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Road Safety [HL]

My Lords, I beg to move Motion B, That the House do not insist on its disagreement to Commons Amendment No. 5 and do not insist on its Amendments Nos. 5A and 5B in lieu. Use of retro-reflective tape is already permitted and many heavy vehicle operators have already opted to fit it voluntarily. We are committed to making it mandatory and believe the best mechanism for achieving this is through amendment to both EC and UNECE legislation. This route has been agreed internationally and proceedings are under way that will mandate it in European and international law. We do not believe it would make good sense to try to introduce domestic regulations covering only UK-registered vehicles while European and international legislation is being prepared to introduce a ““universal”” requirement to fit the tape. In addition, the legal basis for making such UK-specific regulations before tape fitment is mandated by EC and UNECE law is at best uncertain. If we were to introduce regulations by the end of 2007, I cannot be sure that we would not be open to challenge and possibly to infraction proceedings. Unilateral Italian requirements on this subject have been mentioned, and there has been some confusion over this. Let me make clarify the position. I have a copy of a letter from the Secretary-General of the Commission for the Italians advising them, among other things, of their obligation to include a mutual recognition clause relating to other member states or EFTA countries signatory to the EEA agreement, and suggesting they reconsider their legislation. In addition, I can confirm that the Enterprise Directorate-General website lists the Commission, Germany, France and the UK as all having commented on the draft Italian ministerial decree on retro-reflective materials for heavy vehicles and trailers. The UK view is that, because UNECE Regulation 48 specifically mentions Regulation 104 tape as ““optional””, that reference establishes competence on this subject, taking it away from individual member states. Let me make it clear that the UK is not pressing for infraction proceedings against the Italians, nor do we in any way oppose amending UNECE and EC legislation to mandate the use of retro-reflective tape on heavy vehicles and trailers. But we maintain that the Italian measure is unlawful under existing legislation, and that it would be unlawful for us to follow the Italians in doing this. It would also be impractical, for reasons I shall explain. Structural requirements for vehicles are not a matter of individual member state competence. As a result, there can be no possibility of introducing national regulations intended to apply to foreign-registered as well as UK-registered vehicles. I think that that is obvious to everyone. The question of regulations covering only UK-registered vehicles is not so clear cut. We could make regulations, under existing powers, to require the fitment of retro-reflective tape to newly-registered UK heavy vehicles. However, we would not be able to enforce that on all UK-registered vehicles, as I shall explain in a moment. If we did try to make such regulations, we would need to notify them to the European Commission under the technical standards directive. I suspect that if we did so, the regulations would be held up, possibly on the grounds that the EC is in the process of legislating on the same subject. If we tried to get round that by failing to notify the EC, our requirement would be unenforceable. If, by some chance, the regulations did go through, we would none the less be obliged to register vehicles which were presented for registration correctly approved to UNECE Regulation 48 and/or the lighting installation directive, but not fitted with the tape. Those approvals do not require the tape, but we are duty bound to accept vehicles which are in line with them. It would be embarrassing were we thereafter to claim that such vehicles, even though correctly registered for use in the UK, were not in fact lawful for use on the public road because they lacked the tape. I can imagine only that the Italians may be avoiding such difficulties by applying their regulations only to Italian registered vehicles, which do not have Regulation 48 or lighting installation directive approval. Otherwise, I feel sure that aggrieved owners and operators in Italy would have appealed on the grounds that the law was being breached. As I understand it, such regulations could be challenged on several fronts. For example, they would discriminate under general Community law principles, or possibly even on a human rights basis, against UK vehicles. They would be outwith the lighting installation directive and UNECE obligations and would prejudice the single market, which is the point of harmonisation. Clause 16 is also deeply flawed in that, unlike the existing powers which it reflects, it does not contain provisions specifying offences and penalties. Therefore, even if the Secretary of State made regulations under the power to require the fitment of retro-reflective tape to heavy trucks and trailers, owners and operators who failed to comply would commit no offence and face no penalties. In view of these factors, and because it makes no sense to make regulations requiring the tape for UK vehicles alone when work is already in hand to require it universally, we remain opposed to the making of early, unilateral regulations on this subject. We should do far better to rely on the powers which we already have, which already cover reflective tape and include provision for enforcement and penalties. We have undertaken to use these powers as soon as permitted to do so by European and UNECE regulations. Additionally, we have undertaken to discuss with industry how it might best prepare for the introduction of this mandate, to which we are committed, including the possibility of early introduction on a voluntary basis. Some people have argued that it would be worth trying to introduce an early, UK-only, mandatory requirement because it would save lives. While we recognise that the tape is useful, we are not convinced that it will achieve highly significant accident savings in this country. While the tape is helpful in improving conspicuity during the hours of darkness and in conditions of poor visibility, UK trucks are already equipped with various aids, such as side marker lights and rear retro-reflective plates. The tape's road safety effects will therefore not be as great as they may be in some other countries. I have heard some people quote overall UK heavy vehicle accident statistics, assuming that the introduction of the tape would have an immediate and beneficial effect. It must be remembered, however, that the tape will have no effect on day-time, good-visibility incidents. It will have an effect only on incidents taking place in the dark or in conditions of poor visibility, and only in those cases where lack of conspicuity is a contributory cause. There are other causes of accidents, such as speed, drink-driving, ice, oil or obstructions on the road, mechanical failure and reckless driving. In 2005, Loughborough University carried out a study on retro-reflective tape—copies of which are in the Library of the House—for the Department for Transport. The report noted: "““Accident reduction figures … from … American data involved comparison of the accident involvement of vehicles with [retro-reflective] contour marking … and … those with no retro-reflective markings. Whereas in the UK reflectors and lighting on the rear and sides of HGV[s] … are already required … to improve … conspicuity””." Therefore, the addition of retro-reflective tape may not result in reduction rates in the UK similar to those which have been observed in America. The estimate of gains from fitting the tape is therefore likely to be optimistic. Nevertheless, I reiterate that we intend to introduce the mandatory requirement as soon as we can, consistent with its applying to the whole of Europe. For the reasons I have outlined, it is not right that we should do it unilaterally. Accordingly, I beg to move. Moved, That the House do not insist on its disagreement to Commons Amendment No. 5 and do not insist on its Amendments Nos. 5A and 5B in lieu.—(Lord Davies of Oldham.)