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Lord Bradshaw: Perhaps I may speak also to Amendment No. 386, which is in this group of amendments, although it does not reflect exactly the same issues as in the amendment moved by the noble Earl, Lord Attlee. That amendment concerns undertakings given by operators to traffic commissioners, but not the original undertakings which they give as a condition of their original licence, where a traffic commissioner may grant a licence and may attach a condition. I refer to undertakings which are given to a traffic commissioner at a hearing in the traffic commissioner's court where an operator has been called in to the court to see the traffic commissioner usually because the maintenance arrangements of his vehicles are not up to standard.
That operator may give a verbal or a written undertaking at that time to the effect that he is, for example, employing a proper maintenance foreman, will keep proper records and will do various things to ensure that the failings in the maintenance of his vehicles are rectified. Unfortunately, as I understand the Goods Vehicles (Licensing of Operators) Act 1995, undertakings given subsequent to the granting of the licence are not regarded as part of the licence, and therefore if that failing is repeated the licence is not automatically at risk.
That is a weakness in the law. It was referred to in the Standing Committee in another place and there was an exchange between my honourable friend Mr Foster, and the Minister, Mr Hill. No conclusion was reached, although Mr Foster was complimented for raising the point, which the Minister said interested him greatly.
This is an important point and it affects the whole safety of road haulage. Can the Government now tell us whether they are able to amend the regulations? When an operator who is called in at a disciplinary hearing gives an undertaking--and he is giving that undertaking voluntarily as a result of being found wanting--can we then be sure that that will be recorded in such a way that should the same failing occur again the licence of that operator is automatically at risk? I am sure that that would be the case both in railway and air travel and I believe that it ought to extend to road travel, where far more people are killed and injured.
As regards the noble Earl's amendment and the issue of deciding whether an applicant is of good repute, at present the commissioners must take into account the criminal convictions of the operator and his employees, including road transport offences, and any previous conduct in relation to the operation of vehicles as part of a business. Once a licence has been granted the operator must continue to satisfy the good repute requirement throughout the time he holds the licence. Operators can face the suspension or revocation of their licence by the traffic commissioner if they do not.
The legislation is particularly firm where an individual has been convicted of road transport offences or more than one serious offence. In such circumstances, the commissioner must revoke the operator's licence. The first part of the proposed amendment would allow the traffic commissioner to waive this requirement in "exceptional circumstances". That is not an appropriate form of words. Indeed, the existing provisions of the regulations implement the requirements of an EC directive which provides no derogation that would allow us to give the transport commissioner powers to waive the requirement for more than one serious offence. Therefore, the amendments would result in a breach of the UK's Community obligations. In any event, we believe that the situation covered by the amendment is already tight enough within the existing provisions. If anything, his amendment would dilute them.
In other respects, the existing discretionary powers of the traffic commissioner concerning good repute are already wide-ranging. The commissioner may take into account "all the relevant evidence" concerning the conduct of the holder of an operator's licence of any of his employees.
To determine effectively whether an operator is of good repute, the traffic commissioner must have powers to take into account any evidence of misconduct that to him appears relevant. The existing legislation does that already. It enables him, for example, to consider offences such as benefit fraud, to which the noble Earl and the noble Lord, Lord Bradshaw, referred. In view of that, I believe that Amendments Nos. 382A and 389A are unnecessary because sufficient powers already exist.
Amendments Nos. 387 and 388 relate to the position of restricted licences. I believe that the UK is the only country in the EU which has a system of restricted licence for own-account hauliers. Other member states do not licence them in this way. The requirements for own-account operators in the UK are therefore
Restricted licence holders must already prove to a traffic commissioner that they are fit to hold a licence and can run their vehicles safely and within the law. I am therefore not convinced that there is a sufficient case for seeking those changes.
I understand what lies behind the amendment tabled by the noble Lord, Lord Bradshaw. He is concerned that any undertakings should be taken into account by a traffic commissioner when he considers that they are material to the granting of a licence. Undertakings which are given on occasions that cannot be recorded on the licence therefore present a problem. If undertakings which are recorded on a licence are breached, the traffic commissioner may take disciplinary action. That gives the traffic commissioner wide powers.
The amendment is designed to take action if any undertakings, wherever they are given by the operator, are breached. Unfortunately, I do not believe that his amendment does that. It still refers to undertakings being recorded on the licence and does not appear to allow for the recording on the licence of any undertakings given subsequent to the granting of the original application, even, for example, at a disciplinary inquiry. There is a need for clarity concerning the status of undertakings given by and agreed with the licence holder, otherwise there would be frequent disputes as to whether something which had been said or written amounted to a formal undertaking. The status of the present regulations, and his amendment, would not relate to undertakings outside those which could be recorded, but the legislation more broadly requires the traffic commissioner to take note of the undertakings. Because they are not recorded on the licence there is not the same degree of automaticity as there will be for those recorded at the point of granting the licence. Nevertheless, I believe that existing legislation and regulation already covers that point.
Lord Bradshaw: I thank the Minister for that reply but I do not find it satisfactory. There is clear evidence of disputes as to whether undertakings given subsequent to the granting of a licence are on the record in such a way that they can properly be taken into account. There is disputation.
I readily accept that my wording may not be of the best, but I do not believe that it is impossible between now and another stage for someone to see whether the words can be altered to make a small but necessary amendment in the interests of road safety and clarity. The enforcement authorities and the hauliers will then clearly understand where they are. We must do away with the artificial distinction between undertakings
Earl Attlee: I am grateful to all Members of the Committee who spoke to the amendments. The noble Lord, Lord Bradshaw, mentioned red diesel and special modifications to the tank. That is a another good example of the possible automatic loss of good repute. The Customs and Excise detector vehicles have a specially modified fuel system and they normally impound straightaway.
The noble Lord, Lord Bradshaw, spoke of undertakings. The point he was making was that they are made voluntarily in order to retain the licence because it appeared to the operator as though the traffic commissioner was about to withdraw it.
I thank the Minister for his reply, but the principle we are debating is the automatic loss of good repute. I am suggesting that we should be tougher than the system which obtains in the rest of Europe. I am a little disappointed in that the Minister did not pick up any of the suggestions. I shall read his reply carefully and I am sure that we shall return to the matter at a later stage. In the mean time, I beg leave to withdraw my amendment.