I beg to move amendment No. 197, in
page 20, leave out lines 16 to 18 and insert—
' ''(3A) An undertaker shall be taken not to have failed to fulfil any statutory or contractual duty to afford a supply or service if, or to the extent that, his failure is attributable to a direction under this section''.'.
I apologise to my hon. Friend the Minister for reading John Grisham at Christmas and being tempted down the route of examining contractual issues. Having had discussions with a number of companies about broadband, one of the things that they pointed out about the Bill is that there is no protection for contractual work to provide and maintain a service. Many of the utility companies, particularly the newer ones, have contracts with customers to supply services on strict delivery time scales with penalties applying, and so on. The concern is where either there are long-term contracts that have already been entered into, or where there are penalties involved, and whether the operator of the scheme will unduly enforce penalties. In other words, I am seeking an understanding from my hon. Friend that the operation of permit schemes, or of various other statutory schemes, will not result in penalties for operating companies arising from circumstances that are outside of their control. If the problem is their fault, that is fine—they have control and can take measures to avoid any problems—but if the problem emerges as a direct result of factors outside the company's control, they might feel that there is an issue that my hon. Friend could address. I will not push the amendment to a vote, but I would seek my hon. Friend's assurances on these points.
I shall be brief, Mr. Beard. Amendment No. 204 seeks to insert, in subsection (4) on page 20, the word ''solely'', so that the provision reads that
''an undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is solely attributable to a direction under this section.''
If one is saying that there is a new power to make directions, and that that has an effect upon an outcome, that is what it should be. It should not be partially that, and partially something else. I would be interested in the Minister's comments.
I have a slight concern, which relates to the intervention that I made on the Minister a few minutes ago, on the interrelationship between the local authority and the private contractor. My experience of the appropriate local authorities—indeed, it is the case with my own local authority in recent weeks—is that they are not necessarily too coherent in their own planning. One of the pressures is the expenditure of end-of-year budgets, which could lead to large amounts of street works being carried out by them in February and March. There is a danger that they may, on occasion, be tempted to overuse their position in being able to direct private operators who are carrying out street works. This danger of arbitrary decision-making by the local authority needs to be considered, especially as there will be no sanctions on the local authority. I would prefer to see the Minister have some sanctioning powers.
With public good will and business efficiency at stake when dealing with the movement of traffic, examples such as the closing of one of the major artery lanes in Worksop town centre as a result of an experiment undertaken by the local authority can have significant knock-on effects, and I would not want to be in a position whereby, having done that, the local authority attempts to use its powers to pressure any of the utilities in any way. I seek assurance from the Minister that those powers would not be there with this or any other clause.
The other example I could cite is much more recent. It is the removal of the road humps in Manton, a long-overdue process. If we were to consider notification of start dates and end dates, change to notification at the last minute, and failure to notify the general public or indeed anybody else of what was going on, it would be a classic case of a local authority trying to balance its available direct labour and sub-contractors to fit in with other priorities and to change what it was doing. That is precisely the problem that seems to have bedevilled private operators, and it may have led to the introduction of the Bill in the first place.
I seek an assurance that having wisely determined, as the example of the road humps illustrates, to execute works on the street, local authorities would not have any powers that could, by default, lead them to be prejudiced in their thinking over other powers that might be available.
I assure my hon. Friend the Member for Bassetlaw that the key difference between the current positions that he describes and the world as it will be if the Bill prevails and becomes an Act is that a local authority would not act in such a fashion if that impinged on what clause 16 provides about network management duty. At present, local authorities do not need to ensure, although many do, that the execution of their own works is carried out effectively and efficiently in the way outlined by that clause.
I shall disappoint my hon. Friend the Member for Milton Keynes, North-East, but not because I want to berate him for reading John Grisham. I quite enjoy John Grisham, whose work is far better than some of the other lighter-weight literature that one reads over holiday periods, especially from disgraced former Tory peers. It is not for the Bill to determine or change in any way the body of law relating to tort or contract law, so I cannot change the Bill or make changes to contract law to reflect what is in the Bill. It happens the other way round. It is up to those who enter into commercial or private street works contracts to reflect the changes in legislation that the enactment of the Bill will bring about. It is not for the Bill to take account of contractual relationships entered into by utilities or others.
The Government wish to extend broadband throughout the country, and a key feature of that is the speed with which companies can respond to their customers. One fear is that a knock-on effect of the clause could be to put a brake on that and hold companies back. It is to prevent that that I have raised the issue with my hon. Friend the Minister.
I fully understand why the issue was raised. It is important that it is on the record, if only to inform the working group's subsequent discussion on what we want, which is the most effective and speedy implementation of broadband. However, it is not our duty to allude in the Bill to commercial contractual relationships entered into subsequent to the Bill. The Bill prevails, period. Therefore, anyone entering into a subsequent contractual relationship will have to accept the full measure of whatever powers to direct the Bill contains, when it is enacted.
I follow the logic of my hon. Friend's position. Will he ensure that the working group examines the circumstances that must prevail in a number of major contracts currently in force? How will established contracts between, for example, other Government Departments and the private sector be treated in the context of the Bill, given the observations of my hon. Friend the Member for Milton Keynes, North-East?
I agree with that to the extent that my hon. Friend's points are all the more important in respect of the transition period between the Bill becoming law and the regulations taking effect, and the tail end of any contracts that have been entered into. I fully understand the point, and we will ensure that it is considered. As I said earlier, we will try to have the widest possible representation on the working party. Unless I am mistaken, the UK Competitive Telecommunications Association, which represents many of the small telecom utilities, will be on the working group. It can deliberate on precisely these important matters when it offers input to the working group. This is almost a Grishamesque comment: it is not for me or the Bill to reflect or change contract law as part of these proceedings. As appropriate, contract
law and contracts will have to reflect the Bill as another part of the body statute if it is enacted.
It is also important to note that other parts of the Bill make clear the distinction between statutory duties and contractual duties for some utilities. Matters such as duties on undertakers under the Gas Act 1986 and provision for reflecting the importance of statutory duties if a direction can impact on them are covered in the Bill. It reflects the regime already in place in the 1991 Act, so I need to make that distinction between statutory and contractual duties.
Almost the same point applies to amendment No. 204. Proposed new subsection (3A), which is inserted by clause 42, deals with a situation in which it is principally the direction or order that prevents an undertaker from carrying out its statutory duties. That is covered in the Bill, so the amendment is not needed.
The amendment seeks to provide that an undertaker
''shall be taken not to have failed to fulfil any statutory duty to afford a supply or service''
if its failure is solely attributable to a direction. However, proposed new subsection (3A) already says clearly that the undertaker
''shall be taken not to have failed to fulfil any statutory duty . . . to the extent''
that the failure is attributable to the direction. That allows the extent to which the direction was responsible to be taken fully into account as appropriate, in accordance with the circumstances of the case, which I believe deals with the important thrust of the amendment. There may be reasons other than the direction for an undertaker failing to supply a service, but the clause deals with my hon. Friend's point, which is a fair one, in that the extent to which an undertaker is unable to fulfil the statutory duty principally because of the direction is taken into account in clause 42. With all those assurances, I ask my hon. Friend to withdraw the amendment.
They have enough as it is.
I welcome the Minister's comments, particularly about the need to keep British industry competitive, and the way that he is using the working group to try to resolve issues that, as he accepts, are valid and need to be handled sensitively in determining the way in which this section operates. I shall reflect on what he has said. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Perhaps the Minister can help me with a point that has been raised by someone who has written to me about clause 42(3), which specifies serious disruption to traffic as the ground on which the local authority may intervene and give directions about the timing of street works. That seems not to take into
account factors such as the convenience of residents living adjacent to the road. The directions could require the work to be carried out not during the working day but at night, but the noise of pneumatic drills would be extremely inconvenient for residents living in the street. It does not usually matter if work is carried out at night on the motorway system, because any houses are further away from the work than they would be elsewhere.
Another point concerns the economic impact of work on businesses. At present, it seems that the provision is tilted only towards the criterion of whether there will be serious disruption to traffic. I should be grateful if the Minister would expand on the reason for that. The clause significantly widens the existing provision, which provides only for the time of day to be specified, not the days.
Another issue is whether local authorities will be able to act unreasonably and make the contractor work on days that are not continuous or on specific days of the week, which might mean that the work force and equipment would have to be removed or laid off on other days. To what extent can the Minister allay these concerns, some of which were also raised by the hon. Member for Milton Keynes, North-East when we discussed his amendment?
I am slightly perplexed and I am sorry if I am causing confusion where there is none. The main thrust of the clause is precisely to do what, in the first example, the hon. Gentleman was lamenting was not the case at present. As he rightly said, section 56 of the 1991 Act, while able to prescribe time, cannot prescribe day. We are seeking to widen that provision as broadly as possible to include many of the factors he suggested, so that, holidays and weekends can be included, and street works do not take place, for example, close to Chelsea football club or on cup final day at Wembly, when it is finished, to avoid serious disruption.
Absolutely. One thing that we are not doing is taking out the one piece of substance in the 1991 Act, which was to control timing during the 24-hour period that we colloquially call a day, but also includes night. We are not setting that power aside and replacing it with the powers in the Bill; we are simply broadening it, but that of itself is not sufficient. Weekends and holidays must be incorporated. Sometimes, the most efficient time to carry out street works is at night if that minimises disruption and, if appropriate, the chance of offending the local populace.
The detailed arrangements of how the directions will unfold will be set out in regulations and there will be consultation.
The Minister may have misunderstood the point that I am trying to make. My fears may be groundless, but it seems that the power to direct can be triggered only if the local authority believes that there is likely to be disruption to traffic if it is not triggered. I am asking about the situation when there may not be any threat of disruption to traffic, but there may be
substantial annoyance and inconvenience to local residents or economic loss to local businesses. I want the Minister to spell out why the provision it is confined to the criterion of serious disruption to traffic.
The provision is confined in part to reflect the starting point of section 46 in the principal Act, and in part because we are discussing legislation that refers to traffic management and its consequences. It must be seen in the context of street works, and they must be seen in the context of the new network management duties. It is entirely proper, and not necessarily resulting from the clause or the Bill, that local authorities give due regard to noise and other factors to which the hon. Gentleman refers.
Principally, the causes of disruption by street works with which we are most concerned are set out in paragraphs (a) and (b). The paragraphs state that the works
(a) ''are likely to cause serious disruption to traffic, and'',—
(b) ''that the disruption would be avoided or reduced if the works were to continue to be carried out only at certain times or on certain days (or at certain times on certain days)''.
It is entirely appropriate that local authorities can and should take account of all those other factors. Our principal concern is with traffic management, the disruption caused to the flow of traffic and its impact on the overall network management duty.
I am not undermining what the hon. Gentleman says about the other elements and circumstances. However, if work is wholly disruptive on the ground of noise to the point of being not only a nuisance, but worse, it should be picked up by environmental health, health and safety and other authorities.
In our goldfish bowl, it is easy to see the Bill existing in isolation, rather than in the wider context of all the other duties that local authorities undertake. The Bill does not say, ''Do not do it when there are football matches at a football ground, or any other sporting activity at a sporting location.'' Clearly, they cause significant traffic disruption in the first place, which would be reinforced by street works on Fulham broadway when Chelsea is playing at home and—who knows, even rarer—fielding an English player. I assure the hon. Gentleman that the Bill covers many of his suggestions; and what it does not cover is covered elsewhere in legislation.
Importantly, the Bill shifts from simply timing, which is already in the 1991 Act, to days, which allows greater flexibility in direction. It takes account of the wider circumstances that are pervading the local network at that particular time.
Question put and agreed to.
Clause 42 ordered to stand part of the Bill.