New Clause 28 — Delegation of power to make level crossing orders

Orders of the Day – in the House of Commons at 5:15 pm on 9th October 2006.

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'(1) In paragraph 7 of Schedule 3 to the Railways Act 2005 (c. 14) (agreements by Secretary of State and Office of Rail Regulation for that Office to carry out on his behalf functions other than powers to make instruments of legislative character), after sub-paragraph (3) insert—

"(4) Sub-paragraph (3)(b) does not prevent the Secretary of State and the Office of Rail Regulation from entering into an agreement for that Office to carry out on his behalf the function of making orders under section 1 of the Level Crossings Act 1983."

(2) Subsection (2) of section 13 of the Health and Safety at Work etc. Act 1974 (c. 37) (agreements by Health and Safety Commission with Minister to perform functions on his behalf not to be taken to authorise performance of powers to make instruments of legislative character) is not to be taken to have prevented the performance by the Health and Safety Executive (on behalf of the Health and Safety Commission), in reliance on an agreement under subsection (1)(b) of that section, of the function of making orders under section 1 of the Level Crossings Act 1983 (c. 16).'.— [Dr. Ladyman.]

Brought up, and read the First time.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

I beg to move, That the clause be read a Second time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

New clause 37— Increase of penalties for failure to comply with traffic lights at level crossings—

'(1) A person guilty of an offence under section 36(1) of the Road Traffic Act 1988 (c. 52) (drivers to comply with traffic signs) consisting of a failure to comply with a traffic sign placed at or near a level crossing indicating that vehicular traffic is not to proceed over the level crossing shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both and shall have his licence endorsed with six penalty points.

(2) This section applies in relation to offences committed after the date on which this Act comes into force.'.

New clause 38— Increase of penalties for careless or inconsiderate driving causing damage to a railway or other bridge over a road—

'(1) If a person causes damage to a railway or other bridge over a road by driving a motor vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both and shall have his licence endorsed with not less than 6 penalty points.

(2) This section applies in relation to offences committed after the date on which this Act comes into force.'.

Government motion that clause 50 be transferred to the end of line 23 on page 56.

Government amendments Nos. 17 to 19.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport 5:30 pm, 9th October 2006

I urge the House to agree the amendments, which seek to confirm that the making of level crossing orders can be delegated to the rail safety regulator. First, I apologise to the House for the short notice given of the amendments, and for our failure to table them earlier, but I hope that it will accept the explanation.

Level crossing orders set out the protective measures that are to be provided at each level crossing. "Protective measures" are the types of signs, barriers and lights needed to ensure that the crossing has the most appropriate measures for safe operation by both rail and road users. The general process has been that, after consultation with the local authority, the level crossing operator—Network Rail in most cases—applies to the Secretary of State for an order setting out the measures that it wants at the site. The proposals are considered by Her Majesty's railway inspectorate and the order is made by HMRI on behalf of the Secretary of State. That procedure continued after 1990, when HMRI transferred from the Department of Transport to the Health and Safety Executive.

With the transfer of HMRI from the Health and Safety Executive to the Office of Rail Regulation earlier this year, we intended that HMRI would continue to make level crossing orders on behalf of the Secretary of State, but I am afraid that doubt has been cast on whether the wording of the Railways Act 2005 allows that. In turn, that has cast doubt on whether the delegation to the HSE in 1990 was sufficiently robust. We therefore seek to amend the 2005 Act to put beyond doubt the fact that the making of level crossing orders can be delegated, and to make it clear that orders made on behalf of the Secretary of State by HMRI inspectors of the HSE are valid. If approved, the amendment will confirm that the legal position is what everyone always thought it was, as it has worked well for level crossing safety.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

Before the Minister finishes his mea culpa—and may I say that it gives one or two of us joy to see the Department caught out on something so important?—I should like to ask why the amendments introduced in another place on the related subject of bridge strikes, of which there are nearly 2,000 a year, seem to have disappeared off the face of the earth with the speed of light. Why is it so important to deal with level crossing safety, but not bridge strikes, which affect all sorts of people?

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

For the simple reason that, in my view, the legislation on bridge strikes deals perfectly adequately with anybody who causes a bridge strike. The amendments that were sought at an earlier stage would have provided additional powers that are unnecessary. I take issue with my hon. Friend's belief that the Department has been caught out. I remind her that it is not the Department under this Government that was caught out, but the Department under the auspices of the previous Government, back in 1990. If I may say so, we are fixing what is possibly the last bungle of rail privatisation—or at least the last one that we know about; it is always possible that others may appear in the near future.

We have introduced the amendments to make the legal position what everyone thought it was. I do not think that the technical loophole has been exploited to date, but we want to take the opportunity to make the law on level crossings clear and robust, and new clause 28 will help us to achieve that. I do not think that it is controversial, so I hope that the House will support it. I will comment on the other new clauses later if anyone wishes to raise them in debate.

Photo of Stephen Hammond Stephen Hammond Shadow Minister (Transport)

I shall certainly apologise for the failure of Members on the Treasury Bench to vote with us on these matters in Committee.

During the passage of the Bill in the other place six new clauses were added to deal with safety at level crossings. The Government stated at the time that they would remove them. In Committee, my hon. Friends and I aired and discussed those clauses and amendments, which were designed to protect the public, punish drivers who fail to obey signals at level crossings and who fail to obey bridge guidelines. To their shame, the Government voted against each of those sensible amendments to aid road safety.

The Minister stated that the Government would make new proposals to improve safety at level crossings by clarifying the powers of the relevant authorities, yet today we have before us a new clause whose intent is merely to amend paragraph 7 of schedule 3 to the Railways Act 2005, so that the Office of Rail Regulation can make regulations. Provisions under the Health and Safety at Work, etc. Act 1974 allow the Health and Safety Commission to do the same thing.

That is all that the Government propose to do, and it is a huge disappointment to those of us who have spoken to Network Rail and to the operators. The Government cannot be aware of what Network Rail said about the seriousness of the offences being committed—of drivers pulling out and overtaking queues, zig-zagging around barriers or pulling out on to the line and reversing to avoid trains and vehicles. They cannot be aware of the seriousness of the impact of those offences and of the consequences for human life when a train collides with a car due to a failure to stop at red warning lights. The Minister seems to be saying—as he seemed to say in Committee—that red lights at a level crossing are exactly the same as those elsewhere. They are not. A driver who skips a red light at an ordinary road junction will not hit or derail a train. It should not need pointing out that a collision on a level crossing between a car and an express train travelling at speeds of up to 125 mph is likely to cause the death not only of the driver but of scores of railway passengers.

The new clause is a monumental lost opportunity. The Government had the option to write into the Bill sensible measures that would have had an enormous impact on road safety. Current fines and penalties for offenders at level crossings—often serial offenders—are insufficient. Those offences are at least as serious as drink-driving, and sentencing ought to reflect that. Magistrates could have had powers to impose substantial custodial sentences and endorsement penalties on persistent offenders. The matter should be on the face of the Bill. New clause 28 will not affect the problem and the Minister stands charged with failure to fulfil what he undertook to do in Committee.

We are also dealing with new clauses 37 and 38. They say that imitation is the sincerest form of flattery, so I am grateful to Lib Dem Members for proposing provisions that are so close in form and substance to those we tabled in another place and which we aired in Committee. If the Lib Dems had been writing a novel they might have been guilty of plagiarism, so some of them might want to join us and support the real thing rather than follow a pale imitation.

We applaud new clauses 37 and 38 and the flexibility that would allow magistrates to pass custodial sentences. Our original amendments proposed slightly higher custodial sentences and endorsement penalties. None the less, we noted the Liberal Democrats' support in Committee and if they are minded to test their new clauses tonight I shall ask my hon. Friends in the official Opposition to support them.

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

In relation to the points made by Stephen Hammond, it is indeed my intention to test the opinion of the House on new clause 37.

Before I address new clauses 37 and 38, I want to say a word or two about the Government's proposals. Clearly, they are not the new clauses that we were promised earlier in the deliberations on the Bill, and they do not strike at the fundamental problem—the lack of force behind the current offences. As the hon. Member for Wimbledon says, it is quite improper to suggest that running a red light at a level crossing is the same in its consequences or seriousness as doing so on a road.

I, too, have seen the videos produced by Network Rail. Some of what is recorded is, frankly, chilling. The way in which some drivers are prepared to take risks at level crossings is exceptionally disturbing. This debate is partly about the message that we are sending, and I fear that the message being sent by the Government does not attach sufficient seriousness to the offences as they occur daily at level crossings.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does the hon. Gentleman agree that an amendment is made more important by the fact that some parts of our rail network are approaching saturation point? In many cases the time between the barriers opening and closing again can be as little as one minute, which encourages some local people, who get used to the situation, to flout the law and cause accidents, which are, sadly, increasing.

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

The hon. Gentleman makes a very good point. It is doubtless capable of remedy by operational procedures put in place by Network Rail rather than necessitating an impact on the Bill, but it is an indication of the seriousness with which the issue is regarded in constituencies throughout the country. I can say that as a somewhat impartial observer because I have not a single level crossing in my constituency. Indeed, I have not a yard of railway track in my constituency. I hope that the House will accept that in this matter I appear as an objective and independent-minded arbiter of the truth.

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

I give way to another objective and independent-minded arbiter.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

I have been listening very carefully, and I want to ask the hon. Gentleman a very simple question. Is he prepared to support the commitment of very large sums from the railway budget to an urgent investigation of alternatives to level crossings in the many thousands of places where they are found? Has he done any research on what that would cost, where it would be necessary and what alternatives could be looked at?

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

Every time I am asked about commitments of finances I hear groans from my colleagues in our Treasury team. No, we have not done such research, and, with respect to the hon. Lady, that is not what this new clause is about. It is about the level of penalties that are imposed under the present regime. I am certainly prepared to work with her and others in the industry and in pressure groups to see what alternatives might be available to us, how they might be implemented, what they would cost and what benefits would arise. To answer the hon. Lady's question directly, no I have not done the sums, but if she has done them, doubtless she will favour us with them later in the debate.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

The hon. Gentleman is talking about penalties. I think I understood him to say that if new clause 37 did not find favour with the Government he would seek to test the opinion of the House on it. May I refer him to the wording of line 5? I do not think that it would be very good legislation to refer to

"a fine not exceeding six months".

Would he care to clarify?

Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Transport

That is line 6 in the copy that I have, but I fully accept that there is a typographical error. If the Government are prepared, or indeed if the House is prepared, to accept the new clause today, it would still be capable of straightforward remedy in the other place because its agreement on the new clause would have to be sought. I do not think that the hon. Gentleman raises a fatal objection, but I acknowledge that typographical error.

The Minister has explained what lies behind the introduction of the Government new clauses. I have one or two concerns that I wish to explore with him in relation to the retrospective nature of the new clauses.

The Minister wrote to me on 5 October, and I understand that copies of that letter and others have been placed in the Library. He stated that the Government were

"tabling the attached amendment to put beyond doubt that we can delegate the making of level crossing orders to ORR and to validate those orders made by HSE since 1990."

What legal advice has he obtained on the matter? He will be aware that retrospective legislation is generally not encouraged and is generally considered to run contrary to the principles of natural justice. It is not without precedent, of course, but must be undertaken with due regard to proportionality. Is the Minister satisfied that the measure is proportionate in respect of its retrospective application? Will he place on the record when Ministers were first made aware that there was an issue, and that amendments had to be brought before us?

I place on record our acknowledgement of the fact that the Conservatives in the other place worked closely with my noble Friends on new clause 37, and I hope they will continue to do so.

On new clause 38—the bridge-bashing clause, so to speak—it would appear from the frequency of bridge- bashing incidents that the current law is not acting as a deterrent to the drivers responsible for them, notwithstanding the awareness campaign launched recently by Network Rail. It is defined as

"an incident in which a vehicle, its load or equipment collides with a bridge."

In 2003-04 bridge bashing was the 15th worst cause of cumulative delay, which was no less than 335,442 minutes. I am grateful to Network Rail—or perhaps—for these statistics. Two hundred and twelve bridges have been struck more than three times a year, and Cook street in Glasgow was struck 17 times last year. Whitehouse road, Swindon, and Southend lane, Lower Sydenham have each been struck 127 times since 1996. It is clear that this is a matter of significant difficulty and that it is causing substantial delay and expense to road users and to Network Rail. Current legislation is not adequate and accordingly we shall insist on our proposals in new clause 38.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West 5:45 pm, 9th October 2006

The Minister kindly apologised to the House for tabling new clause 28 at rather short notice because a problem has recently been revealed. I hope he will reconsider the wording of the new clause, particularly subsection (2). Although the Bill originated in the other place, it will go back there because of amendments made in this place. The wording of subsection (2) is somewhat opaque. I do not see why there is effectively a double negative in line 4—

"not to be taken to have prevented"— rather than "to be taken to have allowed" or some such wording. Such problems arise when measures are drafted at the last minute and come before the House with little notice. I understand the Minister's position, but if the clause is agreed tonight, I urge him and his colleagues in the other place to re-examine the wording, which is not felicitous. As Mr. Carmichael said, retrospective legislation is rare. If we are to have it—and I understand the reasons for it—we should be clear that the wording is right, and that it is not rushed and likely to create further problems.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

On bridge bashing, may I ask the Minister whether any work has been done on systems to warn drivers of heavy goods vehicles and large goods vehicles of the possibility of such collisions? Such a system would save many thousands of pounds. It is not a complex situation, and if we could get the support of the House it would save changing the law. It would be a positive step that would be greatly welcomed by those who have to pay out large sums for bridges that are damaged every day.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

I understand the concerns expressed and I take the issue of bridge strikes very seriously. Were we to require the fitting of equipment to vehicles, we would have to go through the European Union and seek the agreement of all members of the United Nations Economic Commission for Europe, which is responsible for type approval of new vehicles.

Should it be deemed valuable to install such equipment in vehicles, however, the process for securing approval would not require the legislative change that is being proposed. If there is a case to be made to the European Union—the cost savings to industry and the public infrastructure—we can pursue it with our colleagues in Europe. I am happy to ask my officials to look into the evidence, to see whether such a change to type approval would be necessary and, if so, how we pursue it.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

Would it not be a lot cheaper and simpler to have something 100 m from a bridge that is of the same height and that would form a soft barrier across the road—it could be roughly the height of a heavy goods vehicle—so that vehicles would hit the soft barrier instead of the bridge?

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

My hon. Friend makes a good point, but, again, we would not need the proposed amendments to require that. I suspect that the same people who are asking us to agree the amendments would soon come back and introduce ten-minute Bills about street furniture and the clutter on our urban and rural roads if we were to do so. Nevertheless, we would not require the proposed measure to do what has been suggested.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

As an HGV driver, I am all too aware of the problems of low bridges. I am sure that the Minister agrees that in most cases of an HGV or double-decker bus driver hitting a low bridge it is an inadvertent act. I am unsure, therefore, whether increasing the penalties would reduce the number of bridge strikes.

May I suggest that the Minister drive between Wakefield and Doncaster, where there is a low bridge? A beam across the road about half a mile before the bridge warns HGV drivers that they might strike the bridge if they continue. If the Government are serious about wanting to reduce bridge strikes, more such technology should be deployed in other parts of the country.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

The hon. Gentleman makes a constructive suggestion, and we will certainly discuss it with Network Rail. Again, the amendments are not necessary for us to pursue that course of action. I had not appreciated that the hon. Gentleman is an HGV driver—I have not seen him floating around the Members' Tea Room with a Yorkie in his hand—but he makes a sensible suggestion, which we shall pursue.

I am not persuaded of the case for special offences in respect of breaching red lights at railway crossings; nor am I persuaded of the case for special offences in respect of bridge strikes. There have, sadly, been many tragic instances on the roads where crossing a red light has had catastrophic consequences for motorists and pedestrians—as catastrophic as a collision on a railway crossing. I understand the point about far more people being involved in railway crossing violations, but jumping a red light anywhere could lead to somebody's death, and if it is done in a wilfully it should be treated exactly the same way.

Photo of Stephen Hammond Stephen Hammond Shadow Minister (Transport)

We have again heard the Minister say that he regards the two violations as the same offence. He surely must recognise that there is a major difference between jumping an ordinary red light and jumping a red light at a level crossing. The potential impact and other possibilities are significantly greater than they are for jumping a red light on a normal road, and the consequences thereof need to be accepted and the offence recognised. The point was made both in Committee and on the Floor of the House today that those who commit the offence are usually serial offenders who endanger their own lives and, more importantly, the lives of others at rural level crossings. The magistrates courts need the power to deal with them.

Photo of Stephen Ladyman Stephen Ladyman Minister of State, Department for Transport

The point is that the courts do have the power to deal with them. Someone who recklessly endangers the lives of other people should be prosecuted not for jumping a red light but for dangerous driving. The police will prosecute if the evidence can be gathered. If people wilfully jump a red light on a level crossing, it might be dangerous driving, and if they jump the traffic lights around Parliament square they should be prosecuted accordingly.

I challenge the hon. Gentleman to answer the following case that would be put to him if we were to accept that there is a difference between the two offences. What would he say when a parent brought the photograph of their dead child into this House and said, "My daughter"—or son—"was killed on a street because somebody jumped a red light, and you treat their offence differently from that of somebody who does the exact same on a level crossing"? I suspect that if the hon. Gentleman were in my position now, he would find that unanswerable.

Cases need to be judged on their merits. The police need to take a view on the appropriate offence, and the courts need to take a view on the appropriate sentence. Where a violation is blatant and dangerous, the driving can and should be prosecuted as such, with a significantly higher penalty, including custody, than that which applies to a normal breach of a red light.

The hon. Gentleman accused me of making promises in Committee that I have not kept. I have to say to him that, again, he is not being entirely accurate. In Committee, I introduced into the Bill the measure that is now clause 50. That amendment had been agreed with, among others, our stakeholders—including Network Rail—in order significantly to improve the safety of level crossings. It is my understanding that Network Rail no longer supports the amendments that are before the House, and that it is happy with the position that has been agreed. In Committee I said that I was sympathetic to the argument that a specific tougher penalty would send a message to lunatics who frequently zig-zag through crossings, possibly endangering the safety of rail passengers, and that if there was evidence of a problem I would be prepared to consider using the subordinate powers under clauses 3 and 4, subject to the agreement of Parliament, to set a higher fixed penalty and a higher penalty points tariff for breaches of red lights at railway crossings.

I still believe that the current offence of careless and inconsiderate driving with a maximum fine—subject, again, to Parliamentary approval for clause 22—of £5,000 is sufficient to deal with bridge strikes. In extreme cases where danger is caused to other road users it might be appropriate to prosecute for dangerous driving, but I believe that the power already exists to enable that.

Mr. Carmichael asked when the Government became aware of the need for new clause 28. Ministers were made aware of the issue early in September. I do not have a precise date, but if he is interested in knowing the precise date when it was first brought to our attention I am happy to provide it to him. However, I can assure him that as soon as it was brought to our attention Ministers moved rapidly to try to assess the issue.

The Attorney-General was consulted on whether existing legislation was sufficiently robust before we decided to move to bridge the possible loophole. I assure my hon. Friend Rob Marris, who requested this information, that the clauses have been checked by counsel. I promise him that I shall have them checked again before the Bill passes to the other place.

The loophole is possibly the last of the errors of the disastrous railway privatisation, and we moved to close it as soon as we discovered it. I should of course emphasise to the hon. Member for Orkney and Shetland that we will not know whether retrospection will be necessary unless somebody takes a test case to the courts and they confirm our interpretation of the law. It may well be that everything was all right; nevertheless, in our view it was essential to move as rapidly as we did to close any loophole in such an important area of the law.

Question put and agreed to.

Clause read a Second time, and added to the Bill.