Schedule 3 - Schedule 4B to the New Roads and

Traffic Management Bill – in a Public Bill Committee at 3:00 pm on 3rd February 2004.

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Question proposed, That this schedule be the Third schedule to the Bill.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

I seek information from the Minister on the schedule. Paragraphs 4(2) and 5(1) refer to the penalty period and to

''the day on which the notice is given.''

When the Minister draws up the regulations or the guidelines, will he clarify what the words ''notice is given'' mean? Do they mean the date when the notice is issued or the date when the notice is received, or deemed to have been received, by the person alleged to have committed an offence? I hope that it means the latter if the notice is not served personally, because if the notice is issued on, say, Maundy Thursday, the person to whom it is addressed may not receive it until well over a week later because of the Easter holiday.

That takes me to paragraph 6, which refers to a person being served with a fixed penalty notice. What in the regulations or guidance will the Minister say is service? When I had my law practice, we operated under the strict rule that if we were acting on behalf of a plaintiff and were instructed to serve a writ on a defendant, we had to serve the writ. That meant the solicitor or his articled clerk going out, usually at teatime, to the defendant's address and knocking on his door. If his wife answered the door, the solicitor had to ask to see the defendant and, as soon as he saw him, physically touch him with the document. What the defendant then did with the document did not matter: he could throw it away, throw it at the person who had served it or put it under the windscreen wiper of his car. He had been served. The solicitor had touched him with the document and had therefore given him the opportunity to respond to it.

Does service mean that in the schedule? I am becoming increasingly concerned that these days a growing number of bodies seem to think that, if a document is put in a post box with a postage stamp affixed to it, that is service and it is deemed to be operative from the next day. For the last three weeks, I have sent post to my constituents in House of Commons envelopes with a first-class stamp, and they have not received it the following day. In some

cases, the post has taken three days to arrive. I cannot see how, when one is alleging that someone has committed an offence, one can simply put the fixed penalty ticket in a letter box and assume that the person receives it the following day: it may take two or three days to arrive. Proof of service should be a requirement of the person issuing the ticket.

One cannot even rely on Departments if one is seeking to serve something through the post. A few years back, I needed to have a motor vehicle document altered, so I posted it to the DVLA in Nottingham, to the address in the phone book. Having heard nothing for five weeks, I telephoned and was told, ''We've left that office. We now occupy new premises.'' I said, ''Surely you've got your post on divert.'' I should have thought that a Department of government would at least have done that, but it had not bothered to do so. The document was lost, and I had to make a declaration. I do not want to hear the Minister say that partnerships and those doing this sort of work should make sure that they read their post every day, because Departments do not do it and do not even notify the public when they change their address.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs) 3:15 pm, 3rd February 2004

I also want to take the opportunity to ask the Minister a few questions about the schedule. First, paragraph 6(5) says:

''In proceedings for the offence a certificate which—

(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the street authority''.

Will the Minister explain why it does not have to be signed by that person? That seems a very odd state of affairs. Will he also comment on the suggestion that an authority that imposes a notice, which it subsequently withdraws, should be liable for compensation for the costs and inconvenience incurred as a result of the false issue of the notice? Will he comment on paragraph 8 that refers to the Secretary of State being able,

''with the consent of the Treasury'',

to make regulations about the fixed penalties? Will he explain why it is necessary for the Treasury to be party to that?

Will he provide some idea of the circumstances in which he expects fixed penalty notices not to be given? Will he also provide an idea of the periods within which it is reasonable for those notices to be given and to be paid? Paragraph 4(2) states a ''period of 29 days'', which is a pretty tight procedure for a large organisation to pay the penalty notice. If the notice is contested, the 29 days continue to run, which would inhibit the statutory undertaker from querying the fairness of its issue.

Photo of John Thurso John Thurso Shadow Secretary of State for Transport, Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Scotland)

I ask one question of the Minister, which relates to paragraph 7 and the power to withdraw notices. It gives the street authority the power to withdraw notices if it thinks that it

''ought not to have been given''.

Paragraph 7(3) states:

''The street authority shall consider any representations made by or on behalf of the recipient of a fixed penalty notice and decide in all circumstances whether to withdraw the notice.''

Will there be any form of independent adjudication, which I understand to be the case in most fixed penalty notice regimes?

Photo of John Redwood John Redwood Conservative, Wokingham

I share the worries of my right hon. Friend the Member for East Yorkshire and others who think that we would benefit from greater clarity. I would add to the worries that my right hon. Friend expressed the possibility that a company or an individual may have moved address between the time that the authority first researched the alleged infringement and the delivery of the ticket for the offence. Forwarding arrangements do not always work well. Would it be regarded as good service to have delivered the fixed penalty notice to the old address of the individual or company when they may have been genuinely unaware of the alleged offence and they did not get the document forwarded through the post?

We also need to know what happens in the event of an individual receiving a ticket and not paying it within the specified time. How much grace will they be given, given the vagaries of the postal system and the difficulty of sometimes getting the requisite amount of money back? What action will the Government take if they feel that the delay by the person in receipt of the ticket has been unreasonable? We need to understand that in the modern world the post can go astray, people may have moved address, there may be difficulties in due service and that there may not have been a delay by the person in receipt of the ticket; it may have been the delay or non-arrival of the fixed penalty notice.

The London authorities have found many such cases with the congestion charge, in which there is an accumulating penalty on those who do not pay. It seems unfair if the individual is unaware that they infringed the congestion charge zone and they have not received the ticket at the address at which they normally reside in a timely way that enables them to respond and pay. We should learn from those experiences of difficulty in compliance, rather than non-compliance, which seem to be emerging in many of the fixed penalty regimes, and we should try to do rather better with this one. We want payments due to be paid in a timely way, but we also want the person targeted for the penalty payment to know in good time and to have the proper amount of time to respond or appeal if they think that the penalty is unreasonable. I am not sure that that is embedded in the schedule. It may need a little work to reach that happy state. I would have thought that the Minister would want that as much I do.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

I am grateful to all hon. Members for their contributions. They raise fair points that, ironically or otherwise, reinforce what I was saying earlier about there needing to be a hierarchy between the less serious—if I can put it in those terms—offences and the more serious offences. We must bear it in mind that we are talking about six offences under new schedule 4A to the 1991 Act that are all about active works that are taking place at the time. Let me remind the Committee that we are talking about advance notice of certain works; notice of starting

dates, emergency works and completion of reinstatement; the

''charge for occupation of the highway where works unreasonably delayed'';

and the

''charge determined by reference to duration of works''.

We are talking about those six offences to begin with, and no more.

On the point about adjudication and the subsequent appeal, in the first instance, I would request that the working party look at that matter. Those directly involved at both ends—in implementing the process and in other respects—will make recommendations to us, which will be reflected in regulations. The details of the regime, appeals, fine rates and methods of payment will all be reflected in the regulations, through the working party.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

Is it one option to include someone who represents business—the small business man likely to be affected—on the working party?

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

We may consider that, although I would rather stick with the working party that exists. I will explore matters and get back to the right hon. Gentleman and his colleagues. If there is a way of enabling Committee members to peruse the report from the working party and subsequent regulations prior to the formal parliamentary process, I am more than happy to explore it, because I would value that.

We need to ensure that we include an array of people who reflect the utilities industry—if that is the word—at its broadest. As my hon. Friend the Member for Milton Keynes, North-East (Brian White) said some time ago—it feels like months ago—there are very small entrepreneur outfits that are ploughing on with broadband and the high IT end of street works. We need to ensure that that is reflected, and I will try to do so.

I would value the input of the Committee at the appropriate stage during the deliberations. That is entirely right and will make for a more informed debate when we discuss the regulations. It would be more than appropriate, given the rather Christmas-tree nature of the Bill when it comes to regulations and so on.

The rules of service are as in section 97 of the 1991 Act. I know that it is not terribly helpful to go back to that section, but if we look behind it, it is clear what the rules of service are. The right hon. Member for East Yorkshire made a point about which date should prevail—when the notice is sent, or when it is received. It is the latter: when the notice is received.

In the broader context, were it not for advances in technology, some of the points made would have merit. Given that we are talking about live works and that the transgressions are principally about noticing, it would be extremely rare for a utility company—small or large—to move office for the duration of whatever street work is required. In the broader sense, I take the point about the vagaries of the postal system.

Photo of John Mann John Mann Labour, Bassetlaw

May I ask a small question of clarification? Will any of the sanctions

apply to a local authority that, for example, fails to give due notice?

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

It will not, in terms of the fixed penalty notice, because they will not be serving fixed penalty notices on themselves. We have entertained that debate at other times. Throughout the Bill, the same duties are being afforded to local authorities to comply with as are afforded to utilities and other contractors who engage in street works, but through different routes. We will not have a stage at which one part of the local authority will impose a fixed penalty notice on another.

Photo of John Redwood John Redwood Conservative, Wokingham

I can give the Minister a personal example of the mistakes that happen. My house in London is close to a small office building in the adjacent street. The office put in for a planning application, which was granted, for major refurbishment works. The local authority mistook the address and put mine on all the documentation. I received all the bills and notices for the contractor, which I could have done without. I am pleased to say that I managed to duly serve them on the contractor, but had it been during the long summer break, when I am away, the documents would have sat there for a long time with no action taken. I do not know whether I would have been in more trouble or the company, but I hope that it would have been the company.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport

I take that point. Mistakes will invariably be made. That will be a matter for the adjudication process that the working group comes up with. Where it is so clear and stark that there has been an error in that regard, with the wrong company served or whatever, it is appropriate that that is duly recognised.

The hon. Member for Christchurch mentioned the phrase ''purports to be signed''. I am told that it is standard legalistic phraseology and means that documents can be signed by an authorised person on behalf of the local authorities. Clearly, the London borough of Westminster does not sign documents itself, but needs an authorised person to sign on its behalf. I am told that ''purported to'' means that and simply that. Like a lot of little buzz words that, to me, do not resemble English, let alone anything else, there is a logic to that in the legalistic world haunted by, among others, the right hon. Member for East Yorkshire.

All the points made are important and I understand them. I am not trying to underplay the notion of mistakes, but given that we are talking about six offences that are principally noticing offences for live works, rather than something that is being chased up three or four years later, that the schedule as laid out is reasonable, and makes reasonable amendments to the 1991 Act. I commend the schedule to the Committee.

Question put, That this schedule be the Third schedule to the Bill:—

The Committee divided: Ayes 8, Noes 5.

Question accordingly agreed to.

Schedule 3 agreed to.