HL Deb 17 July 2000 vol 615 cc743-55

—(1) The Authority shall review and, within a period of two years from the day on which this Act is passed, publish a report on the discharge of police functions on railways and on the London Underground.

(2) In carrying out a review under this section the Authority shall consult Transport for London and any other body which appears to the Authority to have an interest in the provision and use of railway services and the London Underground.").

The noble Baroness said: The purpose of this amendment is to seek a review of policing on the mainline railways and the London Underground and to determine how the needs of policing may be met most efficiently in future.

In a way, this is a left-over from the rail privatisation process when the matter of policing of the rail system was left in limbo. In the future, one might, for example, consider the continuation of a national force, such as the British Transport Police is today, or the transfer of responsibilities to local forces with the present funding of £93 million being used to meet the cost. Alternatively, some rail services may prefer to use private security officers for the tasks of monitoring such matters as bad behaviour at railway stations or painting on railway property and so on.

There will also be a need to take into account the recommendation of Professor Uff following the inquiry into the Southall rail accident because he said that it was unacceptable that a technical accident investigation should be directed or controlled by the British Transport Police because there was a lack of expertise and depended on outside advice. Most of the deficiencies which he found in parts of that investigation were caused by those inadequacies.

The matter of the future of the British Transport Police should not he allowed just to drift along. It should be addressed now so that when a suitable legislative opportunity arises—perhaps associated with other police legislation—some properly thought-out proposals for the railway and Underground policing are ready to be put into action. I beg to move.

Lord Berkeley

I support this amendment. I was not expecting to but in the past week I have been deluged with information from freight train operators saying that a large number of incidents have taken place in which their drivers were bricked; that is, having bricks thrown at the cab through the open window.

There have been incidents in Merseyside, Tyneside and many other parts of the country. Like everybody else, train drivers have a right to be able to go about their work without risk of injury. The latest incident was an attack by 20 youths with bricks in Tyneside. Luckily, the driver was not hurt. When he reached his destination he reported the incident to the British Transport Police and asked for an escort on the way back. The alleged reply was, "You haven't been hurt so you won't get an escort". I cannot believe that was true.

It is indicative that whereas before the police had to deal with contained areas of this potential problem, it is almost as if the complete route network will be affected in future by vandalism. We all know that as train speeds increase, the consequences of vandalism could be very serious. The review is important. In the mean time I would support anything we can do to ensure that the police have enough resources to carry out these duties.

Lord McIntosh of Haringey

I recognise the problems which have given rise to the amendment. I have three basic answers. First, the British Transport Police Committee already produces a report every year on BTP policing of the railways and London Underground. Although it is produced by the committee rather than the SRA, it follows the format that Home Office police forces use. It includes details of BTP's main activities and developments, and statistics on the force, including crime figures for the area. The Committee will continue to produce the report when the British Transport Police move to the SRA from the British Railways Board.

Secondly, the police committee invites Her Majesty's Inspectorate of Constabulary to undertake a primary inspection of the force every three years with a detailed assessment of the police's operational and organisational performance by an independent expert body. That report is published. A copy is sent to railway businesses and other interested parties. That is in line with Home Office forces and will continue under the SRA.

Finally, the noble Baroness, Lady Thomas, referred to the need for an independent national police authority. I can confirm that we have announced our intention to create an independent national police authority when a legislative opportunity arises. It is likely to be given many of the duties now required of a Home Office police authority, including consulting the community regarding policing and preparing an annual report on how that policing has been carried out. We shall consider again at that time the position on inspections of the force.

It is probable that those requirements will be placed on the BTP authority in the legislation to bring them into line with Home Office forces. That is the correct place for such statutory requirements. I hope that that convinces the noble Baroness that we are very much concerned with the issues to which she referred in moving the amendment.

Baroness Thomas of Walliswood

I thank the noble Lord, Lord Berkeley, for his support and, more particularly, the Minister for an interesting response. I am sure that my noble friend will read it and consider what to do. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 19 agreed to.

Clause 218 [Power to make bye-laws.]:

[Amendment No. 321 not moved.]

Clause 218 agreed to.

Schedule 20 agreed to.

Clause 219 agreed to.

Schedule 21 agreed to.

Clauses 220 and 221 agreed to.

1.30 a.m.

Clause 222 [Regulator's power to require provision etc. of railway facilities]:

Earl Attlee moved Amendment No. 322: Page 133, line I, leave out ("a period") and insert ("such reasonable period as is").

The noble Earl said: In moving Amendment No. 322, with the leave of the Committee I shall speak also to Amendments Nos. 323 to 329.

New Section 16D leaves it to the regulator to specify the period within which representations under Clause 222 are to be made. Amendments Nos. 322 and 323 introduce an objective rather than a subjective test. It is extremely important that any person at risk of receiving a direction should have adequate time to make representations. There should be some protection against the regulator imposing an unrealistic timetable.

Subsection (7) gives the regulator a wide-ranging power in connection with an application for a direction to provide, improve or develop railway facilities to require, the person specified in the application, the applicant, or any other person", to provide information. Amendments Nos. 324 and 325 remove that power in relation to "any other person". The power given to the regulator is far too wide. It is appropriate that the applicant and any person the target of the direction should be open to such a requirement, but not the whole wide world.

Amendment No. 326 requires the regulator to use the information obtained under subsection (7) only in connection with the proposed direction and to compensate any person providing information for its wrongful disclosure. As the Bill is drafted there is no restriction on the purpose for which information obtained can be used, and no penalty for improper disclosure. Information may be commercially and price sensitive and should be properly protected. As with unlawful disclosures of information that must be provided under other sections of the Act, compensation should be available for any person suffering loss as a result of such disclosure.

Subsection (2) enables the regulator to require the applicant for a direction to reward or make payment to the recipient of the direction. Amendment No. 327 limits such power to cases where the regulator is satisfied that the recipient will not otherwise be adequately rewarded, as set out in new Section 16E.

It is right that no one who is forced by a direction to provide, improve or develop a railway facility should lose as a result. The Bill however requires the consent of the authority to any application for a direction and runs a serious risk of creating an investment bottleneck as a result. An applicant should only have the burden of reward or payment to the recipient of a direction imposed on him if the person directed is not otherwise going to receive adequate reward. Otherwise applications will not be made and the investment bottleneck will worsen.

Finally, subsection (5) gives the regulator complete discretion to determine the amount of compensation paid to the recipient of a direction on its variation or revocation. Amendments Nos. 328 and 329 specify that the amount of compensation represents the actual loss to the recipient. Any other basis for compensation would be unfair, either to the recipient of the direction or the applicant. In those circumstances there is no case whatever for leaving the amount to the discretion of the regulator. I beg to move.

Lord Macdonald of Tradeston

I am aware that Members opposite wish to oppose the whole of this clause and that that will be the most appropriate opportunity for me to address any concerns on the fundamental principles of what the clause does and why we consider it necessary. With the indulgence of the Committee I should therefore like to confine my remarks to the amendments before us.

We recognise that a direction is a powerful tool, possibly requiring a lot of work from a facility owner to carry out and possibly requiring him to change his business and investment plans for a period. That is why the safeguards of procedure exist in the Bill, so that the regulator can be assured that he is requiring action from the right person and that those affected have been consulted.

Amendments Nos. 322 and 323 change the periods for written representation from a period specified by the regulator to a "reasonable" period specified by the regulator. These amendments are really not necessary. I can assure the Committee that the regulator, as a matter of public law, must always act reasonably and this general rule would apply to the period for a written representation. If he gave an unreasonable period to respond to a notice, then he would be open to legal challenge.

Amendments Nos. 324 and 325 add the authority to those persons from whom the regulator can request information to help him determine an application. This seems to us not only unnecessary but also, I fear, inappropriate. The Rail Regulator and the SRA are both regulators, and both have an equally important role to play. This is a relationship of equals, distinct and complementary. It would, I feel, be wholly wrong for the regulator to be able to direct the SRA. If this were truly necessary, then it would be for the Secretary of State to direct. However, noble Lords will not be surprised to learn that we do not, in fact, consider these provisions necessary. This process is not initiated by the regulator, but either by the SRA or with the support of the SRA. It will, therefore, be the SRA that is keen to promote a scheme as part of its strategic plan for the network. This power will only ever be used when the improvements cannot be obtained by other means and the SRA will have to be fully behind them.

Amendment No. 326 is also unnecessary. It states that the regulator may not use information given to him for the purposes of the direction; that he may not disclose such information; and that he would he liable for compensation should he disclose information. The issue here is of course commercial confidentiality and the need to protect sensitive information. We are aware of the importance of such confidentiality and it would be improper for any public body to misuse information. But, in common with other regulated utilities, the matter is already dealt with: in this case in the Railways Act 1993 into which the provisions in Clause 222 will be inserted. Section 145 of the Railways Act provides that information obtained under that Act shall not be disclosed without consent. It also makes such disclosure a criminal offence. There are exceptions to the prohibition on disclosure, such as disclosure of information to other regulators for the purposes of their functions, but that is wholly appropriate and the same as for other utilities.

Amendments Nos. 327, 328 and 329 look at variation or revocation of a direction. In another place, the Opposition raised the case in variation or revocation where the facility owner had already carried out work, which, because of the variation or revocation, proves abortive. They argued that, in such a case, compensation should be payable. We agreed and amendments to provide compensation were put forward and accepted on Report in another place. However, I welcome the opportunity to be able to assure the Committee that the Bill now provides compensation if work proves abortive. The regulator will be able to determine the appropriate level of such compensation.

I shall now deal briefly with the effect of new Section 16G(4) and (5) to the Railways Act 1993, to which these amendments relate. Where the regulator gives a direction under new Section 16A of the Railways Act to develop a facility he must be satisfied that the facility owner will be adequately rewarded for it through a combination of payments by the applicant, future receipts, and so on. There may be circumstances where the applicant seeks to vary a direction, either wishing to extend or to cut back on the facility. This does not change the presumption that the varied facility must be the subject of an adequate reward—hence new Section 16G(4).

Sometimes, however, the facility owner may have put a large amount of work and resources into a facility in pursuance of a direction which will be wasted work if the direction is varied or revoked. In the case of a variation, the adequacy of the reward under Section 16G(4) relates to the new facility and not what was originally planned. Therefore, it is difficult to apply Section 16G(4) to liabilities that may have been incurred in connection with the original facility but are of no relevance for the new facility. Where a direction is revoked, Section 16G(4) may be of no use at all.

It is because of this that we amended Section 16G to give the regulator an additional power to determine liabilities, incurred in accordance with the old direction, which have been wasted. I am sure that Members of the Committee will agree that the principle of this is right. I can assure noble Lords that these amendments are unnecessary, as a result of the changes that we have already made.

Amendment No. 327 provides that the regulator cannot order compensation under Section 16F(5) if t he facility owner is to be adequately rewarded under Section 16G(4). I agree with this. It is why Section 16G is expressed in terms of a discretion for the regulator. He will only exercise the power where he needs to, such as where something is not caught through the adequate reward mechanism of Section 16G(4). It would be unreasonable to exercise the power if it amounted to double compensation and it is not necessary to express this.

Amendments Nos. 328 and 329 require that compensation should determine what loss has been, or is likely to be, suffered and set off any sums received against this net from this benefit. I assure the Committee that the regulator will be in the business of assessing the appropriate level of compensation and this will constitute the wasted works less any receipts. Again, these amendments are unnecessary. It would be unhelpful to limit the regulator's discretion by specifying a formula. The regulator will look at all the circumstances of a variation or revocation and act in the most appropriate way. With those explanations, I hope that the amendments will be withdrawn.

Earl Attlee

I am grateful for the Minister's informative response to my amendments. With the usual caveat, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 323 to 329 not moved.]

On Question, Whether Clause 222 shall stand part of the Bill?

Earl Attlee

This key clause goes to the heart of the new powers which the Government are taking in this Bill. It gives the regulator powers to direct investment. This seems to be unwarranted interference in the operation of a private company and is of considerable concern to Railtrack. Ministers have said that this power will be used only as a last resort, but we do not see why it is necessary at all.

There are some limits on the power, which is some comfort, but it remains the case that the regulator has only to ensure that "adequate return" is provided for this compulsory investment. Nowhere is it set out how the regulator is to determine what an adequate return is, or even where the capital is to come from.

This clause seems unnecessary and gives powers to the regulator and the SRA which have the potential to be used unwisely. The current incumbents may proceed with caution but their successors would not be bound to take a similar approach. We remain uneasy at the extent of these powers to direct a private company where it must make its investment. We therefore oppose the Question that Clause 222 stand part of the Bill.

Lord Macdonald of Tradeston

Clause 222 is a new power for the rail regulator to give a direction to a person in a position to do so to improve an existing facility or to provide a new facility. This power can be exercised only on an application from the authority or a third party with the consent of the authority. This power will ensure that improvements can be made to the network where the authority considers that they are in the public interest.

The clause is not designed to replace the normal commercial judgments and investments of facility owners such as Railtrack or EWS. Nor does the new section preclude voluntary arrangements between a facility owner and someone wishing to agree terms for an enhancement. The clause will enable a facility to be built which is in the public interest. In such a case the SRA can invest in the facility and the clause provides the element of compulsion necessary to ensure that an investment takes place.

The clause does not replace Condition 7 of Railtrack's licence which requires Railtrack to make reasonable enhancements. However, Condition 7 applies only to Railtrack and not to other facility owners. In the case of Condition 7 only the regulator can enforce a direction and third party rights arise only in the event of a breach of a final or provisional order. Under this clause, in contrast, the applicant will be able to take action to enforce the direction and third parties may also be able to take action if they are prejudiced by non-compliance with the directions.

There may well be cases where the SRA considers that there is a strategic need for a new or improved facility and the person in control of the facility may have a short-term view not wishing to make the investment or may have other priorities. It is in these cases that this clause will provide the balance between the interests of facility owners and the long-term strategic needs of the railway.

An improvement may be sought by a third party applying direct to the rail regulator, but they must have the consent of the SRA. This will ensure that there is a genuine interest wider than the commercial interest of one part and that it fits with the wider aims of the authority. In all cases the rail regulator must be satisfied that there will be adequate reward for the improvements or new facilities. This will depend on the facts and circumstances of the case. It means that the regulator will take a view that the facility owner will not be out of pocket. This does not mean that the facility owner must be remunerated for the facility in advance. We have made it clear that the regulator is able to take into account indirect receipts and other benefits that are likely to accrue to the facility owner. Where the rail regulator agrees to revoke or vary a direction to provide facilities, he must ensure that there is adequate compensation, as appropriate, for the work that has already been carried out.

The person who is to be directed must be consulted. While he will have to do everything reasonably practical to carry out the direction, a person will not remain liable if he does not have the necessary powers or rights. For example, it may be reasonable for a person directed to use all reasonable endeavours to apply for planning permission, or even to promote a Transport and Works Act order, but it may not be reasonable to say that he has failed to comply with the direction if planning permission is refused.

There are some cases where it would be disproportionate to apply this power—for example, in the case of heritage railways, which are not part of the strategic network. We have therefore given the Secretary of State the power to exempt certain railway facilities from the power.

This is a power that we would only expect the SRA to request as a last resort. As a check, the final decision belongs to the rail regulator. He will be operating under his duties in Section 4 of the Railways Act 1993, including the duty to act in a way which he considers will not make it unduly difficult for the holders of network licences to finance their activities.

We agree that it is normally the duty of the railway industry, facility owners, franchise holders and others to invest sensibly for the development of the railway, but there may be cases where investment which should occur does not. It is reasonable in those cases for the regulator to have the power to ensure that vital improvements are carried out where there is no voluntary means of securing them.

1.45 a.m.

Lord Berkeley

Before my noble friend sits down, does he agree that although condition 7 of Railtrack's licence requires it to provide for the reasonable requirements of its customers, there is a let-out which states that it does not need to do anything that would put its finances in jeopardy. There have been an awful lot of requests for investment to Railtrack, which has not happened. I believe that it is essential that the clause remains in the Bill for that very reason. If the SRA, in trying to be strategic, says to Railtrack "Will you invest?"—and it says "No"— there is nothing the SRA can do about it without this clause.

Secondly, if the industry is lucky enough to get a few crumbs from the announcements tomorrow and later this week—which I hope it does—that investment has to be invested where the Government want it to be, presumably through the SRA. I certainly believe that this clause must stand part of the Bill.

Earl Attlee

I am grateful for the Minister's explanation. Perhaps I can just tempt him to give me an example of where the power would be used. The noble Lord, Lord Berkeley, appears to have got closer, but I cannot picture a situation where the power would be necessary.

Lord Macdonald of Tradeston

Again I do not want at this time of night to indulge in trying to invent speculative cases. I rest on the assurances that I have given to the noble Earl. I ask him to withdraw his objection to Clause 222 standing part of the Bill.

Clause 222 agreed to.

[Amendment No. 330 not moved.]

Clause 223 [Amendment of objectives]:

[Amendments Nos. 331 and 332 not moved.]

Clause 223 agreed to.

Clause 224 [Penalties]:

Earl Attlee moved Amendment No. 333: Page 138, line 22, at end insert ("; and (d) the desirability of providing a financial incentive for the owners of the railway network to run more trains and for a fair division of responsibility for train delays, but no policies may be adopted that will have the effect of imposing disproportionate penalties or materially altering the parameters within which an existing franchise was granted").

The noble Earl said: In moving Amendment No. 333 I shall speak also to Amendments Nos. 334 to 337 and 371.

This amendment is designed to allow us to explore the new provisions for the imposition of fines and penalties. We all accept that as a last resort there needs to be a penalty regime to punish breaches of obligations. However, these powers are wide-ranging and it is in the interests of both the railway operators and the travelling public that policies on enforcement are clear and issued in advance.

In particular, there needs to be guidance on the proportionality of any such fines. There has been concern about the provision for unlimited fines contained in the Utilities Bill. It appears that similar powers are contained in the Bill and there is no indication of the scale of any such penalties. We seek the assurance of the Minister that any fines and penalties will be reasonable, proportionate and based on clarity over the breach of obligations.

There is a clear risk that, if such clarity is not forthcoming, the provisions in the Bill would allow a maverick regulator to pursue an unreasonable course, which would then be challenged in the courts, wasting the resources of the railway company and that of the regulator, to the detriment of the travelling public.

It is important that there is sufficient time for representations in relation to penalties to be made. The timescales in the Bill are short and Amendments Nos. 334, 335 and 336 bring the timescale into line with the time for representations in relation to orders under Section 56 of the Railways Act 1993.

Subsection (1) gives the appropriate authority two years in which to serve a penalty notice. Amendment No. 337 reduces this period to one year. One year should give the appropriate authority time enough to impose a penalty notice. Any authority that takes longer than one year, which is in any event more than adequate, to deal with a contravention is not doing its job properly and the Bill should not encourage such slacking by allowing such an over-generous time for imposition of penalties.

Under new Section 57B the authority and the regulator are to publish policies in relation to penalties. That paragraph stipulates that failure to publish such policies does not invalidate any penalty imposed. Amendment No. 371 allows for adjustment of any penalty imposed before publication if it is excessive by reference to such policy.

If a penalty is imposed before the relevant policy has been formulated, it may turn out in the light of any such policy to be wildly excessive. That could lead to vastly differing penalties imposed for the same default. It is rightly Parliament's intention that penalties should be governed by published policies and that anyone who suffers as a result of a delay in publication of those policies should have a remedy. I beg to move.

Lord Macdonald of Tradeston

These amendments all impact on the enforcement regime which the Bill enhances from the provisions in the Railways Act 1993, specifically because past regulators have complained that they did not have sufficient tools to ensure that problems are put right both effectively and speedily. I agree that it must be fair to train operating companies and facility owners, but it must also be fair to the users of the railway.

Noble Lords will also have in mind that enforcement is the end of the process. It means that an operator or facility owner has already failed to meet its contractual or licence obligations. The regulator and the SRA propose to improve the positive incentives to drive performance, whether by replacement franchises or as a result of the periodic review of the access charges for Railtrack. The enforcement regime is the other side of the equation.

Amendments Nos. 334, 335 and 336 all impact upon the timetables laid down for various parts of the enforcement regime and extend the timescales. There is a balance to be struck here. Yes, we must allow for reasonable periods but, equally, the enforcement regime must have the teeth to be effective. Our intention has been to speed up the enforcement in appropriate cases. We consider that the timescale for notice requirements for any modification of a proposal to impose a penalty is open to expedition because a modification could be more than trivial, but nevertheless easily and quickly dealt with. For example, the regulator or the SRA may wish to draw attention to some additional facts which justify the imposition of a penalty which they consider to be beyond dispute.

But we are not casting the framework in stone. The periods which we have specified are minima which the authority or the regulator would need to extend where this would be appropriate. It would normally be appropriate to extend the timetable if the operator were being required to respond to a substantial series of new proposals to impose a penalty. If the regulator or the SRA imposes an unreasonable timetable on the facts of the case it will be open to challenge. But we want the process to be flexible. As regards the 14 days for paying penalties, of course operators will have the opportunity to apply for an extension under Section 55(8) and an unreasonable refusal can be challenged. That benefit was not in the Railways Act.

These arguments hold true for all these amendments. I repeat, the periods are minima. But if there is a serious ongoing breach, for example, we want the regulator and the SRA to be able to drive enforcement action at the most appropriate speed with regard to the nature of the breach, the complexity of the facts and the nature of any modifications.

Amendment No. 337 would reduce the time limitation period beyond which a breach of a franchise or licence may not be penalised from two years to one year. On the face of it that seems perfectly reasonable as it would bring the limitation period into line with that provided for other utilities in the Utilities Bill. However, this is one of those occasions when we have had to look at the different circumstances of the railways industry. We consider that in this case the longer two-year period is more appropriate.

Railway projects are different because they can be very large infrastructure projects which can have very long lead in times. For example, capacity improvements on the east coast main line which are currently under discussion will be a long-term project. It could be a year before it becomes apparent that a breach has even occurred. Once the rail regulator or the SRA is aware of a breach it needs to investigate it so that it is content that a contravention truly has occurred. That will take time. On balance, we think that a two-year limitation period is fair. It will mean that companies cannot be penalised for actions long in the past and it will therefore allow them to plan their business with certainty. But it will also allow time for a breach to become apparent and be investigated, so that even the big projects have an effective means of enforcement.

Amendment No. 371 addresses the transitional provisions in the Bill and would require that, where a penalty is imposed before the SRA or the rail regulator has published its statement of policy towards penalties, any penalty should be repaid, if, and to the extent that, it would have been materially lower under the policy. While I can understand the concern behind the amendment, I do think that it is unnecessary. The firm intention is that both the SRA and the regulator will have policies in place from the time of commencement, and the rail regulator is preparing such a draft policy in concert with his review of access charges. But policies will be illustrative and not determinative of the amount of the penalty. What determines the penalty is that it must be of a reasonable amount and that will be the case whether or not a penalty policy has been published. When our provisions are commenced the regulator and the authority will be under a duty to prepare a policy statement within a reasonable time. What this transitional provision says is that if, while a penalty policy is being prepared, an incident occurs which must be penalised, and that penalty is in every respect reasonable, it cannot be impugned on the technicality that the regulator's or the authority's policies have not been formally published.

Both the requirement for a penalty to be reasonable, which includes the idea of proportionality, and the requirement for a policy to be formulated are additional protections for railway operators in the Bill. There are no such requirements under the Railways Act.

Amendment No. 371 also misunderstands the nature of the policies. These will not comprise a firm tariff of penalties but rather constitute guidelines, at a fairly high level, of what the regulator and the authority will take into account in deciding whether to impose a penalty and what will go into the calculation of that penalty. The policies will not be so specific that a penalty imposed before publication could be reopened immediately after publication in the manner suggested by the amendment.

Amendment No. 333 would affect the statement of policy made by the rail regulator and SRA towards penalties and require them to include the need for a financial incentive for owners to run more trains and for a fair division of responsibility for train delays. It would also require that policies must not impose disproportionate penalties or materially alter the parameters within which a franchise was granted. Setting aside that train operating companies are not owners—and so this would bite only on Railtrack and other facility owners and therefore be ineffective—I think that the Committee will agree that the general aims are perfectly good ones for a penalty policy. However, we consider that the amendments are unnecessary and do not address the issue in the most helpful form to achieve the aims of a better and more efficient railway. As I have said, we are increasing positive incentives to improve the railway through such things as franchise replacement, which must be the most appropriate way to tackle these aims.

Before I complete my remarks, I should like to take this opportunity to inform noble Lords of two related matters on which we propose to table amendments on Report. They both arise from developments on the Utilities Bill which we propose to follow. First, we propose to amend the Bill to provide that no penalty imposed by the regulator or the SRA may exceed 10 per cent of turnover of the licence holder, licensee or franchise operator. Turnover will be determined in accordance with an order made by the Secretary of State, subject to an affirmative instrument.

Secondly, we propose to amend the Bill to ensure that the regulator or the SRA does not impose a licence penalty on the licence holder until it is satisfied that the most appropriate way of proceeding is by the regulator under the Competition Act. This will deal with the issue of double jeopardy.

I hope that noble Lords will welcome this announcement and that, with my earlier explanations and reassurances, the noble Earl will feel able to withdraw his amendment.

2 a.m.

Earl Attlee

I am a little disappointed that the Minister thinks that my amendments are unhelpful. All of my amendments are designed to be helpful. I thank the Minister for his explanation of why my amendments appear not to be perfectly drafted and I thank him also for giving advance warning of the amendments that he intends to table at a later stage of the Bill. In the meantime, subject to the usual caveats, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 334 to 337 not moved.]

Clause 224 agreed to.

Clauses 225 and 226 agreed to.

Schedule 22 agreed to.

Clause 227 [Freight assistance by Scottish Ministers and Welsh Assembly]:

[Amendments Nos. 337 to 339 not moved.]

Clause 227 agreed to.

Clause 228 agreed to.

[Amendments Nos. 340 and 341 not moved.]

Schedule 23 [Finances and procedures of rail users' consultative committees]:

[Amendments Nos. 342 and 343 not moved.]

Schedule 23 agreed to.

Clauses 229 and 230 agreed to.

Baroness Thomas of Walliswood moved Amendment No. 344: After Clause 230, insert the following new clause—