Clause 16 - Transfer of additional functions

Infrastructure Bill [Lords] – in a Public Bill Committee at 11:45 am on 18th December 2014.

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Question proposed, That the clause stand part of the Bill.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to consider clauses 17 and 18.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

Clause 16 confers a power on the Secretary of State to amend legislation by regulation, subject to certain exclusions, so as to transfer functions from the Secretary of State to the highways companies. I hope to reassure the Committee that this is a pragmatic provision intended to provide a mechanism for sensibly allowing the transfer of additional functions relating to highways or planning to the strategic highways company. Such a power may be of use in future, particularly if it is a relevant function connected to other functions being transferred to strategic highways companies under the Bill, such as those set out in schedule 1. The transfer of such additional functions may involve a transfer of function that we might not consider appropriate now, but might consider appropriate once the structure has been up and running for a few years and is established, and its needs are better understood.

Equally, it may have been that, in preparing this Bill, the significance of a particular function was underestimated, and it might become apparent with experience that  transferring is a sensible step to take. The clause therefore creates a power to deal with the dynamism associated with establishing the new body. Whatever the reason for identifying the additional functions, the regulations for the transfer of any additional functions will be subject to the affirmative procedure, to ensure that Parliament has a proper opportunity to consider the matter. We consider that an appropriate balance between pragmatic, flexible and commonsensical policy and proper accountability to the interests of producing an assessable framework within which the strategic highways companies can operate.

Clause 17 confers a power on the Secretary of State to make consequential, supplementary, incidental or transitional provisions by regulation in connection with any order appointing a strategic highways company under clause 1 or any other provision made under part 1 of the Bill. On Second Reading, the hon. Member for Hayes and Harlington raised concerns about that point; my written response is in the Library of the House. I think I have made this clear, but I will say one more time—although I am not sure I can guarantee that, so perhaps I should say “another time”—that there is no hidden agenda here. We are absolutely clear, and I think the Bill makes it crystal clear—if something can be clearer than clarity—that it will be a public body. There is no attempt or device here to affect that determined intention.

The powers provided are meant to ensure that any consequential, supplementary, incidental or transitional amendments that may be required can be made in secondary legislation necessary, as I said. I have already shared a draft of a consequential provisions statutory instrument with Committee members to aid understanding of how that power might be used in practice.

Finally, clause 18 provides interpretations of key words used in part 1 of the Bill. There is nothing unusual in the terms—as we discussed at our last sitting, “users of the highway”, for example, means any users of the highway, including cyclists and pedestrians—but a definition was added to clause 18 in the other place to put that beyond doubt. The hon. Member for Birmingham, Northfield mentioned that amendment when he spoke at our last meeting. On those bases, I therefore commend the clauses to the Committee.

Photo of Richard Burden Richard Burden Shadow Minister (Transport)

I will spend a little time, if I may, asking the Minister to add a little more clarification to his clarity on a number of points. The first relates to clause 16, which is about additional functions. Can he answer a couple of questions about the additional functions envisaged? In the other place, Lord Whitty argued that the Bill should be more explicit in setting out what the company’s functions, roles and responsibilities should be. Those could include road construction, improvement and maintenance, safety, reducing emissions, public consultation and engagement, and relevant research and development.

The Government did not consider that necessary at the time. The Minister has helpfully produced, in draft form, a statutory instrument setting out some functions that are envisaged, but we are still unclear—perhaps, more importantly, people outside this place might still be unclear—about what additional functions could be transferred.  

So in the light of the debate we had on Tuesday, it seems that functions could extend to commercial services and charging in some situations. The company will be able to authorise a third party to exercise those functions on its behalf. We would appreciate some further clarification on that point.

May I also raise a concern regarding planning, which may require the Government to consider transferring an additional function? It has been raised with me that the change of status will remove the current right of the agency to object to or place conditions on developments and the impact on the strategic road network. Currently, the agency acts on behalf of the Secretary of State and is able to intervene and require developers to contribute to the costs of upgrades or changes required on the strategic road network.

I now understand that the company will be a statutory consultee of the planning authority. That means that if planning permission is given for a development that could impact significantly on the strategic road network, the cost of the upgrade could be met solely by the company. That mirrors many of the issues of effective co-operation and consultation, which we discussed earlier in the week. I would appreciate the Minister’s response to that.

Clause 17 gives the Secretary of State regulation-making power to make consequential, supplementary and transitional provisions in connection with the Bill. In some places, that has been called a Henry VIII power and, as it was initially drafted, the Secretary of State would have been able to exercise it to amend, repeal or otherwise modify an Act. As we know, the House of Lords Delegated Powers and Regulatory Reform Committee issued a rather damning indictment of the clause, concluding that, as drafted, it was incoherent and unclear, and could have resulted in widely-drawn changes of legislation. That Committee said:

“We draw these powers, and the deficiencies in the explanations for them, to the attention of the House. We recommend that, unless the reason for their inclusion and their intended purpose can be fully explained to the satisfaction of the House, the words ‘otherwise modify’ and ‘(whenever passed or made)’ should be omitted”.

We sought assurances in the other place that there should be an affirmative procedure, and I am pleased to say that the Government accepted that. However, I wonder whether other Committee members are satisfied with the changes that have been made and the Government’s assurances.

Finally, clause 18 clarifies the interpretation of various terms in the Bill. We are pleased to see the Government recognise that the users of highways include cyclists and pedestrians. That is the explicit recognition of different types of road user that the Bill must reflect. I hope, as we get nearer to the conclusion of Committee and vote on new clause 4, that the Government side will consider that new clause 4 would add some extra voice to the intention of including other road users in the provisions of the Bill. I hope that they will support that when we come to that point in our proceedings.

Photo of John Hayes John Hayes Minister of State (Department for Transport) 12:00 pm, 18th December 2014

Let me deal with the matters that the hon. Gentleman has made, but not in the order he made them because I want to keep people interested. Let us deal with the Delegated Powers and Regulatory Reform Committee point, which is a good one. Its criticism was understandable. It expressed concern, as he said, that  the Bill permitted non-textual modification of primary legislation without using the affirmative procedure. We have amended the Bill to allow for that, as I made clear in my earlier remarks. That will give the House the chance to consider any modifications, which is right. Essentially, I agree with him that we need to debate it further.

The point about the cost, which was an interesting one, is a perfectly fair query. I would expect any of the current practice with which the Highways Agency is engaged to continue with the new body. I see no good reason to change that. It seems unacceptable for the costs of a particular scheme in particular circumstances to be borne by the new body if they are not borne by the Highways Agency. I reassure the hon. Gentleman about that.

On the issue of additional functions that might be transferred, that is, again, a fair point. It is hard to know at the moment what additional functions might be transferred. Indeed, in a sense, the clause is designed to deal with that uncertainty. For example, in relation to property management, the functions might be connected to that role. I want to be, as I said at the beginning, sufficiently permissive about what those functions might look like that we do not inhibit the flexibility and responsiveness of the new organisation, but not so much as to prevent proper consideration or scrutiny of any changes. Therefore, I am more than happy, if any of those changes are significant or substantial—that is, if the new body takes additional functions in the future that require further scrutiny—to agree to bring them before the House, perhaps in the form of a written statement, so that people can scrutinise what is happening. We need to consider what “significant or substantial” means because otherwise we could be doing that every day. None the less, I understand the hon. Gentleman’s point, and I will reflect on it and see if we can come up with a reasonable definition of “significant and substantial” and then work on the kind of approach that I have briefly outlined.

Photo of Richard Burden Richard Burden Shadow Minister (Transport)

I am grateful to the Minister because that will be useful in relation to the functions. On the point he made about charging, I again welcome his assurance, and his intention is clear. I have a suspicion that it might actually require a provision in the Bill, partly because of the status and nature of the company having been transferred. We have not tabled an amendment to that effect, but as we reach Report, the Government might want to reflect on whether such a provision needs to be in the Bill.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

So that we can make progress, I will reflect on that. If we consider the character of today’s discussion and believe that further measures need to be taken, beyond what we have already committed to in terms of affirmative procedure, then we will do it.

These matters are quite technical, but they are important. I do not want to inhibit the development of the new organisation, but on the other hand, we need to guarantee that there is proper scrutiny. I will reflect on that and I hope that on that basis we can make progress.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clauses 17 and 18 ordered to stand part of the Bill.