My Lords, at various points in the Bill, the Government are seeking to increase penalties and create new offences, but it is fairly pointless increasing penalties on paper if you regularly allow people to avoid them through what has
effectively become a legalised loophole. People avoid a driving ban under the totting-up procedure by pleading exceptional hardship. The problem is that this excuse is being used far from exceptionally. I recall, when in court as magistrates, that we would expect such a plea from some solicitors as a matter of routine for all their clients. The reality is that the definition of exceptional is very broad and applied unevenly.
To give an example, in 2015 Christopher Gard killed cyclist Lee Martin. It was the ninth time he had been caught using his mobile phone while driving. Magistrates had repeatedly accepted that a ban would cause exceptional hardship. There is a case on record of a man being allowed to continue to drive because of the “exceptional hardship” it would cause him if he could not walk his dog—he had to drive a mile to the local park to do that.
This amendment provides a definition of “exceptional hardship”. It is exceptional
“only if it is significantly greater than the hardship that would arise … if the same disqualification were imposed”
on the great majority of drivers. To assist, it gives examples of what the court can take into account.
For example, where you live: if you live 10 miles from the nearest shops and healthcare facilities, halfway up a mountain with no bus service nearby, the ability to drive is clearly very important to you—although, of course, if you live with other family members, you would not be likely to face exceptional hardship because they could probably drive you there instead. If you have to drive as part of your job and will presumably lose your job if you cannot drive, then that would be exceptional hardship; although one wonders whether any employer would want such a bad driver. At the moment, with the shortage of drivers, they might put up with it but in normal circumstances, not so. Clearly, if you are disabled, or a carer on whom a disabled person relies for being taken to the shops, to healthcare and so on, then you would experience exceptional hardship if you could no longer drive. The noble Lord, Lord Berkeley, and I are not being hard-hearted; we are, instead, seeking to ensure that the “exceptional hardship” proviso is used as it was intended to be used.
Finally, to give this some context, in 2020 in England, 33,196 drivers were disqualified under the totting-up procedure and 8,764 people are currently driving around with more than 12 points on their licence. Noble Lords will immediately see from those figures that the “exceptional hardship” plea is being accepted in such a high proportion of cases that it cannot be regarded as exceptional. I urge the Government to give consideration to the need to tighten up that definition.