Local Transport Bill [HL]

– in the House of Lords at 7:10 pm on 18th November 2008.

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Votes in this debate

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 67 as first printed for the Commons.]

Amendments Nos. 1 to 8

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 8. I shall speak also to Amendments Nos. 9 to 17, 149 to 151, 154, 155, 175 and 176. These amendments are relatively minor and technical. Amendments Nos. 1, 10, 149 to 151, 154 and 155 amend existing powers in the Bill that empower the Secretary of State to make secondary legislation containing provisions that are directly related to matters covered in the Bill.

I shall take Clause 6 as an example. It includes a power to make provision consequential on, or supplementary to, Clauses 2 to 5. Clause 6 goes on to state that this includes the power to amend,

"any enactment (whenever passed or made)".

The purpose of Amendment No. 10 is to clarify that the power would enable future secondary legislation to amend provisions contained in the Local Transport Act itself, or provisions as amended by that Act, as well as other enactments.

Amendments Nos. 2 to 8 amend the consultation requirements that are imposed on the senior traffic commissioner. The main change is that, before issuing directions or guidance to the other commissioners, the senior commissioner would be required to consult such organisations representing the interests of public transport users as he thinks appropriate. Amendment No. 9 confirms that the Secretary of State may issue guidance to the senior traffic commissioner about any of his functions.

At this point, I refer to the amendment tabled by my noble friend Lord Rosser, Amendment No. 9A, which is intended to ensure that the senior traffic commissioner has regard to any recommendations made by the Public Transport Users Committee for England or the Rail Passengers' Council, now popularly known as Passenger Focus, so that enforcement action could be considered against poorly performing operators. I believe that I can meet the concerns that my noble friend has in this regard. Back in April, the Secretary of State announced that, subject to further consultation on the details, additional functions would be conferred on the Rail Passengers' Council to enable it to represent the interests of bus passengers. That reflects the fact that many respondents to our consultation on strengthening bus passenger representation had a clear preference for Passenger Focus taking on this role. Passenger Focus already does a good job representing rail passengers, and there are economies of scale in giving the role to an existing statutory body; therefore, we do not intend to establish a public transport users' committee at the current time.

However, I assure my noble friend that, were we to establish such a committee, the powers in the Bill would be wide enough to place certain requirements on the senior traffic commissioner to take account of recommendations made by the committee if that was thought desirable. Similarly, the current clause enabling the Secretary of State to confer bus and coach functions on the Rail Passengers' Council through secondary legislation would be wide enough to make similar requirements of the senior traffic commissioner, if thought desirable. Due consideration would, nevertheless, need to be given to ensure that it was done in such a way as not to prejudice or diminish the authority or independence of the senior traffic commissioner. The secondary legislation will be subject to the affirmative resolution procedure, so there will be a proper opportunity for your Lordships' House and the House of Commons to debate the detailed proposals.

Amendments Nos. 11 to 16 relate to local transport plans. Amendment No. 11 makes explicit that local authorities must have regard to government policies and guidance relating to climate change mitigation and adaptation, as well as other environmental issues. This responds to points raised in the House in earlier debates on the Bill, as well as to debates in the other place.

I shall say a few words about the amendment to the Motion proposed by the noble Lord, Lord Bradshaw. We entirely share his view that the planning and delivery of transport, whether by central government or local authorities, should play its full part in mitigating the threat posed by climate change. I reassure him that we will be emphasising the importance of taking that goal into account both in the guidance that we give to regions on planning regional transport priorities and in the draft guidance to local authorities on local transport plans, which we will publish before Christmas.

We are also developing the tools that regions and local authorities urgently need to help them assess the impact of their proposals and policies on the emission of greenhouse gases. Measuring such impact is, I fear, far from simple. It is well known, for example, that a well intentioned but badly planned measure to reduce congestion, and the emissions that result from that congestion, may have the unintended effect of encouraging more people to use their cars. We need to ensure that local authorities are encouraged not only to reduce emissions but to do so effectively.

Given our current state of knowledge, it is simply impossible for local authorities to estimate with any great accuracy the total impact of their transport policies on climate change. We do not believe that making such matters a potential issue for the courts to determine, as might happen under the noble Lord's amendment, is the right way forward at this stage. In addition, it is important that local authorities consider the threat of climate change against the totality of their policy, taking into account the need to integrate transport policies with, for example, housing and land use planning.

Measuring the impact of transport policies alone carries a significant risk of perverse results. Impacts need to be measured across local authority policies, so that the best measures overall may be planned and implemented. I stress again to the noble Lord that we will be emphasising the importance of taking the threat posed by climate change into full account in the guidance that we give to both regions and local authorities on local transport plans.

Amendment No. 16 makes explicit that local authorities must consult transport providers and transport users when developing their local transport plans. Clause 12 would transfer responsibility for local transport policies and plans in our major cities outside London to the Integrated Transport Authority for the area concerned, but the ITA would be required to consult the councils falling within its area.

However, there are some statutory references to local transport policies developed by metropolitan district councils. Those councils will no longer be developing such policies, so those statutory references will no longer work. Amendment No. 17 and consequential Amendments Nos. 175 and 176 clarify how those references are to be interpreted once Clause 12 comes into force. I beg to move.

Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 8.—(Lord Adonis.)

Photo of Lord Hanningfield Lord Hanningfield Shadow Minister, Transport

My Lords, some of us are surprised and a little concerned that so many amendments and clauses were brought to this House at such a late stage, but I accept the Minister's statement that a lot of them are tidying-up amendments and improve the Bill. I do not intend to say too much, except to welcome one or two things, but we have one or two concerns that we should discuss about provisions that might reduce the democratic aspect of the Bill. We are also obviously concerned about the imposition on local authorities. That will come up during the evening.

I especially welcome the amendment that means that we should consult passengers. We all think that we should do that; we discussed it at an earlier stage. I also welcome the Minister's comments on climate change; however, I hope that the Government practise what they preach. When you cross the QE2 Bridge as you go round the M25, a cloud continuously hangs over the toll booths. The Government may solve such things. Charges for the Dartford Crossing should be considered.

The Government should practise what they preach, but I tend to agree with the majority of the amendments, so I have no further comments.

Photo of Lord Rosser Lord Rosser Labour

My Lords, I note what the Minister had to say about the amendment in my name but I am not entirely sure how far he is committing the Government in relation to the role of Passenger Focus. To be effective Passenger Focus is going to need to have some teeth, particularly given the problems that some passengers face with bus services outside London. I recognise that secondary legislation will deal with the powers of that watchdog in more detail but I would like to see secondary legislation ensure—and I would be grateful if my noble friend could confirm if this is his intention—that the watchdog Passenger Focus has a role on appeals on complaints because that would bring it into line with its equivalent for London, which applies to bus services in London as well as rail services. I would also like to see Passenger Focus given the powers to access performance information from operators which at present is not readily available and without which it is difficult to see how Passenger Focus could do its job.

Obviously the purpose of the amendment was to enhance the authority of the watchdog by ensuring that the traffic commissioners have regard to the views of the watchdog. If passengers are unhappy with what is happening to their services, they will surely expect the passenger watchdog to be able to do something about it. I ask the Minister to repeat the commitment that he appears to have given to ensure that I have understood it. At present the watchdog has no powers to make operators do anything about the service problems that passengers might be complaining about. However, the traffic commissioners have the powers to act on poor services because they can investigate and penalise poor performance. The amendment would mean that the body designated as the passengers' champion can ensure that the bodies with the powers to act on poor bus services, namely the traffic commissioners, have to take into account passenger concerns. I urge the Minister to look very hard—and I am asking for a very clear response to make sure that I have understood the commitment he appears to have given—at how secondary legislation can ensure that the passenger watchdog has the full range of powers it needs to represent passengers, including a role on complaints and appeals arising from complaints, the ability to access performance information, and the ability to ensure that traffic commissioners have regard to its representations on behalf of passengers. Can the Minister say whether the issues I want to see Passenger Focus be able to deal with are covered by the assurances he gave?

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, the noble Lord, Lord Rosser, said that Passenger Focus needs more teeth, to sum it up in a few words. He spoke entirely about complaints by users to Passenger Focus and yet in a presentation last night which the noble Lord, Lord Rosser, and I were at, the problems that people are bringing to Passenger Focus relate to such things as the overcrowding of trains, which is entirely in the hands of government. It is not much good having a passenger watchdog that can bite in one direction but cannot bite in the other. It needs to be a two-way-facing organisation, not a one-way-facing one.

On my Amendments Nos. 11A and 11B relating to climate change, I accept what the Minister has said. My worry is that the guidance issued might be issued in such a way that local authorities which choose to do so may ignore it. I remember the debate we had on the Traffic Management Act 2004. That was supposed to bring some discipline to the use of the highway by utility companies and it has not worked at all well because certain local authorities either ignore it or are too weak to enforce it. As congestion is the major reason for the unreliability of bus services and the escalating cost of the bus industry, it is important for central government to address issues such as traffic management and climate change in a way that will bring about some advance.

Photo of Lord Snape Lord Snape Labour

My Lords, I do not have any problem with the amendment moved by my noble friend Lord Rosser. Indeed, the strengthening of the powers of Passenger Focus is not something, I would have thought, that any of us in your Lordships' House would object to. However, whether inadvertently or not, I felt that he glossed over many of the problems that give rise to complaints where bus services are concerned. I am not surprised about that because the brief that he delivered was prepared by the Passenger Transport Executive Group which believes that the only problem with buses is the question of ownership. Yet a countrywide survey made of passengers earlier this year—and I do not propose to read out the figures again because I did so at an earlier stage—revealed that in passenger transport executive areas in particular the main complaints of passengers were not the matters raised by my noble friend Lord Rosser but those of overcrowding on some services, congestion and the lack of information about where buses go to and how to pay fares, because many towns and cities have a different system of fare collection. These are all matters not for wicked bus company owners but for the passenger transport executives, although there is no mention of them in the brief that they habitually provide.

While supporting the aim behind the amendment tabled by my noble friend Lord Rosser, I hope the Minister will agree that other matters ought to be addressed, such as the recalcitrance of some local authorities to provide proper paths for their buses, proper areas restricted for bus users—bus lanes in other words—and the habit in some cities, including Birmingham which is run by a Conservative-Liberal coalition, of removing bus lanes because the leaders of those councils are in thrall to the private car. I hope these matters will be addressed by the Minister and he will bear in mind that the main complaints of many of our passengers in our major towns and cities lie at the feet of the passenger transport executives rather than those who own and operate the buses.

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I am grateful to noble Lords for the broadly positive welcome they have given to this first group of amendments. The noble Lord, Lord Bradshaw, is right that it is not sufficient simply to produce guidance. The guidance needs to be taken seriously by local authorities. However, it appears to the Government that local authorities are taking the need to give much greater priority to the tackling of climate change very seriously indeed. The number of local authorities which have chosen to include an emissions target among their priorities in local area agreements is very encouraging. One hundred out of 150 local authorities have selected National Indicator 186 measuring the per capita reduction in CO2 emissions in the relevant area as a priority in their local area agreement with the Government. All 150 will monitor progress against this indicator and this will feed into the Audit Commission's comprehensive area assessment starting next year. So the trend is encouraging but as I stressed in my opening remarks, it is very important that the Government provide local authorities with much better tools with which to assess the impact of their proposals and policies on the emission of greenhouse gases because this is not an area in which many authorities have had much experience.

This is a collaborative process between us and local government. We are working together to identify best practice. Local authorities are willing to take action, and we now need to capitalise on this spirit of good will to see that it leads to real change on the ground.

I am glad that the noble Lord, Lord Hanningfield, welcomed the improved consultation requirements and the climate change measures that we have put into place. As we develop the guidance to which I referred, I will see that both noble Lords are kept informed. We welcome any comments that they have to make on the guidance as we develop it.

My noble friend Lord Rosser asked specific questions about the powers of Passenger Focus. I hope that I can give him some reassuring replies. We will consult early in the new year on the secondary legislation about Passenger Focus, but I can tell him that powers under Section 6(9)(k) of the Transport Act 1985 could be used to require operators to provide information; for example, to Passenger Focus. It is important that Passenger Focus has the information that it needs to go about its job. We believe that it will play a significant and positive role in relation to buses, as it has been doing in relation to rail. The recent South Central franchise process, for which we recently issued an invitation to tender, took substantial account of the views of Passenger Focus. Indeed, we made a number of changes to the design of the tender as a result of its comments.

My noble friend also asked about complaints and Passenger Focus having a complaints-handling role in relation to buses, as it does in relation to rail. As he will be aware, an existing body—the Bus Appeals Body—already performs a complaints-handling role. However, we recognise that there are some concerns about the way in which complaints are sometimes dealt with in the bus sector, and we will ask Passenger Focus to undertake a review of the existing complaints-handling process. If this provides evidence that the current system is inadequate, we expect Passenger Focus to work with the industry to explore options for addressing this. Our future action will depend on the outcome of this work.

I hope that my noble friend is satisfied that we are taking steps in the direction that he wants, and I commend the amendments to the House.

On Question, Motion agreed to.

Amendment No. 9

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport) 7:30 pm, 18th November 2008

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Adonis.)

[Amendment No. 9A, as an amendment to Amendment No. 9, not moved.]

On Question, Motion agreed to.

Amendment No. 10

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.

Moved accordingly, and, on Question, Motion agreed to.

Amendment No. 11

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.

Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord Adonis.)

[Amendment No. 11A, as an amendment to Amendment No. 11, not moved.]

On Question, Motion agreed to.

Amendments Nos. 12 to 17

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 17.

Moved accordingly, and, on Question, Motion agreed to.

Amendment NoS. 18, 147, 148, 152, 153 and 156 to 158.

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18, 147, 148, 152, 153 and 156 to 158. Again, these are relatively minor and technical amendments. Amendment No. 18 relates to quality partnership schemes and specifically the power for the Secretary of State and the Welsh Ministers to make regulations about admissible objections. As noble Lords may recall from earlier debates, the idea of admissible objections is that bus operators should have the opportunity to object to requirements relating to fares, frequencies or timings in a quality partnership scheme which they believe are unachievable or commercially unviable, but they should not have the opportunity to veto local authority proposals on spurious grounds.

It is therefore envisaged that the traffic commissioners will play a role in determining whether operators' objections are admissible, in cases where the operator and the local authority cannot reach agreement. The Government have in mind that a traffic commissioner may need to call on an independent expert to assist him, in which case it may be necessary for that expert to be paid for his or her assistance. Amendment No. 18 simply enables future regulations to provide for such payments.

Amendments Nos. 147 and 148 are about the powers of the traffic commissioners where a bus operator is failing to run his services properly. The Bill already includes a new power for the traffic commissioners to order a failing operator to expend money to improve his services. The amendments make it clear that the traffic commissioner can be more specific about the precise improvements on which the operator is to spend money delivering, and that he can also require money to be spent on improving facilities such as information at bus stops.

Amendments Nos. 152, 153 and 156 to 158 relate to bus passenger representation. Clause 69 already empowers the Secretary of State through secondary legislation to confer new functions on the Rail Passengers Council—commonly known as Passenger Focus—to allow them to represent the interests of bus as well as rail passengers. We considered this issue a moment ago in our debate on the previous group of amendments. The amendments now under discussion provide flexibility to allow the remit of Passenger Focus to be broadened to cover matters relating not only to bus and coach services but to tram services and passenger transport facilities. The department will consult on whether Passenger Focus should represent tram passengers in due course.

On Question, Motion agreed to.

Amendments Nos. 19 to 43

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 19 to 43.

Part 3 is aimed at enhancing the powers available at a local level to secure improvements in the standard of local bus services. Buses are a crucial part of our local transport system and over the past few years we have seen the first sustained increases in bus patronage across Great Britain for half a century. A number of places around the country where local authorities and bus operators work in partnership have delivered real improvements to services. As a result, more people are getting on buses.

However, there are still too many places where passengers are not enjoying improvements and where patronage continues to fall. Where voluntary partnerships are working well, the Government applaud them. But it is also important that other options are available, particularly for those areas where partnerships are not delivering improvements. This Bill seeks to devolve decisions to those who understand the needs and requirements of their local areas and to ensure that the right tools—voluntary partnerships, quality partnership schemes and quality contracts schemes—are available at a local level.

The Bill includes various provisions to make quality contracts schemes a more realistic option for local authorities, while also preserving appropriate safeguards for bus operators. This group of amendments covers four aspects of these provisions. The first effect of this group is to ensure that in England the elected local authority takes the final decision about whether a quality contracts scheme should be made in its area. The amendments replace the proposed approvals boards with QCS boards. Rather than making the final decision as to whether a scheme should go ahead, the role of a QCS board would be to provide an opinion and, where appropriate, to make recommendations to the local authority. It would be for the local authority to take the final decision, having considered the board's opinion and any recommendations.

The amendments also spell out more clearly the precise role of these boards. The boards will be expected to consider two things; namely, first, whether the local authority has fulfilled the statutory requirements to give notice of their proposed scheme and to consult on it and, secondly, whether the proposed scheme meets the "public interest" criteria set out in the Bill.

The amendments retain a role for the Transport Tribunal in hearing appeals against a local authority's decision to make a scheme. The scope of this appeal right would depend on whether the proposed scheme had received a clean bill of health from the QCS board. If it had received a clean bill of health in terms of meeting the five statutory public interest criteria and in terms of consultation, the appeal is restricted to points of law. The intention of this right of appeal to the Transport Tribunal is to provide a quicker, more accessible and less costly alternative to judicial review. Consistent with the preferences of the devolved Administration, the existing arrangements as regards schemes in Wales are left unchanged.

The second issue dealt with in this group of amendments relates to employment protection. At earlier stages of the Bill's passage through your Lordships' House, amendments were made to strengthen the protections available to bus workers in an area where a quality contracts scheme is being introduced. The principal effect of those amendments was to provide certainty that the Transfer of Undertakings (Protection of Employment) Regulations 2006 would apply where an operator is forced to stop running bus services because a quality contracts scheme is coming into force.

Amendments Nos. 132 to 136 strengthen further the protections available. They define an additional situation where TUPE would apply. They also make provision about pension protection, placing a duty on the Secretary of State to make regulations to ensure that workers involved in the provision of bus services in the scheme area before the scheme was made do not lose out in pension terms as a result of the scheme.

The third issue, covered by Amendments Nos. 20, 70 and 122 relates to local authority powers to operate bus services in certain circumstances. This responds to questions raised during the Bill's passage through your Lordships' House and the House of Commons. These amendments would provide a power for a local transport authority to operate local bus services in a very specific set of circumstances; namely, where an operator of services under a quality contract had ceased to provide those services before the contract was due to terminate—for example, if the contractor goes into liquidation. In such a situation, it may be in the interests of passengers for the local transport authority to be able to step in for a limited period while it takes action to make appropriate arrangements for the longer term.

Because this is intended to be no more than a temporary, emergency power, the amendments include a clear time limit of nine months, after which the authority can no longer operate the services. The Government have listened to the concerns of local authorities that they could face a very difficult position if they had not quite concluded their negotiations with a "replacement" operator at the end of that nine-month period. The amendments therefore also include a provision whereby the nine-month period may be extended by up to a further three months by the local traffic commissioner. The Government consider that this allows more than ample time for a competent local authority to make the necessary arrangements for a new contractor to be appointed and builds in an appropriate degree of flexibility through the three-month extension. I beg to move.

Moved, That the House do agree with the Commons in their Amendments Nos. 19 to 43.—(Lord Adonis.)

Photo of Lord Snape Lord Snape Labour 7:45 pm, 18th November 2008

My Lords, first, I apologise to your Lordships for not declaring an interest in my earlier intervention today, although I have done so on previous occasions during the passage of the Bill. I am employed as a consultant to FirstGroup plc. I am also a declarable shareholder in the National Express Group, although given the state of the Stock Exchange I perhaps will not have to make that declaration for too many more years. It is only fair to say at the outset that, while I do not believe that the amendments in this group would significantly improve the Bill from when it last left your Lordships' House, I hope that the Minister can assure me and reassure the bus industry that the Government have stayed true to their word. Can he confirm that this legislation, as amended, will still protect the legitimate interests of bus operators and passengers?

I am aware that we have had a long summer of lobbying. Indeed, we have had eight long years of lobbying on quality contracts. I am also aware that there has been some glee and jubilation from certain members of the passenger transport executives up and down the country over the recent amendments to the quality contracts scheme process. Those of us who have taken a long interest in these matters are aware that a great deal of face saving is involved and that the amendments under discussion in this group fall some way short of what the more control-oriented, let us say, brethrens of the local authorities sought. Ministers have been at pains over the past few months to allay any fears that the industry might have and to point out to bus operators that any quality contract proposal will still be subject to independent and sequential scrutiny. I know that many members of the bus industry are still comfortable that quality contracts are some way from the easy option portrayed by some in the Passenger Transport Executive Group. Will the Minister assure us that quality contracts will be used only as a last resort by sensible authorities that have exhausted all faster, more economic and passenger friendly options?

Some people in the bus industry think that pressing for these amendments is something of an own goal by the would-be regulators as it could open the door to longer and more expensive legal action. "Bring it on" was the response, as I understood it, from certain more active members of the Passenger Transport Executive Group, but it is not their money. If you are paying for court cases with local ratepayers' money, it is less of a problem than it would be perhaps to a commercial operator.

I believe that passengers will be best served if the legitimate interests of the bus operators are, as Ministers have continuously promised, properly protected. Bus operators got a bad and inaccurate press from those rather few honourable Members of the other place who participated in the debate throughout the most recent stages of the Bill. But it is important that Ministers concentrate on fact rather than rhetoric. It is a fact that £2.2 billion has been invested in buses outside London over the past 10 years. In seven of those 10 years, that investment exceeded net profit in the bus industry.

FirstGroup, the company I work for, has built up over the past decade from a small municipal undertaking based in Scotland to a multinational company employing many thousands of people in the United Kingdom. In replying to the debate, the Minister should tread very carefully indeed so as not to cause any further anxiety in the bus industry, particularly during this somewhat delicate economic period. It is important, and I think both legitimate and right, that passengers as well as operators should have their legitimate interests protected under this legislation. Many people in the bus industry believe that if the quality contract route is to be followed without some of the safeguards that Ministers have indicated will be provided, much of their business—whether lawfully or not will be for the courts to say—will be confiscated. I understand that Ministers have assured the bus industry privately that even though this is far from an easy option, if the proposals were to be taken forward, not only would operators have every opportunity to put their own case, they would also have a proper right of appeal against any decision. It would help to allay many fears in the bus industry if the Minister could confirm that it is indeed the case that the amendments I would have proposed had he spoken at the time I expected him to speak—that is, on this particular group—would therefore be superfluous. I trust that he can do so because I have already indicated that I do not propose to move Amendment No. 44A.

I want to ask my noble friend why the appropriate approvals authority for a quality contract scheme in Wales may approve the scheme if it is satisfied not only that the new public interest test in Clause 19 is met but also if it is satisfied that the scheme is in the public interest. I expect to be told that it is because Wales has a devolved Administration, but I do not think that the public interest is any less important in the rest of the United Kingdom. Indeed, I would point out that Ministers and the Government generally have been consistent in saying that the legitimate interests of bus operators have to be taken into account when the merits of a quality contract are being assessed. In order to do that and to ensure that the benefits of a quality contract are proportionate to the disbenefits, surely it is essential that the QCS board is able to assess fully the financial losses that any operator might incur as the result of a quality contract being introduced, not just the collective position of all operators. Can the Minister confirm that the government amendment which creates new Section 124(1A) of the Transport Act 2000 will oblige QCS boards to assess each operator's financial interest, not just an overall assessment of them all?

I want also to press the Minister on government Amendment No. 69. As currently drafted, the Bill restricts the scope of an operator's appeal to the Transport Tribunal. Where a QCS board has approved a quality contract or recommendations to change the quality contract have been taken on board by the relevant authority, an operator's appeal can be made only a point of law, not on a point of fact. As far as I can see, this prevents operators appealing to the Transport Tribunal against the assumptions that might have been made by the authority and the QCS board in justifying a quality contract. It also prevents operators making representations to the tribunal on matters taken into account or not taken into account by the authority or QCS board. An operator's only right of appeal to an independent tribunal against an approved quality contract would be his submission to the QCS board on the authority's consultation. I ask my noble friend whether such a procedure actually makes sense and indeed whether it would be defensible in law. Surely there can be no justification for restricting the scope of an operator's appeal to the tribunal, and this amendment therefore removes the restriction currently applied by the amended Bill. It will enable an operator to appeal to the tribunal on a point of law and fact, regardless of the view of the QCS board. This is a further amendment designed to ensure that the legitimate interests of operators are taken into account.

I apologise for the length of this speech, but it is the only one I intend to make during the passage of this Bill, and these matters are of enormous concern to the bus industry. I turn finally to the question of the invitation to tender to be issued while appeals are outstanding. It is possible, under the terms of the amended legislation, for an authority to proceed to issue an invitation to tender to operators who may wish to bid for a contract to run a quality contract even if an appeal against a quality contract is outstanding. Again, we are in the realms of certain members of the Passenger Transport Executive Group saying, "If there is legislation, so what?". I would point out that legislation of this kind is likely to be protracted and expensive, and that there ought to be a proper justification from PTEG to justify this course of action. Surely it cannot be right for public authorities to proceed with an ITT and all the costs that involves while an appeal is outstanding. If the appeal is successful, all the time and expense of proceeding with the tendering process would be wasted. The position is even more serious if a tender is awarded before an appeal against the particular contract has been won. It is, to say the least, a bizarre arrangement and there appears to be a fundamental lack of common sense and of justice in the procedures as they are presently laid down. It may well be that common sense would prevail and an authority would not proceed to prepare and issue an ITT while an appeal is outstanding, but there is nothing to stop it doing so under the terms of the Bill before us today. By stating expressly that an ITT can be issued even when an appeal is outstanding, the Bill almost encourages local authorities to proceed in that way. The straight question for my noble friend is this: how do the Government propose to ensure that authorities use their powers wisely?

In conclusion, having taken a deep interest in the Bill and having some years' experience in the bus industry, I cannot say personally that the prospects for companies and bus passengers have been enhanced by the Government's amendments. I hope that the Minister will take it upon himself to give an assurance to bus operators that the last stage of any change in the quality contract will not be made as easy as some, in my view overly optimistic, members of the Passenger Transport Executive Group apparently believe.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I should like to add a few words to the speech of the noble Lord, Lord Snape. I have no financial interest in the bus industry, but I have a lot of experience of it. I want first to reiterate the point I made earlier: traffic congestion is by far the biggest enemy of bus services. Unless there are effective ways of dealing with congestion, bus services will continue to deteriorate.

Secondly, quality partnerships, where they are working and where they bring bus companies into partnership with the local council and the police, have a lot of virtue in them. In fact, many local authorities have not yet taken up their powers to clear their highways, monitor bus lanes and fine those who invade them. In my opinion, attention to these areas would result in much better bus services than are likely to be brought about by quality contracts. A further point to make on quality contracts is that many people look jealously at London and say, "If we had that system in our city, we would be all right". I ask the Minister to pause and reflect on how much subsidy is put into public transport in London. It is vast compared with that provided outside, and any move along the road to quality contracts outside London will presumably come with a price that I think those who are proposing it intend to present to the Government. That has to be considered.

London has a huge number of people who arrive in the city by public transport without their cars and therefore use the bus services. Again, that is not the case in every city. Some cities still offer cheap and plentiful parking, and they wonder why the bus services they operate are not efficient—there is obviously a cheap alternative and the cars being driven into those car parks are in fact blocking the roads along which the buses are to operate.

I am not convinced that anyone has shown that vast profits are being made in the bus industry that could be redistributed through a quality contract to subside less well served or less used areas. Where you can make even a modest profit running a bus service, that will be done commercially. It is only in areas where traffic is very thin that a bus service does not work, and you will not make a sensible adjustment by cutting services in busy corridors where there are lots of people travelling—often quite poor people—and saying to them, "You can have a less good bus service so we can take some of the profits from there to run bus services in the more remote areas".

Photo of Lord Rosser Lord Rosser Labour 8:00 pm, 18th November 2008

My Lords, I shall comment on a couple of points made by the noble Lord, Lord Bradshaw. No doubt he will strongly disagree with this, but I get the impression that the enthusiasm for the Bill from the Liberal Democrats in this House was considerably less than from the Liberal Democrats in the other place. From reading the debates it seems to me that their support was pretty wholehearted, which cannot be said of the Liberal Democrats in your Lordships' House.

Photo of Lord Snape Lord Snape Labour

My Lords, I am sure the noble Lord, Lord Bradshaw, can defend himself, but could the noble Lord, Lord Rosser, not say that the same thing is true of the Labour Party?

Photo of Lord Rosser Lord Rosser Labour

My Lords, I have made my point about the Liberal Democrats in the two Houses. I suspect that the Bill will be supported by my party in this House as well. Furthermore, I do not accept the argument of the noble Lord, Lord Bradshaw, that quality contracts go with high levels of subsidy. The two are separate issues and one does not necessarily go with the other.

I am pleased that the Government have accepted the principle behind the amendment. The issue is that, in the event of a quality contract operator defaulting for any reason, a local transport authority must be able to use any means at its disposal to keep bus services running, including operating services itself. Although I listened carefully to what my noble friend said, I remain concerned that the time limits being placed on the operator of last resort are too stringently set out in primary legislation, which is emphatic that while 12 months may be needed, 12 months and one day will not.

In the Bill, those powers of last resort are restricted to nine months, with an additional three months at the discretion of the traffic commissioner. In the other place, concern was expressed that that was too restrictive, given the wide range of scenarios that could result from an operator defaulting on a franchise. What would happen if a deal with a replacement operator for the franchise fell through at the last minute? What would happen to bus services then? Another scenario could be a franchise deal involving significant investment in new vehicles, to which reference has already been made, but where that programme of investment had not been completed when the initial quality contract operator, or contractor, defaulted. It might be a difficult task for a local transport authority to secure a replacement operator for the quality contract and ensure that the new vehicles were supplied at a competitive price when potential bidders knew that the local transport authority had a fixed period in place whereby it could keep services running as the operator of last resort. That does not seem to place the local transport authority in a strong position in any negotiations.

There are other possible scenarios, although one accepts that they would be exceptional. The independent or local transport authority might no longer require the use of a particular operator because of poor performance and could be subject to legal challenge. Surely in that situation the challenge might go on for a considerable time. Would any other operator be prepared to touch the provision of services with uncertainty remaining over the status and position of the original quality contract operator?

What happens if an operator goes out of business 13 months before the end of their contract? What would the position be, then, if the local transport authority could operate services, if necessary, only for 12 months, when the contract itself was going to end after 13? What happens if there is an argument between competing operators and an independent transport authority over the ITA's decision on who should get a contract following the existing operator's defaulting? That, too, might be subject to legal challenge. As I said a moment ago, if a deadline to negotiate on contracts is approaching, considerable power is handed to the bidders when they know that the local transport authority is in the position that it can no longer operate those services after a maximum period of 12 months.

It is also worth noting that when the Government used their power of last resort in the operating role to take over the operation of south-east trains, following the failure of the Connex South Eastern franchise, I believe that those powers were exercised for almost two and a half years. How would passengers and the taxpayer have fared on south-east trains if the Government had been subject to a fixed time limit set out in primary legislation on their own powers of last resort on rail franchises?

I realise that the Government are concerned that a local authority might seek to abuse these powers to, in effect, municipalise local bus services, taking them back into public ownership. Even if that were a likely threat, though, under the terms of the amendment the traffic commissioners would provide a safeguard against that, as they would decide whether or not the last-resort powers were to be granted. The Government's guidance to the traffic commissioners could be used to ensure that these last-resort powers could be extended only to protect passengers in exceptional circumstances following the default of an operator and the restarting of the franchise under a new operator.

I hope that my noble friend will be prepared to consider this amendment. The deadline seems unnecessarily restrictive; it allows no room for manoeuvre if, in exceptional circumstances—and one accepts that they would be exceptional—the specific date could not be adhered to. The amendment would allow the traffic commissioner, if he or she so desired, to agree to an extension. I have no doubt that they would want some compelling reasons for granting an extension rather than seek to use the power that I propose they should have in a way that did not reflect the need for exceptional circumstances to be proved.

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, the Government in this House support the Bill with exactly the same degree of enthusiasm as they supported it in the other House—there is no difference between our positions here and there. As was the case in the House of Commons, so here. We pay tribute to the entrepreneurial zeal and public service commitment of so many of our bus operators, in precisely the way that my noble friend Lord Snape would wish us to do. They make a great contribution to public transport in this country and we need them to make a greater contribution in the coming years. We recognise, as my noble friend said, that in a good many areas buses are doing well—London, mentioned by the noble Lord, Lord Bradshaw, being a case in point, where we have seen a welcome transformation for the better in the pattern of bus service usage in recent years. As I said earlier, in some areas buses are not doing as well as we would wish. There are many reasons for that. I recognise the importance of addressing congestion, which the noble Lord mentioned. It is because of these issues that we need to address that we brought forward the provisions in the Bill.

My noble friend Lord Snape's overriding concern is that the Government should stand by their commitment to protect the legitimate commercial interests of bus operators. We absolutely stand by that commitment. The amendments I am speaking to in this group are designed precisely to ensure that appropriate safeguards are preserved in the interests of bus operators. First, the amendments retain a clear role for independent scrutiny of a local authority's proposals. That scrutiny will take place after the authority has concluded its public consultation process. This is important because it ensures that the quality contract scheme boards can take full account of any concerns raised by operators during the consultation process.

Secondly, the amendments retain the five public interest criteria already set out in the Bill. These include a requirement that any adverse effects on operators must be proportionate to the benefits of the scheme, which is a crucial safeguard for operators. Thirdly, the amendments retain a right of appeal to the Transport Tribunal.

To deal with my noble friend Lord Snape's Amendments Nos. 44A and 69A in more detail, the first, on a public interest test, would require QCS boards to consider proposed schemes not only against the five statutory criteria already in the Bill, but also against a more general test of the public interest. The five criteria in the Bill already provide appropriate benchmarks against which any scheme should be judged, and are designed to provide clarity about how the public interest is to be assessed. They require an authority to show that the proposed scheme will, first, increase bus patronage; secondly, will benefit passengers; thirdly, will contribute to the implementation of the authority's local transport policies; and, fourthly, will do so in a way that is economic, efficient and effective. In essence, this means that the scheme must deliver value for money which, in turn, means that the authority needs to take account of all of the costs and benefits likely to arise from the scheme.

The crucial safeguard for bus operators is the fifth criterion: that any adverse effects on bus operators, both inside and outside the scheme area, must be proportionate to the benefits arising from the scheme. These five criteria make plain, in somewhat more detail than a general public interest criterion, what requirements a scheme needs to fulfil and what questions a QCS board needs to consider. They meet my noble friend's concerns and the legitimate interests of bus operators.

Photo of Lord Snape Lord Snape Labour

My Lords, before my noble friend leaves that point, why is the public interest test to be applied in Wales? Why does it not apply in England?

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, ours is a better test. Under the devolution settlement, it is of course up to Wales to frame the precise test that it wishes to apply. There would not be much point in devolution if we had to replicate the provisions that the Welsh put in place in every respect. The effect of our tests is to protect the public interest precisely as we would wish to ensure effective bus services, and to protect the legitimate commercial interests of bus operators.

On my noble friend's Amendment No. 69A, on appeals to the Transport Tribunal, under the amendments made in the House of Commons the grounds for appeal against a local authority's decision to make a quality contracts scheme would depend on whether or not the QCS board had in effect given the final version of the scheme a clean bill of health. Where the QCS board, which will be independent of both central government and the local authorities, has given such a clean bill of health, having examined all the facts of the case and considered all the opinions expressed in the consultation, the Government consider that it is entirely appropriate for the onward right of appeal to the tribunal to be limited to points of law.

That would enable an appeal to be brought, for example, on the grounds that the authority had acted unreasonably in deciding to make the scheme, had acted with bias, or had fettered its discretion. There would therefore be a clear safeguard in the most unlikely event of a QCS board failing to identify a major flaw in the authority's proposal. It is not correct to say that an operator would, as a general rule, have no right of appeal against an authority whose case for a quality contract scheme was based on unreasonable assumptions. However, where the final version of the scheme had not received a clean bill of health from the QCS board, an appeal could be brought on either points of law or on questions of fact, enabling a full-case review. The Government consider that these proposals provide an entirely appropriate level of protection, while avoiding unnecessary stages in the process, which, after all, could delay the implementation of schemes that are manifestly in the public interest.

My noble friend asked me specifically why local authorities should be able to issue invitations to tender for quality contracts while an appeal to the Transport Tribunal is in progress. There is no statutory bar to local authorities beginning a tendering process while a judicial review is under way. We see no reason why the position should be different here. Of course, no local authority will be in a position to actually sign quality contracts until any appeals are fully discharged. I emphasise that we are not saying that local authorities must begin tendering during an appeal. Far from it; it would be for the authority to judge whether it would be appropriate in the particular circumstances of the case, bearing in mind the costs that the authority and others are likely to incur during the tendering process.

My noble friend Lord Rosser's amendment to Commons Amendment No. 122 seeks to provide added flexibility to allow a local authority to continue providing services as operator of last resort, beyond the proposed 12-month period. Nine months should be more than adequate time for an authority to procure a replacement service under a new quality contract. Even so, however, as I set out earlier, our new clause leaves the option to apply to the traffic commissioner for an extension of up to three months in case this should prove necessary.

The purpose of the amendment is to provide an emergency stop-gap measure for a local transport authority, not to re-establish local authorities as long-term providers of local bus services. The Government consider that a line needs to be drawn somewhere. If a local authority has been trying to find a replacement operator for a whole year and finds itself unable to do so, it is extremely hard to see what is going to change in month 13 or beyond. I therefore hope that my noble friend is persuaded that his amendment is unnecessary. We have given considerable powers and discretion to local authorities to act as operators of last resort where services have not proved viable, or have had to be terminated for any other reason.

Photo of Lord Rosser Lord Rosser Labour 8:15 pm, 18th November 2008

My Lords, more than one of the possible scenarios that I suggested—I accepted that they would be exceptional—related to legal proceedings being taken over a decision to dispense with the services of a quality contract operator, or as regards an argument between quality contract operators in the independent transport authority over who should take over an existing quality contract after the original operator had ceased to operate the services. Does my noble friend accept that that is a possible scenario, or does he dismiss that possibility? If he accepts that it is a possible scenario involving legal proceedings, does he not accept that those legal proceedings could go on for a considerable period, and that it is therefore not unrealistic to build in a provision which would enable us to go beyond the 12 months where it was proved that there were exceptional circumstances? If we find ourselves in that scenario, what happens the day after the 12 months are up?

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I would rather not paint precise scenarios. It is hard to predict the circumstances in which services might come to a halt. However, if there were to be a scenario of the kind painted by my noble friend of a service coming to an end in circumstances where legal proceedings followed, even by the rather lengthy proceeding standards of our learned friends, one would realistically expect them to have been concluded well within a 12-month period. Therefore, we would not expect such a scenario to justify an extension of the 12-month period. However, I come back to the central point that this is intended to give local authorities the power to act as operator of last resort, not to put in place their own bus services on an ongoing basis. Recognising that we have to make a judgment about a cut-off point at some defined period, our view is that 12 months is the longest period in which one could justify a local authority acting as operator of last resort, and that any local authority which is fulfilling its duties responsibly would be able to put in place a replacement service over that period.

If a local authority was incapable of putting in place a replacement service in 12 months, it is very difficult to see what circumstance will change in the thirteenth month that is suddenly going to make it possible to act in a way it was incapable of acting in the previous 12 months. Therefore, even in the scenario that my noble friend paints of there being complicating factors surrounding the ending of a bus operation, we believe that the 12-month period is sufficient to put in place successor arrangements, and that we should not need to extend the 12-month period further. On that basis, I beg to move.

On Question, Motion agreed to.

AMENDMENT NO. 44

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 44.

Moved, That the House do agree with the Commons in their Amendment No. 44.—(Lord Adonis.)

[Amendments Nos. 44A and 44B, as amendments to Commons Amendment No. 44, not moved.]

On Question, Motion agreed to.

amendments NOS. 45 to 68

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 45 to 68.

Moved accordingly, and, on Question, Motion agreed to.

AMENDMENT NO. 69

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 69.

Moved, That the House do agree with the Commons in their Amendment No. 69.—(Lord Adonis.)

[Amendment No. 69A, as an amendment to Amendment No. 69, not moved.]

On Question, Motion agreed to.

amendments Nos. 70 to 121

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 70 to 121.

Moved accordingly, and, on Question, Motion agreed to.

AMENDMENT NO. 122

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 122.

Moved, That the House do agree with the Commons in their Amendment No. 122.—(Lord Adonis.)

[Amendments Nos. 122A to 122C, as amendments to Amendment No. 122, not moved.]

On Question, Motion agreed to.

amendments Nos. 123 to 158

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 123 to 158.

Moved accordingly, and, on Question, Motion agreed to.

amendments Nos. 159 to 162

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 159 to 162. These amendments relate to integrated transport authorities and local road charging schemes. Before dealing with them, I wish to set out again the issues which we are trying to address in Part 5. As I said earlier, in the main urban areas outside London, current transport leadership and delivery arrangements do not always work as well as they might and need updating to reflect changing travel patterns. Current arrangements date from the Transport Act 1968, which allowed establishment of passenger transport authorities with responsibility for public transport across each city. There are now six PTAs covering areas such as the West Midlands.

In 1985 the power to create further PTAs was repealed, and the broad arrangements for local transport decision-making have remained the same since. However, over the past 20 years there have been many changes in the transport needs and patterns of different areas. Despite this, existing legislation offers little flexibility to update local arrangements, or for one PTA area to do things differently where local needs differ.

We believe that reviewing existing arrangements is a priority, and that local areas are best placed to identify the changes needed. The Bill changes the generic names of the six passenger transport authorities to integrated transport authorities. This change reflects the wider responsibilities that all ITAs will have in relation to local transport policies and plans, and their powers to act for the economic, social and environmental well-being of their area. The Bill also allows local authorities, both in areas with ITAs and in those without, to review existing arrangements in their area and come forward with proposals for improvements.

It will be up to the authority in each area to decide how wide a review it wishes to carry out. A review could cover, among other things, how well public transport services operate, the management of roads and the current distribution of powers over transport between local authorities and ITAs. The Bill would then allow the Secretary of State to respond to the proposals put forward by authorities by making individual orders for each area; for instance to establish a new ITA or to make changes to the constitution of an ITA that already exists. These orders would be subject to affirmative resolution in each House.

Amendments Nos. 159 to 163 are about the membership of integrated transport authorities. These amendments have two principal effects. The first is to guarantee that each of the "representative councils", as defined in the amendments, will appoint at least one representative to the ITA. This supports democratic accountability by ensuring that every part of the area of an ITA must have at least one representative on the ITA, and no part of the ITA's area can be unrepresented. The provisions of the Local Government and Housing Act 1989 will continue to apply to such appointments as they do now. This provides a further safeguard: that the appointment of elected members of a local authority to an ITA reflects the political balance of those councils.

The second effect of the amendments relates to a potential role for non-elected members of an ITA. The Bill allows the flexibility for non-elected members to be appointed to an ITA—for example, representatives of transport users, businesses and other groups—so long as they will be a minority of the members of the ITA. These amendments provide that such non-elected members may be granted voting rights on the ITA only by the existing voting members of the authority. This will ensure the democratic accountability of the ITA.

Amendment No. 166 restricts the power to make secondary legislation under Part 5 and makes clear that supplementary provision made under the powers in Clause 86 cannot amend or disapply the political balance requirements contained in the 1989 Act.

Amendment No. 164 provides that Clause 80 includes the power to delegate functions relating to local road-charging schemes. It also incorporates the safeguard that such functions may be delegated only with the consent of the majority of those authorities whose functions are to be delegated.

Amendment No. 168 relates to local road-charging schemes. It puts beyond doubt that English local authorities outside London, before making a local road charging scheme, will be required to consult such local persons, and representatives of local persons, as they consider appropriate. The key point is that there must be local consultation. That was a concern of the party of the noble Lord, Lord Hanningfield.

Amendment No 167 provides that orders made under Part 5 of the Bill, establishing new ITAs or reforming existing ones, will not be subject to "hybrid instrument" procedures in this House. I apologise to the House that this provision was not included in the Bill at its introduction. It is regrettable that the question of hybridity was not raised until after the Bill had passed through the House of Commons. It is all the more important, therefore, that I set out to the House today the compelling reasons that have led us to seek this new provision, given the concerns set out by the noble Lord, Lord Bradshaw, in Amendment No. 167A.

There are four reasons for the course of action that we propose. First, the Bill, together with the new duties introduced on 1 April this year by the Local Government and Public Involvement in Health Act, provide that orders under Part 5 will receive detailed scrutiny inside and outside Parliament. The order to set up or amend an ITA would be made only after a local area had had the opportunity to review its existing governance arrangements and to develop proposals for reform, in consultation with interested parties.

Clause 73(10) and Clause 85(4) provide that the Secretary of State must consult relevant local authorities and other parties with an interest before any orders are made. These are two substantive consultation processes, one at local level and the other at national level, which must be conducted before any order can be laid before Parliament. Furthermore, the Secretary of State, before preparing any order, would have full regard to the quality and outcome of local consultation. If proper consultation and reasonable decision-making were not observed at either local or national level, proposals and draft orders would be subject to judicial review. That is all before any order comes to this House and to the House of Commons for an affirmative vote. Therefore, there is no want of transparency, or of consultation, or of power and ability to object, or of checks and balances in the proposals that I commend to the House this evening.

Secondly, over and above the provisions in the Bill, we will be making explicitly clear in guidance the necessity for local authorities to consult widely with affected bodies and persons in carrying out reviews of their governance arrangements ahead of any proposal for change being submitted to the Secretary of State. This guidance could be a further basis for judicial review if it were not observed and conformity with the guidance will be a key factor in the Secretary of State's judgment on whether local proposals can proceed.

I emphasise that the Secretary of State's resulting proposals are subject to further statutory consultation. If noble Lords are by now seized of the scale and scope of the consultation that is involved, they are right to be so. Our expectation is that it will take around two years for this process to be complete in respect of each successful ITA scheme.

Thirdly, I know that there is concern about the precedent that the dehybridity provision may have in terms of the powers and prerogatives of your Lordships' House. Let me address that issue directly. Provisions of a dehybridising nature are not uncommon for secondary legislation dealing with governance issues of the kind that we are considering here. The Delegated Powers and Regulatory Reform Committee specifically says as much in its report on the Bill, when it concludes that the provisions are "not unusual". The committee goes on to say:

"We draw the disapplication to the attention of the House so the House may satisfy itself that the alternative consultation procedures are an adequate alternative".

I have dealt with that point at some length and I hope that the House will agree that the alternative consultation procedures are adequate.

The precedents for the dehybridity provision are recent and relevant. They include the Local Government and Public Involvement in Health Act 2007, covering orders to establish new unitary councils, the Housing and Regeneration Act 2008, in respect of orders designating areas as suitable for development, and the Local Government Act 1992, in respect of orders to change local authority boundaries and establish new authorities. Those provisions are directly comparable with those that I am proposing to your Lordships' House now.

In respect of the 2007 and 2008 precedents that I have cited, neither was objected to by the Delegated Powers and Regulatory Reform Committee. The committee did not exist in 1992 to comment on those proposals, but in respect of the 2007 precedent, the Local Government and Public Involvement in Health Act 2007, the committee reported in precisely the same way as it reported on the provisions in this Bill. It did not regard the provisions as inappropriate but said:

"We draw the disapplication to the attention of the House so that the House may satisfy itself that the alternative consultation procedure is adequate".

Having looked at the Hansard record of the debates both on the Housing and Regeneration Act 2008 and on the Local Government and Public Involvement in Health Act 2007, I can tell noble Lords that there was no objection from either of the parties opposite to those proposals when they came forward in almost exactly the same form as the proposals have come forward in respect of this Bill. Therefore, the dehybridisation provisions in this Bill have good precedents and go alongside robust local and national consultation procedures, which we believe meet the points raised by the Delegated Powers and Regulatory Reform Committee.

Let me move to my fourth point, which is about why, in this context, we believe that the provisions in Amendment No. 167 are so necessary. After all the consultation that I have set out, which, as I said, could lead to two years of consideration, if an order was ruled hybrid and petitioned against, perhaps by just one interested party, that would extend the length of time needed to approve the order by as much as, on the precedents that we have studied, six months. That would not only substantially delay changes to governance arrangements that enjoyed widespread support locally and had undergone the thorough consultation process that I have just described, but would also add considerably to the expense of bringing proposals forward, introduce uncertainty into the timing of making orders and act as a potentially significant deterrent to the use of powers provided by Part 5 in the first place.

This would be an especially perverse outcome, as I know that the noble Lord, Lord Bradshaw, and my noble friends wish integrated transport schemes to come forward in appropriate circumstances. They would not, I hope, wish to see a further—and I would argue unnecessary—duplication and complication of consultation and decision-making procedures act to dissuade authorities from coming forward with the very proposals that we are seeking to promote in the first place. For all these reasons, I venture to suggest that the proposal is sensible, proportionate and necessary if we seriously want to see effective integrated transport authorities established in our major urban areas.

Moved, That the House do agree with the Commons in their Amendments Nos. 159 to 162.—(Lord Adonis.)

Photo of Lord Rosser Lord Rosser Labour 8:30 pm, 18th November 2008

My Lords, I will speak to my Amendment No. 163B. I welcome the moves that the Government have taken to clarify local authority rights to determine the powers that are available to any non-elected members that are co-opted on to the new integrated transport authorities following local reviews. That is a change since the Bill left this House.

It is absolutely right that the power should lie with the reformed ITAs to determine whether non-elected members have a voting role to play on their ITAs and what that role should be. However, there is a possibility that the powers given to the reformed integrated transport authorities under the Commons amendments before us today could, in certain limited circumstances, be abused. This issue was discussed at some length in the other place, but I am not sure that the significance of the arguments was fully taken on board.

I tabled my amendment because I believe that only those integrated transport authority members elected by their constituent councils can properly decide what the powers of non-elected members should be. This is in contrast with the Commons amendment, which requires that the voting members of an integrated transport authority are those that should determine the rights of non-elected members.

If a political group came to the conclusion that it was likely to lose power on an integrated transport authority, it might be tempted ahead of an election to ensure that it had politically sympathetic non-elected members in place and then to confer full voting rights on those non-elected members to keep it in power after the election, given that the number of non-elected members can be just below 50 per cent of the ITA membership. The voting rights conferred could include the right to determine future voting rights of those same non-elected members. That would surely be a negation of local democracy. The purpose of this amendment is to prevent that from happening by ensuring that the members appointed by the constituent councils could determine at any time the voting rights of the non-elected members.

If the Minister cannot accept the amendment, I hope that he will be able to give a clear assurance that he will use secondary legislation to prevent the rights of non-elected members from being carried forward from one municipal year to the next, so that elected members have the ability to review voting rights on an annual basis and, in that way, to ensure that local democracy is protected.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I will speak to two amendments in the group, one of which was just spoken to by the noble Lord, Lord Rosser. First, I ask the Minister to give us a clear statement on what is meant by "political balance". Does it mean that the ITA should reflect the votes given for each party in proportion, or does it mean the political balance in each council? The two things are quite different. Secondly, is it proposed to issue any guidance to ITAs on the sort of people whom they should seek to be non-elected ITA members? Thirdly, will he give thought to creating safeguards against an outgoing administration who know that they will not win an election packing the ITA with their friends and, as it were, lumbering the incoming administration with a group of people who will not work with them?

Amendment No. 167 is on hybridisation, which is a complicated subject. The Minister emphasised the delay that would be occasioned by coming to the Chairman of Committees, who would rule whether the governance order was hybrid. Then this House would proceed quickly through hearing an aggrieved party; it might be an authority that does not want to be part of the ITA. When such a party has the opportunity of coming to Parliament, the House of Lords would convene its Hybrid Instruments Committee. The party has to have sufficient standing; it has to be someone who is protesting not just for old times' sake, but from a point of proper locus standi.

I take the Minister back to the passage of the West Northamptonshire Development Corporation (Area and Constitution) Order 2004, which I am certain is not at his fingertips. It was dealt with rapidly in this House. Five groups of petitioners were found to have standing, including a local authority, the Campaign to Protect Rural England, a group of individuals and two campaign groups. However, the report of the Select Committee was published two weeks after the hearings, so there was no delay in this House.

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, it may surprise the noble Lord to know that I have that precedent here and I do not believe that it supports his case at all. The West Northamptonshire Development Corporation (Area and Constitution) Order 2004 was laid before Parliament on 13 May 2004. The order was not referred to a Select Committee until 7 September because of the processes that had to be gone through. The committee began its consideration on 25 October. It sat for seven days, visited Northamptonshire on 3 November, announced its decision on 4 November and published its recommendations on 17 November. By my calculations, the time between the order being laid and the final process having been gone through is precisely six months and four days, which supports the point that I made earlier. He is referring simply to the time for which the committee itself sat, but that is only a small proportion of the total time involved in going through the hybridity requirements laid down by the procedures of the House.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 8:45 pm, 18th November 2008

My Lords, I still believe that what the Minister is proposing is a negation of the proper democratic rights of the people of this country to come to the House of Lords and to present the case that they may have against an order. The Minister will know—and he will probably gain considerable experience of the way in which affirmative orders are dealt with in this place—that there is usually no way that such orders ever get voted against. This procedure would allow people to have their say. Therefore, I would defend it as being superior to the affirmative procedure, which no doubt government officials would like to put in place because they like nothing better than to have everything organised. Occasionally, the interests of democracy are best served by allowing the people to approach Parliament and to have their say.

Photo of Lord Hanningfield Lord Hanningfield Shadow Minister, Transport

My Lords, I am slightly confused by the last part of this debate. Let me return to the amendment put forward by the noble Lord, Lord Rosser. I have been in local government for a long time and I know that there can be gerrymandering before elections. It is important that the democratic results of an election are reflected in the membership of ITAs, so I share some of the concerns expressed by the noble Lords, Lord Rosser and Lord Bradshaw. I know that this will be referred to in secondary legislation, so I hope that the Minister can give us some reassurance on that point. On hybridisation, I have a lot of sympathy for what the noble Lord, Lord Bradshaw, was saying, but I have become more confused about it as a result of the timescales that the Minister has put forward and the delays that this might cause. I, too, support the democratic process through which people have a right to present their case to us, but perhaps the Minister might clarify how he can help this situation.

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, first I will deal with the fears raised by my noble friend Lord Rosser about the gerrymandering of the membership of an ITA by means of the granting of voting rights on an inappropriate basis to non-elected members. The Government moved Amendment No. 166 to ensure that the political balance rules that apply under the Local Government and Housing Act 1989 cannot be amended or disapplied by supplementary provision in an order under Part 5. Section 15 of the Local Government and Housing Act 1989 sets out the principles by which appointments to bodies such as ITAs are to be governed. Among other things, the effect of this is that when political composition of the representative councils on a relevant local authority body changes, for example at a local election, the duty on those authorities is to review the membership as soon as is practicable thereafter to ensure that the principles of political balance are correctly maintained.

In addition, Clause 89 allows the Secretary of State to issue guidance on, among other things, the carrying out of governance reviews and the membership and constitutional arrangements for ITAs. A draft of this guidance was issued in December 2007 and is currently being revised. We intend to use the guidance to underline a series of principles in relation to the appointment and granting of voting rights to non-elected members of ITAs, which meet the concerns raised by noble Lords.

These include, first, that where persons other than elected members have been appointed to an ITA, the elected members of that ITA should review periodically whether and on what issues the non-elected members are entitled to vote. This would apply most obviously where there have been changes to the elected membership of an ITA after local council elections. Secondly, voting rights for non-elected members can be withdrawn in appropriate circumstances as well as granted. Thirdly, any limitations on the right of appointed members of an ITA to vote and the circumstances in which the entitlement to vote might come to an end should be clearly set out in any resolution giving them an entitlement to vote.

In response to my noble friend Lord Rosser, I stress that the elected members of an ITA can revisit an earlier decision of theirs to grant voting rights to one or more non-elected members. That is clearly supported by Section 12 of the Interpretation Act 1978 which makes it clear in relation to powers conferred on bodies through legislation that,

"it is implied, unless the contrary intention appears, that the power may be exercised ... from time to time as occasion requires".

The clear implication is that the power for an ITA itself to confer voting rights on non-elected members is not a one-off power that, once exercised, cannot be amended or reversed. I think that meets my noble friend's concerns on the status of non-elected members and any voting rights which may be conferred on them.

In response to the argument of the noble Lord, Lord Bradshaw, on the hybridity procedures, I believe I set out the fullest possible explanation about why we regard these proposals as necessary. The noble Lord, Lord Hanningfield, wished to be satisfied that there were good precedents for what we are doing and that we had adequate processes of consultation in place. I can reassure him on both points. The Bill already provides that there should be detailed scrutiny, both at local and national level, before any orders are made in respect of an ITA. We shall be issuing guidance on the type of consultation that will be required. The Secretary of State will have full regard to the quality and outcome of a local consultation before making any orders at national level and, of course, if proper consultation and reasonable decision-making are not observed, either at local or national level, proposals and draft orders could be subject to judicial review. That is an elaborate and very thorough process of consultation, which I believe meets the full, legitimate expectations that one can have of the decision-making process set out by the noble Lord, Lord Bradshaw.

On the precedents, the noble Lord, Lord Bradshaw, did not answer the points I made. There are clear precedents for this action, not only in the recent past but in the very recent past, in the Local Government and Public Involvement in Health Act 2007, in the Housing and Regeneration Act 2008, both of which have provisions which are almost identical to the provisions we are proposing in the Bill, and in the Local Government Act 1992, in respect of orders to change local authority boundaries and establish new authorities, a situation very similar to that in which we envisage proposals being brought forward in respect of ITAs.

Not only are those precedents, but they are precedents of proposals which were not opposed by either of the other parties. There is a good and, to my mind, sufficient reason for bringing this proposal to the House: we do not regard it as reasonable and over and above the extensive consultation requirements before orders in respect of an ITA can be made at national and local level, that there should be a further process which could be gone through in this House. That would only duplicate previous consultation processes, delay the decision-making process and, crucially, make it less likely that proposals in respect of ITAs will come forward in the first place, which is the very purpose that this Bill seeks to serve and which, I believe, has widespread support across the House.

On Question, Motion agreed to.

Amendment No. 163

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 163.

Moved, That the House do agree with the Commons in their Amendment No. 163.—(Lord Adonis.)

[Amendments Nos. 163A and 163B not moved.]

On Question, Motion agreed to.

Amendments Nos. 164 TO 166

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 164 to 166.

Moved accordingly, and, on Question, Motion agreed to.

Amendment No. 167

Clause 87, page 74, line 6, at end insert—

"(3) If, apart from this subsection, an instrument containing an order under this Chapter would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not a hybrid instrument."

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 167.

Moved, That the House do agree with the Commons in their Amendment No. 167.—(Lord Adonis.)

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 167, leave out "agree" and insert "disagree".

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I have spoken to this amendment with Amendment No. 159. I believe that the Minister has exaggerated the extent of the delay because there is a certain parallel movement in these procedures. In fact, it could be possible to accommodate our hybrid instruments procedure within the 12-month timeframe that the Government contemplate will be needed between the publication of the ITA governance review scheme by an ITA or local authority, and the making of the resulting ITA order by the Secretary of State. I beg to move.

On Question, Whether the said amendment (No. 167A) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 87.

Division number 4 Private Parking: Ports and Trading Estates — Local Transport Bill [HL]

Aye: 41 Members of the House of Lords

No: 85 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

AMENDMENT NO. 168

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport) 9:05 pm, 18th November 2008

moved Amendment No. 168:

Clause 104, page 81, line 38, at end insert—

"(1A) For subsection (1) substitute—

"(1A) Where the charging authority or any of the charging authorities are—

(a) a local traffic authority for an area in England, or(b) an Integrated Transport Authority,that authority or those authorities (acting alone or jointly) must consult such local persons, and such representatives of local persons, as they consider appropriate about the charging scheme.

(1B) In subsection (1A)—

"local persons" means any persons who are likely to be affected by, or interested in, the making of the scheme;

"representatives" means any persons who appear to the charging authority or charging authorities to be representative of local persons.

(1C) In any other case, the charging authority or the charging authorities (acting jointly) may, at any time before an order making, varying or revoking a charging scheme under this Part is made, consult such persons as they consider appropriate about the charging scheme, variation or revocation."."

On Question, amendment agreed to.

AMENDMENTS NOS. 169 TO 173, 178 AND 179

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 169 to 173, 178 and 179.

Amendment No. 169 relates to the New Roads and Street Works Act 1991. Government policy is to encourage efficient and effective working in the highway, with works properly co-ordinated by the highway authority. Key to that is the need for the authority to be given notice of works in its highways carried out by undertakers, whether they are placing, maintaining or removing apparatus in or below the highways or consequential works—for instance, carrying out a permanent reinstatement as a separate phase or works to remedy a failure to complete a reinstatement to the correct standard in the first place. All occupy the highway and impact on our crowded roads and, as I know from my one month in this job, are matters of acute concern to the public and to Members of your Lordships' House.

Following a judgement by the Divisional Court last November, there is a lack of legal certainty about what works are required for or incidental to placing, maintaining or removing apparatus, and fall within the definition of street works. The amendment is intended to confirm the existing view and practice that "street works" includes reinstatement or remedial works and remove that uncertainty.

Amendment No. 170 relates to the Traffic Management Act 2004. Government policy is to encourage local authorities to take over from the police service the enforcement of parking restrictions. When a local authority does that, police resources are released for more serious matters. It also means that a single body—the local authority—is responsible not only for developing parking policies, but for enforcingthem. The parking components of Part 6 of the Traffic Management Act 2004 came into force on 31 March this year.

Despite comprehensive consultation and scrutiny, it subsequently came to light that the definition of "local authority" in the Traffic Management Act, read with other provisions of that Act, means that shire district councils may not be able to make full use of the new enforcement powers in their off-street car parks or in relation to any free on-street parking they authorise. The anomaly has no impact in relation to enforcement by London boroughs, unitary authorities or metropolitan district councils nor does it in any way affect the enforcement of yellow bands or pay-and-display restrictions.

Furthermore, the department considers that parking attendants appointed before 31 March under provisions of the Road Traffic Regulation Act 1984 are unaffected by the anomaly. However, to enable shire councils to continue to enforce off-street controls and appoint sufficient numbers of parking attendants to do so,, the department also introduced temporary amending regulations under the Traffic Management Act. Provided that the amendment is accepted, the amending regulations will no longer be necessary and can be revoked.

Amendment No. 170 makes clear in primary legislation for the long term that a shire district council has the power to appoint the civil enforcement officer who would serve the penalty charge notice to the motorist who has parked in contravention of the parking regulations in a local-authority-owned, off-street car park. Amendment No. 170 also makes minor amendments to other provisions of Part 6 of the Traffic Management Act to make sure that council waste-collection vehicles operated by non-metropolitan district councils are exempted from restrictions on double parking and parking at dropped kerbs, as originally intended under those provisions. Finally, the amendment makes it clear that guidance issued on parking will have statutory force in relation to non-metropolitan district councils.

Amendment No. 171 amends the definition of conditional offers in Section 90F of the Road Traffic Offenders Act 1988 so that it refers also to conditional offers made by the Department for Transport's vehicle examiners in Scotland. The amendment is needed to ensure that the provisions inserted by the Road Safety Act 2006 into the Road Traffic Offenders Act work as originally intended. Unfortunately, when the Road Safety Act provisions were drafted, the definition of conditional offer in this context was not amended to include conditional offers issued by VOSA's vehicle examiners in Scotland. Unless this deficiency is corrected, it will undermine the scope for VOSA's vehicle examiners to take effective enforcement action against foreign vehicle operators while operating in Scotland. This error was only identified recently in the finalising of secondary legislation and the Local Transport Bill provided a useful opportunity to make this minor technical amendment.

On Question, Motion agreed to.

Amendment No. 174

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 174.

Moved accordingly, and, on Question, Motion agreed to.

Amendments Nos. 175 to 179

Photo of Lord Adonis Lord Adonis Minister of State, Department for Transport, Minister of State (Department for Transport)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 175 to 179.

Moved accordingly, and, on Question, Motion agreed to.