Justice 1 Committee, 27 Apr 2005

Meeting date: Wednesday, April 27, 2005

Official Report 286KB pdf

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Closed Petitions

Item 5 is consideration of closed petitions. I refer members to the note that has been prepared by the clerks that sets out what we have done with each of the petitions and any outstanding business.

The closed petitions are: PE14, on security of tenure and rights of access; PE29, PE55, PE299 and PE331, on dangerous driving and the law; and PE111, on emergency vehicles and dangerous driving. Although the petitions have been closed, work on their subject matter has obviously not been finalised. We have also received letters in relation to the petitions. The fact that the petitions have been closed does not prevent the committee from picking up the subjects that they address.

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Carbeth Hutters (PE14)

We will deal first with closed petition PE14, on security of tenure and rights of access.

I agree with the recommendation in the clerk's note. We went as far as we could go in our consideration of PE14. Our additional consideration of the matter led to a possible course of action being suggested and it is for the Carbeth hutters to decide whether to pursue that course of action through the courts.

I will make a general point, which I think was made when we considered the petition previously. We must be wary of putting ourselves in a position in which we become a source of legal advice—we are not equipped to be such a source. The committee does not have the resources to commission legal opinion except in exceptional circumstances that relate to our work. I cannot identify any action that we could usefully take on the matter. If something is brought to our attention in the future, I am sure that we will find time to discuss the matter further, notwithstanding the closure of PE14. However, I do not anticipate that that will happen soon.

I remember dealing with the petition, which was lodged in 1999. The Carbeth hutters have received genuine sympathy and support, as have other people who subsequently supported the principles of the petition and its call for protection for hutters. Members have seen the correspondence that we received from hutters, who express dissatisfaction and concern because their situation has not moved forward since 1999. It is worth saying on the record that the failure to make progress is the result not of a lack of support or action on the part of the committee—or the Justice and Home Affairs Committee in the previous session of Parliament—but of the lack of a solution that can be tried and tested.

Members know that we appointed an adviser on the matter, who identified all the potential legal solutions with us in a private meeting. After considering different aspects of the law, we took the view that it would be impossible to secure legal protection for the hutters without upsetting the balance in relation to other aspects of the law. I think that we settled on an approach that would consider the application of what I read as a type of right-to-buy provision in the Land Registration (Scotland) Act 1979. The Executive responded that it could not comment on the application of the 1979 act, which took us no further forward. As the clerk's note says, Alasdair Morgan intimated to the committee that the Rascarrel bay hutters were aware of a case in which the 1979 act was being used, but we do not know the outcome of that case.

I am reluctant to leave the matter in the air and I do not think that the committee should make the decision that nothing can be done; I am not convinced that we have exhausted the potential for revision of the 1979 act. Do members think that we should ask the Executive to reach a conclusion on the matter? I accept that the Executive cannot comment on the application of the 1979 act, which is a matter for the courts. However, is there scope for amending the 1979 act to strengthen the right-to-buy provisions that appear to apply to people who already have a lease?

If the Executive were to say, "We have looked at amending the act and there is no way of doing so that would give comfort to hutters", I would accept that that is the case. However, so far the Executive has said only that it will not comment on application of the act.

I tend to agree with the convener's last comments. Notwithstanding the action that is still under way, it is starting to appear as if the only solution to the problem is a political solution; one that would involve changes to legislation. If that is the case, clearly the best place for that to be examined and, potentially, determined is the Executive itself. I would be sympathetic to a recommendation that asked the Executive to comment specifically on that. I do not propose to ask the Executive to comment on how it thinks the law should be applied, but on whether there is scope to change the legislation.

That is the only unanswered question. Hugh Henry said:

"As neither Ministers nor officials can provide legal advice, I am unable to comment on Professor Rennie's view that the hutters could claim to be tenants-at-will. This is a matter for the courts to determine. Section 21(1) of the Land Registration (Scotland) Act 1979 provides that the hutters can ask the Lands Tribunal for such a determination if they wish to test the matter in court."

Although I accept the answer, the only unanswered question is whether the act could be strengthened in some way that would give hutters and other similar leaseholders some protection under the law.

The clerk has reminded me of our previous correspondence with the Executive, in which the Executive said that there was no prospect of a legislative solution. The clerk will advise whether we received that letter before Professor Rennie's report was published. Even if that was the case, I would still wish to write to the Executive on the basis of that report.

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Road Traffic Deaths (PE29)<br />Dangerous Driving Deaths<br />(PE55, PE299, PE331)

The next petitions for our consideration are on dangerous driving and the law.

The immediate action that the clerks have suggested, to which I am particularly sympathetic, is that we write to the Home Office as part of its consultation paper "Review of Road Traffic Offences Involving Bad Driving". I note that the consultation closes next Friday. I am also sympathetic to the reasoned and reasonable statement of the situation that Scotland's Campaign against Irresponsible Drivers—SCID—makes in its submission to the Westminster consultation.

I want to highlight three points that SCID raised, the first of which is at section 2.3, which states:

"The present lack of recognition by the state of innocent victims killed (or seriously injured) by careless drivers causes an aggregated grief for victim families".

SCID proposes the introduction of

"A new offence of causing death or serious injury by careless driving",

which I support. SCID also makes a fair proposal for a new definition of the offence of careless driving, which is:

"a standard of driving which would fail the test of competence, i.e. the driving test".

As members know, I have the hobby of being a private pilot, as part of which I have to resit my exam every 24 months with an examiner. Of course, if I do not pass, I cannot continue to exercise my rights to that hobby. It seems to be bizarre that, even after conviction on a road traffic offence, people do not have to resit the driving test to see whether they are fit to resume driving. SCID's proposal should be taken further.

The final point in SCID's submission that I want to highlight and which I thought was interesting, is its support for the suggestion that there be an offence of illegal driving. In other words, there should be special provision to deal with, and a serious crackdown on, people who drive while they are disqualified or unlicensed. I am happy to proceed with the clerk's suggestion that we support what SCID has proposed, as long as other members are similarly minded—although I might still support the proposals even if the committee does not.

Dangerous driving has been an issue for many years; I remember it being an issue before I became an MSP. In all that time I have not detected much of a change in the attitudes of drivers who take to the roads drunk, without insurance, while they are not licensed or in cars that would not pass an MOT. We need a change in attitudes; driving should be seen not as a right but as a privilege. If a person abuses the terms of that privilege, he or she should lose the right to drive. If, in abusing that privilege, a driver kills someone, they should in certain circumstances lose their liberty as well. This is about changing the attitude of drivers.

The review is a move in the right direction. I believe that a maximum sentence of five years in prison in cases in which an innocent person is killed is way too low, and that far stiffer sentences should be available to our courts. However, I am mindful of the fact that that is an issue that we do not control.

We should make some form of representation to the Home Office and place on record our feeling that the present system is wholly inadequate to deal with such crimes—let us call them that. As a society, we have tended to ignore what has happened over many years, but it is possible to change drivers' attitudes. Over the past 20 years, we have seen a change in attitudes to drink-driving. It used to be acceptable, but it is now universally abhorred. Nevertheless, there is still a minority who engage in it, so it has to be made absolutely clear to them that if they are involved in an accident as a result of their behaviour, they can expect the full force of the law to come down on top of them.

I agree with Stewart Stevenson. It would be helpful for us to submit information to the Home Office, as the note by the clerk suggests. It is important that the Home Office acknowledge the strength of feeling on the issue in the committee and, I have no doubt, in Parliament. We should add our voice to the Home Office's deliberations as a response to people's concerns about this serious issue. Action has been slow, but if we can do anything to support it, we should.

Obviously SCID's work speaks for itself, as it draws attention to the seriousness and complexity of the issue. I am happy to support the recommendation in paragraph 9 and the recommendation in paragraph 10 that we refer the matter to the Lord Advocate for his consideration.

Does not paragraph 10 refer to the Lord Advocate's response to SCID?

I beg your pardon. However, I am still happy to support the recommendation in paragraph 10.

I do not disagree with anything that has been said. We have to bear it in mind that the petitions are now closed and that the committee has not formed a view on the issue. We need to be careful about that. We would, if we are to say that we have taken a view, have to have a discussion specifically on that. It is important for us to know where the Home Office is with the consultation—which, as Stewart Stevenson says, closed on Friday—and what is going to happen next. The suggestion is that we forward the SCID submission and explain that it is the subject of a petition that the committee has been dealing with, and that we would like the Home Office to consider its contents.

Members indicated agreement.

Margaret Mitchell suggests that we also act on recommendation 10. What information do we have that SCID does not already have?

SCID may not have the Lord Advocate's letter.

Okay. We will forward the Lord Advocate's letter to SCID.

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Road Accidents (Police 999 Calls) (PE111)

The final petition is PE111 on emergency vehicles and dangerous driving. It is a closed petition, but we have been waiting for some outstanding correspondence, which we now have. Do members have comments?

One of my key general concerns is that we should ensure that people who drive emergency and police vehicles remain competent. It is all very well for people to go on a course and to achieve a standard but, in the absence of direct practical supervision and re-testing it is entirely possible—indeed, it is likely—that their standard of driving will deteriorate. All emergency drivers should have their performance reviewed and their ability to drive such vehicles should be re-tested periodically. I am uncertain how the committee might respond to that suggestion, but it might be useful to put that observation on the record.

On reading the paper, I have the same concern as I have voiced before. It seems to concentrate rather heavily on other road users, as opposed to the drivers of the emergency vehicles. I doubt PE111. However, I accept that, given the pressure of work, it is unlikely that the committee can do much more on the issue.

The emphasis in our discussion of the petition changed when the committee discussed whether drivers know how to deal with emergency situations. We have all probably been in situations in which everybody has moved in the wrong direction and hindered an emergency vehicle. We extended the subject from irresponsible driving of emergency vehicles to include the responsibilities of other road users. That was not to depart from the main subject of the petition, which was about some news articles that the petitioner had read about emergency vehicles being driven irresponsibly.

I do not have any statistical data for this, but I think that the majority of emergency vehicle drivers are responsible drivers. For example, when they first take up a position, they are put through a fairly intensive driving course, although the course varies between the different services. However, when the petition was current, I did not manage to tease out the condition of on-going training.

As I said the last time we discussed PE111, I am very much in favour of greater emphasis being placed on other drivers' reactions to emergency vehicles. Only last week, I witnessed another shambles. A fire engine was trying to get along a very crowded road while two cars sat at a set of traffic lights, holding everything up. I do not necessarily blame the drivers involved, because the highway code does not make it clear how one should respond to an emergency vehicle. It is clear that you should drive off the road, but what do you do if you are sitting at a red light?

Some interesting points have been made. The Association of Chief Police Officers in Scotland says that it does not support a change to the national driving test to take account of how drivers should react, because it would have to consider how that would be done.

That said, ACPOS has sensibly recommended that public awareness of how road users should respond to approaching emergency vehicles should be covered by the Scottish Road Safety Campaign. The Scottish Parliament could promote such awareness in a road safety campaign. Although highly trained emergency vehicle drivers know how to respond in such situations, they do not know what other people have been told to do and cannot read how they will respond. I am not saying that everyone who is involved in a crash with an emergency vehicle is to blame; however, greater understanding not only of what an emergency vehicle driver will do but of how the driving public will respond would help to reduce the number of incidents. Unfortunately, we will never get rid of such incidents, but we should be able to reduce their frequency and severity. I would be interested to hear how we could constructively develop such a sensible suggestion.

Members will note that the correspondence from Fife fire and rescue service supports the committee's view, which was expressed at the early stages of our consideration of PE111, that the highway code should offer more definitive guidance on responding to emergency vehicles.

If we do not close things down and finalise our position, the petition could run forever. We can raise some interesting points with the Executive; although some of them will touch on reserved matters, others—such as the suggestion about raising public awareness—will not. We could collate the information in our papers, pass it to the Executive and say that although we have finalised our findings on the petition we thought that it would like to see the suggestions that have been made, such as the establishment of a national standard for drivers. Perhaps it could take up with the Department for Transport the point that the highway code should contain guidance on how drivers are expected to respond to emergency vehicles. I think that that would conclude all our possible work on the petition.

I am not against what you suggest and I acknowledge the limitations that we face with regard to changing the highway code, although I support the committee's earlier view that the code merits some attention in that respect. In fact, given that it has been quite a while since it was fully reviewed, the code merits attention in many respects.

That said, I suggest that when we hand over the information, we draw attention to two areas that we have control or influence over. First, we must ensure that on-going training of emergency service drivers is a priority for police and fire boards and the ambulance service. Secondly, we can make a very direct and positive input into the Scottish Road Safety Campaign. Despite Parliament's other limitations, such a move should have a beneficial effect.

That seems sensible to me. Do members agree?

Members indicated agreement.

That concludes our business. At our next meeting, on Wednesday 4 May, we will have day 3 of our stage 2 consideration of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. I now close the meeting, but I ask members to hang on for 10 seconds to allow me to run through some practical arrangements.

Meeting closed at 13:05.