Covering note

Context of the report

Background

1. The Governments of the United Kingdom (UK) and Ireland (IRL) are taking forward work to implement the mutual recognition of driving disqualifications on the basis of the 1998 European Convention on driving disqualifications (“the 1998 Convention”).

2. In September 2006 the UK Department for Transport also commissioned a study of the feasibility of increased cooperation between the two states in the areas of lesser road traffic infringements (that is infringements which do not in themselves result in disqualification but are nevertheless serious). This feasibility study has been overseen by a steering group of officials from all three administrations involved: Great Britain (GB), Northern Ireland (NI) and Ireland.

3. The final report of the feasibility study is published herewith. This note is to put that report into context and to outline some of the wider considerations to which it gives rise. In particular:

  • To create an effective system of deterrence to unsafe motoring behaviour, the underlying measures for international police and judicial cooperation need to be focussed precisely and made robust against challenge.
  • To achieve the necessary robustness in dealing with lesser motoring infringements will require a formal international agreement which goes further than the 1998 Convention. Such an agreement can in principle be reached on a bilateral basis, but it will require time and effort to do so.
  • It is very likely that such an agreement would in turn entail changes to primary legislation in both parts of the UK (GB and NI) and also in Ireland. Such legislation would need to be drafted with care and agreed by the relevant legislature(s).

4. There is strong public and political pressure on both sides of the Northern Ireland/ Ireland border for rapid progress to full mutual recognition of penalty points for motoring offences. Cooperative work already in progress in the three administrations to recognise driving disqualifications within the terms of the 1998 Convention reflects this, but it is widely seen as merely a step on the way.

5. In practice, the two issues, driving disqualifications and dealing with lesser motoring infringements, cannot sensibly be wholly separated. Annex A of this note says more about the inter-relationships between the two strands of work.

Main findings

6. The feasibility study has examined a range of options for cooperation on the lesser road traffic infringements. These extend from greater information exchange to full harmonisation of offences and penalties. The study identifies a clear favourite strategy: “points of equal value”. In this approach, penalty points, wherever awarded (even though the tariffs of penalty points against offences differ in the two countries), would be added to the record of the driver held by the relevant licensing authorities. (Executive summary, paragraph 10; final report, paragraphs 25, 27 to 32.)

7. In consequence of the work done so far:

  • It can be seen that, even in regard to driving disqualifications, irrespective of the recognition of penalty points, there may be merit in making progress beyond the provisions of the 1998 Convention.
  • For the first time, a basis of information and analysis exists on which a considered, realistic and practical view of the way forward can begin to be taken.
  • It appears that, once the necessary steps had been taken to initiate further new measures, the volumes of the likely resulting operational administrative work (even for full penalty point recognition) would not be so large as to constitute a major obstacle to implementation (Executive summary, paragraphs 13 to 15; final report, paragraphs 49 to 54 and Annex H).

Matters to be considered

8. On the other hand, although the study identifies no insuperable problems of procedure, significant steps would have to be taken to change practice beyond what is already planned under the 1998 Convention and the 3rd Driving Licence Directive . There is a need to consider:

  • How effective in practice are measures taken under the 1998 Convention (no one has ever before put such measures into practice, and we have no experience of how well they may work).
  • To achieve greater effectiveness, are further changes needed to the necessary national and international legislative framework, and, if so, what should they be (bearing in mind the parliamentary and administrative work needed and time which will be required to set up or amend existing national systems and practices). (Legislative requirements to underpin recognition of penalty points are indicated in the Executive summary at paragraph 18 and in more detail in the final report at paragraphs 61 to 64.)
  • The need to consult on any further course of action and to and take account of views so elicited.

9. Changing the legislative framework. The underlying reason for measures of this kind is to deter bad and irresponsible driving. The purpose is to improve drivers’ behaviour and through this to improve road safety: to deter offenders rather than to increase levels of penalisation. To have deterrent effect, measures must be credible. To be credible mutual recognition must be proof against challenge and widely understood to be so. In order to achieve this:

  • Regulations in each jurisdiction must be robust;
  • they must be underpinned by robust primary legislation; and
  • the national primary legislation must be built upon robust international agreement.

10. Mutual recognition of driving disqualifications between Ireland and the UK has been undertaken in order to make use of existing international provisions (the 1998 Convention) and it builds on work already done in both states to implement that Convention. In the UK this includes the primary legislation (part of the Crime (International Cooperation) Act 2004, and a corresponding Order in Council) which was needed in order to establish mutual recognition of driving disqualifications, within the UK, between Great Britain and Northern Ireland. In Ireland, corresponding primary legislation exists in Section 9 of the Road Traffic Act 2002 (as amended) to implement the 1998 Convention.

11. Neither the existing primary legislation in any of the three jurisdictions, nor the Convention itself, makes any provision in respect of the mutual recognition of penalty points. Nor does it recognise disqualifications due to penalty point totting: this is true both in respect of totting points awarded all within any one of the three jurisdictions, and in respect of any penalty points which might in future be mutually-recognised.

12. Reviewing and changing national systems and practices

  • Timescale. Given the matters to be considered and because this is a significant piece of work it would be unrealistic to set a date before which substantive progress could be made towards setting up the systems necessary to deal with mutual recognition of penalty points between the UK and Ireland. There are simply too many unknowns and imponderables yet to be resolved.
  • International data-exchange . For mutual recognition of penalty points to work, there would have to be exchange of information on persons between the authorities of the two countries concerned. In each case, the information would be limited. For example, if an Irish speed camera detected an offending vehicle with UK number-plates, the UK authorities would need to provide the Irish police with the name and address of the vehicle keeper. Nevertheless, this would break new ground. There might have to be primary legislation (with perhaps bilateral international agreement) to provide the legal powers to do this. (Executive summary paragraph 8.)
  • International enforcement of penalties. The following issues are likely to arise:
    - the power for the licence-issuing authority to endorse the driver’s record with penalty points issued in another jurisdiction;
    - the power to summons a driver to the court in whose jurisdiction the offence was committed and for that court to be able to find the defendant guilty in absentia. (Executive summary, paragraphs 12 and 18.)
    - These would extend or differ from principles already accepted for driving disqualifications (by the 1998 Convention) and for fines exceeding 70 euros (by the 2005 European Union Framework Decision on Financial penalties, which is being implemented by part 8 of the Criminal Justice and Immigration Bill in the UK.
    - The recognition of points awarded in all jurisdictions as contributing towards the totting-up to disqualification would reflect that in some instances the points recognised would have carried a lesser penalty in the jurisdiction of residence. (Executive summary, paragraph 18; the proposed procedure for mutual recognition is outlined in the final report at paragraphs 33 to 48 and in Annex G).
  • Including totting of points and other improvements. It has already been established that the 1998 Convention will not reliably support the mutual recognition of disqualifications arrived at by totting of penalty points imposed exclusively in one or other national system. It might be worth considering ways and means of removing this limitation bilaterally before going on to deal with mutual recognition of penalty points between the two countries. Closure would almost certainly require primary legislation backed up by a formal bilateral agreement. If experience in practice of measures taken under the 1998 Convention were to reveal other limitations, then these too might need attention and, if so, would require similar action.
  • Introducing mutual recognition of penalty points between GB and NI. Just as for driving disqualifications, mutual recognition of penalty points within the UK between GB and Northern Ireland would be a helpful precondition of any such recognition internationally. This would probably be relatively straightforward, but it would require primary legislation both in Westminster and in Northern Ireland.

13. Establishing the effectiveness of initial measures. The aim is to bring into practice in spring 2009 initial measures under the 1998 Convention to recognise Irish driving disqualifications in the UK and vice versa. Just as new ground is being broken in drafting the necessary Regulations, so no one has as yet any practical experience of how such a measure will work.

14. Establishing support for any further measures to be undertaken. Introducing mutual recognition of penalty points requires careful consideration. As set out above, primary legislation may be needed to provide the legal powers for international exchange of the basic personal information necessary to achieve mutual recognition of penalty points, and the desirability or otherwise of such data-exchange would have to be considered and justified.

15. Similar considerations might well apply to other elements. For example:

  • The feasibility study report concludes (Executive summary paragraph 10) that the best way forward would be to adopt equivalence between Irish and UK penalty points once awarded, even although the tariffs of penalty points against offences differ in the two countries. Consideration would have to be given to how publicly acceptable it would be to do so.
  • Such other aspects as are mentioned at Executive summary paragraph 18.

Department for Transport
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Annex A - Background to the feasibility study and relationship with work to recognise driving disqualifications.

A1. At a British-Irish Council meeting in February 2006, the then Transport Minister for the UK, Stephen Ladyman, and the then Irish Transport Minister, Martin Cullen, exchanged letters declaring an intention to proceed as soon as possible to recognition by Ireland and the UK of one another’s driving disqualifications. Ministers also jointly charged UK and Irish officials to prepare terms of reference for a study of the feasibility of further cooperation to penalise lesser motoring infringements (that is infringements which do not result in disqualification but are nevertheless serious). This study was commissioned in September 2006 from the DfT in-house consultancy, reporting to a steering group of officials from the DfT (UK), Ireland and Northern Ireland.

A2. As regards driving disqualifications, all three administrations are working to implement mutual recognition between the UK and Ireland as soon as possible, using as an international framework, the 1998 European Union (EU) Convention on driving disqualifications (“the Convention”). The UK and Ireland are the first two EU Member States to seek to put the Convention into practical effect, and we are in effect pioneering the way for the rest of the EU.

A3. The preparatory work raised unforeseen issues and it has taken longer than expected. In order to determine a workable way forward on disqualifications, it has proved necessary to consider the limitations of the 1998 Convention. It leaves many detailed points to be resolved on the way to putting in place a practical bilateral system. Even with such practical matters resolved, the Convention does not provide a comprehensive basis for dealing bilaterally on disqualifications. Amongst other things, the Convention will not reliably support recognition of disqualifications by national “totting-up” of points imposed entirely within any one of the respective national penalty points systems. There are no legal powers under the Convention or in domestic legislation to support the recognition of such “totting-up” disqualifications, so that individual cases would be open to challenge in the courts

A4. There is no international instrument, bilateral or multilateral, dealing with the recognition of penalty points for motoring offences.

A5. GB, Irish and NI Ministers have agreed an immediate way forward to give practical effect to the recognition of disqualifications, within the framework established by the 1998 Convention. This would omit any recognition of disqualifications arrived at by totting-up penalty points imposed entirely either in Ireland or in the UK. On this basis, the UK authorities have now responded to consultees, and the UK is taking ahead the drafting of Regulations with a view to making them in Parliament during Autumn 2008 and of making similar corresponding Regulations in the Northern Ireland Assembly as soon as practicable thereafter. If all goes well, the Regulations should be made by the end of 2008. The Irish enabling legislation is in place, and requires Regulations to be made to bring the relevant section 9 of the Road Traffic Act 2002 into operation. Mutual recognition of disqualifications could be initiated in practice in the spring of 2009.