anticipate publication by putting a copy in the Library. On behalf of my right honourable friend the Home Secretary, I should like to take this opportunity of thanking Mrs. Warnock and members of the advisory committee for their valuable work.

My Lords, I am grateful to the noble Lord for that reply. He is aware that we in this House are awaiting the Third Reading of the Laboratory Animals Protection Bill, which may take place later this month. As I am given to understand that the advisory committee devoted a great deal of its report to the Bill and the report of the Select Committee that preceded it, may I ask if we are likely to have access to the report before the Third Reading of the Bill?

No, my Lords; I very much doubt it.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, the Home Secretary's Mobile Radio Committee is at present engaged in a review of the spectrum requirements of private land mobile radio services until the end of the century and the scope for meeting them, in the light of the outcome of the recent World Administrative Radio Conference. The allocation of additional spectrum to any service has to be considered against a wide variety of national and international factors, but the committee's report will be a vital contribution to this process.

My Lords, while thanking my noble friend for that Answer, may I ask whether he is aware that, if the frequencies which are recommended in the draft report are taken up, they will be completely out of step with the rest of Europe? Is he, in addition, aware that the vast majority of users believe on technical and political grounds that if these frequency allocations are taken up, Her Majesty's Goverment will be making a rod for their own backs?

Well, my Lords, I am not aware of the point that my noble friend has mentioned, because I have not seen the draft report. We are talking about a committee which does valuable work and which is an advisory committee to my right honourable friend the Home Secretary. I think that we should wait to see what the committee has to say before I state on behalf of the Government any conclusions that we may reach.

My Lords, I regret to inform the House that the talks we have been holding with the Civil Service unions, aimed at resolving the present pay dispute, broke down on Friday. The talks had been concerned both with future arrangements for determining Civil Service pay and this year's increase, in response to the union's anxiety about arrangements for settling Civil Service pay in the future. I told them that we were ready to set up an independent outside inquiry to advise on the best up-to-date arrangements. Furthermore, since this was unlikely to report in time for the 1982 pay settlement, the Government would not set their cash limit for Civil Service pay next year in advance of negotiations with the unions. But the Government were not prepared to agree to the unions' further demand that they should be guaranteed access to arbitration for 1982 should agreement not be reached in negotiation.

As to this year's increase, the Government originally offered 6 per cent., and that was subsequently raised in the course of negotiation to 7 per cent., to be financed within the 6 per cent. cash limit by savings in staff and administrative costs. But the unions insisted that they would not settle at this figure. They wanted more money this year.

The Government are satisfied that the 7 per cent. offer for this year, together with the assurances we have given for the future, are both fair and reasonable. Indeed, over 2 million workers in other public services have already settled at around this figure, and, faced with the economic facts of life, many in the private sector, with less security of employment, have settled for less.

The unions have now announced their intention to take further disruptive action and to extend it into the social security and unemployment fields. The Govern- ment deplore this decision. They will of course do all within their power to minimise the damage and hardship which is caused to individuals and the country. To continue this dispute can only do damage to individuals, to the country and to the Civil Service—it can be of benefit to no one.

My Lords, I have taken careful note of what the noble Lord has said, and we regret that no settlement has yet been reached. This is the important point. I should like to know whether the noble Lord is still pursuing the matter with the unions; after all, we all want to avoid an all-out strike. I wish to ask the noble Lord, as I have done on a previous occasion, whether the Government are to think in terms of a new and ordered agreement system for determining Civil Service pay. This is vital. I had all this difficulty myself. I appreciate and understand the problems that the noble Lord is facing, but I wonder whether he cannot give something to the unions regarding the machinery and the possibility of other machinery beyond it.

:My Lords, we on these Benches also wish to thank the Minister for repeating the Statement—

For making the Statement.

For making the Statement; one gets into the bad habit of saying," Repeating the Statement ". We are glad that he has not given way to pressure to increase the amount of money to be paid to the civil servants. We believe that it is extremely important that public opinion should be fully informed about what is really involved. Therefore I would ask him once more to repeat what the civil servants have received in the last three years, which I consider ought to be very widely understood. After all, there is nothing sacrosanct about the period of one year.

I should also like the noble Lord to tell us what would be involved in cash terms if the civil servants' demand for 15 per cent. were to be met. I believe that the public as a whole perhaps understand sums of money better than they understand percentage increases, since it is then easier for people to translate the sums of money into terms of hospitals not being built, nursery schools being closed, and school dinners not being paid for. This I think is the way in which the public would be enabled to understand why the Government are taking the stand that they are taking.

I should also like to ask the Government whether, however, it is not possible to speed up the report of the inquiry into future methods for settling civil servants' pay. It is, I think, disappointing—and it must be disappointing to the unions—to be told that it is unlikely that the report will be ready by 1982. I fully realise that it involves much work, though I believe also that they are matters of principle rather than of detail that have to be gone into. If it were regarded as a matter of the greatest urgency, would it really be impossible for the Government to bring it forward, so that it could influence the 1982 settlement?

My Lords, I am grateful to the noble Lord and the noble Baroness for the questions that they have asked. The noble Lord, Lord Peart, asked whether we were pursuing the matter with the unions. Alas! the unions have made clear to me that they do not intend to come to talk with us any more, in view of the fact that on Friday I told them that we could not agree to their request for arbitration for 1982—they asked for an immediate decision on that aspect—and that we could not increase the offer of 7 per cent.

The noble Lord next asked whether we were seeking the new and ordered arrangement, and this point was also taken up by the noble Baroness, Lady Seear, in her question. Yes, of course; this is what the inquiry is going to be into. We have not had an inquiry into these matters since Priestley, which was 25 years ago and which came up with arrangements that have lasted us more or less satisfactorily since, though in recent years the pay agreements have more often not been implemented than they have been implemented. Certainly the present sort of circumstances of levels of inflation and the like were never foreseen when the Priestley Report was made—I am glad to see the noble Lord, Lord Shepherd, who knows so much about these matters, nodding in agreement—and we need something new and up-to-date.

In answer to the noble Baroness about the timing—and I am most grateful for her support in this, because there are few Members of your Lordships' House who have a greater experience of pay in the public services and the public sector as a whole than Lady Seear, with her experiences on the TSRB, for which we are most grateful—she will appreciate that this takes some time. Of course, we start thinking and talking about the 1982 pay settlement, which is meant to come into effect on 1st April 1982, some time in advance of that —in other words, in the latter part of 1981—and as we are already in June 1981 I think it unlikely that we could come up with it in time.

I was grateful to the noble Baroness for her question about what has happened over the past three years; that is, 1979, 1980 and 1981. As to 1979 and 1980—the two years since this Government have been in office—in the first year we inherited from the previous Government, and implemented, the decision that they had taken to make a 25 per cent. increase on average for the Civil Service; and in 1980 there was an 18½ percent. increase on top of that 25 per cent., which was staged. That made an increase of the order of 50 percent.—just under 50 per cent., in fact it was—over two years. Granted that this was a catching up exercise—I have always said that; they had fallen behind before—the 1980 settlement brought them right up to date and the 7 per cent. on top of that which we are now offering is well in line with what others are getting, considering what has happened in relation to their salaries and the salaries of others over the last three years.

There might be room for some argument—this perhaps one could accept; there is always room for argument and discussion—but that that should be the kind of situation which calls for this sort of industrial disruption is something of a totally different order, and in my view and in the Government's view it is not warranted in any way at all. As to the cost of this, to grant 7 per cent. will cost £320 million, and to give the full 15 per cent., for which the unions have asked, would cost a further £370 million. In other words, it is of the order of £46 million per percentage point to the Civil Service as a whole; and, of course, the industrial Civil Service is affected to some extent by the non-industrial Civil Service.

My Lords, is my noble friend aware that those who, like myself, have at one time been concerned with the responsibility for the Civil Service find the present attitude of the Civil Service unions inexplicable and depressing? Is he further aware that public opinion would be outraged if the civil servants, in pursuit of their own claim, were deliberately to damage the interests of the least fortunate section of our population, the unemployed and the old, and that in those circumstances, were such action to take place, public opinion would begin to wonder whether the 7 per cent. offer could continue open indefinitely?

My Lords, I am grateful to my noble friend for what he has said. As to future plans and where we go from here, the Government will of course be giving thought to this when considering what action the unions in fact take from now on.

My Lords, can the noble Lord the Minister explain what is the ground for this Government's resolute opposition to arbitration in this case, the more so inasmuch as the arrangements which were made under the Priestley Commission are now considered to be out of date? Why are the Government not willing to allow this dispute to be sent to arbitration?

My Lords, I made it clear as long ago as August of last year, 1980. I said to the unions at a meeting we had together that for the 1981 settlement cash limits as opposed to pay research had to be the dominant factor because of the overwhelming need in the national interest, in view of inflation rates and the like, for the Government to keep a firm hold of the increases in pay of those for whose pay they themselves were responsible. In August 1980 I said that it would have to be the major feature, and as time went on I then said that it had to be the determining feature; and because cash limits are the determining feature and only the Government can judge what they can give within those cash limits, and that cannot be judged by arbitration, it was decided that this year, in those circumstances, it could not go to arbitration.

My Lords, the noble Lord the Leader of the House referred in his Statement to the comparison between the attitude of the Civil Service unions and that of what might be described as the grass-roots unions. In view of the reasonable attitude of the grass-roots unions, who have accepted the Government's declaration about wage policy, at any rate for the time being, is it possible to arrange for Mr. Prior, who deals with such matters, to withdraw the threats about encroaching further on the immunities of the trade union movement? Surely these grass-roots unions, because of their reasonable attitude, deserve some credit and ought to be left alone.

My Lords, the noble Lord, Lord Shinwell, has referred to two totally different factors. What I think have had their effect on outside pay settlements are the economic facts of life of today. These are what have had their effect upon decisions by unions and individuals outside on what is a reasonable pay settlement for this year. As to whether or not further steps are to be taken by the Government in other matters, in terms of relationship between the trade unions and management, this is a totally different question.

My Lords, may I ask the noble Lord a further question? Will he say what contingency arrangements the Government have made to deal with the escalating strikes? Also, what are we going to do to make sure that social benefits are definitely paid to sections of our community? These are important matters.

My Lords, they are indeed most important matters. I can assure noble Lords that the Government have taken all steps possible within their power in the way of contingency planning, in the way of arrangements that have been made, to ensure that the minimum of damage is done to individuals as individuals or to the country as a whole. As to the details, perhaps the noble Lord will understand if I do not go into them. It would take rather a long time.

My Lords, will the noble Lord the Leader of the House take it for granted that this question is meant only to be helpful? Reverting to the point that was made by the noble Baroness, Lady Wootton, does he not know that a refusal of arbitration, whether by a union or an employer, is taken by the public to be a sign of weakness by those who refuse an arbitration? Would he not accept that most employers, when they do go to arbitration, make the point that, as a result of either their lack of profits or the size of them, they cannot afford to make any higher offer? Could it not be a term of reference to any arbitrator that the Government's point about inability to afford more in the national interest is a matter which should be looked into by the arbitrator perfectly fairly?

My Lords, I do not believe that one can put that in the terms of reference. The Government must decide what the cash limits will be. No arbitrator can decide such a thing; that can be decided only by the Government if they wish so to do. They cannot hand that over to any other body. Once they have decided what the cash limit is, then, again, only the Government can work out what can be afforded within that cash limit.

My Lords, it may be for the convenience of your Lordships if I announce that dinners will be available at the usual time. The Committee stage of the Transport Bill will be adjourned at approximately 7 o'clock for a short period and during this adjournment the Employment Protection (Employment in Aided Schools) Order 1981 will be taken.

My Lords, I beg to move that this Bill be now read a second time. It is a consolidation Bill bringing together a variety of enactments concerning the duties of excise relating to betting and gambling which have been made over the past decade. It takes into account changes made by the Finance Bill currently going through Parliament. Unless any noble Lord objects, the Bill will, in the usual way, go to the Joint Committee on Consolidation Bills for consideration. I be to move.

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

moved Amendment No. 44:

Page 60, line 43, after ("charge") insert ("previously incurred or incurred").

moved Amendment No. 45:

Page 61, line 5, leave out from ("harbour") to end of line 7.

moved Amendment No. 46:

Page 61, line 18, leave out from ("inserted") to end of line 22 and insert (""and all other charges imposed by a harbour authority as provided in section 27A"").

As one who is interested in the waterways and who is also interested in trying to promote the greater handling of cargo, I think that this is an important amendment and I should like to support it. If the Government do not like to be involved in any way, there is of course another alternative which has been suggested: to put into the Bill some provision for independent arbitration. Unless one or two of those suggestions are accepted, the situation is highly unsatisfactory. The Government—who I know do not like monopolies any more than anybody else does—should not allow one to occur in this case.

I, too, should like to support this amendment. There is concern about the increasing emergence of monopoly situations within the port industry, and the measures proposed in the Bill will hasten this process. Did not the National Ports Council in their report to the Secretary of State in 1978 recommend that the two functions of harbour authorities relating to dock operations and conservancy should be separated? The conservancy functions would be taken over by a non-commercial organisation, thus ensuring that unfair biases against estuarial and inland waterway transport are not introduced by the provisions of the Bill.

We are grateful to the noble Lord, Lord Underhill, and the other members of the Committee who have spoken. We know that there has been wide concern among port users on this particular subject. Port charging is an important subject and the Government have therefore given careful consideration to the many requests to extend the present right of objection against ship, passenger and goods "dues" to cover all port charges. It is important to recognise first the important distinction between ship, passenger and goods "dues" on the one hand and other port charges on the other hand. The "dues" are levied on all port users in respect of the use of the basic or essential port and harbour, and reflect the authority's costs in the provision of the harbour infrastructure and the maintenance of approach channels, lights, buoys and beacons. They are essentually in the nature of a tax, an amount payable by a user, but not necessarily directly related to the services he receives. Were we dealing with another Bill, we might equate them with rates.

Other port charges, on the other hand, are levied for specific services provided to users—for example, for loading or unloading a ship or for the storage of goods—and they are related to the kind of services provided. I ask the Committee to bear these distinctions carefully in mind because of what I am going on to say.

Port users, and the noble Lord, Lord Underhill, have argued that, as port authorities are now in many cases the sole employers of stevedore services, they exercise a monopoly over these services, thus justifying the extending of the appeals procedure. The noble Viscount, Lord Hanworth, argued the same point. While it is certainly true that port authorities are now the main employers of registered dock labour, we do not accept that they are in a monopoly position. After his kind remarks, I am sure that the noble Viscount would be the first to concede that the Government would be the first to recognise a monopoly situation should it exist.

The ports industry is a fiercely competitive one and there is no basis on which monopoly can effectively be exercised by an individual port authority. Charges for stevedore services are in any event a specific charge for a specific service provided to users. But the same cannot be said of ship, passenger and goods "dues". These are, as I have already said, essentially a tax paid simply for the use of a port, not directly related to the services provided. Because of the nature of these "dues" we recognise that there is a continuing need for the right of objection against them to be retained, and paragraph 10 of Schedule 5 therefore transfers the National Ports Council's appellate function to the Secretary of State. But, for the reasons that I have mentioned, we do not believe that the right of appeal should be extended to cover all port charges. It is, furthermore, central to the Government's policy that the ports industry should be given as much responsibility as possible for its own affairs. This would be seriously damaged by an extension of Government control over the ports' pricing policies.

During the passage of the Bill in another place, and indeed here, it has been clear that much of the criticism of the present appeals procedures lies in the fact that it is very difficult for users to identify the "dues" element in the combined charges which port authorities are increasingly imposing. As I have just explained, we are amending the Harbours Act 1964 to put a clear obligation on authorities to specify the dues element of any combined charge, where the users require them to do so. I think we all recognise that this is a helpful improvement to the present appeals procedure, but I hope I have explained to your Lordships' satisfaction why we do not believe that an extension of Section 31 to cover all port charges is either necessary or desirable.

The navigation charges which will be levied by the Trent and Humberside Harbour Association of British Ports will be subject to appeal under Section 31—that is one of the points mentioned by the noble Lord—just as at present, where they are made by the British Transport Docks Board. As I say, I am afraid there is no way the Government can accept this so reasonably moved amendment.

I am very disappointed with the Minister's reply, charming though was his turning down of the amendment. To suggest that the Government do not accept a monopoly situation is surely not accepting the position that was agreed by the Under-Secretary of State for Transport in another place, where he as good as agreed that this situation is now growing. It is not a question of asking the Government to interfere in charging policy: we are not asking for that. What the amendment says is that if a port user believes that charges other than those for ships, passengers and goods, stevedoring and other charges, are excessive, he ought to have a fair opportunity of appeal. That is all we are asking for—not interfering with or laying down of charging policy.

I am very disappointed and I am wondering whether the Government would accept the proposal made by the noble Viscount, Lord Hanworth, that if the Secretary of State does not want this responsibility the Government themselves might bring forward an amendment to provide for some independent arbitration body to make a decision. If the Government would make such a statement I would readily withdraw the amendment; but otherwise this is such an important question of equity and decent treatment for commercial users of the port that we would have to stand by the amendment.

Before the noble Lord replies, I wonder whether I could ask the noble Lord, Lord Underhill, to explain one thing to me. Is he suggesting that the charges for cargo handling, loading, discharging and storage should be appealed against only when those services are provided by the port authority and not when they are provided by other people?

The amendment provides that there can be an appeal by any person. It does not stipulate where it is only provided by the port authority. I think the wording of the amendment would cover the circumstances outlined by the noble Viscount, Lord Simon.

I am sorry that I evidently did not make myself clear because the noble Lord, Lord Underhill, has misunderstood me. It is where the services are provided by the port authority. It has been mentioned that in some cases these services are supplied on a practically monopoly basis. But of course in a lot of other cases they are not supplied on anything like a monopoly basis, particularly as regards storage. There are many independent companies offering storage. Is it only the port authorities whose charges are to be subject to appeal?

I must withdraw what I said previously. The wording is—

"and all other charges imposed by a harbour authority…".

Therefore it could only deal with those imposed by a harbour authority. The reason for that is, of course, where they are not imposed there is no question of monopoly arising. It is only where this other work is carried out by the harbour authority that you get this near-monopoly situation. The noble Lord the Minister said the Government do not accept that there is a monopoly situation because ports are competitive. But if one takes the Sheffield and South Yorkshire Navigation to which I referred, what other port could the users there go to? They would have to use the port at the end of their waterway, and therefore they would be in the position of having to go to a monopoly.

Much, as I thought, has been made of this word "monopoly "—I thought it would be. The point about it is this: if you have a monopoly in one situation are you justified in legislating for the whole range of port authorities? The Government feel strongly that the answer is, no. Were we satisfied that there was a monopoly I am sure we would look very carefully with regard to considering the suggestion of the noble Viscount, Lord Hanworth. But since we are not, I am afraid there is no hope of that.

moved Amendment No. 47:

Page 63, line 19, leave out ("this section ") and insert ("subsection (7) or (9) above ").

moved Amendment No. 48:

I should like to draw to your Lordships' attention a very small point on paragraph 5 of Schedule 6, which appears on page 57 of the Bill and which states:

"Each of the Ministers may, subject to subsection (2) of this section, by order vary the constitution of a harbour authority so far as it provides for the appointment by him of any member or members of the authority—

(a) so as to abolish the power of appointment (except where the power is to appoint the chairman of the authority); or

(b) so as to provide for the power of appointment to be exercised by such other person or persons as may be specified in the order".

An amendment to delate this paragraph was put down and discussed in the other place, but it was defeated in Committee. However, I thought it was worth drawing to your Lordships' attention because it creates a rather peculiar situation. As I understand it, the Minister already has the power under that part of the Act to produce what is called a harbour revision order to provide for an alteration in the composition of the authority controlling the harbour. In such a case there are provisions for an objection to be lodged and, if an objection is lodged and not withdrawn, for an inquiry to take place. Under paragraph 5 the Minister can alter the composition of the port authority with no provision for any objection or appeal. To the British Ports Association, which has written to me on the matter, it seems that this could be rather dangerous, because very often the body controlling the port is carefully balanced between a number of interests. If the Minister withdrew his appointments—or, still more, if he handed over his appointments to somebody else—the balance could be easily upset. One might feel that, in those circumstances, there should still be provision for objections to be made and considered and, if necessary, for an inquiry. This could be done at present without this clause by a harbour revision order under the Harbours Act.

The noble Viscount, Lord Simon, referred to the appointments system and I shall try to clarify both his mind and my own mind, because I too find this a complicated subject. In fact we seem to be going through a whole series of complicated subjects, but doubtless we shall win through in the end.

The Secretary of State, together with the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales, has a variety of powers to make appointments to the boards of a number of harbour authorities in accordance with the constitutions of those authorities; so the noble Viscount was quite right. In the light of our policy to withdraw from involvement in the ports industry wherever possible, paragraph 5 of this schedule provides Ministers with the opportunity—no more than that—of withdrawing, if they so wish, from making a number of these appointments.

I should first explain the limited extent of this power. Subsection (2) of the new Section 15A of the Harbours Act 1964 excludes from its application those port authorities to which the Secretary of State appoints all the board members, excluding ex officio or co-opted members. In practice, this means that the Secretary of State's powers of appointment to the major public trust ports, such as Dover, London, Forth and Tyne, are unaffected by the new power.

During the last decade, the major public trust ports have undergone a major programme of reconstitution, with the Secretary of State appointing board members on an independent and unbiased basis, for their personal qualities and expertise, rather than as, prior to reconstitution, representatives of sectional interests.

This programme of reconstitution is generally accepted as having led to a much improved quality of board membership and of improved port performance. The Secretary of State recognises the value of these appointments and will, of course, continue to make appointments to the major commercial public trust ports, so that the independent and "non-representative "nature of the board membership is maintained.

The appointments covered by the power are, on the other hand, either those to the smaller public trust ports, to which the Secretary of State appoints, or those made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales to a number of fishery harbours. I know that the British Ports Association believe that ministerial appointments provide a means of ensuring a proper balance and an element of independence in the composition of authorities. We accept, as I have already said, that this is certainly true in the case of the major public trust ports. But at the ports covered by the power, although the proportion of ministerial appointments varies from port to port, the maximum number is only four and the number is usually only one or two.

This is, in our view, too small a number in practice to have any significant balancing effect. For example, the Secretary of State appoints only two of the 27 members of the Teignmouth Harbour Commission and only one of the 19 members of the Cowes Harbour Commission. At harbours such as these, with localised interests, the kind of board member required is somebody with local knowledge of the area and the harbour, and the harbour authorities themselves are in a much better position than a Minister to identify potential members. I hope that, with those explanations and assurances, the noble Viscount will now be happy with the schedule.

I am greatly obliged to the noble Lord. I think I am fairly happy with the schedule, but this objection was brought to my notice by the British Ports Association, who know much more about it than I do, and they are not happy. But I shall have to leave it there.

moved Amendment No. 49:

Page 14, line 29, after first ("of") insert ("penalty").

I should like to support this amendment, but if I had listened to most of the speech of the noble Lord, Lord Houghton of Sowerby, I should have taken a completely different point of view. No, the motorist is persecuted. There is still the red flag mentality. Many of us think that the penalties are far too great for relatively innocent offences which are not in any way deliberate but purely accidental. Yes, punish those who drive deliberately dangerously. However, to make the allegations which have just been made about the motorist is the greatest mistake. The tendency has been far otherwise. Governments, faced with high accident rates, have tended to produce more and more legislation as the cheapest way of dealing with the situation and showing that they were doing something. We really must set the offences of the motorist, which sometimes are purely technical, against the punishment handed out to other people. If you hit an old lady over the head, very often you will simply be told not to do it again, or you will be put on probation. I know that the points system is probation, but there are other cases where motorists are punished far more harshly than those who have deliberately committed violence.

I should like to support the noble Viscount who has just spoken. I can assure my noble friend that I shall support his amendment but, equally, not for the reasons which he advanced. I am a non-motorist and a magistrate. I resent the constant suggestion which is made in this House, that magistrates are ill-informed and irresponsible. Today we are told that they are unreliable. I think we have made the motorist the villain in our society. First we persuade this unfortunate person to buy a car because it helps the economy, and then we tell him every time he uses it either that he is polluting the atmosphere or that he is using energy, despite the fact that he is paying for it. Let him park on a double yellow line and you will see what a villain he is.

I say to my noble friend Lord Houghton of Sowerby, that if he were to sit in a London court for a day he would find that it is far cheaper to hit somebody over the head than to park on a double yellow line. This does not make sense to me. I think that we are very harsh on the motorist in this country. But that does not mean that I think this amendment is not right. We should state exactly what these marks are. They are penalties, they are not points. So I say to the noble Lord, Lord Houghton, that I think, far from being easy on the motorist in society, we tend to be rather harsh on him—and I speak as a non-motorist. There is merit in this amendment, however, and I should like to support my noble friend in it.

I always thought that the noble Lord, Lord Houghton, whom I respect very much, was a peaceful man, going to present his prizes at the flower shows. Instead of that, to see him bouncing about in fury against the poor harassed motorist has really worried me. Does he not realise that from time to time a pedestrian is just as responsible for the death or injury of a motorist as the motorist himself?

Just before the Minister replies, if I may speak on the amendment that is on the Marshalled List, what my noble friend Lord Houghton of Sowerby has moved is surely something that we ought all to accept. Anything that draws attention to the seriousness of this problem is well worthy of our support, and I would ask your Lordships to support it on the word that he wants inserted and nothing else.

When the noble Lord, Lord Houghton, was speaking he managed almost to convince me that I was wrong in wanting to support him, too. It seemed to me that he was doing fine with the amendment; then he nearly, but not quite, talked me out of it. In what I say now I am sure the noble Lord will agree with me that we are also talking about Amendments Nos. 50, 51, 52, 53, 55, 58, 60 and 61.

There is merit in the noble Lord's argument about the point. I think we would accept what seems to be the feeling of the Committee, that we should accept this amendment. It is arguable and there will be minor matters that will have to be rectified in so switching. We shall have to make one or two changes in other places, but I think we can easily do that on Report. So I say again, I refuse to be talked out of accepting what the noble Lord suggested. We accept his amendment.

I am covered with shame. I introduced a little drama into the matter in the hope of alerting your Lordships to the gravity of the situation, but I see that I should have done better to stick to the simple word "penalty" without enlarging on the whole of the background. So I accept the rebuke of the noble Earl, Lord Howe, and of my noble friend Lady Phillips, and, while full of contrition, I am grateful to the noble Lord, Lord Bellwin.

moved Amendment No. 50:

Page 14, line 34, after first ("of") insert ("penalty").

moved Amendment No. 50A:

Page 14, line 35, leave out from ("be") to end of line 37 and insert ("shown, and any excess points shall be carried forward when the licence is returned after disqualification").

It will be noticed that Amendment No. 50A, which has been moved by the noble Baroness, Lady Stedman, is on the same principle as Amendment No. 54, which is in my name. There is a difference, in so far as Amendment No. 54 proposes that, where any points are in excess of 12, they should be carried forward and added to the points in respect of any other offence committed within a period of three years from the date when the court first considered the original offence. There is that difference from the amendment moved by the noble Baroness, but I support the general principle in this amendment.

It may be argued by some noble Lords that wiping the slate clean is in accord with a generally accepted principle on other matters that once an offender has paid the price of his misdemeanour that should finish the matter, but surely this cannot hold true in the case of a number of serious motoring offences with which we are dealing in this particular clause. One of the points of the points system is surely, as the noble Baroness, Lady Stedman, said,—and not only the points system but the whole complex of road safety measures—is surely to have some influence, if at all possible, on the habitual offender, and, if the residue of points over and above the 12 is wiped clean, then surely we are diminishing the possible effect upon the habitual offender.

Perhaps I may give a possible example. A motorist has accumulated 10 points and is then convicted of an offence of, say, reckless driving, which would give a penalty of another 10 points. Surely it cannot be justified that, with a total of 20 points when that motorist is given a period of disqualification, the eight points in excess of the 12 required shall be wiped clean. Surely that cannot possibly be justified.

I find unconvincing the reasons given by the Secretary of State for not following the principle of not wiping the slate clean. These were, first, that the courts will take into consideration the number of points over 12 when determining the period of disqualification to be imposed, and, secondly, that the persistent offender will also be deterred by subsection (4), which provides that a motorist disqualified twice in three years would get a minimum of 12 months instead of six, and that if that happens more than twice the minimum would be two years. I appreciate these arguments, but they in no way invalidate the amendment put forward by the noble Baroness or my amendment. What both amendments are seeking to do is to say that following disqualification any points above 12 shall not be expunged but shall be carried forward and added to any other offence. That, I believe, is in the spirit of what the public would request. It is not a vindicative proposal; it is a common sense proposal, that a person should not get away with additional points that shoul be added to any subsequent offence he may be convicted of.

One has a certain amount of sympathy with both these amendments and I suppose to some extent they impinge a little on my Amendment No. 52A. But it would seem on the face of it grossly unfair that a person should be punished twice, and perhaps twice for a minimal offence. If one had, say, 9 to 10 points already amassed, and then one commits a purely technical offence—that of failing to report an accident, carrying, I think, three points—then you are over and disqualification may apply. Suppose you are disqualified for X period, you start off again with a small number of points, one point in this instance for what is, after all, a technical offence rather than the kind of offence the noble Baroness was speaking about, persistent anti-social behaviour such as speeding and so on. I am not totally satisfied that were an offender to go over, to, say, 16 or 18 points, magistrates through-out the country would necessarily come to the same conclusion as to the degree of severity of the disqualification; so in some cases although one magistrate may go for a six months' disqualification because you are eight points over, or something of that nature, another may go for 12 months. It would seem unfair that in some parts of the country a residue of past misbehaviour is left behind.

On the other hand, surely if one has a record of minor infringements all of which make a fair accumulation towards the latter end, and one has a conviction for, let us say reckless driving or driving under the influence of drink, which in itself would carry 10 points, and one goes all the way then perhaps to 20 points, it would be wrong that the most serious offence should be penalised in a similar manner to that of a technical offence.

I am not quite sure at this stage whether it would be prudent for me to move my Amendment No. 52A, because it is in a way concerning the same thing, although in the reverse; I am suggesting in my amendment, on the one hand, that a disqualification should not mean a benefit. So having given these views on the general idea of totting up and carrying forward, I think I should say to your Lordships that I may well not move my own amendment in the light of what my noble and learned friend has to say in response to this amendment.

If I may, I should like to say a few words about Amendment No. 54 in the name of the noble Lord, Lord Underhill, and I should also like to speak to the amendment moved by the noble Baroness, Lady Stedman. I do not agree with either of these amendments. I do not agree with them because I think they do, to a degree, tend to perpetuate the present system. I do not know of any other sphere of life where the offender is punished for an offence in the first instance and then continues to be punished for many years after that for the same offence. I think the present system is rather unfair. I think the public think it unfair, and I hope to show quite briefly why it is unfair.

May I take the case of a driver who incurs two 30 miles-an-hour speed limit convictions and one 40 miles-an-hour speed limit conviction in a period of three years. That sounds extremely reprehensible, and of course it is, but in the pace and density of modern traffic it is quite an easy thing to do, and to call such a driver a persistent offender, as if he were some sort of criminal, is, I believe, totally wrong. At any rate, such a driver is fined, quite rightly, on each occasion, his licence is endorsed on each occasion, and after the third conviction he is disqualified. Disqualification is a very dire penalty indeed, especially for someone living in the country where buses are few and far between.

Furthermore, drivers are proud to have a clean licence, but under the present system many years must pass before the driver can get back to a clean licence. Let us suppose after a period of four years have elapsed the driver in question manages to get his original endorsement, for the first 30 miles-an-hour offence, removed from his licence; if he should at that point incur one further endorsement penalty, with two endorsements still on his licence he would be immediately disqualified again. To carry points over, as proposed in the amendment, is perpetuating the present, I think, very unsatisfactory system. I welcome the new points penalty system and the Secretary of State's new clean sheet proposals. I believe they are fair and just and that the public will respond to them.

I would also like to oppose this amendment. It is considerably more severe than the present totting up procedure, and to my way of thinking far too severe. At present, if a driver commits a number of endorsable offences as part of one incident, for totting up purposes all those offences only count as one endorsement. Under this Amendment, No. 50A, which I only saw this afternoon, each endorsable offence which is part of one incident would count, and all the points for those offences in the one incident would be added together. For this reason it might well be that because of one incident the driver would be either disqualified under the new totting up procedure, or he would be within a point or two of being so disqualified.

I, too, am very much in favour of wiping the slate clean after a period of disqualification. If the points that would be carried forward are very numerous, I suggest that the court dealing with the case under the totting up procedure might well consider disqualifying for more than the minimum period. But please let the driver start off again, after his disqualification, with a clean slate.

There have been at least two speeches made against the amendment and I should like to intervene briefly in order that the arguments for the amendment should not be forgotten. I do not intend to repeat those arguments. I want to answer, if I may, from my point of view the arguments that have been put forward. Always one hears the case of the person who may be suffering an injustice—the case of the driver, very properly and fairly put, who has three endorsable offences connected with one really substantial offence. Since there will have to be points awarded in respect of each one, the point is made that it would be unjust for the carry-forward to take place when, indeed, at present the law is that if there be but one incident and there is more than one endorsable offence connected with it, it counts only as one conviction for the purpose of the totting-up procedure.

The argument is a logical one. If one puts it another way and says that there are bad cases where it is only just that a man who has totted up an extraordinarily unsocial number of points, if I may put it that way, should suffer for it, and if one says that there are cases where the person has had a great deal of misfortune in totting up a number of points, one is left with the situation, if one is trying to safeguard the public and at the same time do justice, that there should be a carry-over of points, but that the discretion of the court when disqualification is to be dealt with should be a very complete discretion without—and we shall be talking about this later when we deal with subsection (6)—imposing unrealistic and not very complimentary restrictions on that discretion.

So is not the logical thing to say that there should be a carry-over, but that when disqualification is dealt with the magistrates should always have a very full note of what applications there are for disqualification and why it is they have allowed them or have not allowed them so that any court thereafter may take a proper and complete view of the whole situation and may say in one case, "Although there has been a carry-over here we can see that there has been hardship and we can see that from the magistrates' own reasoning and in those circumstances we shall not disqualify" or "We shall disqualify for a short period".

On the other hand, the courts may say, "we have seen the totting up of points and the excess carry-over. This is a very bad case and we are looking at the whole situation in regard to the previous disqualification. We have seen the magistrates' reasons for it and what points were advanced on behalf of the driver. We have come to the conclusion in this case that it is very proper to take into account the excess that there was on the previous disqualification and that ought to be carried forward".

It is wrong to legislate for the special case. It is wrong to legislate for hardship. It is equally wrong to legislate so that one excludes hardship. Therefore, the scene ought to be kept open in my submission with magistrates keeping a very clear note as to why they have ordered a disqualification and of the factors that they have taken into account. There should be the carry-over, but the magistrates should have the right, on reviewing the whole of the circumstances, to say, "We shall ignore part of this carry-over" or "all of this carry-over", or "none of this carry-over, because on the facts and in the circumstances it would be right" or "wrong for us to do so".

I think that that raises a point that we ought to take into account. I believe that these two amendments are legislating for special cases—the very opposite to what the noble Lord has said he does not want to happen. I think that he is right: we ought not to legislate for special cases. I do not think that we ought here to concern ourselves too much with how the magistrates who hear all of the case and all the details connected with it ought to fulfilltheir functions. I have sat as a magistrate for 30 years and in these sorts of cases the magistrates have all the powers they need to deal with what they think are cases that ought to be hardly dealt with and they also have the discretion to be lenient where they think the circumstances are such that it warrants it.

I believe that we should approach this part of the Bill not from the point of view of how we can punish or fine but on the basis of how we can deter motorists from becoming a danger to the general public. I rather feel that, at the end of the day, these two amendments concentrate on making certain that somebody can be fined or be more hardly dealt with by carrying forward past misdemeanours.

The point that I should like to put to your Lordships from the point of view of the ordinary motorist is the following: which is the greatest urge to be a careful driver? I should have thought that the greatest urge was to keep a clean licence. I believe that one thing that causes people to take special care, with all of the problems that one has to face when driving a motor car, is that they do not want their clean licence interfered with. I believe that if we are—as I hope we shall—to get to the point where, after a certain period, a motorist can have again his clean licence, I believe that he is more likely to be a better driver in order to keep it a clean licence; whereas if we have the carry-over where we carry over the besmirchment (if you like?) of not having been a 100 per cent. conscientious citizen as a driver, I believe that it is more likely to cause him not to take the same amount of care. The noble Lord shows a little astonishment at that. In recent years we have made so many things law-breaking that used not to be law-breaking and we have seen people who used to be citizens of some high repute brought in front of the magistrates for some technical offence. I have circumstances in mind to do with the rationing period when people who would not have thought of doing anything that would bring them within the purview of the magistrates court have been found guilty of a technical matter to do with this or that. Once that has happened all of the things that cause people not to want to appear in front of magistrates somehow disappear. The same considerations are here. The maintenance of a clean licence is perhaps the greatest deterrent to people taking risks that will make them unpleasant as far as the rest of the public are concerned.

We have had a fairly full discussion of matters which have perhaps not been entirely covered by the first amendment which the noble Baroness, Lady Stedman, moved. It might be useful if I explained that in our understanding the purpose of the existing totting up system and the way in which we are now seeking to improve it, is to discourage repeat offences. In other words, the emphasis is on acting as a deterrent, as my noble friend Lord Harmar-Nicholls pointed out. If an offence or a group of offences committed on the same occasion are not serious enough to result in immediate disqualification, then the licence is endorsed as a warning.

I think that it is important to remember that the endorsement of penalty points—if I can take up the results of what has gone before—is only to occur if disqualification is not itself imposed in respect of that offence. If the court decides that this is not a case for disqualification immediately, then it will endorse penalty points on the accused's licence as a warning to him and he will know that if he continues to flout the safety laws he will sooner or later be disqualified.

This is why at present, even though a number of offences may have been committed on the same occasion—for example, a person may have been speeding and then be found to have a defective tyre on his car—only one offence will count for totting-up purposes. Clause 19(1) therefore specifies that only points for this most serious offence of any committed on the same occasion will be endorsed on the licence. It would be wrong to make the penalty all the points that could be given for one occasion, which may indeed be more than 12. I can appreciate that it may be that the offence, or series of offences occurring as part of the one incident, will be such that the court thinks that it should not pass on that basis. Of course, in that case the court has the remedy of disqualification. Perhaps I may take up the point raised by the noble Lord, Lord Mishcon. It certainly seems to me that it is far better that that should he discussed and diposed of by a court which is in full knowledge of these facts, rather than some years later a court should try to read a record, however accurate, to obtain a sense of what occurred.

This brings me to the second matter; namely, that of restricting the "wipe clean" provisions. In future, if a person is disqualified on the basis of what we propose because he has accumulated more than 12 points, then the number in excess of 12 will be reflected by an increased period of disqualification. Surely, if one reaches a stage where disqualification is to be imposed, one should take account of all the circumstances, including all the points that might have been awarded or endorsed at that stage. Surely it is much better to do it now, to do it fully, and to do it when the facts are fresh, than to try to store a record for some time, carrying it over to the future.

Therefore, with the greatest respect for the argument which the noble Baroness and those who support her have advanced, we would strongly submit that what we propose is better, even from the point of view that they have put forward; of course, the point that my noble friend made about having the restored incentive of a clean licence and trying to keep it clean is an important additional argument for dealing with the whole matter at the first stage. Carry-over is just a postponement of, we would say, true dealing with the position.

There are, of course, other provisions, and I would remind your Lordships of the provisions of Clause 19(4) to discourage persistent offenders; that is completely apart from the point that the court will have a record of what has occurred to the accused driver and of the nature of other parts of the penalty which have been imposed, because of course the fine that is imposed will also reflect the seriousness of the matter. Therefore, in our view—and I should like to express my appreciation of the support which has come from my noble friends Lord Cross and Lord Fortescue—I submit to your Lordships that, on balance, our proposals meet the problem better than those suggested in this amendment. I hope that the noble Baroness, Lady Stedman, will feel persuaded to accept that position.

I am grateful to the noble and learned Lord for the very full reply that he has given. The noble Lord, Lord Harmar-Nicholls, and I have been on opposite sides of the fence for something like 30 years. We are on opposite sides again today because, while he says that the incentive to keep a clean licence would be a deterrent, I would argue that it might be an even greater deterrent if, after disqualification, one had back a licence which had a few points on it, in order not to build up to another disqualification from that situation. I think that one can argue both ways, as the noble Lord and I have done for many years on many subjects.

I am grateful to the noble Lord, Lord Underhill, who spoke to his amendment, to which we shall come later. I should be happy to withdraw my set of amendments at this stage, but will give my support to the noble Lord, Lord Underhill, if he presses his. I beg to leave withdraw the amendment.

moved Amendment No. 51:

Page 14, line 39, after ("the") insert ("penalty").

moved Amendment No. 52:

Page 15, line 7, after first ("The") insert ("penalty").

had given notice of his intention to move Amendment No. 52A:

Page 15, leave out lines 15 and 16 and insert ("under sub-section (2)").

The noble Lord said: In view of the earlier discussions, I take it that at this stage my noble and learned friend on the Front Bench is more inclined to the view of one punishment and one punishment alone, with no carry-over. I think that, having heard him, I would subscribe to that view. Therefore, although I had something of a reverse position in this amendment to that of the noble Baroness, Lady Stedman, and also the reverse position to that contained in the amendment of the noble Lord, Lord Underhill, which he will probably move, I think that it would be better if I were not to move my amendment at this stage.

moved Amendment No. 53:

Page 15, line 18, after ("the") insert ("penalty").

moved Amendment No. 54:

I rise only so that, for the convenience of the Committee, all the arguments can be dealt with at once, instead of us popping up one after the other to put forward, with great pride, our separate arguments. I listened to the noble and learned Lord the Lord Advocate with the care that one always listens to him, because he speaks most carefully and he has behind him a very substantial reputation in my own profession. I failed on this occasion to catch the full forcefulness of his argument by virtue of the very position that the Government are taking up in regard to what can be considered when there is an application for disqualification. I make the point now so that I do not bore the Committee with too much repetition when we come to consider subsection (6).

Your Lordships will remember that the main point made by the noble and learned Lord was that the time to consider the whole question of how points have been awarded in the past, and so on, is when the application for disqualification is dealt with. I could not agree with him more. But, if your Lordships will look at subsection (6), this is what the Bill as it now reads says. It says in subsection (2):

"unless the court is satisfied,—

—that is, on the question of disqualification—

"having regard to all the circumstances not excluded by sub-section (6), that there are grounds for mitigating the normal consequences of the conviction".

So it is pertinent to look at what is excluded at the moment from the magistrates' mind and withdrawn from their discretion. If you look at subsection (6):

"No account is to be taken under subsection (2) of—

(a) any circumstances that are alleged to make the offence or any of the offences not a serious one;

(b) hardship, other than exceptional hardship; or

(c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a short period or not ordering him to be disqualified".

That means that the Bill as drawn does not allow the court, when dealing with the question of disqualification, to take into account whether any offence which previously carried some points that go to make up the 12 was, or was not, a serious offence; was, or was not, one occasioned by hardship—and you can only take into account serious hardship. I am not going to take your Lordships into the debate on that—that will follow hereafter. However, the logic of what the noble and learned Lord said escapes me completely, for he made an answer to the previous debate the whole basis of which was; "Don't worry. Surely the court that ought to be considering all this is the court which deals with the disqualification. They will have all the facts before them. They will be able to ascertain whether really the accumulation of points previously amounted to something serious or not serious, or whether hardship was involved or not involved ".

I repeat, these matters are excluded as the Bill now stands—in my judgment quite wrongly—from the whole vision of the magistrates when they are looking at the record in front of them. So, because of the illogical situation—most unusually for him—put before the Committee by the noble and learned Lord I must, of necessity, bring this to the Committee's attention because, obviously, if a vote is to be taken and your Lordships have no politics in your minds on this—anybody who finds politics in the points system and whether or not a driver is, or is not, to be disqualified must belong to an extreme group which is not represented, by the grace of God, in your Lordships' House—I say that, exercising proper judgment as legislators, either subsection (6) has to go or the noble and learned Lord's argument has to go. We cannot have both.

My noble friend Lord Bellwin is going to deal with this amendment in accordance with the allotment we arranged before, but I cannot allow what the noble Lord, Lord Mishcon, has said to pass without some comment. What I was talking about on the last occasion was the question of whether a residue of points should be held over for the totting up business. The subsection to which the noble Lord referred deals with the question of whether at a certain stage one is bound to disqualify. My argument dealt with a situation in which the court, having disqualified, felt they should wipe the slate clean. Of course, in connection with the amount of disqualification, the length and period of disqualification, the matter is different. Subsection (6) relates to the obligation on the court to order disqualification—unless a very limited exception is made out—compulsorily once the 12 points have been reached.

I will not weary the Committee, and I promise not to repeat this point again, but could the noble and learned Lord deal with this point to save me repeating it? On the application for disqualification, the noble and learned Lord is saying that that is the time when the court has all the facts before it and it should take into account the whole history of how the 12, or excess of 12, points have been accumulated. I am saying—and the noble and learned Lord has not answered this—that his argument is wrong, false, and misleading, but through no intention of his whatsoever because nobody would ever accuse the noble and learned Lord of any such behaviour; it is purely inadvertent. However, the Committee is being misled because the court under the wording of subsection (6) cannot go into the question of whether previous points have accumulated through a serious or a not serious offence; or whether a previous disqualification has taken place by virtue of serious or not serious offences; or whether or not hardship has been involved at all. If the noble and learned Lord can show that I am wrong on that I shall wear a penitent's gown of white and apologise to him, but if I am not wrong would he please deal with the argument.

In anticipation of that brilliant prospect, may I point out that the noble Lord is treating subsection (6) as if it covers the whole scope of what is open to the court to do once the 12 points have been arrived at. What subsection (2) does is to limit the grounds on which the court could disqualify for less than the minimum period, or not at all. What I am pointing out is that if the total number of points is more than 12 that might well be a ground for making the disqualification more than the minimum, and that is the issue about carry-over as I see it. I do not know whether I am going to see the white or not.

I am tempted to say, "Can anyone join in?" But having listened carefully I do not think that I particularly wish to do so. May I say first to the noble Lord, Lord Underhill, that this amendment is not, as he claims, different from that of the noble Baroness, Lady Stedman, in that it would apply only for three years. This is already the case by virtue of Clause 19(3). I think we have heard this matter debated at some length. I want to say first that it is not the intention under the proposed system that a convicted driver should escape any more lightly than hitherto. Courts will be able to, and should, take account of all the circumstances in deciding whether to impose more than the statutory minimum period of disqualification. And the fact that a driver might have more than 12 points would of course be a very material factor to take into account.

The real question is not whether a driver is to get off more lightly under one system or the other. It is whether to get his punishment over all in one go or whether to keep a part of it hanging over him in the future. We believe that the former is the better not only in itself but as an encouragement for a person to improve his standard of driving in the future. The present system, which the noble Lord's amendment is designed to perpetuate, could induce a feeling of some hopelessness. It is rather like a treadmill from which it is virtually impossible to get off at any time. There is always a discretion to disqualify. I myself, like many other noble Lords, have been involved for many years in making decisions of that kind from time to time. We believe that the new system is both more equitable and an encouragement to better driving. It is for these reasons, plus those expressed by my noble and learned friend the Lord Advocate that I say that we would not want to accept this amendment.

It was because we were looking to the future that we proposed the amendment. There is obviously a complete difference of approach between the two sides of the Committee on this issue. One view is that one should get the punishment over with straight away and that that will stop the person committing another offence later. The other, our view, is that if some points are carried over, that will tend to make the person look to the future. In view of the statements made by the two Ministers, the best thing I can do is to study carefully in Hansard what they said to see whether the matter should be raised, either in its present form or in another way, on Report; and meantime I beg leave to withdraw amendment.

moved Amendment No. 55:

Page 15, line 28, after ("which") insert ("penalty").

moved Amendment No. 46:

Page 15, line 41, leave out paragraph (a).

I am sorry constantly to have to take issue with my noble friends on this side of the Committee, but listening to my noble friend I felt that I was sitting in court listening to a plea in mitigation. I am very sorry that he used the example of drink and drugs, because this is used all too frequently in relation to criminal offences. It seems to me that if the law says "Drink and/or drugs" that is exactly what it means. Surely if the individual concerned is foolish enough to take a drug, assuming that it has been administered on the spot at the doctor's surgery (which is unusual) he must accept that his position is no different from that of an individual who has taken a quantity of alcohol. I feel that that example was an unfortunate one to advance.

I consider that my noble friend's other example—that of a doctor—was also unfortunate. If there is a law, it seems reasonable to say that it is there to protect other people against the misuse of a vehicle on the road. During the many years that I have sat in court I have listened to pleas in mitigation for almost every offence under the sun, and they are usually of this nature. If an offence has been committed, surely the doctor can deal with the situation in some other way. Perhaps he has gone through a red light. It seems to me very dangerous to suggest that arguments such as have been mentioned should be used in mitigation in relation to our traffic laws, which, on the whole, I think we would all agree, are reasonably fair; and certainly traffic courts take all these matters into consideration. In my experience, in the case of anyone accused of reckless driving certainly evidence has been presented which shows that there has been reckless driving and that it is not merely that they have exceeded the speed limit for one-tenth of a mile. So while I would not say that I will not support my noble friend, I felt, again, that some of his arguments were a little unfortunate in relation to pleas of mitigation.

Before my noble friend sits down, the example I gave of reckless driving was not that of the doctor; it was the case that could happen, unfortunately, to any one of us—that of a child of ours who was dangerously ill and we then exceeded the speed limit in a dangerous way, by really going it in our motor vehicle, in order to get the child to a hospital or to a doctor. That is what I said; and I said that we now have an obligatory points system which will make the court, whatever the circumstances, order 10 points.

I had understood the noble Lord, Lord Mishcon, earlier to advise us that it was dangerous to legislate for special cases, but his argument on this occasion rather suggests to me that it is based on rather special cases. Certainly, so far as the first one is concerned, I think I am right in saying that the section as he read it out has been modified by the Criminal Law Act 1977, so that the section now reads:

"A person who drives a motor vehicle on a road recklessly"

shall be guilty of an offence; and the bit about dangerous, and so on, has been amended. The other example, of driving under the influence of drugs in rather exceptional circumstances, I should have thought would not be relevant either, because if it is an offence which is proved to have been committed then it will be an obligatory disqualification unless there are special reasons in the circumstances of the offence. It is also important, I think, to remember that before there is any question of points in relation to any particular offence the offence must be one which has led to endorsement; that is to say, the court has ordered particulars of the conviction to be endorsed under Section 101 of the 1972 Act.

The purpose of the provisions in Clause 19(2) is to narrow the circumstances in which the minimum disqualification will not be imposed when the total number of points, 12, has been reached. This appears to me, at least, to be in line with what the noble Baroness, Lady Stedman, was arguing for earlier. The reason why she did not want (6)(c) to stand was because she did not want (6)(a), (b) or (c); in other words, she did not want any exception to the obligation to disqualify. So far as we are concerned, we go a good deal along the road in that direction, thinking that if a driver has accumulated this number of points then the disqualification should be something that is highly likely to occur, and that the discretion not to impose this disqualification should be very closely limited. We suggest that the limitation should include paragraphs (a) and the (b), which the noble Lord's amendments seek to delete.

I think that in the course of speaking to his amendment the noble Lord referred several times to "serious "hardship. I have no doubt the word he had in mind was "exceptional" hardship, which is the word in paragraph (b); and, of course, I accept what he said about "serious" as applying to that. The application of the words to the particular circumstances would be a matter for the court, but basically what we are seeking to do is to limit very substantially the circumstances in which, once the total is reached, the minimum period of disqualification is not imposed. What we say is that where you have a points system like this, which reflects to a considerable extent the nature of the offences which have led to the total, then it is right to make it a very narrow exception to the obligation on the court to disqualify.

We would strongly submit that if paragraphs (a) and (b) are deleted then the result is to leave the matter completely open to the court; and, surely, this is really quite opposite to the spirit for which the noble Lords, Lord Underhill and Lord Mishcon, were arguing earlier in speaking about the effect of the points. If the points which you have accumulated have a very strong likelihood of producing the minimum disqualification when they get to 12, then surely that is the best situation. Accordingly, we would strongly advise the Committee that this amendment is not acceptable, and I hope that perhaps on consideration of the situation the noble Lord who moved it may feel able not to press it.

Before the noble and learned Lord sits down, would it be possible for him to explain to a layman what is meant by "exceptional hardship"?

The intention in using the word "exceptional" is that it would require of the court that they should be satisfied that there had been some hardship quite out of the ordinary, quite different from what one would get in any ordinary case—because in almost every case a disqualification will give rise to hardship. What the court has to look at is something which could be regarded as exceptional; that is to say, not to be expected in any ordinary case. I think the word is a word of common usage, and therefore a word which the court would be able to apply wisely to particular cases.

Before the noble and learned Lord the Lord Advocate sits down, my noble friend referred to the position of the heavy goods vehicle driver. Would the noble and learned Lord agree that exceptional hardship might be held to cover the position of a heavy goods vehicle driver who not only has his licence taken away, and therefore his HGV licence as well, but will have very great difficulty in having it restored at the end of the period of disqualification because the licensing authorities are usually very strict on restoration?

The answer to the question would have to be for the court in a particular case, but one has to have in mind that the driver of a heavy goods vehicle is driving a piece of equipment which can be a very serious danger to other people. Personally, I would doubt whether merely to be able to say that one would put one's employment at risk by a disqualification would be an exceptional hardship, because there are many in that situation. For example, the doctor to whom the noble Lord, Lord Mishcon, referred might well put his occupation at risk if he lived in a district where it was very difficult to get anyone to drive for him. But that is as much as I think it would be right for me to say.

The noble and learned Lord says that this is really the limit of what he can say, and that to say any more would not be right. He is saying by inference that it is impossible to define what hardship is and what exceptional hardship is. It will be for each and every magistrates' court to decide it; and we get back to the uniformity which, quite frankly, is what we are trying awfully hard to get in regard to the justice that the court administers and the penalties in regard to which we are trying to get uniformity if we possibly can, especially when we are dealing with serious penalties.

The points about this are the following—and the noble and learned Lord, with great respect, has not answered either of them. Is it sensible to say to any set of magistrates, "You are trying to adjudicate upon whether a driver, be he Lord X or be he Dr. Y, or be he plain Mr. Smith, is going to lose his licence", when the court, this subsection states, cannot take into account whether or not any of the offences making up the accumulation were or were not serious offences? This is in spite of the fact that you have an obligatory point system which says "ten" here and "five" there, and there are no exceptions to that rule in most of the offences which are contained in Schedule 7.

Is it right, is it proper, to exclude a submission from the court, to silence the advocate for that driver, to say that you cannot make a submission that the magistrates can listen to, as to whether any of the offences which made up the 13 were serious or not; that you cannot listen to it; and, worse than that, thinking of uniformity, to leave it to the discretion of each and every court as to what that court would regard in the circumstances as hardship or exceptional hardship? Once the court thinks it is only hardship, and not exceptional hardship, then the advocate is silenced and the court has to expunge from its mind in coming to its decision every submission that has been made about the hardship. If the court is a merciful court and takes exactly the same facts which may make another court say that it was not exceptional and the merciful court says that it was exceptional, then that driver is very fortunate to appear before it. I repeat that it is purely by coincidence that these amendments come forward from the Opposition. It is only because the Opposition looks with great care at every word of a Bill and tries hard to see that a Bill comes before the public in the best possible way and especially when dealing with a non-political point. This is a non-political point and nobody could ever make it one.

But when we divide (as I am afraid I must ask the Committee to divide) on (a) and (b), may I ask your Lordships seriously to take into account the fact that not one of us can wear a white sheet and say that we will never be in a position where we would want to say to the court, "Do not disqualify us. We want to tell you that the accumulation of points arose at least in respect of one offence which was not a serious one"? Or, would we not want to say, "Please listen to us. This is a case of hardships"—and not have a gamble as to whether the court will decide what we are submitting is or is not an exceptional hardship, because if it is only a hardship, they cannot take it into account if we legislate in this ambiguous and vague way? I regret I cannot accede to the invitation of the noble and learned Lord because I think I would be letting the public down if I did so. It is not a question of letting down a political party, but of letting down the public and every one of us. So that I am afraid I must press the amendment.

had given notice of his intention to move Amendment No. 57:

Page 15, leave out line 43.

moved Amendment No. 58:

Page 16, line 20, after ("of") insert ("penalty").

moved Amendment No. 59:

The purpose of subsection (8) is to give the Secretary of State an element of flexibility so that he can in the light of experience vary without recourse to main legislation the number of points for an offence which is already liable to points. Lord Underhill's concern seems to be with the broader question of adding to or deleting from the list of offences which attract points.

It is rare that any proposal is made that an offence should become endorsable when it has previously not been so or vice versa. The effects of such a change could be so significant that in the Government's view it ought not to be introduced except by principal legislation. Of course, if an entirely new offence is being created or an existing offence abolished, the consequences of this on the points schedule can be taken care of in the legislation necessary for the major purpose. I hope that, in view of that brief but nevertheless to-the-point explanation, the noble Lord will be able to withdraw his amendment.

May I take it that were I to move Amendment No. 59A, I should get a similar response? In effect, my amendment is the same, though it goes somewhat further. In the post last Friday, or it may have been Saturday morning, some of us received the report of the inter-departmental working party on the law. A great deal of what is contained in that report has not been debated by Parliament. There is unlikely to be the opportunity for us to go through that report and consider anything during the course of this Bill. It may well be that in retrospect some of the suggestions contained in the report should be embraced within the general arrangement of this Bill because, after all, we are, as noble Lords have said, engaged in introducing a number of new and deterrent factors.

Lord Underhill's amendment, and my own, permit the Secretary of State to introduce variations of penalties into this scheme without going for primary legislation. That seems eminently suitable. We can imagine the Transport Bill of 1982 having another road safety section where a number of people, including perhaps the Government, wish to introduce changes. On the other hand, there is in both our amendments the safeguard that any regulations so made have to be subject to the approval of Parliament by affirmative resolution. That is in the Bill now.

This Bill has become longer and larger. All Government Bills always seem to get longer and larger. We are continually complaining about the length of Bills. Surely, it would be more sensible to deal with the narrowness of one subject-matter through the affirmative resolution procedure. Both these amendments have that attraction. However short my noble friend's answer was, I do not think in all honesty that it has done justice to what lies behind these two amendments.

I was speaking to the specific amendment of the noble Lord, Lord Underhill. I shall be very happy if both he and my noble friend Lord Lucas would like me to deal with Amendment No. 59A at the same time. I am content to do that.

I did say that I had to assume that, because the two amendments were so similar, the answer might be similar. If it is similar, fine; but, if it is not, then perhaps we may take up Amendment No. 59A again.

I am in the hands of the noble Lord, Lord Underhill. It is his amendment.

It is in my hands, but I cannot pledge what the noble Lord, Lord Lucas, wishes to do. If he is satisfied with the attitude the Minister is taking, then we could take these two together, but I must leave it to the noble Lord, Lord Lucas, to decide.

To be helpful, perhaps my noble friend would like to deal with Amendment No. 59A separately.

In that case, I have dealt with No. 59 as best I am able.

I am sorry that the Minister feels he cannot accept this amendment. I think he realises that it is intended to be helpful. As the noble Lord, Lord Lucas, has said, if it were not for the provision that any such order must be by affirmative resolution of both Houses, then I would not have moved my amendment. But there is that safeguard. I think it must be agreed that we are in this period of experiment with the due points system and therefore there may have to be adjustments. I can appreciate the point made by the Minister that it may be something new to introduce a new offence by order, but, with that safeguard, I should have thought it would be helpful. If the Government do not feel they want us to be helpful then I have no alternative but to seek leave to withdraw the amendment.

moved amendment No. 59A:

May I say at once that as regards this amendment, and the preceding one, I accept entirely that noble Lords are trying to be helpful and to make this the best Bill we can get at this time. I accept that without reservation. May I also say that as regards this amendment I welcome my noble friend's interest in securing the possibility of a wider application of the fixed penalty procedures. The possibility of extending them to a wider range of moving traffic offences was examined by the working party, as my noble friend knows. The report has now been published and I think I would say at once that the Government agree that this change should be made. However, in order to implement it effectively quite extensive legislation will be required. It also remains for the Government to reach a decision on one important aspect on which views were sought in my right honourable friend's foreword to the report namely, whether failure to respond to a fixed penalty notice should result in the penalty being recoverable as a fine without the need for a court hearing.

For these reasons, it will not be possible to introduce adequate legislation on this subject in the present Session. But on the understanding that it is the Government's intention to introduce such legislation at the earliest opportunity, and that in advance of it the amendment proposed by my noble friend we feel would be insufficient to enable a satisfactory extended system of fixed penalties to be introduced, I wonder whether my noble friend would feel able to withdraw this amendment.

Before the Committee hears whether or not the amendment is to be withdrawn, would the noble Lord the Minister agree that there is a great body of opinion at the moment which is terribly anxious to assist in saving the time of the police, of court officials and others, and that there is a great interest in relieving the crowded lists in magistrates' courts in order that serious cases may be dealt with rather more speedily? Is he really of the opinion, therefore, that it is quite impossible within the time allotted to this Bill to bring in the procedure which is suggested under this very sensible amendment? I would hope that the Minister would regard this as sufficiently important for him to give a more positive reply, especially as we all know that before another Bill of this kind can come before Parliament, a very considerable amount of time is bound to elapse, not least because of the crowded legislative programme.

I am not at all without sympathy on that point, but I am advised that in fact it is extensive legislation that would be required to do this satisfactorily, and it is because of that that I am not able to go further at this moment. I entirely take the point—I know it so well—about the crowded courts, the great pressures that there are and the wish to improve matters now rather than wait for some indeterminate time. But I think I may also go on to say that it is the Government's intention not simply to sit back and say, "One of these fine days …". It is much more than that. I do not know low long this report has been "on the go", but it has now been published and I think the fact that we have made the recognition that we have of the point relatively quickly shows that we also want to see things done. Unfortunately, I am not in a position to go further than I have done today. Should it be before the next stage—and we will look carefully at what has been said—that I am advised otherwise, the noble Lord, Lord Mishcon, knows what I would do. However, I clearly cannot give an undertaking to that extent at all at the present time.

What my noble friend has said is fairly helpful. Obviously I am in no position to question the inability of the law to embrace what I want to be embraced under the amendment which I have put down. My noble friend has said he will look at it. I think what I would rather press him to do is this: could he arrange for his department to explain to me in rather more detail exactly why what I want to do cannot be done? In the event that my common sense may prevail over what his legal advisers may tell him, I may wish to do something at a later stage. I notice a certain jocularity in that, but so often in matters of this kind common sense can prevail—sometimes more effectively. With the assurance that has been indicated, I beg leave to withdraw the amendment.

I should first like to thank the noble Lord, Lord Bellwin, for the very long reply he gave to the points about the totting-up procedure which I raised on Second Reading. However, I am afraid that the noble Lord has yet to completely convince me that the discretionary points will not turn out to be somewhat confusing for magistrates and the courts to deal with. I know that the Automobile Association has also put forward the view that a simpler approach to the points system would make life a lot easier for all those concerned with the administration of justice at the time.

Now that the announcement has been made in another place that there are to be fixed penalties for certain other traffic offences which the police will deal with, would it not be better to leave discretionary points out of this part of the Bill for the time being and to look at the whole question of how the points system should be arranged once we know the position regarding fixed penalties which are, I believe, going to be included in legislation next year?

Although I do not necessarily agree with all the points which the AA has put forward, it has suggested that points might fall into three different categories. The AA has suggested a penalty of five points for dangerous and anti-social driving offences; three for offences which have a road safety implication; and perhaps one or two points for those offences which relate to a technical infringement. Whether the AA has its numbers right is a matter for argument or discussion, but I am sure that kind of system would, in the long run, turn out to be more easily understandable to both magistrates and motorists alike. In the same way, serious offences—if someone kept on committing them—would add up to a disqualification.

The other point, about which I did give notice to the noble Lord's office, concerns the question of the relevant date used in this clause. There are always three possible dates which can be taken. One can use either the date of the commission of the offence, the date of the conviction, or the date on which sentence was passed. In this clause, one has a confusion of choice between all three. Under Clause 19(3) the points cease to count for the purpose of compulsory points disqualification; under Clause 19(2), when the points are in respect of an offence committed more than three years before the date of the commission of the latest offence; and under Clause 19(4), previous disqualification ceases to count if it was imposed more than three years immediately preceding the commission of the latest offence—and in this case, it is the date of sentencing on the earlier occasion which is material.

There are strong arguments for following the same principle in the two sections of the clause and for not choosing the date of the earlier offence in one case and the date of the earlier sentence in another. One of the disadvantages which may arise from the fact that the points will run from the date on which the offence was committed is that offenders might seek to escape detection, and seek to postpone the date of the hearing so that the points do not last quite so long. Also, a person who committed offences on different dates might perhaps have points running out on different dates, and that too would add to the confusion.

One result of the present proposal is found in paragraph 12 of Schedule 9 which sets out the proposed new Section 10(7)(a) of the Road Traffic Act 1972. This will provide that the duration of an endorsement will vary depending on whether a disqualification is imposed, even in disqualification in respect of a completely different offence. The position may change from day to day, particularly if an appeal is entered. As disqualifications will affect future offences from the date of sentencing, surely there are arguments for running an endorsement from the date of sentencing and not from the date of conviction?

It almost seems that the date of conviction has ceased to be material. Clause 19(3) refers to considering the position on the occasion of conviction, but in most magistrates' courts this will in practice be also the date of sentencing. The date of conviction is no longer material—or no longer the material date—in view of the wording of Clause 19(3) and (4). On the other hand, it is the date of conviction that is used in Clause 19(5). Surely it is much better to have one relevant date and to have the same date throughout the whole of the clause rather than different dates, which will make life more confusing.

With regard to the first point of concern to which the noble Baroness, Lady Stedman, drew attention, the argument is that the difficulties facing the courts are difficulties we should try to meet at the earliest opportunity, as my right honourable friend has indicated in the other place and also in his foreword to the report from the working party—and the points system which is delivered in association with Clause 19 is a very considerable step forward in that direction and will also he extremely helpful if we are able to go further towards the fixed penalty system, as we intend to do. This is a step in the right direction, and we hope the second step will come fairly quickly.

So far as the relevant date is concerned, the approach taken in the clause is to take what we consider to be the most practical date. I shall be happy to consider what the noble Baroness, Lady Stedman has said, and will see whether we could consider any improvement, but certainly practical considerations have determined everything we have done so far.

I should be most grateful to the noble Lord if he will take a look at this, and perhaps write to me before the next stage.

Before we leave this clause, I should like to ask my noble friend whether he can give some further clarification about the transition period. This does not appear to be at all clear, either in the preceding debate or in subsection (7). That seems to be the only section of the Bill that deals with the transition period. Subsection (7)(a) states:

"An order for endorsement which was made before the commencement of this section counts as an order made in pursuance of subsection (1) for the endorsement of 3 points …".

Am I to take it that if there is an endorsement on a licence at the commencement date for any offence whatsoever, it would be carried forward at that date with a three point value? If that is so, then if one was a fairly wicked offender prior to the commencement date and had committed an offence which carried 10 points, one would get away on commencement day—when the line is drawn with a three point penalty. If, however, one had committed a lesser offence carrying only three points, one would get away with a zero marking. In other words, when the line is finally drawn, some are winners and some are losers. Is that the way in which it is anticipated that the transitionary period will operate?

It is difficult to attain perfection in this particular area without an undue amount of retrospection. At the time of a previous endorsement, it would count as one endorsement towards three, which would introduce the disqualification period. It was on that basis that we considered that three would be a reasonable number of points for all pre-existing endorsements, bringing them into the new system on that basis. I agree it means that some win, but the only alternative would be to re-examine all the previous cases and that seemed to be a very large practical obstacle.

I understand that and certainly I have no wish to see the whole thing re- examined. But my understanding is right in that it is an arbitrary decision after various considerations have been made, and that some win and some lose? That is what it really all boils down to.

moved Amendment No. 60:

Page 65, line 6, after second ("of") insert ("penalty").

moved Amendment No. 61:

Page 65, line 15, column 3, after ("of") insert ("penalty").

moved Amendment No. 62:

Page 65, line 18, column 3, leave out ("5") and insert ("3–8 at the discretion of the court").

I should like to support this amendment from experience as a magistrate. I think research will show that, of all the motoring offences, the greatest variety of fines is for careless driving, because there are so many different circumstances. If the court has that discretion on fines and there is that great variety, then there is need for some flexibility in the points system in regard to those offences.

I, too, should like to support this amendment and in doing so I want also to speak to Amendment No. 63. I believe that the two offences of careless driving and driving while uninsured are peculiar, in that the gravity of individual cases varies so much. On Second Reading, I gave examples of how such offences can vary and I shall not weary your Lordships by repeating them again today.

Since this Bill went through another place—and, incidentally, since its Second Reading in your Lordships' House—we have had the advantage of the publication of the report of the working party on road traffic law, and you Lordships may think it significant that on page 55 of that report the working party came out in favour of giving discretion to courts in the case of both these offences. As I think the noble Lord, Lord Underhill, has already said, it is also significant that in another place the Government accepted an amendment giving courts discretion, by means of a range of points, for the offences of failing to stop and failing to report.

No doubt my noble friend the Minister will claim that pleas of mitigation, for the number of points awarded to be near the minimum rather than the maximum, will take up extra court time, if this discretion is given. Maybe it will take up a little more court time, but I do not think that the amount of this court time should be exaggerated and, surely, a little extra court time is more than offset by better justice.

Since the next amendment is in my name, and differs only in the number of points, it follows that I am in support of the principle underlying the amendment of the noble Lord, Lord Underhill, for precisely the reasons which have already been given. I can see some difficulty here, in that, were I to give undue encouragement to the noble Lord, Lord Underhill, he might decide that he wanted to press this amendment—and he is looking for three to eight points at the discretion of the court—and it would be churlish of me, in the event of his winning, to press mine and then bring the range back to two to five. I do not know quite what we can do about that.

However, what seems to be most desperately important is that the top figure of eight in the amendment of the noble Lord, Lord Underhill, is somewhat excessive. It seems that we are then bordering on a decision to be made by the court, by virtue of what penalty may be awarded, on the more serious charge of reckless driving. For example, if for reckless driving we have 10 points—nobody so far has argued about that one—and the court considers that it is a fairly outrageous piece of careless driving and awards eight points, we are just two points short of, or very marginally off, reckless driving. If there is that amount of doubt, there may be some imprecision in the prosecution. After all, it is for the prosecution, is it not?—and I look to my noble and learned friend on the Front Bench, and also to the noble and learned Lord opposite, to tell me—to make up its mind as to what charge is to be brought. Is it to be one of reckless driving, with the penalties which that may impose, or is it to be the lesser charge of careless driving, knowing that the penalty can so very nearly approximate to that on the reckless charge? For these reasons, while I fully appreciate and agree with the principle underlying Amendment No. 62, I prefer mine, purely on the number of points. I would ask the noble Lord, Lord Underhill, to bear that in mind, just as I shall bear in mind what he has to say after we have listened to the response of my noble and learned friend.

I intervene merely in order that the noble and learned Lord the Lord Advocate can deal with the very sound point which has been made by the noble Lord, Lord Lucas of Chilworth. Since he was courteous enough to address his question to me as well as to the noble and learned Lord opposite, it may help if I say that it is a matter of practical experience that police forces throughout the country vary greatly regarding this offence. Some of them even after a death has been caused will prosecute for driving without due care and attention, while others will prosecute for reckless driving even when there is no serious injury, if they think that the facts constitute reckless driving. It is a matter which causes a great deal of concern among those who are charged with the duty of defending motorists.

I can only say that it is sensible to have an upper limit as high as eight for driving without due care and attention, even though it comes within just two points of reckless driving, because in many cases it is extremely difficult in a bad case of driving without due care and attention for the court to understand why the prosecution has not been for reckless driving.

If I may deal first with that point, it is certainly for the prosecution to decide what charges will be preferred. Sometimes in relation to a traffic case there are charges of careless driving and reckless driving in the alternative, passing the responsibility to the court to choose between the two degrees. So far as Scotland is concerned, it is the responsibility of the Crown to decide what form the prosecution shall take. But the important point is that Parliament has differentiated between the two. There are distinct charges of reckless driving on the one hand and careless driving on the other. Although the one set of circumstances may shade into the other, Parliament for practical reasons has to make a distinction between the two, and it has done so. One cannot have an infinite gradation of offences in this area, at least not without some greater legislative complexity than we have at the moment, and I think most people feel that perhaps we have enough of that already.

If I may turn to the main matter, as my noble friend has pointed out, the interdepartmental working party considered that a variable range of points for certain offences was possible. However, we as a Government have to consider the effect on the work of the courts. The total number of offences which are dealt with in this area of the law is very considerable. To take England and Wales alone, there were 1.8 million findings of guilt for motoring offences in 1979. Of these, about 2 per cent. were in the failing to stop group of offences, whereas the number of careless driving offences was of the order of 150,000 and insurance offences nearly 160,000. That is 40,000 against 150,000 and 160,000.

At present the totting up procedure does not distinguish between offences which are subject to it. Therefore anything which distinguishes between offences is an improvement. We consider that, as a matter of practical determination it is not wise to go beyond giving fixed points for these offences, otherwise what happens is that the time of the courts is taken up with considering the number of points which should be awarded. The court has a discretion as to whether or not to disqualify in those cases where disqualification is discretionary. It has a discretion on the size of the fine and it has to consider whether it is to endorse or whether there are special reasons for no endorsement, in which case there would be no points endorsed upon the offence.

It seems to us that those discretions are sufficient and that to introduce another range of discretions within the offence, distinguishing within the offence between one set of circumstances and another, is to introduce refinements which, however much they might appear to assist justice as between one particular offence and another, mean, considering the total number which have to be dealt with and the finite resources available to the court to deal with all of them, that you find yourself allocating resources to matters which are comparatively small, thus increasing the backlog, or neglecting the more important cases.

In making a judgment, therefore, on the allocation of the resources which are available to the courts and to the prosecution systems and the defence systems which are called upon to assist the court in these matters, we concluded that it would not be right to allow discretion for this offence. The only exception is, as has been pointed out, the case of failure to stop. That group of offences is much smaller in number than those with which this amendment is concerned. It is also an offence which in recent years has been very much on the increase. Parliament has found it necessary to raise the maximum fine tenfold, from £100 to £1,000. This suggests that in this case there is a very special problem which makes it right to depart from the general principle. Otherwise we strongly suggest it is right to adhere to the principle of fixed points and to proceed upon that basis.

In the light of that explanation, I hope the noble Lord will feel able not to press his amendment.

I am very disappointed with the reply of the noble and learned Lord the Lord Advocate. I prefer to keep separate the insurance argument on Amendment No. 63, which I did not speak to, because a different principle is involved upon which I wish to say something. The reason why the amendment which I have moved and which has been supported by the noble Earl, Lord Fortescue, makes a maximum of eight points for careless and inconsiderate driving was deliberately so that it would be two points below the 10 points for reckless driving. There is a difference between the two offences.

The noble and learned Lord the Lord Advocate said that we must consider the effect on the work of the courts, but surely we must pay some regard to justice for the person who is brought before the court. I am certain that every noble Lord here who is a motorist would be very upset if for what was almost a technical offence which was careless and inconsiderate but which created no fear of any danger or accident he got five points, which is only seven points away from possible disqualification. This is the seriousness of having fixed points of this kind. I am not a magistrate, but if I were I should feel that in a case like that I ought to have discretion. I should hate to feel that Parliament had said that irrespective of the circumstances it must be five points. This is one case where we ought to give consideration to the point.

As we have another amendment which would not make the range so severe as this—we are proposing 3–8, whereas the other amendment proposes less—I think that at this stage, without accepting anything that the noble and learned Lord the Lord Advocate has said, I should like to read carefully what he has said and maybe come back to this, because an important matter of principle is involved here. In the meantime, I shall withdraw this amendment and see what the Minister's reply will be to the amendment to be moved by the noble Lord, Lord Lucas of Chilworth. I beg leave to withdraw the amendment.

moved Amendment No. 62A:

Page 65, line 18, column 3, leave out ("5") and insert ("2–5").

I only ask that, when your Lordships consider what view should be taken in regard to this amendment, you will bear in mind a point that has not been mentioned so far, but which your Lordships may remember from a previous debate; namely, that the seriousness or otherwise of the offence cannot be taken into account by a subsequent court when dealing with the question of disqualification.

That means just this. If you happen to cut in front of another motorist in a way which he thinks is objectionable, it is open to that motorist, without any intervention of the police, to cause a summons to be issued against you for driving without due care and attention. When the case comes to court, on the basis that it was an act which was not that of careful driving, the court could come to the conclusion, on hearing both motorists, that driving without due care and attention had been committed in the case and there could be a conviction.

There is another case with which your Lordships are very familiar; that is, that sort of driving which causes an accident—and quite a serious accident—but does not amount (in the opinion of one prosecuting authority) to reckless driving. Bear in mind the fact (this was the burden of my argument before, which I shall not inflict again on your Lordships) that, as the Bill now stands, on a subsequent occasion the seriousness of the offence of driving without due care and attention—if in the totting-up of the points it comes to 12 or more—cannot be taken into account by the court, because that is what subsection (6) now means. Would your Lordships consider that it is imperative that, in a case of this kind where driving without due care and attention can be so variable in regard to its seriousness, at least a discretion ought to be granted to the court to decide the number of points that ought to be awarded in the limit that is now suggested by the noble Lord, Lord Lucas.

I should like to suggest to the noble and learned Lord the Lord Advocate that there is scope here for compromise between the two amendments and the attitude of the Government. I can understand the Government's attitude, that it will take the time of the court, but the court already has to decide on the fine and I can say from experience that those fines are decided quite quickly. That is not the kind of thing on which the courts spend very much time. However, it seems to me that there is a possibility of compromise here. The narrower the range before the court, the less time it is likely to take in deciding, and I would suggest that 4–6 points would be a fair compromise between the two amendments and the attitude of the Government. That would seem to me to be a reasonable compromise.

I merely wish to say, speaking as a humble magistrate who has spent today hearing nothing but driving offences in Horseferry Road Court, that I left that court and drove in my car to your Lordships' House, where I smartly drove into the "out" entrance, instead of the "in". Somebody was on their way out, but I caused no actual danger. On the other hand, I suppose one could say that I was carelessly driving and I should have been very angry if I had been given five points. There is no doubt in my mind that we magistrates deal with an endless number of driving offences in one day and there are many variations on the theme of careless driving, so I would certainly agree with flexibility in regard to the penalty.

I should like to urge upon my noble friend to look at this again. I honestly do not think that the convenience of the court comes anywhere near in importance to fairness and justice in law. For what it is worth, I remember that when I held a junior appointment which meant that the department was responsible for Trafalgar Square, the Metropolitan Police brought along a whole list of regulations which they wanted to bring in. If you broke a flower, it was an offence; if you grazed a plinth, it was an offence; if you put your hand in the water it was an offence. I remember asking, "How do you deal with it now?" They replied, "We have to prove damage or nuisance", to which I replied, "Well, from my point of view, that is what you will have to go on doing". You can accidentally break a flower, you can accidentally cause a scratch on a plinth with your umbrella, you can trail your finger in the water without doing any sort of harm. I did not think that the convenience of the Metropolitan Police in order to get cases through quickly, or that in the point of my noble friend's argument, the convenience of the courts, ought to interfere with the discretion of the magistrates to assess the extent of the misdemeanour or mistake that has been made.

Perhaps I may take a lesson from my noble friend's suggestion—go on doing what you are doing now—which is not to have a discretion in this particular matter but to have a fixed value for the purposes of totting up for this particular offence. I should like to remind your Lordships that of course there is the possibility of there being no endorsement at all. If the offence is of such a character that the court considers that there are special reasons for not endorsing, then the points value is zero. So in a sense the discretion exists to have zero. But, if one comes to the situation where there is a definite offence of careless driving, then what we have to say is that it is really unreasonable, in the present state of the resources which are available to the court, to make this discretion available for the first time, because that is what is being proposed.

It is not just a matter of convenience for the court. It is a matter of the total amount of resources, the total amount of burden, and what happens if you increase the burden of deciding these careless driving offences by adding an additional dimension to the discretion the court has to exercise. That is bound to be productive of extra time, because although they do it quite quickly they do it very carefully. It is bound to take some time; there are a very large number of cases in this category. That time all adds up, and that time is at the expense of other cases, unless we can increase the amount of resources available to the courts, and in these days that is just not possible. Therefore, what you are doing is increasing the backlog, taking up time at the expense of other cases; you are doing injustice to others by an attempt to produce, by this additional refinement, the sort of justice as between one and another which it may be thought exists.

Merely to create a discretion does not necessarily mean that people have the idea that all is just, because they may find that with exactly the same offence with exactly the same circumstances in two magistrates' courts, to use the words of the noble Lord, Lord Mishcon, earlier, one court is soft-hearted and the other hard-hearted, one gives five points and the other eight points. The impression of justice is not thereby enhanced. For all these reasons I would invite your Lordships to take the view that the practical and proper course is to make this a fixed number. I invite your Lordships not to accept the amendment.

If I may intervene before the noble Lord, Lord Lucas, replies, if one took the words strictly as the noble and learned Lord the Lord Advocate has given them, it would make some of us who believe in the points system think that we ought to change our view about it. Take the case that the noble Baroness, Lady Trumpington, mentioned. If by chance a policeman had said, "You are guilty of careless driving", that means five points. You have only got to do that once again, and add on two points, and you are disqualified. How can you justify it? Within the magistrates court they will have to determine, on the range of fines, whether this offence is worthy of the maximum fine or a lower fine. All we are suggesting is that the points go along with that. It seems to me so reasonable, whereas the attitude taken by the Government, I believe, is unreasonable and one which is not fair and equitable to the people brought before the courts.

May I express from these Benches very sincere sympathy to the noble Baroness, Lady Trumpington, in her most unfortunate behaviour this afternoon. I am glad that nobody suffered thereby. I must say that my noble and learned friend the Lord Advocate has rather disappointed me. He talks of the burden on the courts. Oh dear! With the crime rate going up the burdens become more burdensome. I really think the kind of amendment I am suggesting would make little difference to that burden. My noble friend says we have to consider the resources available to us. This is not a question of resources. This is a question, potentially, of somebody's livelihood, due to a moment's lack of consideration, a moment's carelessness, over which the courts have no jurisdiction. I believe they should have.

I am not overly impressed with the argument that the fine that could be imposed makes the balancing feature. So often, of course, it is not the individual who pays the fine; it could indeed be an insurance company, it could be an employer. It has to get very high indeed before that remedy bites at all. If one pursues that line of argument, I recall that in the working party report some of the points were based, as a scale, against amounts of money that the courts up and down the country levied on people by way of fines. That seems to me a most odd way of measuring.

I sense that the Committee feel that there is some justification, particularly on this offence, for some variation, some discretion to be allowed to the court. I must therefore ask the Committee to display their feeling in one way or another.