When the House debated part 2, which is covered by the amendments, I explained the importance of the intervention powers and offered a number of assurances relating to the way in which they would be exercised. On Report in another place, my noble Friend Lord Davies made a robust defence, answering the concerns expressed there.
We have said repeatedly—this goes to the core of the Bill—that local authorities are in the best position to deliver improvements in their area and to ensure that optimum use is made of their existing road network, but if they fail in that, it would be wrong for the Government to do nothing. That is why the new statutory network management duty is in place and why the intervention powers, which are the subject of the amendments and central to the Bill, are needed to ensure that that new duty is carried out.
Intervention is not new or novel. Local and central Government have accepted the principle and have even gone as far as to agree a protocol governing how intervention should operate in practice. I assured the Standing Committee that subsequent regulations and guidance on intervention powers would fall within that protocol established between local and central Government.
The process that we outlined in part 2 of the Bill is fully consistent with the protocol that is in place.
In another place, it was said that it would be wrong to grant these powers without knowing the criteria that would be used to trigger them. Throwing out all the powers on that basis seems rather extreme, however. I note that when the Delegated Powers and Regulatory Reform Committee looked at part 2 of the Bill, its only recommendation was that the guidance on the criteria for intervention should be subject to parliamentary procedure. That is an eminently sensible and reasonable approach, and the Government therefore accepted that recommendation and tabled their own amendments in that regard. These would give Parliament the opportunity to consider the relevant document through the negative resolution procedure, and we would wish to see them restored. As we have said, this guidance is being developed with the assistance of all the interested parties, including the Local Government Association.
It was suggested in another place that the comprehensive performance assessment should be the means by which a council's performance of this duty should be measured. Clearly, consideration of transport as part of the environment block in the CPA could offer some useful evidence. However, I find it difficult to see how a process designed to assess a council's performance overall could be used as the sole trigger for intervention in relation to the network management duty.
It was also said that the intervention provisions marked a fundamentally different approach to dealing with local government, but that ignores evidence to the contrary. One has only to look at the provisions in the Local Government Act 1999, which allow intervention in a council as a whole, to see how wrong that assertion is. There is no significant difference between the way in which those powers are exercised and the provisions that we placed in the Bill. As my noble Friend Lord Davies so forcefully put it, none of this is groundbreaking; it just follows a well-trodden path of prudent provision.
As I said in Committee, I regard the use of intervention as an absolute last resort. As a consequence of much of the regulatory framework and other inspection frameworks that are now, by mutual agreement, imposed on local government, a whole range of local public service agreements and protocols is now in place, which means that local and central Government can work together to ensure that such intervention need not take place. It is important that people understand that that is the context in which this kind of intervention would take place. I do not want to do anything other than work with local government in this regard, but it is vital and central to the Bill that the network management duty should be given teeth. It can only have those teeth if that last resort of intervention exists.
One group of amendments tabled in Committee sought to make the traffic manager responsible to central Government, which was not appropriate, although the sentiment behind them was that a traffic manager should be put in place to work with a potentially failing local authority before intervention became necessary, or instead of intervention. In the core of the Bill, we state that each local authority must have a designated officer, a traffic manager, who will be responsible for ensuring that the network management duty is carried out in full by a local authority. A traffic director would be put in place only subsequent to intervention, to rescue a failing local authority.
After talking to the Local Government Association and others, we have decided that what is now considered good practice in many aspects of local government can prevail, so that there would be support, mentoring and help for local authorities that were in difficulty, long before intervention was needed. If central Government are imposing an additional statutory duty on local authorities, however, it is incumbent on us to put in place all the necessary mechanisms to secure the fulfilment of that statutory duty. Part of that process involves setting out what to do with a failing local authority, which is what the network management duty and the intervention measures are all about. In that regard, I strongly urge the House to support our motion to disagree with the Lords amendments, because we see the intervention powers as central to ensuring that the network management duty is achieved.
As the Minister said, this is clearly the key group of amendments. The debates in the other place did many good things for the Bill and resulted in a number of improvements, and I am glad that the Minister, from a sedentary position, agrees. This set of changes is one of the best things that their lordships did to the Bill.
That was a short-lived consensus. The Minister is alone, because not only Conservative Members but Liberal Democrat Members oppose the Government's position—the Liberal Democrats spoke out in the House of Lords. The Minister is also opposed by the Local Government Association, which he quoted in his introduction as though it supports him. He said that it is co-operating in the preparation of guidance, but one would expect it to do so, because that is prudent and responsible.
The LGA is currently being particularly prudent and responsible because it is under Conservative control again, with the extremely welcome election as its leader of Sir Sandy Bruce-Lockhart, which is extremely good news for it and for local government generally. I expect it to act responsibly, but, as the Minister is fully aware, it is flatly against the Government's position on this set of amendments, about which it has made many cogent arguments.
The Government's position genuinely puzzles me, since one of the new intellectual strands that thoughtful people around the Government promote is new localism—I am not sure whether the Minister avidly attends Institute for Public Policy Research seminars, where the bright young things of new Labour still gather. The attempt to reverse the Lords amendments, which are designed to protect the interests of local government in this country, shows that the new localism in new Labour simply equalises the old centralism. When push comes to shove, the Government want to control all details and all aspects of every policy.
In another place, both Government and Opposition Members forcefully made the point that when they tried to find ways to amend the Bill, they found that the issue is a straightforward matter of principle about whether one believes in and supports local democracy. Both sides agree that there is no way to amend what the Government seek to do, so either one favours the Government's centralising control tendency or one is against it.
The LGA puts it very well: the Government's attempt to reinstate the original clause
"undermines local freedoms and accountability".
I agree with its assessment, and it would be better for the Government if they did too, rather than attempting to reinstate the original clauses.
The Government's position is objectionable for a number of reasons. First, their decision to overrule the local authority traffic director and simply impose one of their own is arbitrary, and arbitrary government is almost always bad government.
My hon. Friend may be about to answer my question, but I shall give him advance warning of what is on my mind. Does he agree that if—this is a real case—a party was elected to control a local authority on an explicit manifesto of removing road humps from the roads in the locality and, as is possible under the provision that their lordships wisely sought to remove, the Secretary of State stepped in to say, "You, the local authority, against the wishes of the electorate, will restore and maintain the road humps", that would be the clearest possible indication of the situation that my hon. Friend describes?
My right hon. Friend cites a good example, which, as he says, is from the real world. It involves Barnet and a different arm of the Labour movement—the re-Laboured Mayor of London, who is seeking to use his powers to thwart people's democratically expressed will. As my right hon. Friend anticipated, I intend to move on to the undemocratic nature of the Government's proposals.
Leaving aside the problem that the Government's proposals are fundamentally undemocratic, nobody running a local authority can know what the ground rules are, because decisions are arbitrary. The Secretary of State will presumably announce that the local authority is not doing its job properly in terms of traffic management. He has not told the House on what basis he will reach that decision. Until we know what those criteria are, it is impossible for the House sensibly to support the proposals. As the Bill stands, any governing party would be able to make a decision about whether it wished to leave a local authority in control of its own traffic management arrangements purely on the basis of political partisanship. I would acquit even this Government of trying to behave like that. However, the fact that the Bill would permit that shows that it is in an unsatisfactory state as regards the potential arbitrariness of the application of the Secretary of State's rules.
Secondly, the Government's proposals are unclear. The Local Government Association makes that point powerfully. The Government have resisted attempts to add to the clauses the essential detail that anyone would need to assess whether the relevant national authority would be required to provide more statutory justification for any proposed individual intervention. There is no acknowledgment of the financial cost to any authority facing intervention. Most importantly, what would be the timetable for disengagement? Under what criteria and over what time scale would the Government decide that a local authority had been punished enough and could therefore be given back control of its own traffic management proposals?
Without that degree of detail, it is impossible for the House sensibly to support the Government's contention. We do not know how many people might be involved in a replacement or when the Secretary of State would consider that the traffic director had succeeded. There is a further complication. If it was deemed that a local authority was unsatisfactory and that the Government-appointed traffic director was more satisfactory, presumably the logic is that the Government would be in permanent control, because they could never know whether the local authority would mess up if given back control. The Minister has given us no clarification on that point.
Thirdly, the new traffic managers would be unaccountable. They would presumably be responsible to the Secretary of State, and it is difficult to imagine how this House, as the place where the Secretary of State is democratically accountable, could be expected to take a detailed interest in the individual traffic management of each local authority. If dozens of local authorities were deemed unsatisfactory traffic managers would the House consider in Transport questions whether democratic accountability was in force? That would simply be absurd, so the Government need to provide an explanation. Traffic directors would be unaccountable to anyone in the local community where their actions would have the most daily effect. People in the community would not only not have any say in who those directors were, but they would certainly not have voted for them. To address the point made by my right hon. Friend Mr. Forth about local democracy, the wishes of the democratically elected local authority would be overridden. Members on both sides of the House deplore low turnout at local elections, but announcing that a key duty of local authorities can be taken away on the whim of the Secretary of State is a recipe for driving turnout down even further. If the Government are going to second-guess the actions of local authorities as soon as they do something of which they disapprove, people will feel that there is even less reason to vote in local elections.
The Government's proposals are also objectionable because they are impractical. The Minister said that the Audit Commission's comprehensive performance assessment was an unsatisfactory means of judging local authorities' performance in areas such as traffic management. If that is the case, we should approve it. If it is comprehensive, presumably it assesses the performance of local authorities in every field of important endeavour, including traffic management in the case of those that act as traffic authorities. The Minister will be aware that the assessment has proved to be an effective means of supporting and improving the performance of weak local authorities, and should be used in the first instance—I am glad to see that he is nodding—if an authority faces difficulties in traffic management. As that tool for sensible and practical intervention is already available, we do not need another heavy-handed tool to remove local authority control altogether.
The Department sets great store by local transport plans—local authorities certainly do so—which will be made redundant under the proposals. Even if a local authority is providing a decent service under its local transport plan, the Secretary of State will have the power to step in and override that control. The Minister will be aware that the Department for Transport aims to make the performance monitoring mechanisms under the local transport plans more effective and robust by introducing a regime of penalties for poor performance and rewards for good performance, which is much more sensible than the proposals in the Government amendments. Finally, on practicality, the Bill does not acknowledge the additional financial and administrative burden that will be placed on a so-called failing authority when reporting to an imposed director.
"manifestly failing to live up to its duties".—[Hansard, House of Lords, 29 June 2004; Vol. 663, c. 169.]
We do not know what manifest failure means, as the Government will not give us details of the criteria against which any local authority will be judged. Without those criteria, it is impossible for the House to accept Ministers' explanation that only manifest failure would lead to Government intervention.
May I try to help my hon. Friend? I say that with some diffidence as a newcomer to the Bill. One of the great joys of this stage in proceedings is that those of us who did not have the joy of serving on the Committee can now represent our voters on such a matter, which is of great interest in my constituency. Clause 20, which is under consideration, says:
"If the appropriate national authority considers that a local traffic authority may be failing properly to perform any of their duties under sections 16 and 17", one of which refers to the following objective:
"securing the expeditious movement of traffic".
That is a hint for my hon. Friend. I presume that the Secretary of State will look down from his pinnacle, judge whether my authority in Bromley is
"securing the expeditious movement of traffic", and be able to judge on that basis whether to appoint this interloper to decide what will happen in Bromley.
My right hon. Friend is characteristically helpful, and, as he says, brings a fresh mind to this unsatisfactory part of the Bill. The point that he raises is interestingly controversial: he may or may not be aware that the Transport Committee, in considering that very point, has argued throughout the process of this Bill that relying purely on the "expeditious movement of traffic" as the only measure of satisfactory traffic management is inadequate. It would be possible, although not under the terms of this debate, for the House to debate that. There are those who argue that traffic managers should have as an explicit duty some kind of environmental consideration, and not only the Liberal Democrat spokesman, who may have a different view on this matter from me and my right hon. Friend.
What is profoundly relevant to this debate, however, is that there is not a clear measure to which everyone could sign up, whereby one can say, "This is how we measure whether a local traffic manager is doing a job properly." There are honest differences of opinion about what set of criteria the Government should operate before deciding whether the local authority is doing a job satisfactorily. Even if we examine the particular clauses, the House is not given enough guidance to accept that the Government have reached a satisfactory conclusion on this matter. The problem is that the safeguards promised by the Government in another place are simply not there. That illustrates a wider problem with the Bill: it has always been an inadequate means to achieve a desirable end—less traffic congestion.
It is also the case that clause 17, which is also referred to in clause 20 now under consideration, refers teasingly in subsection (4)(a) to the fact that the traffic manager, which is now also being imposed on the local authority, must
"identify things (including future occurrences)".
Apparently, we now expect the as yet unappointed bureaucrat to have the gift of foresight in order to fulfil his duties to the satisfaction of the Secretary of State. Does my hon. Friend think that that is at all reasonable?
I agree that it seems unreasonable. It would seem unreasonable were the traffic manager to be appointed by a democratically elected local body, which is more likely to have some kind of gift of foresight as to what its area might want in the time ahead. It is markedly less likely, however, that a central functionary appointed at the whim of and to serve the interests of a Secretary of State in a distant Department will have the sensitivity to anticipate what people might want in terms of their traffic management. That is asking the impossible, and that is what the Bill appears to do.
I have always thought, and have said at various stages of the Bill's passage, that this is an inadequate means of achieving the desirable end of less congestion, but what is particularly unhelpful is that the clauses the Government seek to reintroduce are genuinely damaging. They will contribute nothing to the Bill's underlying aim, while also proving dangerous to the idea of local democracy. The Government are wrong, and their lordships were right to remove the clauses. I urge the House to agree with their lordships, to disagree with the Government, and to keep these damaging clauses out of the Bill.
When the Bill was published, the Minister was kind enough to arrange for officials to brief me and other Opposition Members on its contents. That was very helpful. One of the issues that I raised then was the whole question of traffic directors. This problem has existed throughout the Bill's passage, and I mentioned it on Second Reading and in Committee. As the Liberal Democrats consider much of the Bill beneficial, I offered the Government an alternative in a spirit of co-operation, but they seem to have been curiously intransigent. In the other place, having tried a variety of options, their lordships decided that, on principle, the clauses should be removed.
I believe that their lordships made the right decision, but—again in a spirit of wishing to offer the Minister something—I suggest that the Government could table amendments. They could adopt the proposal that I made in Committee—or, to be exact, a workable version of it, as my proposal was not entirely workable—or, as suggested by Mr. Green, they could draw up criteria for the intervention. It is difficult to accept draconian powers of intervention with no explanation of what they would consist of and when they would be triggered. I know that the Minister is a reasonable man, and I know that he dislikes Draco. I hope that he will consider my suggestion.
As I said in Committee, it seems to me that there are only two circumstances in which the Government might wish to intervene. One is when a local authority has simply failed to appoint a traffic director; the other is when a traffic manager has been appointed and fails to deliver to the Government's satisfaction. Surely there is a straightforward remedy in both cases. In the first case, it is simply to insist that a traffic manager be appointed. In the second, it is to reserve to the Secretary of State a power to remove a traffic manager who has been seen to fail, and make another appointment. That simple method of intervention would leave most of the clauses that have gone out, but would retain some power of intervention. As I said on that occasion, I accept that there may be times at which the Government need to intervene, and my proposal would provide a mechanism.
A very germane point has been made about finance. It is extraordinary that a local authority that must finance a traffic manager and associated requirements through its council tax payers should—if the Government choose to impose a traffic director—also have to pay for the full panoply of staff, offices and all the other accoutrements. That is surely an unnecessary burden to place on local people, particularly when there is nothing they can do at the ballot box.
I genuinely consider the Minister a reasonable man. Given the maths of this House, I am sure that it will vote with the Government, but I hope that, when this provision goes back to their lordships' House, the Government will seriously consider not forcing them to insist. They could avoid that outcome by tabling amendments that would produce the result that I suggested or that would define the relevant criteria.
In the light of the burst of reasonableness that we are expecting from the Minister, the hon. Gentleman could suggest that he establish some criteria when the Reasons Committee is set up, so that it can judge them. That would be an improvement on the current situation, whereby we are simply being asked to take it on trust that the Government will provide reasonable criteria. They have had many weeks in which to come up with such criteria, and it seems strange that the House is being asked to make a decision without knowing what they are. The Reasons Committee is another means by which the Government could deal with this issue.
The hon. Gentleman makes a valid point. I believe that there is a way forward for the Government that would give them what they require, and which would be acceptable to their lordships. I urge the Minister to demonstrate that burst of reasonableness.
We are being invited to discuss an unusually wide range of amendments; indeed, I hardly know where to start, but I shall do my best. The general point made by my hon. Friend Mr. Green—the relationship between central and local government—is what this is all about. John Thurso—we used affectionately to describe his predecessor as the hon. Member for Caithness, Sutherland and Easter Island; we thought that funny but he never did—used an interesting phrase. He spoke of the satisfaction of the Government with what the local traffic manager is getting up to, but given his party's devotion to devolution, I would have expected him to speak of the satisfaction of the voters. We have traffic problems in my borough of Bromley, and to my simple mind it should properly be for local voters to judge whether their local councillors and officers are dealing adequately with such problems. I doubt whether anybody in Bromley would be very satisfied to learn that the Secretary of State—or even worse, the Mayor of London—was to look after Bromley's traffic. I shall come back to the Mayor in a moment, because sadly, he is mentioned in these provisions and I cannot imagine why.
The first point that we must confront in considering these provisions is our view as individuals and as a House of Commons of the proper relationship between central and local government.
Potentially, this issue goes wider still. I represent an area on which, to my misfortune, the Government are seeking to impose regional assemblies. How would the views of regional assemblies be taken into account?
I do not possess my right hon. Friend's intimate knowledge of the Bill, but my glance through it has so far found no reference to regional authorities of any kind, so I assume, given the Government's enthusiasm for elected regional authorities, that there is no role for them in this matter. Presumably, even regional elected representatives would have no role to play in traffic management; yet again, it is the Secretary of State who will decide on such matters, be it road humps or anything else.
We are in an absurd position. All the main political parties now pay lip service to the idea of local decision making—devolution, decentralisation, call it what one will—yet the Bill contains a perfect example of central Government's belief that they invariably know what is best for local areas, and so will seek to intervene. We already have central government control over the national motorway network, which is long established. Going several steps further to say that the Secretary of State is so omniscient that he will know what is required authority by authority, street by street, is patently absurd.
I will not dwell excessively on clauses 16 and 17, except to point out that they are referred to explicitly in clause 20, which means that there is at least an opportunity to touch upon them. In an intervention on my hon. Friend the Member for Ashford, I pointed out what appeared to be a helpful reference to the "expeditious movement of traffic" as a criterion for judging whether the local traffic authority was carrying out its duties satisfactorily. However, the phrase is very subjective and, sadly, there is little or no help in clause 16.
I looked in vain to see whether clause 17 provided further guidance and came across an interesting phrase. The clause starts by saying:
"A local traffic authority shall make such arrangements as they consider appropriate for planning and carrying out the action to be taken in performing the network management duty."
That is the very thing the Secretary of State will use to judge the performance of the local traffic authority.
Clause 17(4) states:
"The arrangements must include provision for establishing processes for ensuring (so far as may be reasonably practicable)
—another subjective judgment—
"that the authority . . . identify things (including future occurrences) which are causing, or which have the potential to cause, road congestion or other disruption".
We are now requiring the local traffic authority to have the ability to gaze into a crystal ball and forecast sufficiently accurately what will happen in the future to avoid traffic congestion. I would have thought it demanding enough to deal with existing traffic congestion, but to use as a criterion one's ability to forecast the future gets us into difficult territory.
The situation is even worse than my right hon. Friend supposes. Under the comprehensive spending review, the Government slipped out the fact that they had dropped their target of reducing traffic congestion. One would have expected that; they have failed miserably to reach the target since the 10-year transport plan came out. More to the point, the Government will not even define traffic congestion until July next year. They will spend the next year trying to decide if they know what traffic congestion is. Asking a traffic director to predict how traffic congestion will be reduced when the Government cannot even define it puts an onerous burden on the people they are to appoint.
I am grateful, but alarmed. Should the Bill receive Royal Assent, there will be at the very least a lacuna, during which nobody will have any idea about these important matters. Having referred to crystal ball gazing and to the anticipation of future occurrences, the Bill goes on to say—with an insouciance of a kind I have rarely seen in legislation—that
"nothing in this subsection is to be taken to require the identification or consideration of anything appearing to have only an insignificant effect (or potential effect) on the movement of traffic on their road network."
We are now into multiple subjectivity. We are judging future occurrences that have potential effects that are significant or insignificant. I defy anyone to pick their way through that, given that we are talking about a matter as important as the imposition by central Government of all-powerful traffic gauleiters in local authorities. Even before I get past clause 20, I am thoroughly confused and alarmed.
We all know about the new bear hug in which the Mayor and the Government are engaging and it is wondrous to behold. However, I would have thought that people in London boroughs, whose councillors are properly elected to take local decisions on their behalf, would be more than a little alarmed at the thought of the remote Secretary of State taking their decisions for them.
I do not want to be too personal about it, but given that the current incumbent Secretary of State also happens simultaneously to be the Secretary of State for Scotland, it is conceivable that he might be spending rather more of his time in Edinburgh than in London. Earlier today, when he was wearing his Secretary of State for Transport hat, he referred to a surface railway line—or he thought he was referring to one—as the Northern line. You will know, Madam Deputy Speaker, that it is really a tube line.
Of course, Madam Deputy Speaker, I would not dream of disputing anything you say, but we are debating whether clause 20 should be in the Bill, and I am talking about clause 20(5), which explicitly refers to both the Secretary of State and the Mayor, and London authorities. I was talking about the Secretary of State in almost complimentary terms.
The point at issue is a very serious one. We now face the dangerous possibility that the Secretary of State—regardless of who he or she may be or what other jobs he or she may have—will consult the Mayor on a matter that should be the business only of the London authority. That applies whether it is my authority or any of the other London boroughs. The Government suggest that there are now two people with the potential to interfere and intervene on London matters in London boroughs. I find that wholly unacceptable and I would be surprised if any London Member representing a London borough were any happier than me about that. I press the matter no further than that.
Moving on to clause 21—I want to make progress and there are many clauses to wade through—my eye alights on subsection (3), which states:
"An intervention order providing for the appointment of a traffic director must (among other things) . . . confer such general powers on the traffic director as the national authority considers appropriate for achieving those objectives."
So a potential outsider with as yet unspecified but unlimited powers will be imposed on a local authority, subject only to the whim of the Secretary of State. The clause proceeds to hint that the general powers conferred on such a director are to "monitor" and "report"—I might just about be able to go along with that—but then to
"intervene in activities of the local traffic authority" and
"to carry out functions of the local traffic authority".
That surely is alarming.
"Where by virtue of an intervention order a traffic director is to be appointed in relation to a local traffic authority . . . any person . . . may be appointed", including
"the national authority making the order".
That suggests to me that the Secretary of State could be appointed as the traffic manager. Could that possibly be true? Is the Secretary of State bidding for yet another job? In addition to being Secretary of State for Scotland and Secretary of State for Transport, does he want to be traffic manager for Bromley?
That strikes me as ambitious, to the say the least. Under the terms of the clause, could he also be the traffic manager for every other authority as well? If so, he would be a busy man. Would his salary rise commensurately? Would he get extra money and work overtime? We need to know. Provisions such as this may look innocuous when they are buried in a Bill as clause 22(1)(a), but they have the potential to be extremely damaging.
Clause 30 deals with the recovery of costs from local traffic authorities. I am sure that my hon. Friend the Member for Ashford has considered this matter, given his intimate knowledge of the Bill, but the clause states:
"The appropriate national authority may recover from the local traffic authority such sum or sums as it may consider appropriate."
That is really scary. It suggests that the Secretary of State, on a whim, can recover any amount of money that he considers appropriate from local authorities and, therefore, from council tax payers. How much further must the Bill go before it wrecks any concept of a proper relationship between central and local government?
The proposals are truly frightening. The House of Lords is often criticised by the Government as undemocratic and unaccountable, but we must now look to their lordships to defend local democracy and the proper relationship between local government and central Government. The Government repeatedly pay lip service to local decision making and decentralisation, but they are setting out to wreck and undermine the relationship between local government and voters.
The Bill is appalling and disgraceful. We must oppose it at every turn.
I shall deal first with some of the points raised by Mr. Forth. There are 35 highway authorities in the London area. The Bill is restricted to looking at, and imposing duties on, highway authorities. Regional assemblies are not highway authorities, so it is clear that they are outside the Bill's scope.
There are 32 London boroughs, including Bromley. The City of London is another of the 35 highway authorities, as is the Highways Agency, in part, because of its roads network. Finally, there is Transport for London. The relationship between TFL and the London boroughs, after the Greater London Authority Act 1999, is complex. The Mayor is the TFL and GLA representative, and the Bill requires the communication of information to him for that reason alone. However, he must also satisfy the Government in respect of his own network management duty. There is no elaborate conspiracy to Livingstoneise Bromley, or any borough in which people had the misfortune—or were misguided enough—to vote for a party other than the one to which the Mayor now belongs.
I hesitate to mention that, as the United Kingdom Independence party almost won Bromley in the European elections. I shall not go beyond the scope of the amendments, Madam Deputy Speaker, and push the right hon. Member for Bromley and Chislehurst about how he voted in those elections. I shall not ask him whether he voted for his party or for UKIP. I shall not go there.
The right hon. Gentleman made a fair point about Barnet. The same complexities apply here: TFL has a funding relationship, and other relationships, with Barnet and all the London boroughs, which are not part of the local transport plan process referred to by Mr. Green. In that process, there is a direct relationship between the Department and every highway authority in England outside London, whereas the London boroughs relate to TFL in respect of funding, and other matters.
I turn now to the way in which Barnet relates to the Government in respect of its ability to fulfil its network management duty. If a party manifesto promised the wholesale removal of sleeping policemen or street furniture, for example, that would have to be seen to be consistent with the fulfilment of the network management duty. I take the point that this is not about a party of whatever colour elected centrally, imposing by some back-door route its view of what the local highway authority solutions should be to achieving its works management duty. Behind the noise and rhetoric, happily, at least in part, Barnet is not doing what the rhetoric suggests it is doing. I do not think that many sleeping policemen or road humps have been moved. Rather like the hon. Member for Ashford, the rhetoric is a lot noisier than any subsequent action. That explains in part why, to the apparent disgust of the right hon. Member for Bromley and Chislehurst, the Mayor is mentioned so frequently within the whole document. There are complexities that do not prevail in the rest of the country.
I do not accept that the network management duty and the clauses that we seek to restore are undemocratic, unclear, impractical, unnecessary or unaccountable in part, which was the broad gist of what the hon. Gentleman said. Neither, given all the elements of the Bill, including those that we seek to restore, do I consider it to be centralising control, arbitrary or anything else that he said. It is not undemocratic because we set out clearly what the network management duty should be. We will subsequently flesh that out with criteria and practicalities in guidance. We will make clear in guidance after full consultation what steps need to be taken.
I know that many find it unsatisfactory, as I do to some extent, when I describe the Bill, as I have done on many occasions during its passage, as like a Christmas tree. Broad, enabling powers are taken in the Bill, around which a whole series of regulations, criteria and guidance will be hung subsequently. In the totality of the Bill there will be guidance on the techniques of securing the national management network duty, on intervention, on what the traffic director may and may not do, on making intervention orders and notices, on what the network's duty will be and on a range of other areas. It may be unsatisfactory that all those are not clearly and explicitly in the Bill, but I assure hon. Members that there will be substantive consultation as each of those sets of guidance and regulations comes to fruition.
There is also the backstop. Every time there is an apparent need for intervention, there will be a separate intervention order for that specific authority, which can be discussed in the House, should it be prayed against on the negative resolution procedure via a statutory instrument. A series of belts and braces have been established. I do not think in the main that all should appear in the Bill. It is certainly not the norm in legislation. It has not been the norm in the past and I could point to many Acts since 1979 that are of the same order as this Bill, where the substantive work is done in regulation in consultation or subsequently.
This is not supposed to replace local transport plans, nor does it make them redundant. The network management's duty is entirely consistent with LTPs outside London. The monitoring, which is part of the local transport process, can and probably will be part of the assessment process for the criteria on achieving the network management duty. Such issues are just the kind of matters that we are discussing with local government and others in developing the criteria.
The half point made by the hon. Gentleman that was valid was that it clearly would be foolish to impose a network management duty, and seek to produce criteria and measurements for that duty, as if the whole local transport plan process did not exist. Of course, the two would need to be intermeshed, and that is what will happen.
It is not right to say that there would be no consideration of the costs of an intervention. Clause 30 allows the recovery of costs associated with appointing a traffic director, but it does not require the recovery of those costs. The Secretary of State might decide that it would be far more efficient for the authority to use those resources to improve its performance. The burden is not as explicit as some would suggest. Neither is it arbitrary. The intervention powers are not arbitrary or unfettered. Any decision must be consistent with the principles outlined in the guidance in what was clause 27—which we seek to restore—and would need to stand up to scrutiny. Those criteria will be set out in an order and can be discussed. They are being developed with stakeholders—I apologise for using that word, and perhaps I should say interested parties—including the Local Government Association, and will be subject to public consultation.
We want the process to be as transparent as possible. The guidance and criteria will overcome many of the difficulties that hon. Members have suggested. The protocol is in place. It is wrong to suggest that the power is brand new and a first in the relationship between central and local government. The protocol contains a long list of existing service-specific powers for statutory intervention related to failure, including on housing, environment, planning, education, health, and even libraries and museums. That demonstrates that these powers are not unusual. It is a widely accepted concept that appropriate national authorities should intervene if an authority fails in its duty. The House is not being asked to take the criteria on trust. As I have said, they can be considered in great detail by both Houses.
The problem with the amendments suggested by John Thurso in Committee was that they personalised the issue around the traffic manager. We have deliberately abstracted the notion of traffic manager. In one way, we could care less who the traffic manager is and where they stand in the structures of the local authority. The failure of the traffic manager is not the issue. The failure would be of the authority to fulfil its collective and corporate network management duty.
I repeated frequently in Committee that we see intervention as a last resort. I accept that there are those—such as the LGA—who would not seek to push the ability of central Government to intervene any further than it goes now, as a matter of principle. I accept that, but I congratulate the LGA because—despite that principle—it has discussed the criteria and other elements with us at length. We envisage a series of discussions—and, perhaps, mentoring by other highway authorities that are in a better position to address the failure—as well as other measures, some of which will be contained in the guidance and some that will be agreed with local government.
I have also said that notice will be given of intervention, so that even at such a late stage in the process the difficulties in a highway authority may be addressed. I said on Second Reading, and I repeat today—not least for the benefit of those in the other place who will consider this issue subsequently—that I would see intervention, as outlined in the Bill, as a collective failure of central and local government. Long before intervention was necessary, matters should have been resolved by all three parties—the potentially failing local authority, local government and the Government. However, if we are to impose a statutory network management duty on local authorities, we need, as a long, long backstop—as I have assured the House—the ability to intervene and correct things if an authority fails in that duty, as neither the local community or the Government would want such a situation to prevail.
On Second Reading, it was suggested that I was simply saying, "Trust me". I am not saying that. I am saying that one of the prerequisites of imposing such a statutory duty on local authorities is that the whole array—the panoply—of powers is in place, so that, ultimately, if there were a failure in that duty the responsibility would return to the Government, who would secure the situation or ensure that the local authority could recover and return to a position where it could fulfil its duty. The intervention powers are thus part and parcel of the Bill, by imposing that network management duty in the first place.
I shall be more than happy to speak to Opposition Members from both parties, or their counterparts in the other place, about the criteria, the guidance and the other elements, where much work has already been done; and to give them reassurance about any aspect of the process—the intervention notice, the orders, the criteria for the network management duty—to allay any fears that I have been unable to set aside today. However, for the integrity of the Bill and in order for the Government to secure what we want in part 2, we feel that we must disagree with the Lords. The provisions need to be restored and in the spirit of eminent reasonableness that I am pursuing, I ask the House to endorse that approach and to disagree, in the nicest possible way, with the Lords on these amendments.
The expert way in which you read out the amendments, Madam Deputy Speaker, makes them sound impressive, but they are, in fact, all drafting amendments and the Government agree with them.
I do not necessarily oppose the amendments, but want some clarification.
Amendment No. 36 deletes clause 40(2). Why does the Minister think that that is the right thing to do? Amendments Nos. 43 and 45 are similar but not identical. They relate to the resurfacing notice. Amendment No. 43 removes "serve" and inserts "give", so a street authority may give a resurfacing notice rather than serve one. Amendment No. 45 removes "serve with" and inserts "given".
Every lawyer knows that "serve" has a specific meaning. If someone is served a writ as part of legal proceedings, he has to be physically touched with it. It does not matter what he then does with it. He could rip it up. I have dealt with cases in which a young articled clerk has gone to serve a writ on someone. He has touched the individual with it, has been chased down the drive and the writ has been thrown into the back into the articled clerk's car. That does not matter because the individual has still been served. In my days as an articled clerk, I spent many a weekend trying to earn a few extra pounds from my employer by serving writs on less than salubrious characters who had come into conflict with my firm's clients.
Does the replacement of "serve" with "give" imply that the Government are trying to achieve something less than a personal service, perhaps by placing an advert in a magazine or The London Gazette? Alternatively, does giving the notice simply mean telling a junior employee who happens to be on site about it, rather than issuing an official notice to the contractor, sent to that contractor's registered office? If there is a lessening of the test of service, why is that appropriate? Lords amendment No. 59 removes the term "penalty charge". Again, will the Minister say why that is an appropriate course of action?
Lords Amendment No. 70 seeks to delete from the Bill the word "guidance" and to insert the word "guidelines". I wondered what the difference was between those two words, and to refresh my memory I consulted the "New Shorter Oxford English Dictionary", which states that guidance is
"the action of guiding; leadership, direction", whereas a guideline is a
"directing or standardising principle, laid down as a guide to procedure or policy".
Clearly, the most appropriate word to use in the Bill is "guidelines". The Government spend a lot of money on parliamentary draftsmen who, I suspect, certainly get paid more than a Member of Parliament and perhaps more than the Minister. Why is this change being made at this late stage? It seems, on the face of it, to involve sloppy drafting, and I look forward to the Minister's response.
I thank the right hon. Gentleman for his remarks. His first question was on the minor technical amendments relating to the fixed penalty notice in the Bill. Lords Amendment No. 35 corrects an error in clause 40. The Bill incorrectly states that schedule 4B
"makes provision about fixed penalties for fixed penalty notices", but it should read "for fixed penalty offences". Lords Amendment No. 36 also amends clause 40. It is unnecessary to refer to the power to prescribe notices in relation to fixed penalties under the New Roads and Street Works Act 1991, because the power is already implicit in the existing provision in section 97 of the Act. The provision should therefore be deleted.
The right hon. Gentleman asked about the difference between serving notices and giving them. I believe that their lordships probably got more exercised about this than we did. The difficulty was that both terms had been used in the Bill. I am advised that, in legal terms, they are one and the same thing. These amendments are therefore tidying amendments to ensure that we use the same terminology throughout. Had we not put this minor matter right, there could have been some confusion about the two terms, as the right hon. Gentleman rightly suggested. However, they mean the same thing, so this is just a matter of consistency in the Bill.
I am glad that the right hon. Gentleman made a tour into our excellent Library—we heard earlier about our chief librarian, who is retiring, and about the excellent service that she provides—to look at the "Oxford English Dictionary", albeit the shorter version. He rightly said that the term "guidelines" more accurately described the directing role of the appropriate national authority. "Guidance", the term that was previously used, suggests a broader discretion than we had intended.
This is therefore a group of fairly minor but nevertheless important amendments, and I pay tribute to the right hon. Gentleman for his fastidiousness in having looked through them so carefully and asking questions about some of them.
With permission, Madam Deputy Speaker, may I say that the Minister has satisfied us on all the matters that we have raised? I am most grateful to him for his comprehensive reply, and we shall not seek to divide the House on any of the amendments which may, by all means, be put together.
Lords amendment No. 1 agreed to.
Lords amendments Nos. 2 and 3 agreed to.
Lords amendment: No. 16
These are all amendments to the permit powers that were alluded to earlier when we were discussing the Ways and Means resolution. Lords amendment No. 16 clarifies that the power for regulations to provide for the review or variation of permits can also cover applications for variations to a permit—for example, where a person wishes to apply for conditions attached to a permit to be varied.
Lords amendments Nos. 19 and 22 clarify that the powers for an order to modify or disapply primary or secondary legislation are limited to the extent allowed for by permit regulations, and they were tabled in response to the report by the Delegated Powers and Regulatory Reform Committee.
Lords amendments Nos. 20 and 23 delete the existing powers in the Bill covering the variation and revocation of permit schemes operated by local and national authorities respectively, and Lords amendment No. 21 is consequential on Lords amendment No. 23. Lords amendment No. 24 replaces those deleted powers with a new clause, which makes it clear that schemes may be revoked or varied by order and that a single order can apply to more than one scheme. It also provides that an order can also make specific provision to disapply and modify primary and secondary legislation, provided that that is in accordance with permit regulations.
Lords amendment No. 25 allows for wide provision in regulations for the determination of disputes in relation to permits. Regulations will allow for the facilitation of dispute resolution and any system of appeal for permits thought necessary. Regulations could also provide for the appointment of people to hear disputes, and the scope could extend to systems such as adjudication and mediation. Lords amendment No. 26 makes it clear that if regulations provide for adjudication, then the consent of the Lord Chancellor would be required to the making of the regulations or the appointment of persons.
Lords amendment No. 27 allows permit regulations to make provision for permit offences to be fixed penalty offences. The offences themselves will be defined in permit regulations. Lords amendment No. 31 is consequential and provides a definition of "fixed penalty notice".
Lords amendments Nos. 28 to 30 make further provision for the payment of permit fees. They set out the cases in which regulations can make provision for the charging of a fee, and they also provide that the national authority should try to ensure, so far as reasonably practicable, that fees payable in connection with permit schemes do not exceed costs as may be prescribed. Those amendments were referred to earlier in the Ways and Means resolution.
Lords amendment No. 30 enables regulations to provide for the keeping of accounts. Lords amendment No. 32 allows for permit regulations or a permit order to provide for regional variations, for instance, to apply different arrangements for permit schemes in London as against the rest of the country.
Lords amendment No. 33 provides that the first set of permit regulations would be subject to affirmative resolution. Lords amendment No. 34 is consequential on that, and amends clause 38(4) to make it clear that subsequent regulations would revert to the negative procedure. These amendments were also tabled in response to the Delegated Powers and Regulatory Reform Committee report.
Given that we have already discussed the core elements of the amendments in the Ways and Means resolution, I urge the House to support the amendments.
As the Minister said, we have debated the principles. The group of 16 Lords amendments is a welcome improvement, but we still have reservations and wish that the Government had been able to go further to meet our concerns about the stealth tax that effectively lies behind the permit scheme.
If it were not for the constraints of time, we could spend longer discussing the detail. By my calculation, the other place spent 25 hours and 45 minutes discussing the Bill, during which time 109 amendments were tabled. With their guillotine motion, the Government have allowed us only two and a half hours to consider all those amendments, which is a mean approach. We must try to discuss as much as possible, so the time that we can spend discussing this group of amendments is inevitably restricted.
May I ask the Minister about the one-sidedness of the fixed penalty notices, because there is still an issue about the fact that the fixed penalty notices will apply to utilities only, and not to highway authorities, although the highway authorities themselves, through the works that they carry out, may cause as much, if not more, inconvenience to the motoring public?
The National Joint Utilities Group takes the view that this is a one-sided, arbitrary fixed penalty regime that does nothing whatsoever to ensure that there is any incentive for highways authorities carrying out works to do so in a reasonable time and with a minimum amount of disruption to members of the public. [Interruption.] I do not know whether the Minister is listening to the concerns expressed by the National Joint Utilities Group, but I hope that he will be able to explain exactly how the travelling public can be assured that when the highways authorities carry out roadworks they will not be able, with impunity, to block the highway by sticking their roadworks there for unreasonable lengths of time. If the Government believe that it is necessary to have a penalty regime, with fixed penalties that may rise to as much as £350, for utilities, why do they not believe that it is necessary for the highways authorities? I hope that the Minister will be able to allay remaining concerns on that matter.
I hope that the Minister will think again about the overall burden of cost involved in these permit schemes. In correspondence with my noble Friend Viscount Astor, the Minister in the other place said that he did not believe that it would be sensible to tie the costs down as narrowly as we wished. I should have thought that it was in everybody's interests that the costs of permit schemes and the costs of getting permits should be tied down as tightly as possible. That is why we regret that the Government have not gone further.
I rise to support my hon. Friend Mr. Chope. He is letting the Government off very lightly, although I realise that that is because we are so short of time that we cannot discuss this properly and divide on it if we hope to deal with the other important matters before us.
I should have thought that the Minister would want to table rather more amendments to the permit scheme provisions, because we live in remarkable times. The Chancellor of the Exchequer told us that there is too much waste and bureaucracy and too many stealth taxes, yet here we see the Department for Transport going ahead as if the new doctrine had not come in. It is busily legislating for a very expensive stealth tax on the private sector, but it is not prepared to be fair-minded by recognising that the public sector is often the cause of delays, and is exempting it from the charge.
These clauses, even when amended as suggested by the Minister, will leave a bureaucratic, expensive and lopsided system. If the Minister knows what is good for him in his future career, he should listen rather more carefully to the Chancellor of the Exchequer and identify this scheme as a new example of the waste, intervention, bureaucracy and stealth taxing that we heard this week was no longer on the agenda.
If I understood the hon. Member for Christchurch rightly, he wants 25 hours to discuss 19 amendments that everyone agrees with. That seems obtuse, to say the least. He did not mention all the time that we spent on Second Reading and in Committee—it was a good-natured Committee stage—and subsequently on Report and Third Reading.
Broadly speaking, I do not accept the points made by the hon. Gentleman. Nor, interestingly, does the other place, where all these amendments were ultimately secured without dissent. The first set of regulations on permit schemes will be subject to the affirmative order. I do not accept that the proposals are one-sided. We debated that extensively in Committee. If I understand the hon. Gentleman correctly, he wants a fixed penalty notice regime whereby the highways authority imposes on itself fixed penalty notices if it transgresses the permit system that it will be afforded the ability to impose on others. One part of the highways authority will therefore impose a fixed penalty regime on another part, and will doubtless take it to court if the notices are not paid. One part would then sue another for recovery of costs and other expenses stemming from the regime if they are not forthcoming. In Committee, we made it clear that we accepted—I am mimicking the hon. Member for Christchurch in case people did not notice rather than the National Joint Utilities Group or any other learned body that partook in our discussions—that it is a network management duty to ensure that highways authorities discharge their functions on roadworks and streetworks properly and respect the spirit of the Bill.
Network management duties are, quite rightly, not imposed on private contractors and utility groups, but are a function of the local highways authority which, as the relevant public body, will be charged with the efficient and expeditious carrying-out of streetworks. We can set hares running, but it will not be in any highways authority's interest to start digging a hole in the road and leave it there for two or three months, as hon. Gentlemen suggested, doing nothing. It is foolish to suggest that the authorities would act with impunity because they are not charged for permits and are not fined—the Opposition have flogged that point to death. The utility groups accept that balance will prevail, and are represented on a series of working groups that will be set up according to regulations and guidance in the Bill.
I shall not even bother to grace the tosh about stealth taxes with a reply. Not only have the Opposition fabricated unrealistic and unnecessary rhetoric to the point of ridicule but their criticisms have become a tiresome standing joke. The amendments were agreed by the House of Lords without dissent and, as the hon. Member for Christchurch said, they tidy up the permits system in the Bill and deal with many of the concerns expressed by the Delegated Powers and Regulatory Reform Committee. I therefore hope that they will be warmly welcomed as a way of tidying up a complex part of the Bill. All the Lords amendments improve the clarity of the Bill, so we are happy to accept them. They should have been welcomed by the Opposition, so that we could debate the matters of substance in the Opposition amendments in the two following groups. The amendments in the current group, however, are worth while and improve the permit scheme. The House of Lords fully endorses them, and I urge the Commons to do so as well.
Lords amendment agreed to.
Lords amendments Nos. 17 to 36 agreed to, the Commons being willing to waive their privileges in respect of Lords amendments Nos. 28 and 29.
Lords amendment: No. 37.
With this we may discuss the following: Lords amendments Nos. 38 to 42, 44 and 51; Lords amendment No. 52 and amendment (a) thereto; Lords amendments Nos. 53 to 56, 93, and 96 to 98.
Regulations will make provision for appeals from utilities against an authority that has given a direction about the placing of apparatus. Lords amendment No. 37 makes it clear that regulations may also make provision about the person who may determine any such appeals.
Lords amendment No. 38 makes some useful changes to the giving of notices by undertakers under sections 54 and 55 of the New Roads and Street Works Act 1991. Among other things, there will be a requirement that if the notice of the starting date of works becomes invalid under section 55, an undertaker must provide a further notice containing such information as prescribed. Failure to do so will be an offence. Lords amendment No. 93 adds this offence, as a consequence, to the list of possible fixed penalties.
Under the 1991 Act, if an authority wishes to restrict street works after substantial roadworks it must notify relevant persons at least three months before the substantial roadworks start. Lords amendment No. 39 provides for flexibility for regulations to prescribe the period instead. Lords amendment No. 40 provides that regulations may also prescribe certain descriptions of persons who must be notified of the restriction.
Lords amendment No. 41 amends clause 50, which amends several provisions in the 1991 Act. Under the Act, certain actions are required when an undertaker sends a section 55 notice. The amendments mean that those actions are also required when the undertaker sends a notice under schedule 3A in relation to works to be carried out before substantial street works. Lords amendment No. 98 deletes the provisions in schedule 3A, which allow for cases where overrun charges are applied to work carried out before the restriction. Those provisions are no longer needed due to amendment No. 41.
Lords amendment No. 96 widens the existing power in the Bill to prescribe the notification requirements in relation to restrictions on further works under the new schedule 3A provisions. Regulations could prescribe the form of such notification and the information that must be contained. Lords amendment No. 97 clarifies which works are exempt from notification arrangements set out under section 55 of the 1991 Act in relation to schedule 3A.
Lords amendments Nos. 42, 44 and 51 to 55 apply to clauses 53 to 55 of the Bill. Those clauses insert new sections into the 1991 Act, which provide the basis for regulations to enable street authorities to require undertakers to resurface a street, or part of a street, or contribute to the cost of that resurfacing.
Lords amendment No. 52 refers to
"whether or not regulations . . . have been made".
The industry is concerned that that could be several years later, and that it could be faced with not knowing what the Bill will be. Will the Minister assure the House that the times that that clause is brought into effect and that the regulations come into effect will not be several years apart?
Certainly, I give my hon. Friend that assurance. That is not the plan in terms of the timing. I take those concerns seriously, and I will write to my hon. Friend in more detail about timing as and when the time lines are more ready than at present.
Lords amendment No. 42 clarifies that undertakers can be subject to the resurfacing requirements where an authority has issued a notice under section 58A of the 1991 Act indicating its intention to place a restriction on works after substantial street works. That would apply if the undertaker had given notice of its intention to carry out works in the part of the road where the restriction will apply. It would also apply where the undertaker has given the usual section 54 or 55 notices.
Lords amendments Nos. 44 and 52 provide that only works carried out after commencement of these clauses could carry a liability for an undertaker, although, depending on the details in the regulations, the scope may be extended to works carried out before any regulations are made.
Lords amendments Nos. 51, 53, 54 and 55 provide for regulations to ensure that all the undertakers are aware of their liability, and to establish a basis for apportioning the costs between the parties that leads broadly to the same result, whoever carries out the resurfacing works. Those Lords amendments also provide for regulations to include safeguards to cover insolvency of undertakers, and to deal with the interaction of the resurfacing powers with other duties in the 1991 Act, such as reinstatements under section 70 and long-term damage under section 78, in ways that avoid unnecessary works and unreasonable costs for utilities.
Lords amendment No. 56 widens the regulation-making powers of the Secretary of State to allow for a more targeted regime for inspections of the quality of undertakers' work, to enable more inspections of the poorest performers. Regulations would allow disputes to be settled by arbitration.
As I said at the beginning, we agree with all those amendments from the other place. They improve matters, for which we are grateful. I commend the Lords amendments to the House.
I understood the Minister to say in response to Brian White that he would accept my amendment (a). I hope he will confirm that. As has been said by the hon. Gentleman and many others, we cannot have retrospection.
If the Bill were enacted later this month, a commencement order were introduced and the resurfacing clauses became active soon afterwards, but the regulations were not made until, say, July 2010, under the present rules highway authorities would be able to request resurfacing, or a contribution towards the cost, dating back to the time of the order. The retrospection could amount to five or six years, or perhaps even longer. That would cause utilities both regulatory and balance-sheet uncertainty. They would be forced to put aside money for charges that might or might not materialise at some point in the future. Regulators would not accept that such provision would be made until regulations were imminent.
In the other place Lord Davies, the Minister, assured everyone that the Government did not want to make it difficult for the utility companies to operate. If the Government do not accept the amendment, it will indeed be very difficult for utility operators to cope, as was suggested by the hon. Member for Milton Keynes, North-East. I hope the hon. Gentleman will seek to catch your eye, Mr. Deputy Speaker, if it becomes apparent that the Minister will not accept the amendment—although the tone of the Minister's response to the hon. Gentleman implied that he was going to.
During the Minister's rather garbled and hurried presentation, did my hon. Friend catch his statement that he welcomed an increase in retrospection in one of the amendments because he thought there could be circumstances in which people should have to pay even if the work had begun before the regulations were made?
My right hon. Friend has picked up a detail that I had not cottoned on to. I hope he will have a chance to go into it further during this debate, even though it is short.
Lords amendment No. 56 deals with inspection fees. The Government have introduced an element of variability related to the track record of the company carrying out the work that is the subject of inspection. I do not think that anyone would disagree with the principle, but the only examples given by the Minister in the other place and in correspondence are those in which the fees would be higher. The amount of work to be inspected would increase in the case of a poor record. We need to ensure that in the case of a good record, the burden of inspection is reduced. That underlines the Opposition's continual plea for minimum regulatory intervention in the private sector.
I hope the Minister will be able to assure us that the variability will be both upward and downward. I hope he will be able to tell us that if a utility operator delivers high-quality work and an inspection shows no need for further work, the burden of inspection will be reduced. I hope he can also assure us that when inspections are paid for, that means that they are actually carried out. It has come to my notice that in Dorset, in certain circumstances, utilities pay for inspections that are then not carried out by the inspection authority. That is basically another stealth tax.
Retrospective charging, to which Mr. Chope referred, is an issue that concerns me as well, particularly given that it will put a much larger burden on many plc utilities' balance sheets than the Government perhaps appreciate. I chair the audit committee of a plc—it is not, I should hasten to add, a utility company—so I know of the problems that auditors mention when they ask how one is going to account for such liabilities in the balance sheet. I urge the Minister to give some comfort to the utilities in this respect.
On inspection fees, the basic principle of being able to vary fees to punish those who are bad and, more importantly, to reward those who are good must be a good one, so I broadly support proposed new clause 56. But in the light of the correspondence that has been referred to, it appears that lots of stick and very little carrot will be used. An assurance from the Minister that good use will also be made of the lighter touch of the carrot would be extremely helpful.
I support amendment (a), which was tabled by my hon. Friend Mr. Chope, and I hope that we will have an opportunity to do something about it. Brian White is right to be concerned about this issue. This group of amendments, which the Government hope to nod through, give further powers to Ministers that I am not sure they deserve, and they offer further threats to businesses operating in this area. There could be an added element of retrospection, as the Minister said, and there will definitely be variable charges and fees of a kind that could be quite damaging; that will make the private sector's life much more difficult.
This is another example of a well-intentioned Bill—which is trying to do something about the chronic congestion that this Government's transport policy has created—miscarrying and turning into a traditional Labour Government Bill that attacks the private utilities, invents very complicated bureaucracy and creates extra expense. So I hope that we will at least have an opportunity to do something about the very important point made in amendment (a), even if the Opposition are none the less going to go along with the other, rather dubious, complicated and bureaucratic amendments.
I am afraid that I am going to disappoint Mr. Chope. I agreed broadly with the sentiment expressed by my hon. Friend Brian White, but I certainly did not agree with what is a flawed amendment that does only half the job that it purports to do. On the assurance that I gave to my hon. Friend and what I subsequently put to him in writing, it is not in the interests of the Government or of anyone else for a massive and significant delay to occur between the commencement order and the subsequent regulations. In any event, this flawed amendment does not overcome the problem, because it deals with only one of the two references that are made to such matters. But although we do not accept amendment (a), I do accept the point made by my hon. Friend the Member for Milton Keynes, North-East.
The regulations can allow for lower inspection fees as well as higher ones, and as with other aspects of the Bill, that will be a matter for discussion with the people most directly affected. It is true that the provision allows work undertaken between the commencement order and the subsequent regulations to carry a liability, but I hope that the reassurances that I have given to my hon. Friend the Member for Milton Keynes, North-East deal with that issue. If one makes it clear that a particular system will prevail, and if there is some delay before it prevails, that is not retrospectivity. If we make clear that we will come in and minimise, as much as we can, the gap between the commencement order and the regulations, and if we then speak to the very people affected by the regulations, we will see that the characterisation of the regime by Opposition Members is a complete nonsense.
That is grossly unfair. The Minister is saying that these companies may have to pay a charge under a regulation that has not been made. How are they expected to know the form and detail of the regulation from the vague statements of the Minister? They must not be imposed upon in this way until they know in detail what the regulatory framework will be.
They will know the regulatory framework. They may not know the detail of the regulations, but I have assured my hon. Friend the Member for Milton Keynes, North-East that the gap between any commencement order for this part of the Bill and subsequent regulations will be as short as possible. That is a practicality and no more; to characterise it as bashing utilities, attacking people and seeking to impede good business is, I repeat, an abject nonsense, given that the very first thing we will do is to sit down with the utilities and the businesses most directly affected to discuss what regulations should prevail. We do not accept amendment (a) but I commend all the other amendments to the House.
Lords amendment agreed to.
Lords amendments Nos. 38 to 51 agreed to.
Lords amendment: No. 52, in page 30, line 4, after "has," insert
"after the commencement of this section (whether or not regulations under it have been made) and".
Amendment proposed to the Lords amendment: (a), in line 2, leave out
'(whether or not regulations under it have been made)'.—[Mr. Chope.]
Lords amendments Nos. 58, 61 and 102 address a problem with an overlap between powers for fixed penalty notices in the Bill and in the London Local Authorities and Transport for London Act 2003. These overlapping offences relate to the placing of skips and scaffolding under the Highways Act 1980 on the highway. The amendments provide flexibility to deal with the possible problem of having two separate regimes for the same offences. They also deal with the potential problem that the amounts of the overlapping penalties in London could be different from those set outside London, so there is a power to set different rates for different areas in England and Wales, including within and outside London.
Clauses 63 to 66 provide powers for different charging regimes for the occupation of the highway by skips, scaffolding and building materials. These charges could be based on either the occupation overrunning agreed deadlines or the entire period of occupation—lane rental, as it is commonly known.
Lords amendments Nos. 62, 65, 68 and 69 together enable regulations to make provision so that where a series of skips, scaffolding or materials are placed one after the other, they may be treated as constituting a single occupation for the purposes of calculating how long they have been in place and thus what charge has to be paid.
Lords amendment No. 62 inserts new subsections 17A and 17B into section 140A of the Highways Act 1980. This enables regulations to provide that the series of deposits of skips may be treated as a single one. Lords amendment No. 65 carries that provision across so that the same arrangements apply to lane rental charging schemes covering skips. Lords amendment No. 68 does the same in relation to overrun charging for scaffolding and building materials. Finally, Lords amendment No. 69 applies the provision to lane rental schemes for scaffolding and building materials.
Given that all those amendments were agreed in the House of Lords, I urge the House to support them. They satisfactorily fill the gaps in the original Bill. I commend the amendments in all their glory on skips, scaffolds and building materials to the House.
Lords amendment agreed to.
Lords amendments Nos. 59 to 70 agreed to.
Lords amendment: No. 71.
With this it will be convenient to consider Lords amendments Nos. 72 and amendment (a) thereto, 73 to 76, 78 to 90, 103, 104, 107 and 108.
Among other things, the amendments fulfil the commitment that we made on Report to provide for publication of guidance to local authorities on the exercise of their civil enforcement duties. I recall that the Opposition made this suggestion in Committee and we, rightly, acceded to their request, although afterwards hon. Members accused us of doing a U-turn. Nevertheless, the Lords have put all that right.
Lords amendments Nos. 71 to 74 amend clause 76, so that a vehicle cannot be immobilised for contravening the conditions of use of a paid-for parking bay until a period of 15 minutes has elapsed from the time that a penalty charge notice for the contravention was issued. They ensure that a vehicle cannot be clamped while the driver goes off to look for change for the machine to pay for parking. They preserve the existing 15-minute grace period against being clamped for overstaying the time paid for.
Lords amendment No. 75 amends clause 77 to enable regulations to be made providing that mitigating circumstances are a ground for appeal to an adjudicator against the imposition of a penalty charge and that, on such an appeal, the adjudicator's function is to decide whether or not to refer the matter back to the enforcement authority for reconsideration. That would effectively give adjudicators a supervisory role over the way in which enforcing authorities exercise their discretion in cases where there are mitigating circumstances.
Lords amendment No. 76 is a minor operational amendment to clause 77. It provides for enforcing authorities to report to the appropriate national authority rather than the Lord Chancellor on the discharge by adjudicators of their functions. That is in line with the current arrangements under section 73 of the Road Traffic Act 1991.
Lords amendments Nos. 78 to 87 serve to improve clause 83. They extend the prohibition on parking in a special enforcement area to cases where a footway, cycle track or verge has been lowered to assist cyclists entering or leaving the carriageway. The prohibition on parking will now also apply where the level of the carriageway has been raised to meet the level of the footway, cycle track or verge to assist pedestrians and cyclists. Most significantly, the prohibition will now apply to special enforcement areas both inside and outside London.
Lords amendment No. 88 inserts a new clause enabling the appropriate national authority to publish guidance to local authorities on any matters relating to their functions in connection with the civil enforcement of traffic contraventions. Authorities will be required to have regard to this statutory guidance. Inclusion of the new clause on guidance fulfils a commitment that we gave on Report in the Commons.
Earlier this afternoon, your predecessor in the Chair asked us to be moderate and temperate in our language, Mr. Deputy Speaker. Talk of "millions" and "persecution" does not fall into that category. The hon. Gentleman is guilty of hyperbole, but that is not unusual for him. I assume that the Bill will receive Royal Assent shortly, and we will bring in the measures as soon as is practicable.
Lords amendments Nos. 89 and 90 to clause 85 serve to implement a recommendation of the Delegated Powers and Regulatory Reform Committee of the House of Lords that regulations made by the Lord Chancellor on representations and appeals would be subject to parliamentary approval under the affirmative procedure. We are happy to accept that recommendation.
Lords amendments Nos. 103 and 104 add six additional signs to be subject to civil enforcement to the table at paragraph 9 of schedule 7 to the Bill. Five of those are concerned with enforcement of cycle lanes and cycle tracks. The other will enable civil enforcement of bus prohibitions.
Lords amendments Nos. 107 and 108 serve to give effect to the recommendation of the Delegated Powers and Regulatory Reform Committee of the House of Lords that guidance by the appropriate national authority on the levels of penalty charges to be set by enforcing authorities outside London should be included in an order.
I urge the Minister and the House to accept amendment (a) to Lords amendment No. 72. That amendment, as the Minister has said, would allow the affixing of an immobilisation device if a motorist overstayed by 15 minutes the time for which he had paid on a parking meter. Although that is a small protection, many of us feel that the imposition of an £80 ticket is of itself a sufficient penalty, so is it fair and reasonable for a motorist who overstays by a short time to find that the vehicle is immobilised and a further fee is payable before he can drive his car away?
On criminal matters, many of us are reassured because the police have the rules of justice and evidence instilled in them. However, we are less happy about traffic wardens enforcing civil penalties because they do not have the same thorough training as the police and some people would say that they are not of the same calibre as police officers. Indeed, they are under pressure to raise money. As we pointed out earlier, a report in one London local newspaper stated:
"Traffic warden boss says he hates drivers . . . An APCOA boss in charge of training Camden's traffic wardens has admitted he hates motorists—saying they deserve parking tickets because they are lazy. Citing controversial new government proposals which could beef up wardens' duties"— referring to the Bill—
"he added, 'We will now get the power and respect we deserve'. His comments were made to an undercover Ham & High reporter at a job interview for prospective wardens in Kentish Town."
The article also points out that Camden council
"rakes in £23 million a year from parking, clamping fines" and the money it raises from meters.
Should a pensioner collecting a prescription for his invalid wife, who puts his money in the parking meter but is delayed both at the doctor's and at the chemist and comes back 16 minutes late, have his vehicle immobilised? Is that fair? Is that justice? We do not think so. Nor do we think that the modest relaxation to one hour proposed in our amendment would undermine the rule of law. Parking fines in this country are already among the highest in the world, so I hope that the Minister will accept our amendment.
Lords amendments Nos. 71 to 74 came about as a result of a constructive debate in the other place about when immobilisation was an appropriate deterrent measure against unlawful parking. In tabling his amendment to Lords amendment No. 72, Mr. Knight seems to be going against what his noble Friend was saying in the other place only days ago. As he knows, we tabled the amendment to deal with the specific concerns raised by the Conservative spokesman, Viscount Astor, who thanked us for doing so. He saw the amendment as beneficial and supported it. The period was changed from 15 minutes after the vehicle was over its time to 15 minutes after the ticket had been put on it.
When the right hon. Gentleman was in the Library looking at the shorter version of the "Oxford English Dictionary" he must have pulled out a copy of Dickens at the same time, because in true Oliver Twist fashion he now wants more, but I am afraid that he will not get it. Under the present provisions of section 70 of the Road Traffic Act 1991, a vehicle that has overstayed in a parking bay may not be immobilised until 15 minutes have elapsed after the end of the period paid for parking, but the amendment makes immobilisation possible only from 15 minutes after the penalty charge has been given.
The right hon. Gentleman has made his remarks and I shall use as much time as necessary to complete the discussion. However, I conclude my remarks by saying that we made a perfectly sensible amendment, with which their lordships agreed and I am only surprised that the official Opposition should disagree with their party in the Lords. If that is helpful to the right hon. Gentleman in considering the matter, so be it.
We have had extremely good debates on all these issues. We covered a wide range of issues, and we have had good time to consider them—
It being Six o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day.]
Lords amendment agreed to.
Mr. Deputy Speaker then put the remaining Questions required to be put at that hour, pursuant to Order [this day.]
Lords amendments Nos. 72 to 109 agreed to.
Motion made, and Question put,
That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments Nos. 4 to 10 and 12 to 15; Mr. Christopher Chope, Ms Anne Coffey, Mr. Tony McNulty, Gillian Merron and John Thurso to be members of the Committee; Mr. Tony McNulty to be the Chairman of the Committee; Three to be the quorum of the Committee; Committee to withdraw immediately.—[Gillian Merron.]
The House divided: Ayes 181, Noes 45.
On a point of order, Mr. Deputy Speaker. You know how anxious I always am to help the House authorities, so it may interest those responsible for such matters to know that Ms Drown snuck into the No Lobby as the Doors were about to be locked and took the selection lists. I think she thought that they related to today's amendments and took them to be recycled. Sadly, she took tomorrow's selection lists, so they are now not available to Members in the No Lobby. I hope that you can put that right.