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Register of Driving Instructors (Guernsey) Law, 2018

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PROJET DE LOI
ENTITLED
 
The Register of Driving Instructors
(Guernsey) Law, 2018
 
ARRANGEMENT OF SECTIONS
 
Registration
 
1.      Instructors to be registered.
2.      Register of driving instructors.
3.      Application for entry in the register.
4.      Duration and renewal of registration.
5.      Conditions subject to which registration may be made.
6.      Suspension and termination of registration.
 
Vehicles
 
7.      Requirements for vehicles to be used for driving instruction.
 
Notices and appeals
 
8.      Notice of refusal of application for registration.
9.      Notice of intention to impose or vary a condition, or to suspend or terminate registration.
10.      Notice of decision.
11.      Appeals.
 
Offences
 
12.      Offences.
13.      False, deceptive or misleading statements.
14.      Criminal liability of directors etc.
15.      Criminal proceedings against unincorporated bodies.
 
Miscellaneous
 
16.      Amendment of the Driving Licences Ordinance.
17.      General provisions as to regulations.
18.      Interpretation.
19.      Citation.
20.      Commencement.
 
 
 
 
 
 
 
 
 
 
PROJET DE LOI
ENTITLED
 
The Register of Driving Instructors
(Guernsey) Law, 2018
 
 
THE STATES, in pursuance of their Resolution of the 10th day of December, 2014[a], have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Islands of Guernsey, Herm and Jethou.
 
Registration
 
Instructors to be registered.
1.      (1)      No person shall give paid driving instruction of any prescribed description unless that person's name is entered on a register established under section 2 of this Law and such entry has not been suspended.
 
(2)      Regulations under this section may, without limitation, prescribe a description of driving instruction by reference to -
 
(a)      the class of motor vehicle to which the instruction relates, or
 
(b)      the description of person to whom the instruction is given.
 
(3)      For the purposes of this Law, instruction is paid instruction if payment of money or money's worth is, or is to be, made for the instruction by or in respect of the person to whom the instruction is given, and regulations may prescribe circumstances in which instruction which is given free of charge may be deemed to be paid instruction.
 
(4)      Regulations may prescribe circumstances in which this section shall not apply in relation to driving instruction or driving instruction of a prescribed description.
 
Register of driving instructors.
2.      (1)      The Committee shall establish, keep and maintain a register of driving instructors ("the register").
 
(2)      The register shall be kept in such form as the Committee thinks fit and may, without limitation, be kept in wholly electronic form.
 
(3)      A person whose name is entered in the register shall be referred to as a "registered driving instructor".
 
Application for entry in the register.
3.      (1)      An application for the entry of a person's name in the register shall be made to the Committee in such form as the Committee may determine.
 
(2)      Upon receipt of an application under subsection (1), and at any time thereafter, the Committee may require the applicant to supply such additional information as it may reasonably consider necessary to determine the application.
 
(3)      If the Committee is satisfied that –
 
(a)      subject to subsection (6), the conditions set out in subsection (4) are met in the applicant's case, and
 
(b)      the applicant has paid the prescribed fee,
 
the applicant's name, and such other details as the Committee shall determine, shall be entered in the register.
 
(4)      The conditions are that the applicant –
 
(a)      has attained the age of 21 years,
 
(b)      holds a full licence authorising the applicant to drive a motor vehicle of each class in respect of which the applicant is to provide tuition, and has held such a licence, whether granted by the Committee or by the competent authority in a country or territory outside Guernsey, for periods amounting in the aggregate to at least four years during the period of six years ending with the date of the application,
 
(c)      has provided a satisfactory enhanced criminal records check,
 
(d)      has signed and agreed to comply with the Code of Conduct,
 
(e)      has, within such period prior to the date of the application as the Committee may prescribe, passed the driving instructor examinations,
 
(f)      has provided a medical certificate confirming that the applicant is not suffering from any disease or disability which might interfere with the safe and efficient discharge of the duties of a registered driving instructor, including (without limitation) the ability to take control of a vehicle when necessary and to react quickly in case of emergency, and
 
(g)      is otherwise a fit and proper person to be a registered driving instructor,
 
and the Committee may by regulations amend the provisions of this subsection.
 
(5)      In subsection (4)(e), "driving instructor examinations" means examinations of a person's competence and fitness to give instruction in the driving of a motor vehicle, comprising –
 
(a)      Part I – the Theory Test,
 
(b)      Part II – the Practical Test, and
 
(c)      Part III – the Test for Ability in Instruction,
 
which may be in such form, and administered in such a way, as the Committee may from time to time determine.
 
(6)      The Committee may, at its discretion –
 
(a)      waive the requirement in subsection (4)(e) if it is satisfied that the person is the holder of current qualifications obtained in a country or territory outside Guernsey which the Committee considers to be fully equivalent to the driving instructor examinations, or
 
(b)      waive one or more Parts of the driving instructor examinations if it is satisfied that the person is the holder of such qualifications which are partially equivalent to the driving instructor examinations.
 
Duration and renewal of registration.
4.      (1)      Subject to the provisions of this section, unless previously terminated under the provisions of this Law, the Committee shall terminate a person's registration in respect of any description of driving instruction at the end of the period of three years beginning with the date on which the person's name was first entered on the register in that respect, or the date of the last renewal of such entry, as the case may be.
 
(2)      A registered driving instructor may, within such period as the Committee may prescribe, prior to the date when the registration would otherwise terminate in accordance with subsection (1), apply for the registration to be renewed (or further renewed).
 
(3)      If the Committee is satisfied as at the date of renewal that –
 
(a)      the conditions set out in subsection (4) are met in the applicant's case, and
 
(b)      the applicant has paid the prescribed fee,
 
the registration shall be renewed for a further period of three years.
 
(4)      The conditions are that the Committee is satisfied –
 
(a)      that there has been no material change in the circumstances of the applicant, and that the applicant continues to be a fit and proper person to be a registered driving instructor,
 
(b)      that the applicant has, within such period prior to the date of the proposed renewal as the Committee may determine, taken and passed a Check Test,
 
(c)      that the applicant has, within such period prior to the date of the proposed renewal as the Committee may determine -
 
(i)      provided a further satisfactory enhanced criminal records check,
 
(ii)      re-signed the Code of Conduct, and
 
(iii)      provided a medical certificate confirming the matters set out in section 3(4)(f),
 
and the Committee may by regulations amend the provisions of this subsection.
 
(5)      For the purposes of this Law, a "Check Test" means such test of continuing competence and fitness to give driving instruction of the description in respect of which the driving instructor is registered, and which may be in such form, and administered in such a way, as the Committee may from time to time determine.
 
(6)      The Committee may by regulations make such provision as it thinks necessary or expedient for the regulation and administration of the renewal of registrations including (without limitation) –
 
(a)      prescribing a limit on the number of times a Check Test may be taken by a registered driving instructor under subsection (4)(b), and
 
(b)      prescribing circumstances in which a registration may be renewed notwithstanding the conditions in subsection (4) are not fully satisfied as at the date of the proposed renewal.
 
Conditions subject to which registration may be made.
5.      (1)      For the purpose of promoting high standards of driving instruction and road safety, and for facilitating compliance with relevant international standards, the Committee may by regulations prescribe conditions of general application to all registered driving instructors, or to those of a prescribed description, which shall be attached to the registration of those to whom the conditions apply.
 
(2)      Notwithstanding subsection (1), the Committee may, at the time of registration, or any time thereafter, attach such conditions to the registration of a particular person as it reasonably thinks fit, and may subsequently vary or revoke any conditions so attached.
 
Suspension and termination of registration.
6.      (1)      Subject to section 9, the Committee may suspend, or terminate, a person's registration in respect of any description of driving instruction if it is satisfied that any of the circumstances specified in subsection (2) apply.
 
(2)      The circumstances are that the registration, or any renewal of such registration, was made by mistake or procured by fraud, or that the registered driving instructor –
 
(a)      has breached a condition attached to the registration in accordance with section 5,
 
(b)      has failed to comply with the Code of Conduct,
 
(c)      has been disqualified from holding or obtaining a full licence for the class of vehicle for which the registered driving instructor is providing tuition, or has otherwise ceased to hold such a licence,
 
(d)      has been convicted of an offence which affects the registered driving instructor's fitness to be registered,
 
(e)      is suffering from any disease or disability as set out in section 3(4)(f), or
 
(f)      is otherwise no longer a fit and proper person to be a registered driving instructor.
 
(3)      The Committee may at any time require a registered driving instructor –
 
(a)      to supply such additional information, including (without limitation) a medical certificate or enhanced criminal records check, or
 
(b)      to undergo a further Check Test,
 
as it may reasonably consider necessary in order to enable it to reach a decision under subsection (1), and the Committee may treat a refusal to supply such additional information, or to undergo such test, as a circumstance in which a person's registration may be suspended or terminated.
 
Vehicles
 
Requirements for vehicles to be used for driving instruction.
7.      A registered driving instructor shall not give paid driving instruction except in a vehicle which complies with such minimum standards and requirements as may from time to time be determined by the Committee and published in the Code of Conduct.
 
Notices and appeals
 
Notice of refusal of application for registration.
8.      (1)      If the Committee decides to refuse to grant an application for entry in the register, the Committee shall serve on the applicant a notice stating –
 
(a)      the terms of, and the reasons for, the decision, and
 
(b)      particulars of the right of appeal under section 11.
 
(2)      Subsection (1) does not require the Committee to specify any reason which would in its opinion involve the disclosure of confidential information, the disclosure of which would be prejudicial to –
 
(a)      the investigation, prevention or detection of crime, or otherwise for the purposes of any criminal proceedings,
 
(b)      co-operation with an investigatory authority, or
 
(c)      any third party,
 
whether in the Bailiwick or elsewhere.
 
Notice of intention to impose or vary a condition, or to suspend or terminate registration.
9.      (1)      If the Committee intends to –
 
(a)      attach to a registration any condition, or vary any condition previously attached, or
 
(b)      suspend or terminate a registration,
 
("the decision") the Committee shall serve on the person concerned (A), a notice stating –
 
(i)      that the Committee intends to make the decision,
 
(ii)      the terms of, and the reasons for, the proposed decision,
 
(iii)      that A may, within a period of 28 days beginning on the date of the notice, make written representations to the Committee in respect of the proposed decision, and
 
(iv)      particulars of the right of appeal which would be exercisable under section 11 if the Committee were to make the decision.
 
(2)      Subsection (1) does not require the Committee to specify any reason which would in its opinion involve the disclosure of confidential information, the disclosure of which would be prejudicial to –
 
(a)      the investigation, prevention or detection of crime, or otherwise for the purposes of any criminal proceedings,
 
(b)      co-operation with an investigatory authority, or
 
(c)      any third party,
 
whether in the Bailiwick or elsewhere.
 
(3)      The Committee shall consider any representations made in response to a notice served under subsection (1) before giving further consideration to the proposed decision.
 
Notice of decision.
10.      (1)      Where the Committee decides, having taken into account (where relevant) any representations, to make a decision in respect of which a right of appeal is conferred by section 11, it shall serve on the person to whom the decision relates notice in writing of the decision stating –
 
(a)      the terms of, and the reasons for, the decision, and
 
(b)      particulars of the right of appeal under section 11.
 
(2)      Subsection (1) does not require the Committee to specify any reason which would in its opinion involve the disclosure of confidential information, the disclosure of which would be prejudicial to –
 
(a)      the investigation, prevention or detection of crime or otherwise for the purposes of any criminal proceedings,
 
(b)      co-operation with an investigatory authority, or
 
(c)      any third party,
 
whether in the Bailiwick or elsewhere.
 
Appeals.
11.      (1)      A person aggrieved by a decision of the Committee under this Law may appeal to the Court against the decision.
 
(2)      The grounds of an appeal under this section are that -
 
(a)      the decision was ultra vires or there was some other error of law,
 
(b)      the decision was unreasonable,
 
(c)      the decision was made in bad faith,
 
(d)      there was a lack of proportionality,
 
(e)      there was a material error as to the facts or as to the procedure.
 
(3)      Subject to subsection (4), an appeal under this section shall be instituted –
 
(a)      within a period of two months immediately following the date of the notice of the decision,
 
(b)      by summons served on the Committee stating the grounds and material facts on which the appellant relies.
 
(4)      The Committee may, where an appeal under this section has been instituted, apply to the Court, by summons served on the appellant, for an order that the appeal shall be dismissed for want of prosecution, and on hearing the application the Court may –
 
(a)      dismiss the appeal or dismiss the application (in either case, on such terms and conditions as the Court may direct), or
 
(b)      make such other order as the Court considers just.
 
The provisions of this section are without prejudice to the inherent powers of the Court or to the provisions of rule 52 of the Royal Court Civil Rules, 2007[b].
 
(5)      On an appeal under this section the appellant shall have the burden of proof and the final right of reply.
 
(6)      On an appeal under this section the Court may -
 
(a)      set the decision aside and, if the Court considers it appropriate to do so, remit the matter to the Committee with such directions as the Court thinks fit, or
 
(b)      confirm the decision, in whole or in part.
 
(7)      On an appeal under this section against a decision of the Committee, the Court may, on the application of the appellant or the Committee or of its own volition, and on such terms as the Court thinks just, suspend or modify the operation of the decision pending the determination of the appeal.
 
(8)      An appeal from a decision of the Court under this section lies to the Court of Appeal on a question of law.
 
(9)      In this section "the Court" means the Royal Court sitting as an Ordinary Court.
 
Offences
 
Offences.
12.      (1)      Where paid driving instruction is given in contravention of section 1(1) –
(a)      the person by whom it is given, and
 
(b)      if that person is employed by another to give that instruction, that other (as well as that person),
 
is guilty of an offence.
 
(2)      It is an offence for a person who is not a registered driving instructor to hold himself or herself out as a registered driving instructor.
 
(3)      It is an offence for a person who is in the business of providing paid driving instruction to issue an advertisement or otherwise take any action calculated to mislead with respect to whether any employee of that person is a registered driving instructor.
 
(4)      For the avoidance of doubt, the term "a person who is not a registered driving instructor" includes a person whose registration is for the time being suspended, or has been terminated; and it shall be a defence in any proceedings for the defendant to prove that he or she did not know, and had no reasonable cause to believe, that the registration was, at the time of the alleged offence, suspended or terminated.
 
(5)      Subject to subsection (6), it is an offence for a registered driving instructor to give paid instruction in a vehicle which does not comply with the minimum standards and requirements from time to time determined by the Committee under section 6.
 
(6)      Where the paid instruction is given in a vehicle provided by the person to whom the instruction is being given, it is a defence to proceedings under subsection (5) for the defendant to prove that, after making reasonable enquiry, he or she did not know, and had no reasonable cause to believe, that the vehicle did not comply with the minimum standards and requirements determined by the Committee under section 6 and applicable at the material time.
 
(7)      A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the uniform scale.
 
False, deceptive or misleading statements.
13.      (1)      A person commits an offence if –
 
(a)      for the purpose of or in connection with an application under this Law,
 
(b)      otherwise than as mentioned in paragraph (a) but in circumstances in which that person intends, or could reasonably be expected to know, that the statement, information or document provided would or might be used by any person for the purpose of exercising functions conferred under this Law,
 
that person does any of the following -
 
(i)      makes a statement which he or she knows, or has reasonable cause to believe, to be false, deceptive or misleading in a material particular,
 
(ii)      recklessly makes a statement, dishonestly or otherwise, which is false, deceptive or misleading in a material particular,
 
(iii)      produces or furnishes or causes or permits to be produced or furnished any information or document which he knows or has reasonable cause to believe to be false, deceptive or misleading in a material particular, or
 
(iv)      recklessly produces or furnishes or recklessly causes or permits to be produced or furnished, dishonestly or otherwise, any information or document which is false, deceptive or misleading in a material particular.
 
(2)      A person who commits an offence under this section is liable on conviction to a fine not exceeding twice level 5 on the uniform scale.
 
Criminal liability of directors etc.
14.      (1)      Where an offence under this Law is committed by a body corporate, limited partnership with legal personality or foundation and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –
 
(a)      in the case of a body corporate, any director, manager, secretary or other similar officer,
 
(b)      in the case of a limited partnership with legal personality, any general partner,
 
(c)      in the case of a foundation, any foundation official, or
 
(d)      any person purporting to act in any capacity described in paragraphs (a) to (c),
 
that person as well as the body corporate, limited partnership or foundation is guilty of the offence and may be proceeded against and punished accordingly.
 
(2)      Where the affairs of a body corporate are managed by its members, subsection (1) applies to a member in connection with the member's functions of management as if the member were a director.
 
(3)      In this section -
 
"foundation" means -
 
(a)      a foundation created under the Foundations (Guernsey) Law, 2012[c], or
 
(b)      an equivalent or similar body created or established under the law of another jurisdiction (however named),
 
"foundation official" means -
 
(a)      in relation to a foundation created under the Foundations (Guernsey) Law, 2012, a foundation official within the meaning of that Law, and
 
(b)      in relation to an equivalent or similar body created or established under the law of another jurisdiction, a person with functions corresponding to those of a foundation official described in paragraph (a) of this definition, and
 
"general partner" means –
 
(a)      in relation to a limited partnership falling within paragraph (a) of the definition in this section of "limited partnership", a general partner within the meaning of the Limited Partnerships (Guernsey) Law, 1995[d], and
 
(b)      in relation to a limited partnership falling within paragraph (b) of the definition in this section of "limited partnership", a person whose liability for, and functions in relation to, the partnership correspond to that of a general partner described in paragraph (a) of this definition.
 
(4)      In this section and in section 15 "limited partnership" means -
 
(a)      an arrangement which is registered as a limited partnership, and in respect of which there is a valid certificate of registration, under the Limited Partnerships (Guernsey) Law, 1995, or
 
(b)      an arrangement entered into under the laws of a jurisdiction outside Guernsey between two or more persons, under which-
 
(i)      one or more of them is, or are jointly and severally, liable without limitation for all debts and obligations to third parties incurred pursuant to the arrangement, and
 
(ii)      the others have, by whatever means, contributed or agreed to contribute specified amounts pursuant to the arrangement and are not liable for those debts and obligations (unless they participate in controlling the business or are otherwise subjected to a greater liability by those laws in specified circumstances) beyond the amount contributed or agreed to be contributed,
 
whether with or without legal personality.
 
Criminal proceedings against unincorporated bodies.
15.      (1)      Where an offence under this Law is committed by an unincorporated body and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of -
 
(a)      in the case of a partnership (not being a limited partnership with legal personality or a limited liability partnership), any partner,
 
(b)      in the case of any other unincorporated body, any officer of that body who is bound to fulfil any duty of which the offence is a breach or, if there is no such officer, any member of the committee or other similar governing body, or
 
(c)      any person purporting to act in any capacity described in paragraph (a) or (b),
 
that person as well as the unincorporated body is guilty of the offence and may be proceeded against and punished accordingly.
 
(2)      Where an offence under this Law is alleged to have been committed by an unincorporated body, proceedings for the offence must, without prejudice to subsection (1), be brought in the name of the body and not in the name of any of its members.
 
(3)      A fine imposed on an unincorporated body on its conviction for an offence under this Law must be paid from the funds of the body.
 
(4)      In this section "limited liability partnership" means -
 
(a)      a limited liability partnership formed in Guernsey under the Limited Liability Partnerships (Guernsey) Law, 2013, or
 
(b)      an entity formed under the laws of a jurisdiction outside Guernsey, being an entity corresponding to a limited liability partnership described in paragraph (a).
 
Miscellaneous
 
Amendment of the Driving Licences Ordinance.
16.      (1)      The Driving Licences (Guernsey) Ordinance, 1995[e] is amended as follows.
 
(2)      For section 2(1)(a), substitute –
 
"(a)      otherwise than under the supervision of a person who is present with the holder in or on the vehicle and –
 
(i)      who is a registered driving instructor within the meaning of the Register of Driving Instructors (Guernsey) Law, 2018 ("the 2018 Law"), or
 
(ii)      where the application of the 2018 Law does not require that person to be registered on the register established under section 2 of that Law, who holds and has held for a period of at least twelve months a full licence authorising the person to drive a motor vehicle of the class being driven by the holder of the provisional licence,".
 
General provisions as to regulations.
17.      (1)      Regulations under this Law -
 
(a)      may be amended or repealed by subsequent regulations hereunder,
 
(b)      may contain such consequential, incidental, supplemental and transitional provision as may appear to the Committee to be necessary or expedient, and
 
(c)      shall be laid before a meeting of the States as soon as possible and shall, if at that or the next meeting the States resolve to annul them, cease to have effect, but without prejudice to anything done under them or to the making of new regulations.
 
(2)      Any power conferred by this Law to make regulations may be exercised -
 
(a)      in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of cases,
 
(b)      so as to make, as respects the cases in relation to which it is exercised -
 
(i)      the full provision to which the power extends, or any lesser provision (whether by way of exception or otherwise),
 
(ii)      the same provision for all cases, or different provision for different cases or classes of cases, or different provision for the same case or class of case for different purposes,
 
(iii)      any such provision either unconditionally or subject to any conditions specified in the regulations.
 
Interpretation.
18.      In this Law, unless the context otherwise requires –
 
"Check Test": see section 4(5),
 
"class", in relation to motor vehicles, has the meaning given in the Driving Licences (Guernsey) Ordinance, 1995,
 
"the Code of Conduct" means the Register of Driving Instructors Code of Conduct and Good Practice, as issued by the Committee from time to time,
 
"the Committee" means the States of Guernsey Committee for the Environment & Infrastructure,
 
"paid instruction": see section 1(3),
 
"prescribed" means prescribed by regulations made by the Committee,
 
"the register": see section 1(1),
 
"registered driving instructor": see section 2(3),
 
"registration" means registration on the register,
 
"regulations" means regulations of the Committee.
 
Citation.
19.      This Law may be cited as the Register of Driving Instructors (Guernsey) Law, 2018.
 
Commencement.
20.      This Law shall come into force on the day appointed by regulations of the Committee; and different dates may be appointed for different provisions and for different purposes.

[a]

Article XI of Billet d'État No. XXVI of 2014. 

[b]

O.R.C. No. IV of 2007; amended by O.R.C. No. II of 2008; No. IV of 2009.

[c]

Order in Council No. I of 2013; amended by Order in Council No. VI of 2017; Ordinance No. IX of 2016.

[d]

Ordres en Conseil Vol. XXXVI, p. 264; amended by Ordres en Conseil Vol. XXXVI, p. 571; Order in Council No. IV of 2001; No. X of 2007; No. VIII of 2008; Ordinance No. XXXIII of 2003; No. IX of 2016; G.S.I. No. 89 of 2008; and G.S.I. No. 51 of 2016.

[e]

Recueil d'Ordonnances Tome XXVI, p. 374. There are amendments not relevant to this enactment.