Modification of licence conditions under section 11 of the Transport Act 2000: appeals

Vehicle Technology and Aviation Bill – in a Public Bill Committee at 10:45 am on 21st March 2017.

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Photo of Richard Burden Richard Burden Shadow Minister (Transport) 10:45 am, 21st March 2017

I beg to move amendment 29, page 22, line 17, schedule 1, at end insert—

“(3A) An owner or manager whose interests are materially affected under subsection (2)(c) may be defined by regulations made by the Secretary of State following consultation on and publication of the criteria used to determine whether such persons are deemed materially affected.”

This amendment would require the Government to clarify what other persons or parties they intend to permit to appeal, who are not directly affected by licence modifications but may be considered materially affected.

The amendment is not only about the procedure by which NATS as the operator can appeal against proposed licence modifications by the CAA, but about who else will be in a position to appeal. The Bill refers to the Secretary of State’s power to give “prescribed aerodromes” a right of appeal. The amendment would give the Secretary of State power to prescribe proper scrutiny. We recognise that one of the benefits of the changes in the appeals process is the value of bringing in other parties to appeal, including owners or operators of aircraft, such as airlines. The extension to parties financially affected is clear, but what is less transparent is the permissions to parties materially affected by licence changes and the right of the Secretary of State to prescribe which operators can appeal on that basis.

The question we really want to ask the Minister is this: why is it necessary for the Secretary of State to have such power, other than to risk excluding some parties who may have reasonable grounds to lodge an appeal? Surely the Government could leave that to the Competition and Markets Authority.

Otherwise, if the Government are to decide, it is only fair that they should publish the criteria that they intend to use to prescribe who else will have the right to appeal against license modification, and to define who is materially affected by any such modifications, so that we can be assured that the power the Government are taking for themselves will be exercised reasonably.

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

Edmund Burke said that:

“Good order is the foundation of all things.”

The hon. Gentleman seeks in his amendment to ensure that the arrangements in the Bill are properly ordered, and that the powers are exercised through the proper channel. The effect of the amendment, as he describes it, would in part be to duplicate the proposed power to define through regulation which airports are considered to be materially affected by a licence condition, and to oblige us to consult on exercising the power. Once again, I assure him that such consultation is already standard practice and will continue to be so.

Like the hon. Gentleman, I think that there is little difference between us; this is a matter of exploring the application of a change introduced by the Bill that we all think is necessary. I am grateful to him, therefore, for the amendment, which provides me with an opportunity to clarify the Government’s intent in relation to aerodromes being able to raise appeals against licence modifications.

For absolute clarity, there are five airports at which the licence holder serves as a monopoly provider, in the particularly complex airspace in the south of England. As the purpose of the licence is to provide economic regulation, it is appropriate for those five airports to have access to the appeals mechanism provided in the schedule. Therefore, the Government intend that the regulations introduced under the power will list the five relevant airports, as the licence itself does. I would expect the regulation to remain in line with the licence in that respect.

Our approach has been determined through consultation prior to the Bill—the hon. Gentleman will be familiar with that consultation. As I said, it is certainly standard practice to consult when the Government make regulations of this kind, and I would expect to do so if anything were to change that approach in future. The consultation was clear, as he implied, that the change is a necessary improvement to existing licensing practice. The five airports—for the record, they are Heathrow, Gatwick, London City, Luton and Stansted—are particular for the reasons that I have given. Elsewhere, the service is provided commercially either by NATS or another company, or in-house by the airports themselves. The complexity of the airspace requires no further explanation —it is self-evident.

The hon. Gentleman mentioned the Competition and Markets Authority. In addition to the Government’s role, that authority, which is the body that will determine appeals under this regime, must determine on a case-by-case basis whether the materially affected test has been met by a complainant, even if eligible to raise an appeal. The Government should therefore not seek to duplicate that role by further defining “materially affected”. We can rely on that body in the way he described. The changes in relation to those five particular places are necessary and, the consultation suggests, desired. With that, I hope that he might withdraw his amendment.

Photo of Richard Burden Richard Burden Shadow Minister (Transport)

I am afraid the problem is that, if there is a danger of duplication, it is in the Bill, which gives the Secretary of State power to define a prescribed aerodrome—in other words, the power to define which airports or, indeed, other operators will or will not be able to appeal. Our nervousness is about what criteria will be used.

The Minister may be right that it would over-complicate things to ask Ministers to replicate the decisions that could come from the Competition and Markets Authority, and to define narrowly in advance what being materially affected means in relation to a licence modification. However, I am not sure that it is unreasonable to say that, if the Government are going to take the power that the Bill gives them to prescribe who can and who cannot appeal in particular cases before we get to those cases, they should publish the kinds of criteria that they will use when making those decisions. That is what the amendment tries to get at.

I do not insist that amending the Bill is the only way of achieving that, but I hope the Minister will be able to reassure us by accepting that it is reasonable for us to ask the Government to publish at least the criteria they will use to decide which airports or other operators they prescribe and which they do not prescribe, without at this stage asking them to identify those airports or other operators.

I take it that the hon. Gentleman seeks to withdraw the amendment.

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

The hon. Gentleman, being an experienced Member of the House, knows how to provoke an intervention, and he has done just that. The Bill and regulations will define who is eligible. We are clear about that. The CMA will apply the test. As he said, those are separate functions, but I am inclined to agree with him that it is not unreasonable to make clear the criteria that he describes. I will think about how we can do it, but it is not necessary to do it in the Bill. He would not expect us to do that anyway, of course. I will reflect not on how we can establish the criteria, but on how we make them known. That seems perfectly reasonable, and I will go away and think about it.

Photo of Richard Burden Richard Burden Shadow Minister (Transport)

I am grateful to the Minister for that entirely spontaneous intervention. As ever, he has been very helpful. He has grasped what I was getting at. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Schedule 2 agreed to.

Clause 17 ordered to stand part of the Bill.

Schedules 3 and 4 agreed to.

Clause 18