Human Rights assessment
190.The amendment to the Railways Act 1993 does not appear to involve any conflicts with the Human Rights Act 1998. Article 6 (right to fair trial) of the European Convention on Human Rights is potentially engaged, but there must be provision in the regulations for an appeal if a person ceases to be approved and is withdrawn from the list. Similarly Article 7 (no punishment without law) is potentially relevant, but any criminal offences created by the new regulations will not operate retrospectively, so it is considered that this section is compatible with the Convention.
Section 107 & Schedule 7 – Road traffic: testing for drink and drugs
191.Schedule 7 contains six new sections designed to replace section 6 of the Road Traffic Act 1988 (breath tests) with new powers for the police to administer three preliminary tests – a breathalyser test, a test indicating whether a person is unfit to drive due to drink or drugs and a test for the presence of drugs in a person’s body. Schedule 7 also makes consequential amendments.
192.The new section 6 enables a constable to require a person to co-operate with any one or more preliminary tests in certain circumstances. The person would commit an offence if without reasonable excuse he failed to co-operate. The circumstances include –
where a constable reasonably suspects that the person –
has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug and still has alcohol or a drug in his body or is still under the influence of a drug;
has committed a traffic offence while the vehicle was in motion,
where an accident occurs owing to the presence of a motor vehicle on a road or other public place.
193.The preliminary tests are:
a breath test whereby a specimen of breath is taken by means of a device approved by the Secretary of State which indicates whether the proportion of alcohol in a person’s breath or blood is likely to exceed the prescribed limit (section 6A).
an impairment test which consists of a series of physical tasks set by the constable. By observing the person’s ability to perform these tasks, and making such other observations of the person’s physical state as the constable thinks expedient, the constable can obtain an indication whether the person is unfit to drive and, if he is, whether his unfitness is likely to be due to drink or drugs. The Secretary of State is required to issue and to keep under review a code of practice regarding such tests (section 6B).
a drug test whereby a specimen of sweat or saliva is used, by means of a device approved by the Secretary of State, for the purpose of obtaining an indication whether a person has a drug in his body (section 6C).
194.Sections 6A, 6B and 6C also make provision as to where a test may be carried out.
195.Sections 6D and 6E make provision about powers of arrest and powers of entry respectively in connection with the administration of the preliminary tests.
Section 108: Traffic regulation on long-distance routes
196.An order made under section 108 extends to England. The section gives the Secretary of State power to make an order restricting vehicular traffic on long-distance routes designated under the National Parks and Access to the Countryside Act 1949.
Section 109: Road traffic: fixed penalty
197.Section 109 is a drafting amendment to correct an error to ensure that section 76(2) of the Road Traffic Offenders Act 1988 makes sense. It now reads:
“No proceedings shall be brought against any person for the offence to which the conditional offer relates until—
a)in England and Wales, the person by or on whose behalf the conditional offer was sent receives notice in accordance with subsection (4) or (5) below”
Section 110: Seat belts: delivery drivers
198.Section 110 replaces the current provisions of section 14(2)(b)(i) of the Road Traffic Act 1988. Section 14 is an enabling power under which the Secretary of State may make regulations requiring persons to wear seat belts when driving or riding in motor vehicles. Subsection (2)(b) provides that any such regulations must include the specified exceptions.
199.The revised exception would apply to goods vehicle drivers and passengers when undertaking deliveries or collections. It would be based on the prescribed distance that may be travelled without a seat belt. At present the exception is available to those vehicle users “engaged in making local rounds of deliveries or collections” without prescribing clear criteria for establishing when a person is so engaged.
Section 111: Highways: snow and ice
200.This section extends to England and Wales. Section 111 provides a duty on a highway authority to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow and ice.
