Clause 39
Local Transport Bill [Lords]
12:15 pm
Ann Winterton (Congleton, Conservative)
I understand the hon. Gentleman’s questions and I hope I can be of some help. I will set out a little of the background and purpose of the requirement in subsection (5)(c).
In normal circumstances, when a local authority is providing a public service that is to be contracted out, it would, as part of the tender process, provide anonymised details of the members of staff who would be likely to be available for transfer to the contract on TUPE terms. Similarly, if a contract is re-tendered, the outgoing contractor can be obliged, as a contractual duty, to provide this information for the benefit of any other employer that wins the new contract. Without information of that sort, it would be very difficult for a new company to make a realistic bid for the work, as an important cost element would be missing from the calculation.
However, where a commercial bus service falls to be replaced by a contracted service, the existing operator would not be under any form of contract with the local authority that could oblige him to provide the information. Our TUPE provision therefore includes a regulation-making power under which operators could be placed under a statutory obligation to do so.
If all the operators in an area are keen to bid for contracts, and recognise that they could be winners as easily as losers, it is likely to be in their interest to provide the local authority with accurate information about staffing, but in some cases, that will not be so. An operator that has little prospect of winning a contract, does not intend to put in a bid, or is even so opposed to the whole idea of the scheme that he would like to cause mischief, may have no incentive to provide correct, complete and accurate information, and might not bother to check the facts and assumptions. It is also possible that an incumbent might provide deliberately false information to mislead competitors into bidding higher than necessary, either with the prospect of undercutting them, which would obviously be fraudulent, or simply with the hope of wrecking the scheme by making it unaffordable. The offence could therefore cover a wide variety of behaviours, from mere carelessness to deliberate attempts to deceive. It would be for the courts to determine the severity of the behaviour and the appropriate penalty, if any, on a case-by-base basis.
If a court is satisfied that an operator simply made an innocent mistake, it might decide not to impose any penalty at all. However, there could be instances where it is clear that an operator has not correctly represented the facts available to him, but it is difficult or impossible to prove a deliberate intention to deceive. That is where the question of recklessness becomes important, for if it were necessary to prove knowing deception beyond reasonable doubt, many negligent or irresponsible operators would go unpunished.
As with all criminal offences, the purpose is to deter rather than to punish. A responsible or prudent operator, weighing up all the odds, is not likely to behave in such a manner that could lead to a criminal prosecution, but if there were no obvious remedy in criminal law, the temptation to cheat might well be too great. I hope that explains that explains the thinking behind the term “recklessness” and that the hon. Gentleman will withdraw his amendment.