These notes refer to the Road Safety Bill as introduced in the House of Commons on 30 November 2004 [Bill 10]

ROAD SAFETY BILL

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Road Safety Bill as introduced in the House of Commons on 30 November 2004. They have been prepared by the Department for Transport in order to assist the reader of the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill makes provision for a range of road safety matters:

Drink driving

4.     With regard to drink driving the Bill provides the police with the power to use roadside breath tests in evidence. Through more flexible powers it enables the Secretary of State to require the worst offenders to re-take the driving test. It closes a loophole allowing those offenders at highest risk of re-offending to drive pending medical enquiries and it amends the current drink drive rehabilitation scheme to improve take-up and introduces an experimental scheme for alcohol ignition interlocks.

Speeding

5.     The Bill provides for variable fixed penalties for speeding and increases the range of penalty points available for those offences. Carriage or use of speed camera detectors and jammers will be banned and a regulation-making power is given to the Secretary of State to enable him to grant exemptions from speed limits.

[Bill 10—EN]     53/4

Penalties and enforcement

6.     The Bill increases the maximum penalties for various road traffic offences and provides for a graduated fixed penalty scheme for various roadworthiness and other offences which will match the punishment to the severity of the offence. Provision is made to prevent foreign drivers escaping punishment in Great Britain by requiring them to pay a deposit where an offence is committed. To improve enforcement of road traffic legislation, the Bill extends the use of retraining courses to offenders convicted of speeding and careless driving, gives police the power to detect uninsured driving through the use of Automatic Number Plate Reading technology and access to insurance data and confers new enforcement powers on vehicle examiners.

Driver training

7.     The Bill amends the current "one-size-fits-all" scheme for regulating car driving instructors through a new power to introduce schemes targeted to meet the needs of individual sectors e.g. lorries, buses, off-road and fleet driving. It contains mechanisms to make sure the public has access to information about the performance of individual instructors, their qualifications and their services and introduces more flexible powers to extend the user-pays principle to all forms of test and assessment.

Driver fatigue

8.     To help prevent fatigue related accidents the Bill introduces improvements to the enforcement of EU drivers hours' rules and allows for a pilot of motorway rest areas similar to French "aires".

Driver and vehicle licensing

9.     A number of provisions in the Bill contribute to enforcement of road traffic laws through changes to the driver and vehicle licensing systems. These include an enabling power for the international exchange of driver and vehicle data to combat driving licence and vehicle crime, the mandatory recording of various particulars (mileage, date of birth) on the vehicle register to help prevent "clocking" fraud and the extension of the current registration scheme for number plate suppliers from England and Wales to the rest of the United Kingdom.

     Other measures

10.     The Bill also contains several other measures intended to contribute to the overall programme of improving safety on our roads. These include powers to pay road safety grants to local authorities so that innovative road safety projects can continue to be developed and measures to improve the regulation of the transport of radioactive material.

BACKGROUND

11.     In 2000 the Prime Minister launched the Road Safety Strategy "Tomorrow's Roads - Safer for Everyone", which set out the Government's framework for improving road safety, integral to which was the achievement of casualty reduction targets of 40 per cent of those killed and seriously injured (50 per cent for children) by 2010. In 2004 the Government published the first three year review of the Strategy, which evaluated the effectiveness of the Strategy and the likelihood of delivering the 2010 targets. The Road Safety Bill gives effect to several elements of the Government's wider road safety strategy to reduce casualties and it supports the push towards achieving the casualty reduction targets.

STRUCTURE

12.     The clauses are grouped as follows:

COMMENTARY ON CLAUSES AND SCHEDULES

Note on abbreviations

13.     In these Notes the following abbreviations are used:-

"the 1968 Act" means the Transport Act 1968;

"the DVLA" means the Driver and Vehicle Licensing Agency of the Department for Transport;

"the RTA" means the Road Traffic Act 1988;

"the RTOA" means the Road Traffic Offenders Act 1988;

"the RTRA" means the Road Traffic Regulation Act 1984;

"VERA" means the Vehicle Excise and Registration Act 1994.

Road Safety Grants

Clause 1: Road Safety Grants

14.     Clause 1 replaces and extends the scope of section 40 of the RTA for England and Wales. The new section 40 enables the Secretary of State (for England) or the National Assembly for Wales (for Wales) to make payments to local authorities, as well as other authorities and bodies, for meeting the whole or part of the capital or running costs of any measure for promoting road safety.

Fixed penalties

Clause 2: Graduated fixed penalties

15.     This clause amends Section 53 of the RTOA under which the amount of a fixed penalty is set. The amendment substitutes new subsections (2) and (3). It enables the Secretary of State by order to prescribe graduated amounts for offences. The graduations can take account of the circumstances of the particular offence. Such circumstances include the nature of the offence, its severity, where it has taken place and whether the offender appears to have committed other, prescribed offences during a prescribed period .

Clause 3: Graduated fixed penalty points

16.     This clause amends section 28 of the RTOA, which provides for the penalty points which are to be attributed to an offence when a person's driving licence is to be endorsed. The clause substitutes three new subsections, (3), (3A) and (3B), for subsection (3).

17.     The amendment enables the Secretary of State to prescribe by order appropriate numbers of penalty points for offences. The appropriate number of points may vary depending on the circumstances of the offence. Those circumstances include the nature of the offence, its severity, where it has taken place and whether the offender appears to have committed other, prescribed offences during a prescribed period.

18.     The amendments also allow the Secretary of State to amend Part 2 of Schedule 2 of the RTOA to provide for the penalty points for a fixed penalty offence to be the appropriate number of penalty points. The current penalty point provisions remain in force for any offence for which no such order is made.

Clause 4 (and Schedule 1): Giving of fixed penalty notices by vehicle examiners

19.     Clause 4 and Schedule 1 amend Part III of the RTOA (fixed penalties) to enable vehicle examiners to issue fixed penalty notices for those offences (predominantly roadworthiness offences) which they have powers to enforce. Vehicle examiners are appointed by the Secretary of State under section 66A of the RTA. They are staff in the Vehicle and Operator Services Agency (VOSA), an agency of the Department for Transport. The examiners will also issue conditional offers under section 75 of the RTOA (for instance where offences are detected remotely e.g. via Automatic Number-Plate Recognition or weigh-in-motion equipment).

20.     The amendments set up a system similar, but not identical, to the fixed penalty system administered by the police and fixed penalty clerks. The difference is that where a fixed penalty notice, or conditional offer, is issued by a vehicle examiner, the system will be administered by the Secretary of State. Fixed penalty payments will be sent to him and he will be responsible, where relevant, for the inspection and endorsement of driving licences. In practice this will be handled by a VOSA office. The right of the recipient of a notice or offer to ask to be heard by a court will not be adversely affected.

Clause 5: Goods vehicles operator licensing

21.     This clause amends the Goods Vehicle (Licensing of Operators) Act 1995 to provide for fixed penalty notices in respect of heavy goods vehicles to be made notifiable, in the same way convictions are, to the traffic commissioners by an applicant for, or holder of, a goods vehicle operator's licence. It also provides for the traffic commissioners to take into consideration any fixed penalty notices, issued to the operator, their agent or transport manager, within the previous 5 years when granting, revoking, suspending or curtailing an operator's licence. Failure to notify will be an offence, as is a failure to notify a conviction.

22.     The effect of the clause is that an offence, which would have been notifiable, on conviction, will also be notifiable if the offender receives a fixed penalty in respect of it.

Clause 6: Public passenger vehicle licensing

23.     This clause makes amendments, which correspond to those in the preceding clause, to the Public Passenger Vehicles Act 1981. They apply to an applicant for, or holder of, a public service vehicle operator's licence.

New system of endorsement

Clauses 7, 8 and 9 and Schedules 2 and 3: New system of endorsement

24.     These together provide for a new system of endorsement of driving licences.

25.     Under current legislation, it is only possible to issue a fixed penalty notice in respect of an endorseable road traffic offence to a person holding a driving licence and a counterpart issued in Great Britain.

26.     For the purposes of Parts III and IV of the RTA (driving licences generally and licences to drive large goods and passenger-carrying vehicles) and the fixed penalty provisions in the RTOA:

     (See section 108(1) of the RTA and section 98(1) of the RTOA.)

27.     It is therefore not possible for a police officer to issue a fixed penalty notice to non-GB licence holders, i.e. unlicensed drivers, Northern Ireland licence holders and non-UK licence holders unless they hold a counterpart licence on which a record of their penalty points is kept (under sections 91ZA and 91A, in relation to a Northern Ireland licence holder or Community licence holder to whom a counterpart has been issued, reference in Part III of the RTOA includes references to a Northern Ireland licence or a Community licence). Northern Ireland licence holders and holders of licences issued in the European Economic Area ("Community licences") may apply for counterparts but take-up is low. These provisions therefore establish a new system which will enable fixed penalty notices to be given to drivers who do not have counterpart licences. It is intended to introduce this alternative system in two stages.

28.     Clause 7 (driving record) inserts a new section 97A (meaning of "driving record") into the RTOA, which introduces the concept of a record held by the Secretary of State (a "driving record") designed for endorsement of particulars of offences.

29.     Clause 8 (unlicensed and foreign drivers) and Schedule 2 (endorsement: unlicensed and foreign drivers) provide for the first stage of the new system. They introduce a system of endorsement of driving records for unlicensed and foreign drivers (other than those Community and Northern Ireland licence holders who have been issued counterparts under Part III of the RTA).

30.     They enable a constable or vehicle examiner to give these drivers fixed penalty notices in respect of offences in cases where they would not be liable to disqualification under the "totting up" system if they were convicted of the offence. In those cases a court attendance would be required (as is currently the case for GB licence holders whose counterpart must be inspected to ascertain whether the imposition of penalty points would take the driver up to 12 or more penalty points). They achieve this by providing for the driving record to be checked, before a fixed penalty notice is issued, through the constable or vehicle examiner having access to the driver's driving record and by enabling the Secretary of State to endorse the driving record (rather than the fixed penalty clerk endorsing the counterpart licence) where the driver accepts the notice and does not elect for a court appearance. (Clause 8 contains the principal provisions and Schedule 2 contains the legislative amendments necessary to enable the endorsement of driving records in the case of unlicensed and non-GB licence holders.)

31.     At this first stage, there is no change for Community and Northern Ireland licence holders who have counterparts under Part III of the RTA. They will continue to be dealt with in the same way as GB licence holders.

32.     The United Kingdom is obliged in any case to make this change following a complaint made to the European Commission in 2000 by a Dutch licence holder who was resident in the UK but did not possess a counterpart to her Community licence. Having committed a driving offence, she was obliged to be prosecuted in court, which led to her receiving a fine higher than the fixed penalty would have been and the imposition of court costs. She argued that the fixed penalty system was discriminatory against European Community licence holders in general. The Commission upheld the complaint and the Government undertook to make the necessary legislative changes to put an end to the discrimination.

33.     Clause 9 (all drivers) and Schedule 3 (endorsement: all drivers) introduce the second stage which will be commenced at a later date (see clause 47(6) as regards timing). The second stage introduces the new system of endorsement of driving records for all drivers with the result that counterparts will no longer have any function. At this stage, for the purposes of the fixed penalty provisions, there will be two categories of drivers - those who hold GB licences granted under Part 3 of the RTA and those who do not. GB licence holders will still have to produce their licences in order to be given a fixed penalty notice. Community and Northern Ireland drivers who held counterparts issued under the RTA will shift from being dealt with in the same way as GB licence holders to being dealt with in the same way as unlicensed and other foreign drivers.

34.     Schedule 3 contains further legislative amendments in order to enable the endorsement of driving records in the case of all drivers. Much of this is concerned with removing all references to the "counterpart".

Deposits

Clause 10: Financial penalty deposits

35.     This clause inserts a new Part 3A (sections 90A to 90F) into the RTOA.

36.     Under new section 90A the police and vehicle examiners, appointed under section 66A of the Road Traffic Act 1988, will be able to require the payment of a deposit by a person they believe to have committed an offence in relation to a motor vehicle who does not provide a satisfactory address in the United Kingdom. The police or vehicle examiner must also believe that the person, the offence and the circumstances in which the offence is committed are of a description specified in an order made by the Secretary of State.

37.     The clause allows for the deposit scheme to be applied to any driver who cannot satisfy enforcement officers that a penalty or fine could be enforced against them in the UK. It would be open for drivers to contest in court the charge of committing an offence. Should the court decide in their favour or if the case did not go to court within a year (or, if shorter, any period after which no prosecution could be commenced in respect of the offence), the deposit would be refunded with the relevant interest. If the court decided against them, the deposit would be retained to be set off against all, or part, of the fine imposed.

38.     New section 90D will enable the police or vehicle examiners to prohibit the moving of the vehicle if the deposit is not paid immediately, though the vehicle may be moved to another, specified place by a written direction. The prohibition would continue in force until the driver: pays the deposit or (if he received a fixed penalty notice or conditional offer) fixed penalty, is charged with the offence or informed he will not be prosecuted or payment is made, or the prosecution period comes to an end, whichever occurs first. Failure to comply with the prohibition set by non-payment of a fixed penalty notice deposit will be recorded as a level 5 offence under Part 1 Schedule 2 of the RTOA.

39.     The effect of these provisions is to provide a means of enforcement against offenders who avoid payment of fixed penalties and prosecution by not having a satisfactory address in the United Kingdom.

Drink-driving etc

Clause 11: Power to require specimens of breath at roadside or at hospital etc.

40.     This clause amends sections 6D (Arrest), 7 (Provision of specimens for analysis), 8 (Choice of specimens of breath), 9 (Protection for hospital patients) and 10 (Detention of persons affected by alcohol or a drug) of the RTA. The amendments will permit a police constable in uniform to carry out an evidential breath test at a police station, at a hospital, or at or near a place (such as the roadside) where a preliminary breath test has been administered. The results of the evidential breath test will be admissible as evidence in court. Under the current law an evidential breath test may only be administered at a police station.

41.     The preliminary test will continue to be available under section 6A (Power to administer preliminary tests) for the police to screen suspects. The option of taking a person to a police station for an evidential test remains.

42.     In the event of a positive result, a refusal, or if the police officer believes the equipment not to be working properly, the person may be arrested and taken to a police station. If a person is unable to provide breath he may be required to provide a specimen of blood or urine, which must be at a police station. If the breath reading is no more than 50 microgrammes of alcohol per 100 millilitres of breath, the person who provided it may ask for it to be replaced by a specimen of blood or urine which must be taken at a police station.

43.     Although the police may complete the evidential breath testing procedure satisfactorily at the roadside they may need in some circumstances to arrest the person and detain him at a police station until he is fit to drive.

Clause 12: High risk offenders: medical enquiries following disqualification

44.     High Risk Offenders, as defined by Regulation 74 of the Motor Vehicles (Driving Licences) Regulations 1999 (SI 1999/2864) (the "1999 Regulations") for the purposes of section 94(4) of the RTA, are:

45.     Section 88 of the RTA sets out exceptions to the general requirement for anyone wishing to drive a motor vehicle on a road to have the appropriate licence authorising him to do so. These include, under subsection (1)(a)(i) of section 88, where the driver has held a licence to drive that class of vehicle and, under subsection (1)(b)(i), where the Secretary of State has received a qualifying application by the driver for a licence to drive that class of vehicle.

46.     This clause prevents High Risk Offenders from having entitlement to drive by virtue of section 88 of the RTA, whilst awaiting the outcome of medical enquiries relevant to an application for the return of a licence following a period of disqualification. This will ensure that those who, by the nature of their offending, have been identified as presenting a greater risk of being medically unfit to drive are prevented from driving until the Secretary of State is satisfied that they are fit to do so.

Clause 13: Period of endorsement for failure to allow specimen to be tested

47.     Once an endorsement ceases to be effective, the licence-holder may apply to the DVLA for a new licence free from the endorsement. Under subsections (5) and (6) of section 45 (effect of endorsement) of the RTOA, endorsement for most driving offences remains effective for a period of four years from the conviction, or four years from the date of the offence if no order for disqualification was made.

48.     Section 45(7) of the RTOA provides that the period of effectiveness of an endorsement in respect of specified driving offences connected with drink or drugs or failing to provide a specimen is eleven years from the conviction.

49.     This clause amends section 45(7) by adding the offence of failing to allow a specimen to be subjected to a laboratory test (section 7A(6)), so that where a person is guilty of an offence under section 7A(6), the endorsement will remain effective for a period of eleven years from the conviction.

50.     This corrects a consequential amendment missed in the Police Reform Act 2002 which inserted section 7A (Specimens of blood taken from persons incapable of consenting).

Clause 14: Alcohol ignition interlocks

51.     This clause inserts into the RTOA new sections 34D, 34E, 34F 34G and 41B.

52.     Its effect is to give courts the power in certain circumstances to offer offenders the opportunity to participate, at their own expense, in an "alcohol ignition interlock programme". Where an offender agrees to this his overall period of disqualification may be reduced. The provision applies to a person who is convicted of a relevant drink driving offence on a second occasion in a period of ten years and is to be disqualified for no less than two years. The period on the programme must be at least twelve months but must not exceed a half of the original unreduced disqualification period. This programme may not be offered to someone for whom an order is made under section 34A (drink drive offenders rehabilitation order).

53.     The Alcohol Ignition Interlock Programme requires the offender to comply with certain conditions. These include elements of education and counselling but a central feature is that the offender may drive only a car that is fitted with a alcohol interlock device that is designed to prevent the vehicle being driven until a specimen of breath has been given in which the proportion of alcohol does not exceed a specified amount. If a person interferes with the device to try to prevent it working he commits a new offence, and any failure to comply with the conditions of the programme will result in restoration of the full original disqualification period. The interlock device will be type approved by the Secretary of State and will be set at 9 microgrammes of alcohol in 100 millilitres of breath but that may be changed by regulations.

54.     Provision is made for a "certificate of failing fully to participate" in a programme. In the event of such a certificate being issued the offender must be notified and given an opportunity to appeal to the supervising court. If he makes an appeal the court may allow him to continue on the programme until the outcome of the appeal is known.

55.     Provision is made for approval of programmes by the Secretary of State, as respects England, or the National Assembly for Wales, as respects Wales, and, as with courses for drink drive rehabilitation this covers guidance and arrangements for appeal to the Transport Tribunal for an applicant whose approval is denied or withdrawn.