HL Deb 29 April 2004 vol 660 cc121-78GC

(Third Day)

Thursday, 29 April 2004.

The Committee met at a quarter past three of the


[The Deputy Chairman of Committees (Lord Haskel) in the Chair.]

Clause 33 [Preparation of permit schemes]:

Lord Berkeley moved Amendment No. 100: Page 15, line 6, leave out "him" and insert "it

The noble Lord said: This is a very important amendment. I was advised by an eminent lawyer that my amendment would improve the wording. In my ever-helpful way, I beg to move.

Lord Evans of Temple Guiting

We think that it is clear from the clause that it is the national authority to which the highway authority is required to submit its scheme. Nevertheless, we are happy to investigate the wording to see whether any change is desirable to improve the clarity of the clause. If my noble friend is content to withdraw his amendment for the time being, we will consider the matter.

Lord Berkeley

I am grateful to my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Amendment No. 101: Page 15, line 14, leave out "and

The noble Lord said: In moving Amendment No. 101, I shall speak also to Amendment No. 102. As the Committee will be aware from proceedings during the previous sitting, we are talking about permit schemes.

The amendments are designed to ensure that, before a permit scheme is introduced, there is consultation. Noble Lords may think that that is superfluous, but it is always worth talking about, just to make sure that those who are bringing in the regulations consult. Some do it very well, but some do it less well.

As many noble Lords said on Tuesday, the key thing is that the scheme must work. It must be practicable, and it must balance the need to minimise congestion with the need to maintain and provide essential services from the utilities, as noble Lords said on Tuesday. The scheme must also take into account the needs of the highway authorities, the police and the emergency services, environmental health services, transport authorities, traffic managers and parking managers. We must ensure that the utilities and the local authorities conform in a fair way.

I have a concern about the permits. I suspect that we shall talk about them later. On Tuesday, we discussed cases in which there might be an urgent need to do something. I do not know whether it will be possible to get a permit by e-mail by return. There is also the fact that so many different people are involved. It is not just the utilities and the highway authorities. Many other organisations from within local authorities might wish to be involved.

I can give the Committee one or two examples. A utility might apply for a permit to work on a major road and, in the interests of reducing traffic congestion, the local authority might require the work to be carried out at weekends or in the evening and issue a permit accordingly. However, when the work is being carried out, the council's environmental health department can object to the noise. Who will claim off whom? Will the work go ahead or be stopped? There will be a row.

Again, a utility might apply for work in a busy street and traffic management controls agreed with the highways authorities to enable the permit to be issued. But, there is also the matter of the suspension of residents parking and parking bays that are managed by a separate department of the council. That department could object and could place quite separate restrictions on proposed works.

A utility could apply for a permit that may be approved, but due to illegal parking may not be able to carry out the work. In this Bill, I do not think that we are talking about utilities being able to tow away illegally parked cars. Therefore, someone else would have to do that, which could cause problems. I am sure that many other conflicts could arise, such as public transport, the needs of the police, public events and so forth.

This group of amendments is designed to ensure that maximum consultation takes place on permit schemes. A way around all those problems, and any others that the Committee may think of, must be found before the system is in place, in order that it works smoothly, with maximum local support, when it goes ahead. I beg to move.

Lord Borrie

I support my noble friend Lord Berkeley. Despite the somewhat negative attitude of Her Majesty's Government to an amendment that I sought to put forward earlier this week, I am still hopeful that, ultimately, permit schemes will be devised to exempt emergency works, minor works and so forth from the need for permits. I trust that some form of wording to that effect will be included in the Bill or in regulations. None the less, whatever is left for permit schemes to apply to, it is most important that they satisfy the understanding, comprehension and goodwill of the police, the utilities and the bodies mentioned in my noble friend's amendment, Amendment No. 102.

I dare say that the Minister may use a well honed answer to an amendment of this kind: namely, that consultation is bound to take place and, of course, there is no need therefore for an amendment of this kind. If only one could be so trusting that on all necessary occasions there would be consultation, that would be fair enough, but it would be better to have a limited, understandable and clear provision of this type in the Bill to ensure that there is consultation. We all know that that is properly legally interpreted as meaning a full consultation and not just some pretence at getting in touch with someone, but taking no notice whatever at what they say. Consultation in real terms is required. It may be helpful to have that in the Bill.

Viscount Astor

I agree with what the noble Lord, Lord Borrie, said. He said it all. There is nothing that I need to add, except that I support the general thrust of the amendment.

Lord Evans of Temple Guiting

Amendment No. 102 and Amendment No. 102, which is consequential, would require authorities preparing permit schemes to consult and have regard to persons representing the police, undertakers and such persons as they think appropriate.

Clause 36(2) already provides for the permit regulations to set out procedural provision with which those preparing permit schemes must comply and provision as to the publicity to be given to permit schemes. Those provisions will enable the appropriate national authorities to impose requirements on authorities preparing schemes as to who they should consult.

I have listened to what has been said, in particular, by my noble friend Lord Borrie about consultation; namely, that there is a spirit of consultation that sometimes does not work and sometimes is not full consultation. But we are determined that the permit scheme should work properly. It would be preposterous to have a permit scheme which does not work and that people—whoever they are—do not like. So we have asked the working group of undertakers and authorities looking at permit regulations to consider whether the regulations should place such a requirement on authorities and, if so, whom they should be required to consult. The group will be talking to everyone affected, including the police, local authorities and representatives of the utilities. Moreover, our deliberations here, at Second Reading and on Report will illuminate its work because the group will read what is being said. I hope, therefore, that the worst fears of my noble friends Lord Berkeley and Lord Borrie will not be realised.

As we begin to talk about permits, I think it is worth emphasising at the outset that the Government feel that they must get the permit system right. If they do not do so, the whole thing will not work. With that watertight assurance, I hope that my noble friend will feel able to withdraw his amendment.

Lord Berkeley

I am grateful to my noble friend for that response. I have had good experiences of government consultation exercises, certainly more recently, and so I am confident that the Government will do as my noble friend says. No doubt they will take into consideration what is said by noble Lords at each stage of the Bill. I shall read what he has said with great interest. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102 not moved.]

Clause 33 agreed to.

Clause 34 [Implementation etc. of local highway authority authority permit schemes]

Lord Evans of Temple Guiting moved Amendment No. 102A: Page 15, line 28, after "may" insert "(in accordance with permit regulations)

The noble Lord said: Amendments Nos. 102A and 102B have been tabled in response to a recommendation from the Select Committee on Delegated Powers and Regulatory Reform. For the sake of clarity, the amendments make it clear that where a national authority—the Secretary of State or the National Assembly for Wales—makes an order approving an application from a highway authority to operate a permit scheme, the powers under Clauses 34 and 35 for that order to modify or disapply existing enactments apply only to the extent allowed for by permit regulations made under Part 3 of the Bill. Amendment No. 102A applies to schemes operated by local highway authorities, while Amendment No. 102B relates to those operated by national authorities themselves. I beg to move.

Viscount Astor

We welcome the amendments, and we are glad that the Government have taken note, as they usually do, of the report of the Select Committee on Delegated Powers and Regulatory Reform.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 [Implementation etc. of other permit schemes]:

Lord Evans of Temple Guiting moved Amendment No. 102B: Page 16, line 3, after "may" insert "(in accordance with permit regulations)

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

3.30 p.m.

Clause 36 [Permit regulations]:

Viscount Astor moved Amendment No. 103: Page 16, line 20, at end insert— () Permit regulations shall set out standard provisions which must be included in a permit scheme so as to ensure a reasonable level of consistency between permit schemes within an authority's area, and in particular to ensure that a single electronic noticing system may be used to implement permit schemes within an authority's area.

The noble Viscount said: Amendment No. 103 relates to Clause 36 and permit regulations. The amendment refers to multiple schemes. We believe that multiple schemes could be an administrative nightmare for operators who would have to operate within different rules in different areas and would be subject to penalties for inadvertent failures to comply. I hope that the Government will see my amendment as a positive change that would ensure consistency, minimise confusion and allow the system to be more easily operated by all, thereby reducing costly and time-consuming disputes. It would also, and more importantly, allow the focus to be on reducing congestion.

In order to improve congestion, an electronic register of all works is essential to enable utilities to align their works with local authority works as well as with other utilities. In Standing Committee in another place the Minister agreed that the more standardisation there is, the better. The amendment addresses that concern. I know that some county councils are worried about having a myriad of schemes and advocate a national scheme that can be flexible in some areas to take account of local circumstances. I beg to move.

The Earl of Erroll

It may be for the convenience of the Committee if we took my Amendment No. 103A with this because it is really just an alternative. Perhaps I should have been more alert, but as a Cross-Bencher I have not done this very often. Is it procedurally correct if I talk to it at the same time? It actually covers the same point. Would that be to the convenience of the Committee?

The Deputy Chairman of Committees (Lord Haskel)

You want to group Amendment No. 103A with which amendment?

The Earl of Erroll

I want to talk to Amendment No. 103A at the same time as Amendment No. 103.

The Deputy Chairman of Committees

Yes, that is all right.

The Earl of Erroll

The two amendments are trying to achieve the same thing. In fact, to save time, I will mention that Amendments Nos. 105B and 105C are all concerned with the same matter.

I have also been briefed that the problem is that one wants the maximum degree of standardisation possible between the permit schemes, not a lot of different schemes applying differently in different places. Mr McNulty, a Minister in the Department for Transport, said in another place: The greater the standardisation that the group can achieve, the better".—[Official Report, Commons Standing Committee A, 29/1/04; col. 166.] It would ensure the maximum level of consistency across the affected counties. Having the same permit scheme throughout is extremely important. Otherwise, there will be confusion. People will not know how to apply. If they move from one authority to another, they will have different sets of rules to learn. It just creates more work for everybody.

It has been said that different permit schemes should take account of local circumstances, and I see that point. On the other hand, any permit scheme should be flexible enough to take account of different types of roads and the different traffic conditions prevailing on them. It seems to me that, if we cannot simplify or coordinate across all the schemes, we are making a job creation scheme. Therefore, whether we accept Amendment No. 103 or Amendment No. 103A, the principles embodied in the amendment are very important.

In order to make it easier for people to deal with this, we are trying to implement electronic government and to move into the modern communications age. That is all that Amendments Nos. 105B and 105C are about. It is an add-on to the point to say that the registers for the permits should be kept electronically and that they should be available for everyone to see so that they can co-ordinate their works as well, if they want to. It would be a logical extension of having a standardised permit scheme.

I thought it was easier to talk to my amendment with this amendment. I thank the Committee.

Lord Evans of Temple Guiting

The amendment appears to be intended to require that regulations made under Clause 36 would have to ensure a reasonable level of consistency between permit schemes. The regulations would have to set out certain standard provisions that would be common to all permit schemes, especially in relation to electronic noticing systems.

The Government agree with the noble Viscount, Lord Astor, and the noble Earl, Lord Erroll, that there should be some degree of standardisation between different permit schemes. It cannot be sensible to have dozens of entirely different schemes operating in different parts of the country. However, we do not want to be prescriptive about this issue and put in the Bill. It is an issue that we feel can be safely dealt with through regulations. The working group that we have set up to consider the details of permit regulations and the accompanying guidance has been asked specifically to look at the issue of standardisation. The question will be how far that standardisation should go.

The points that have been made this afternoon will be given to the working group, and we expect it to make its recommendations to us later in the year. We will then go out to public consultation on the way forward. A very important part of that will be how the permits are delivered: in traditional printed form or electronically. I agree with the noble Earl, Lord Erroll, that electronic delivery is the way forward, but that is just my view. That idea will be fed to the working group, and we will see what it says. I would be very surprised if it were not adopted.

I hope that I can reassure the Committee that the working group will do a good job. I am absolutely sure that everybody will see the benefits of standardisation as far as possible of the permits.

Viscount Astor

I am grateful for that helpful answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 103A not moved.]

[Amendment No. 103B had been withdrawn from the Marshalled List.]

Lord Berkeley moved Amendment No. 104: Page 16, line 32, at end insert () for or in connection with the provision of an independent mediation and dispute resolution procedure for use in prescribed cases,

The noble Lord said: Under Clause 36(4)(b), permit regulations may make provision for a right of appeal. My amendment would provide that the appeal should be, in colloquial terms, quick and dirty and easy. It will be a good one. The utilities are worried that, when the highway authorities give out permits, they are also responsible for street works. There could therefore be a conflict of interests. An independent appeals mechanism is needed to ensure that disputes are fair, consistent, even-handed and done in a timely manner.

The Association of London Government's parking appeals process is a good example of how that is done. I have never been through it, but a relation of mine has. Many people have told me how good it is. It is very easy; one does not need lawyers; and it works extremely well. I do not know whether that would be the right model. My noble friend Lord Borrie will probably speak about what lawyers want. The important point is that there is a fear that, when Section 74 of the New Roads and Street Works Act 1991 was introduced in 2000, many costly and time-consuming disputes arose where parties tried to understand the regulations. Many different disputes arose around the country, because there were different systems in each local authority area, and some ended up in court.

If the regulations in this Bill are to be introduced quickly next year, there is a fear that the same thing could happen. There must be a quick mediation process without the need for lengthy negotiations and arbitration using lawyers; otherwise, I foresee that the utilities will say, "These are all putting costs up; we will put our costs up in case we run into problems". They say that the costs of night-time work are around 35 to 40 per cent higher, certainly in the Greater London area, because of the shortage of suitable workers. All those costs will be added to the consumer's electricity or telephone hills, for example.

Everyone would like a quick and easy appeals mechanism and, as has been said in respect of earlier amendments, at least some consistency in how the schemes are introduced across the country. I beg to move.

Viscount Astor

This is an important amendment because it would add a provision to allow disputes to be settled by arbitration. As drafted, the Bill will lead to a situation whereby highway authorities give out permits while also being responsible for half of all street works. An independent appeals mechanism is surely essential to ensure that disputes are resolved in a fair, consistent, even-handed and timely manner.

There is a provision in the New Roads and Street Works Act 1991 for dealing with arbitration. The Government have given no explanation why they feel there should not be an arbitration provision in this Bill. Surely, it would be a sensible safeguard; many utilities and local authorities work closely together but, occasionally, they do not. The National Utilities Group is concerned that some local authorities could seek to maximise the revenue-generating opportunities available in the exercise of permit schemes. They could dispute utilities activities even when it was unreasonable to do so.

An independent appeals mechanism would therefore provide some form of safeguard for both sides and would ensure that issues could be resolved not only even-handedly but in a way that did not incur large costs. That would enable the focus to be on reducing congestion rather than increasing contention with regard to street works. The Minister may say that there is somewhere in the Bill an opportunity for that; if there is, I would be grateful to him for pointing it out. However, it would also be helpful if he could say how, when in subsection (4)(b) it refers to conferring the right of appeal, how the appeal system would work. What is the mechanism? Who are they appealing to, and who will arbitrate in that appeal? That would aid the Committee in its consideration of this issue.

Lord Evans of Temple Guiting

We agree that some form of appeal procedure within permit schemes would be sensible. Clause 36(4) already allows for standard appeal arrangements to be set out in the permit regulations which will underpin schemes. The working group comprising representatives of local authorities and utilities, which will be considering the draft regulations and guidance, will look at what arrangements are desirable and will make recommendations to us. However, we arc also considering whether further provision is needed to allow for certain other dispute resolution procedures, such as arbitration, to be provided for in regulations. The Government may, therefore, wish to table amendments on Report to allow for that.

I hope that, in the light of that reassurance and in the knowledge that amendments may come through on Report, the noble Lord will not only be able to withdraw his amendment but will feel happy to do so.

Viscount Astor

Before the noble Lord comes to that tumultuous decision, will the Minister answer my question about the current right of appeal in the Bill? He did not say how that is intended to work, or if there is a place in the Bill that explains the process or how the appeal mechanism would work. It would be helpful to have some clarity.

Lord Evans of Temple Guiting

I do not think that I will be able to give the noble Viscount clarity. The powers are very wide and we have yet to work out how they will be used. That is another matter under discussion by the group that is considering the regulations and the best way in which to proceed.

Viscount Astor

I understand the conundrum in which the Minister finds himself. Perhaps I could just make a plea that while the Government make up their mind exactly what they are going to do, they might he kind enough to write before Report to the noble Lord, Lord Berkeley, and myself to explain how the system works in the Bill at the moment and what they intend to do.

Lord Borrie

I am surprised that my noble friend the Minister has not at least been able to say whether it is an appeal to a court or to somebody else. At the moment, Clause 36(4)(b) simply refers to a right of appeal without any mention of the person to whom the appeal should be made. Even if the Minister has not determined what level of court, at least he might say whether it is to be a court or not.

3.45 p.m.

Lord Evans of Temple Guiting

I hope that I can help my noble friend Lord Borrie a little further. I am advised that the appeal will probably not be made to the courts, but at the moment I cannot give members of the Committee any more direction about where the appeals will be made to. Apparently, the current thinking is that the appeal will not be made to the courts.

Lord Berkeley

I am very grateful to my noble friend the Minister for his response. I trust that the appeals will not be made to the authority that is managing the permit scheme. At least, I assume that that is not the case—otherwise it would not really be an appeal, would it?

As my noble friend the Minister suggested, on the basis of what he said I am very happy to withdraw my amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 105: Page 16, line 40, at end insert— () for or in connection with the obtaining of permits for works carried out by the highway authority, or the inclusion of works carried out by the highway authority in a register of permits (or both).

The noble Viscount said: This amendment aims to place the highways authority on a similar footing with the utility companies by requiring not only the utility companies but the highways authority to have a permit for works that it carries out—in effect, issuing itself a permit. Alternatively, the amendment would allow the inclusion of the highway authority works in the register of permits, so that it could be held accountable by the public for the works that it does. At least, in that case, we would know what works are being done by the utilities and what works are being done by the highways authority. That would enable us to consider the data for comparison in terms of road disruption in either case.

We have had debates previously on why it would be difficult for a highways authority to charge itself. It seems to me that what a highways authority ought to do is, in the same way as a utility company, to keep a register of the works that it does. The simplest way in which to do that would be to keep it in the same permit scheme, so the public can have that consistency.

The amendment tabled by the noble Lord, Lord Borrie, is in a similar vein. I am not sure whether my amendment is preferable to his—his might even be preferable to mine—but we are both concerned with the same point. It is an important point. I beg to move.

Lord Borrie

May I express considerable interest in and sympathy with the amendment just moved by the noble Viscount, Lord Astor? Amendment No, 106, which is coupled with it and tabled in the name of myself and the noble Earl, Lord Errol, is slightly more detailed. However, it certainly has the same purpose— of trying to ensure that the Bill will be applied equally, whether the work is being carried out by highway authorities, local authorities or utilities.

A great deal of the Bill relates to co-ordination. If there is one public grouse bigger than any other in relation to the nuisance caused by disruptive road works, it is that one minute the gas people are digging up the road, the next minute it is the electricity people, the next minute it is the water people, and that they do not co-ordinate the work. Parliament has tried before, and this Bill is meant to try, with greater success, to ensure that all that work is properly co-ordinated.

One aspect of co-ordination is surely to co-ordinate the work of utilities, whichever they are, on the one hand, and works performed by local authorities on the other. I do not see how street works can be co-ordinated unless utilities are able to align the work that they want to do with the work done by local authorities.

Part 2 of the Bill, which we have already discussed in this Committee, requires local authorities to manage their works as part of their overall road network management duty. While the Government have claimed that the Bill is intended to be applied equitably, that does not really seem to be the case. Utilities are to be subject to charges for permits and to fines should they be in breach of those permits. Local authorities will not be so subject to charges and penalties.

As the noble Viscount, Lord Astor, and one of the Ministers pointed out, I have to accept that there is a dangerous circuity in fining government-related bodies. You take money from one government body and put it into the hands of another. Clearly, there will not be equitable treatment if one accepts that argument. When I proposed Amendment No. 70 during a previous sitting of the Committee, the noble Lord, Lord Bradshaw, my noble friend Lord Berkeley and the noble Viscount, Lord Astor, all accepted the desirability of achieving in some way equity between local authorities on the one hand and utilities on the other.

I understand that a suggestion has been made by one of the working groups which has been established that there should be a points system. In the interests of harmonious working between the utilities and the highway authorities, I should like to suggest that such a scheme be given serious consideration and be applied to both the utilities and the highway authorities. This would have the additional benefit of ensuring that the new scheme is not tarred with the accusation of being a revenue-generating mechanism. The Government have been at pains to say that they are not engaged in such an exercise and it is right that they should seek to disabuse us of the notion.

Naturally, the detail must be left to the consideration of the working groups, but I suggest that the Government should at least consider the adoption of this approach in, let us say, the first year after implementation so that all parties can work together to co-ordinate their street works and roadworks in a non-confrontational environment. My amendment, which goes into a little more detail than that of the noble Viscount, would make the provision of such a scheme straightforward because it would impose the requirement to maintain a record in the register required by the Bill as it stands of all instances of breaches of the conditions on street works, whoever is responsible for that breach. With those words, I have spoken to Amendment No. 6 tabled in my name as well as giving support to the amendment of the noble Viscount.

Lord Bradshaw

I believe that the best authorities are probably approaching the Bill in precisely the way outlined by the noble Lord, Lord Borrie. I do not know whether he was part of the group which visited the London Traffic Control Centre, but we saw there an attempt to co-ordinate the activities of the different bodies. A diagram had been produced which showed all the various developers, contractors, utilities and boroughs—which do most of the work of the highway authorities—in a loop around the street works controller. Thus the controller aims to embrace all the different bodies working within his area.

However, I accept that there probably is a need within authorities to separate the highway authority that actually does the work from the person who is controlling street works and issues the permit. Is that the intention here? Even though the authority and the highway authority may be in the same place and part of the same body, are they to be separate people who do not live in each other's pockets? Can he ensure that there will be equality of treatment both for highway works and other works? I do not want to see a system that fines bodies for undertaking works, in particular if we are simply going to fine the highway authority. By doing so, money from hard-pressed council tax payers is taken by the Treasury in the form of fines. That will lead to a stupid and circular movement of money that is to no one's benefit.

However, I want to see the highway authority putting itself under the same discipline that will apply to other bodies which have a legitimate need to dig up the road. However, we must always accept that the highway authority represents everyone, whereas a utility will represent only a particular interest. Striking a balance between the different needs may be difficult.

Lord Berkeley

I support the amendments. As I said in respect of Amendment No. 102, we must not forget that local authorities have many different departments. I am sure that the noble Lord, Lord Bradshaw, is right: the best ones will do it very well, as we saw when we visited Transport for London. Sadly, not all are the best. Protection and fairness must be introduced. I can envisage an environmental health officer putting a stop order on something and a dispute or arbitration arising to find out who was responsible. Ditto parking bay suspensions and cars parked in the wrong space. The scheme will work in theory, but I think that everyone would feel much happier if the process were open, transparent and seen to be fair across all parts of local authorities and the utilities.

The Earl of Erroll

I fully endorse everything that has been said so far. I added my name to the amendment moved by the noble Lord, Lord Borrie, as it seemed the better one to put on an equal footing all those digging up roads. If we do not, people will not be able to go to one place to get a unified view of what is happening and the disruption that might be caused. Such a unified view and a common permit scheme would help the traffic manager to carry out his duty of road network management.

Further to my comment that the information should be published electronically, it would be useful to include such a provision in the Bill, given that, despite the efforts of the noble Lord. Lord Lucas, for the past 10 years to get Parliamentary Questions for Written Answers answered electronically, it has still not happened. Departments are very good at burying such issues if there is not a very strong incentive to carry them out. Some government departments are having a lot of trouble coming into the 21st century.

Lord Evans of Temple Guiting

As we have heard, both Amendments Nos. 105 and 106 are intended to enable regulations to be made that would set up controls on the carrying out of work by local authorities. In the case of Amendment No. 106, those would have to correspond to equivalent controls on utility works under permit schemes. In fact, we believe the amendment is not necessary. The interpretation provision in Clause 38(1) makes clear the scope of "works" means that permit schemes can include works under the Highways Act 1980 covering a wide range of works by authorities, including road maintenance works.

The regulation-making powers can enable those works to be subject to controls through a permit scheme anyway, including, in relation to permit registers, taking into account the unavoidable different considerations that apply in regulating the activities of public authorities and private companies. We wish to make absolutely clear our expectation that the permit scheme in any area would apply to both utility works and highway works. We have asked the working group of utility and highway authority representatives looking at permit regulations and guidance to consider how works carried out by authorities can be incorporated within permit schemes. The aim of permit schemes is to improve the management of all road works in the street, including highway authorities' own works.

We take on board the very important point made by the noble Lord, Lord Borrie, and other Members of the Committee that co-ordination is absolutely the central requirement.

The noble Viscount, Lord Astor, asked about keeping information in registers. Authorities must already keep a register of their own works and utility works. We are likely to say in regulations that they must keep permit information in the register.

Finally, the noble Lord, Lord Bradshaw, asked about the independence of the person controlling the permits. Some authorities, as he probably knows, already separate the function of controlling and co-ordinating activity on the road from the part of the authority doing the road work. That reflects the sort of independence that we are looking for in treating everybody in the same manner.

I hope that, with that answer, the noble Viscount will be able to withdraw the amendment.

4 p.m.

Viscount Astor

That was an interesting reply. It was helpful as far as it went, but I noticed that, every time that the Minister said, "We can include it in regulations", he said, "We are likely to say that local authorities must keep permit schemes in their register". I hope that, if the Minister does not want another amendment on Report, he will write to us before Report saying that it is the Government's intention that regulations "will" say it, not "might" or "could" say it. It is an important area, and we want to make sure that they say it.

The scheme must be open. The public must be able to see it, and utility companies must see what it is. Street works and utility works will often cross over and take place at the same time in the same place. There are always opportunities for confusion, so I hope that, between now and the next stage, the Government will be a little more forthcoming and say that regulations "will include", rather than "could include".

Lord Evans of Temple Guiting

The only reason that I used the word "may", rather than "will" is that the working group is considering the matter now. It might be slightly arrogant of us to pre-empt their discussions by saying what we want. We will talk to the working group and write to noble Lords.

The Earl of Erroll

Is that not the tail wagging the dog? I thought that Parliament was supposed to tell the executive what was permissible, rather than waiting for the executive to tell it what it wants it to do.

Lord Evans of Temple Guiting

What the noble Earl says is a travesty of what I intended to say. There are certain areas relating to the Bill in which we need expert advice. All I am saying is that it would look slightly presumptuous of us to make decisions that anticipate what the experts will say, before the expert advice actually arrives. Having said that, we will talk to the working group and see whether we can give the noble Viscount the assurance that he requires by Report, so that he need not table an amendment.

Viscount Astor

I am grateful to the Minister. If he wants expert advice, he should have a quick chat with the noble Lord, Lord Borrie. I can think of no more expert advice that he could get. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 105A: Page 17, line 2, at end insert— () A local highway authority must secure that, taking one financial year with another, the income from fees or charges does not exceed the cost of the performance of the function or doing the thing (as the case may be).

The noble Lord said: The Minister will doubtless recognise this as an amendment that was made to the Planning and Compulsory Purchase Bill when the Government introduced the question of fees into it. I have lifted the wording from that, so it is probably rather imperfectly adapted to this Bill. However, the Government then made the point that, while giving local authorities greater scope to vary the fees they charge, they wanted to ensure that authorities would not run their planning departments as a profit centre. I was opposed to that and tried to get them to let local authorities run planning departments as a profit centre—first, because local authorities need the money and, secondly, because they need a real incentive to make their planning departments efficient and ensure that they are staffed by good people. There are real problems in that area.

However, I lost that argument. I do not want to lose it the other way on the Bill, where there is no excuse for local authorities to be running this part of their activities as a profit centre. We have done away with the poll tax—let us not have the hole tax. There will be scope for local authorities to ensure that they charge for every cigarette packet dropped on the road as a street works if they can make profits out of the permit that will be required by someone who needed to place it on the road. In order that the scheme be rational, local authorities must not have the incentive to try to use the fees regime to make money. Those of us who have occasion to park in Kensington, Westminster or similar boroughs know that that is what is happened with parking. We should not expect cash-strapped local authorities to resist the chance if we give them it.

So on this occasion, I welcome what the Government did in the Planning and Compulsory Purchase Bill and hope that they will do it in this Bill. I beg to move.

The Earl of Erroll

I support the amendment, because it is eminently sensible to be equitable between government and private bodies.

Lord Evans of Temple Guiting

I am afraid that we did not recognise that this amendment had been tabled to the Planning and Compulsory Purchase Bill. Perhaps the fact that it was a government amendment to that Bill explains why I shall give the noble Lord a sympathetic answer.

Clause 36(5) allows for the levels of fees to be set out in regulations. Those provisions were discussed at considerable length in another place and my ministerial colleague undertook at Report to reflect further on the points that were made, with a view to providing more information during the Bill's passage through the House. We expect to do that at Report, but I am grateful for the opportunity to say a few things now.

The Minister also made clear that we wanted to allow the working group advising on the form and content of the regulations to consider whether those applying for a permit would need to pay a fee and, if so, at what level fees should be set. So we return to the point that we hit discussing the last amendment: a committee is considering that very problem and we look forward to hearing what it advises. No decision has yet been made on fee levels or on how permits would fit in with existing schemes, such as charging for overrunning or lane rentals for utility works. One option would be for a permit system to replace both of those schemes.

As I said, we expect to return to the subject at Report, but for the record I make it absolutely clear that we are not looking to load multiple charges or excessive costs on those carrying out necessary works. I hope that, with the assurance that we will return to the matter on Report, the noble Lord will feel able to withdraw his amendment.

Baroness Scott of Needham Market

Although in principle I have no problem at all with the notion that local authorities should in no way see this as a licence to print money, I caution against crossing wholesale from the planning regime to this one, for the simple reason that, far from making money on planning applications, local authorities were often running up huge bills. The scale of fees determined centrally often left local authorities receiving the same amount of money for large planning applications that had taken a lot of time and resource to resolve and for those that were much more straightforward.

There has certainly never been any question of local authorities making money on planning applications. So the two situations are not the same, but I look forward to hearing what the Minister says at Report, because it is important for everyone to feel fairly treated. Local authorities do not want to have to fight with the utilities or, possibly, the public every time they make what seems to be a proper charge, with accusations of overcharging.

Lord Lucas

I entirely agree with the noble Baroness, Lady Scott of Needham Market, that there are different circumstances. Currently, planning fees are far too low. One very much hopes that the Government will put them up substantially. I think that we have yet to hear the figures. There should not be a loss. People are making a lot of money out of planning. Local authorities should not be forced to run at a loss on that activity.

I would like this to be a break-even situation. As opposed to parking, I am encouraged at what the Minister said. I am happy to wait for Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 105B and 105C not moved.]

Clause 36 agreed to.

[Amendment No. 106 not moved.]

Viscount Astor moved Amendment No. 107: After Clause 36, insert the following new clause—

"COST OF PERMIT SCHEMES No fee in respect of any application for a permit or the issue of a permit under Part 3 of this Act shall be set at a higher level than that necessary to cover the administrative costs of—

  1. (a) responding to permit applications (other than applications by the authority itself);
  2. (b) issuing permits (other than permits to the authority itself); and
  3. (c) maintaining a register of permits."

The noble Lord said: My Lords, my amendment is similar to the amendment that has just been moved by my noble friend Lord Lucas. As a result of the reply from the Minister I shall be briefer in my introduction because some of the points have been answered. However, my amendment is slightly different because my noble friend Lord Lucas raised concern with the overall income, whereas my amendment is tighter. The amendment refers to the "Cost of permit schemes" and attempts to put a ceiling on any charges for permits at a level of reasonable costs that might be incurred to administer the scheme in terms of responding to permit applications, issuing permits and maintaining the register of permits.

In other words, local authorities must set up administrative systems on a reasonable basis; charges should be reasonable; there should be no additional charges; and unnecessarily large empires should not be created to deal with permits. When the Minister responds, perhaps he could respond to the rest of the points about charging in the way that he did for a previous amendment. It is important that we have an assurance from him that Amendment No. 107 will be considered, as well as Amendments Nos. 108 and 109 that are subsequent to it.

It is important that, from the beginning, there should be an understanding that there should be no cross-subsidisation on permits from one company to another, one scheme to another or, indeed, to a third party. Costs should relate solely to the administrative costs of the permit scheme with respect to that individual permit. I hope that the Minister will be able to give a similar assurance to that given to my noble friend on the previous amendment; namely, that these issues will be considered. I beg to move.

Baroness Scott of Needham Market

I want to follow on from the point made by the noble Viscount, Lord Astor, with regard to the fact that he would not want cross-subsidisation. Perhaps we may, at a later stage, have a little more clarification about how that situation will be managed. After all, this refers to co-ordination of work. It is very easy to envisage a situation where several companies will be working together at the same time. We need to get to grips with how those costs should be allocated, how one might then refer back on appeal and how one utility might respond if it felt that it had been overcharged. Those are issues to which we need to return.

Lord Evans of Temple Guiting

Amendment No. 107 would confine the level of fees for issuing permits to being no higher than the cost to the highways authority of responding to permit applications, issuing permits and maintaining a register of permits. The Government are already giving careful consideration to all the issues raised by this part of the Bill, which were discussed at considerable length in another place.

The Government undertook to reflect further on the points that were made and to provide more information during the Bill's passage. We expect to do that on Report. I hope that that further information will be given to noble Lords well before Report so that they have plenty of time to consider it.

I also explained that we have asked the group looking at the form and content of the permit regulations to consider permit fee levels. All the points that have been made by noble Lords, including those of the noble Baroness, Lady Scott of Needham Market, will be passed on to the group. I hope that, before Report, I will be able to relieve any anxieties by providing the information that noble Lords require. In the light of those remarks, I hope that the noble Viscount will feel able to withdraw his amendment.

Viscount Astor

I am grateful for the assurance given by the Minister. I make only one plea: the term "well before Report" should not mean only 24 hours before that stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Lucas moved Amendment No. 107A: After Clause 36, insert the following new clause—

"REVIEW OF OPERATION OF PART 3 The appropriate national authority shall, within three years of the coming into force of this Part, publish a review of the first two years of operation of this Part.

The noble Lord said: I beg to move.

Lord Evans of Temple Guiting

Amendment No. 107A provides that within three years of coming into force of Part 3 of the Bill, the Government or the National Assembly for Wales shall publish a review of the first two years of its operation.

Once the powers in Part 3 are brought into force, we will finalise and lay regulations before the House setting out certain standard arrangements for the running of permit schemes and issue guidance to authorities on their operation. It would then be for individual authorities, or more than one authority operating together, to submit their proposals for schemes to Ministers for approval. Some authorities may choose to do this very soon after the powers are activated, while others may wait longer.

Assuming that the proposals are approved, authorities would have to ensure that sufficient time is left to allow those likely to be affected by schemes to prepare for their introduction before they could start operation.

As regards England, we will consider how best to monitor the use and effectiveness of these powers so that we can consider whether changes need to be made to the secondary legislation. We have undertaken reviews of lane rental and powers to charge for overrun, neither of which was inspired by a fixed date set out in legislation. We are likely to adopt a similar approach with regard to permit schemes.

I have no difficulty with the idea that we should formally review the operation of permit schemes after a period of time. However, given what I have just said about the stages to be gone through before the scheme starts and the fact that we do not yet know how quickly authorities are likely to take up the new powers, I do not believe that it would be sensible to set a fixed date for review of the primary legislation.

I hope that, in the light of those comments, the noble Lord will feel able to withdraw his amendment.

Lord Lucas

I will certainly think about what the Minister has said in response before coming back on Report, if at all. One of the problems we face in this House is that we concentrate hard on passing legislation, much of which will depend on regulations. At that stage we lose sight of it. Indeed, in its briefing published today the Local Government Association has said that there are problems with the implementation of bus lane enforcement resulting from provisions in the Transport Act 2000. That had escaped my notice, but it immediately made me feel hot under the collar. I become deeply annoyed every time someone zips past me on the left when I am being a good citizen on the right.

Unless there is a mechanism to draw to our attention the way in which these complicated but nevertheless very important schemes that we care about deeply are working, then it is more than likely that we shall miss the opportunity to hold the Government to account and to encourage them to do better by way of regulations or enforcement. So I should very much like to see a provision in some form. Perhaps the noble Baroness, Lady Scott, has a suggestion.

Baroness Scott of Needham Market

I am grateful to the noble Lord. As far as bus lane enforcement is concerned, the problem is that we are still waiting for the regulations to emanate from the department. In a series of Questions for Written Answer my noble friend Lord Bradshaw has been told that they are coming "soon", "imminently", and "shortly". This is a saga that goes back some two years. Having recently raised this question myself during Oral Questions, the noble Lord, Lord Davies, said that they would be dealt with under the auspices of this Bill. So the problem is not one of holding the Government to account; we know that they are accountable. The problem is getting an answer out of them—soon, shortly or imminently.

Lord Lucas

The noble Baroness, Lady Scott of Needham Market, is arguing that my amendment is the right one because whether or not the Government have promulgated the regulations and whether or not they have been brought into force is part of what we should be reviewing. I shall certainly think on what the noble Lord has said. He may well hear from me again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Crown application]:

On Question, Whether Clause 37 shall stand part of the Bill?

Lord Berkeley

I oppose the Question whether Clause 37 shall stand part of the Bill so as to try to understand what it means. I understand that the Crown will presumably include the Secretary of State for Culture, Media and Sport in relation to the roads in Royal Parks, which we talked about the other day. I suppose the Department for Transport and the Highways Agency also come under the Crown. In fact, everybody who cannot be got at probably comes under the Crown. I became interested in Her Majesty— presumably we are allowed to talk about her because she is on the face of the Bill—in her private capacity, and the Duke of Cornwall.

I am no great expert on royal matters but I know that the Duke of Cornwall has done a lot of development and had many ideas for villages on the land he owns. Does that mean that because that is in a private capacity, he does not need a permit if he digs up the road and that he will not be fined for it? It certainly means that the Government do need a permit or will be fined. I believe that everybody should be equal. If it is good for somebody to delay traffic by digging up a road to which the public have access, everybody should be treated in the same way. I am sure that my noble friend will put me right.

Lord Evans of Temple Guiting

I am not sure that I will put my noble friend right because I agree with the sentiment that we are all equal. Having said that, I must say that works carried out by or on behalf of central government will also require a permit from an authority before they can commence. However, works carried out by or on behalf of the Queen in her private capacity, through the Duchy of Lancaster or by the Duke of Cornwall would not require a permit under a scheme. Subsection 2 provides that any offence relating to permit schemes which may be created in regulations would not apply to works carried out by or on behalf of central government. I can see from the expression on my noble friend's face that that does not in any way satisfy him.

Lord Astor

Before the noble Lord replies, I must say that the Minister's answer leaves a lot to be desired. It is difficult to see where Her Majesty is going to conduct street works in a private capacity. Perhaps we are talking about Windsor Great Park, which would be understandable. I understand that aspect of the clause. More importantly, it is entirely perplexing that it includes the Duchy of Lancaster and the Duke of Cornwall. The Minister did not cover that point in his reply. The Duchy of Lancaster is a very large landowner in the north-west of England. Can we have an assurance from the Minister that any works done in the Duchy of Lancaster and the Duchy of Cornwall are not precluded by Clause 37 of the Bill? If they are not precluded, what does this mean?

Lord Berkeley

I am grateful to my noble friend for his answer. He was trying hard. There are two issues here. One is the fact that the Crown, as government, must get permits but would not be fined. That is different from the position of local authorities which are, after all, also in the public sector. They need not apply for permits, and they would not be fined. Again, it does not seem right that there should be separate categories of those who would not have to pay fines. We have talked about that before.

We may have to examine the matter again. The noble Viscount hit the nail on the head: where are Her Majesty the Queen, the Duke of Lancaster—I do not know who the Duke of Lancaster is—and the Duke of Cornwall—I know who he is—likely to do it and on what roads? We cannot let the matter go until we know whether we are talking about somebody's back-door entrance that needs a little tarring, which will not affect anyone, or will we find that half the roads in Lancashire or Cornwall are privately owned by the relevant duke, who will not need a permit? My noble friend might write to me, if he does not want to delay things now. On that basis, I will not oppose the Question.

Viscount Astor

Does the Minister wish to reply? He could be a little more explicit. Has he received further information on the clause?

Lord Evans of Temple Guiting

No, the noble Lord does not wish to come back to provide more helpful information. It is an interesting topic and I undertake to write to my noble friend Lord Berkeley and the noble Viscount to explain the matter further. I hope that we will not need to return to it on Report.

Clause 37 agreed to.

Clause 38 [Interpretation of Part 3]:

Lord Berkeley moved Amendment No. 107AA: Page 17, leave out lines 42 to 44.

The noble Lord said: This is a probing amendment. I cannot see Royal Parks mentioned anywhere in Part 3, so I wonder why there has to be a definition in Clause 38. It may be that I am blind, but I am sure that my noble friend has an answer. If it is a good answer, we can follow up what we talked about the other day. I beg to move.

Lord Evans of Temple Guiting

Line 11 of page 15 refers to, the management and control of streets in the Royal Parks".

Lord Berkeley

I am grateful to my noble friend, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting moved Amendment No. 107B: Page 18 line 19, at end insert— () The first permit regulations may not be made by the Secretary of State unless a draft of them has been laid before and approved by a resolution of each House of Parliament.

The noble Lord said: Amendment No. 107B will amend Clause 38(4) and make it clear that the first set of regulations underpinning permit schemes would be subject to affirmative rather than negative resolution in Parliament. Amendment No. 108A is consequential on that and simply makes it clear that subsequent sets of permit regulations would remain subject to the negative procedure.

Having considered representations from various quarters, including the Select Committee on Delegated Powers and Regulatory Reform, the Government have come, to the conclusion that affirmative resolution for the first set of permit regulations, those which will lay down the broad framework for operating permit schemes and certain standard provisions relating to all schemes, would be appropriate. Subsequent regulations would then be subject to negative resolution. We believe that that strikes a reasonable balance in allowing for a greater level of parliamentary scrutiny when it matters most. I beg to move.

On Question, amendment agreed to.

[Amendment No. 108 trot moved.]

4.30 p.m.

Lord Evans of Temple Guiting moved Amendment No. 108A: Page 18, line 20, at beginning insert "Subject to that,

On Question, amendment agreed to.

[Amendment No. 109 not moved.]

Clause 38, as amended, agreed to.

Clause 39 [Increase in penalties for summary offences under 1991 Act]:

On Question, Whether Clause 39 shall stand part of the Bill?

Lord Rotherwick

I gave notice of my intention to oppose the Question that both clauses stand part to probe the Government on their thinking behind the increase in penalties—I am also speaking to the Question whether Clause 40 stand part of' the Bill.

The utilities industries were led to believe by the Department for Transport that the increase in fixed penalties would be minimal. However, the level of fines proposed is totally disproportionate to the seriousness of the offence and is likely to lead to an increase in serving notices for revenue generation purposes, despite Government assurances to the contrary. One might be forgiven for perceiving this as a stealth tax— a tax that will be passed on to the consumer.

Clauses 39 and 40 are of concern for a number of reasons. First and foremost, they appear to be a crude attempt to generate revenue and have little to do with improving congestion. Although fines are legitimate performance incentives in some instances, the levels being proposed are totally disproportionate to the seriousness of the offence. Furthermore, the nature of the offences will in most cases have no direct impact on traffic congestion. Increasing fines to such levels will encourage over-zealous application by local authorities seeking to increase their revenue. That will not only he reflected in customers' hills, but may adversely impact on congestion and labour shortages if small firms are fined out of existence.

Let us consider fixed penalties associated with incorrect noticing. A typical nationwide utility sends out 1 million notices a year. If that utility achieves 90 per cent accuracy, it would still be subject to the fixed penalty notice for 100,000 notices. If the fixed penalty notice is £750, as proposed by local authorities and the joint fixed penalty regulations working group, the utility would pay £75 million. At £300 the cost would equate to £30 million. Even at £50 per fixed penalty notice, the utility would still pay £5 million per year—a substantial sum in anyone's hook. If the utility achieved 99 per cent accuracy, at £750 per notice it would still pay £7.5 million. At £300, it would pay 3 million; at £50 per fixed penalty notice, it would pay half a million pounds. No one can argue that 99 per cent is not exceptional, given the volume of notices and the differing and complex rules of their interpretation.

It is envisaged that fines will be levied based on information from local authorities' computer records. Experience of Section 74 of the New Roads and Street Works Act 1991, which provides for overstay charging, showed that many charges were made as a result of spurious or incorrect records, resulting in time-consuming negotiations before the invoices were ultimately cancelled. Equally, with possible implementation as early as next year, system changes may be rushed and inaccurate data capture is likely while all parties get used to the new administrative arrangements and interpretation of the new legislation.

Again, that will result in many disputes, with utilities being responsible for establishing the cause of' failure, which may be due to the local authority or system provider inaccuracies, rather than a utility failure. That will be a time-consuming and costly process for all, involving protracted negotiations and possibly the magistrates' courts, which will distract both local authorities and utilities from addressing the real issue of minimising congestion.

The clauses are in direct contradiction to assurances given to members of the utilities industry by the Department for Transport. I beg to move.

Baroness Scott of Needham Market

Briefly. I am unable to oppose the clause standing part. I am slightly mystified by the arguments advanced, which appeared to accept that the whole rationale for the Bill was essentially the reduction of congestion—in particular, that part of congestion played by unco-ordinated and often difficult street works. However, somehow they suggested that the fines for them need to be a light touch and not painful. If we go down that route, there is no incentive to take place.

So I am slightly mystified. With all due respect to the noble Lord, he seems to want it both ways. He wants a regime that incentivises the proper running of such matters but without the penalties that we all think necessary. We have tried doing it nicely for the past 20 years; the results are evident for everyone to see. It has reached the time when we have to be a bit tougher.

Lord Berkeley

Perhaps it would be helpful if I speak also to Amendments Nos. 110A to 110C, to Schedule 3, because they are designed to achieve similar objectives while keeping the Bill intact. Basically, I tabled them to ensure that the amount of penalty bears some relationship to the congestion caused or the seriousness of the offence.

The noble Lord, Lord Rotherwick, cited some pretty horrendous figures, which I suspect are rather higher than would occur in practice. As the noble Baroness said, no doubt there needs to be more incentive for utilities to co-ordinate their work. But there is a great deal of difference between digging up Piccadilly or Whitehall in the middle of the rush hour and failing to spell Acacia Avenue with the right number of "a"s in the application. It was also suggested that people would receive a penalty if they failed to take down the sign on Westminster Bridge about the marathon at the right time.

The penalty must be proportionate, which is why I tabled the amendments. That is an important part of encouraging utilities to work together. When considering the proportionate cost, it is a little sad that the regulatory impact assessment of the cost of utility street work on the economy as a whole is 14 years-old. Many people have tried to estimate the cost of congestion. The CBI's latest figure is £20 million; other people will soon be producing some figures. Those figures can get out of hand. Although the utilities need to sharpen up their act, it will all end up as a cost to the consumer in the end, so it needs to be fair and proportionate.

Viscount Astor

As the noble Lord, Lord Berkeley, has spoken to his Amendment No. 110, which is not grouped, it may be convenient if I speak to it now as well. It raises the question of what rights the utilities have to appeal against penalty payments. It would help if the Minister could tell us what rights exist and where they are to be found in the Bill. Is there any possibility of adjudication if there is an appeal? If so, how will that happen and under what clause? Who would adjudicate?

When we discussed appeal under a previous amendment, the Government—extraordinarily, as the noble Lord, Lord Borrie, pointed out—had not worked out whether there was to be an appeal to a court or to somewhere else. I should have thought that that was a fundamental issue that the department would have considered. So it would be helpful if the Minister could give us an answer to the question of the noble Lord, Lord Berkeley: whether there is to be an appeal system and, if so, how it may work.

Lord Evans of Temple Guiting

We believe that the existing regime for enforcing offences under the New Roads and Street Works Act 1991 in relation to utility street works is inadequate and needs to be revisited if we are to ensure that such works are carried out safely, to a high standard and with minimum disruption.

We are therefore adopting two related approaches to address this problem. The first is to address the question of maximum fines for offences. Those were set out in 1991 at level 3 on the standard scale—currently £1,000—for each of the offences under the relevant part of the Act, including offences relating to carrying out unauthorised works, failing to execute works to a high standard and not taking the appropriate safety measures. Authorities have frequently expressed concern to us that existing fines are far too low to provide an adequate deterrent—a point that has been made this afternoon—especially as these are maximum fines, and that, in practice, the fines imposed by the courts are generally lower still. So authorities' legal costs often outweigh the levels of fine available to the courts. On top of this, of course, the passage of time since 1991 has considerably reduced the value of £1,000.

The increases in fines were discussed with a working party of utilities and local authority representatives and the level of increases was broadly agreed with them. Obviously, this is a measure that targets the guilty and not the innocent. Therefore, law-abiding undertakers have nothing to fear.

Moving to Clause 40, as I explained in relation to the previous clause, we are introducing two measures in the Bill to help enforcement of undertakers' works. The second of these is to allow for certain offences under the New Roads and Street Works Act 1991 to be subject to fixed penalty notices, rather than being dealt with automatically by the courts.

This clause provides that the offences listed in Schedule 2 are the ones for which a fixed penalty notice can be issued. However, by making an order—which would be subject to affirmative resolution—the Secretary of State can remove offences from the list of those for which penalty notices can be issued or, alternatively, one or more of the remaining offences under Part 3 of the 1991 Act can be added to the list.

The offences listed in Schedule 2 which could be subject to penalty notices are generally those relating to the notification of works—for instance, where an undertaker fails to give an authority advance notice of its intention to dig up the street. We do not envisage that it would be right for certain other offences to be subject to a penalty notice regime, most obviously those relating to safety at work. More detailed arrangements governing the rules for issuing fixed penalty notices would need to be set out in regulations, including stating what the authority would need to do with fine income paid and how fines should be paid.

I should like to make one thing very clear—I am repeating what I said to the previous amendment. These measures are not intended as a revenue-raising exercise. On the contrary, they provide a simple and non-bureaucratic way of enforcing the law without necessarily having to involve the courts, a change that has potential benefits for all sides. Only if the undertaker chose not to pay the fine for an offence would the issue need to go to a magistrate's court. The clause allows for quicker resolutions without the two parties incurring significant legal costs and without putting extra pressure on the courts.

Clearly, the fine detail of the penalty notice scheme, to be set out in regulations, would need to be discussed with undertakers, authorities and others to ensure that it was balanced and fair to all sides. I stress that there will be a consultation period; we are talking; and we want a balanced and fair solution. As with the previous clause, the idea of introducing penalty notices was discussed with a working party of utilities and local government representatives, and which offences should be included in such a regime was broadly agreed with the group.

In response to the amendments tabled by the noble Lord, Lord Berkeley, the purpose of a fixed penalty system is that it should be easily administered and an efficient way of dealing with offences. I do not think that it would be possible to prescribe in regulations appropriate amounts to suit a variety of circumstances. It would also be difficult to prescribe an amount in accordance with the degree of disruption caused or likely to be caused by the offence. That would not be a simple calculation that could be easily measured in advance of an offence being committed. Giving authorised officers discretion to vary amounts would also make a system more complicated and could lead to imbalances in how offences are dealt with, both within an authority and between different authorities.

The likely outcome of the amendments would be a prolonged negotiation over what the suitable amount for a fixed penalty should be. For the system to be effective, it must he easily understood by those giving and receiving the penalty, with clear amounts set out for offences. I hope that answers the points raised by my noble friend Lord Berkeley and the noble Viscount, Lord Astor.

On the appeals process, referred to in a question raised by the noble Viscount, Lord Astor, Schedule 3, at line 12 on page 61, sets out, among other things, the provision for utilities to make representations against a fixed penalty notice. Local authorities can withdraw the fixed penalty notice, if they so wish.

4.45 p.m.

Viscount Astor

The Minister's answer on the appeal process was a statement of what is in Schedule 3, but it did not address the fundamental issue raised by the noble Lord, Lord Berkeley, in his amendment about an appeal. It is unclear to me what the appeals system is and whether there is a process of arbitration. Perhaps the noble Lord, Lord Berkeley, wishes to join in the debate. Clearly, the Committee is striving to understand the issue. The noble Lord may be able to help us further today, or perhaps he will have to write to us. We do not seem to have got our minds around how the system will work.

Lord Berkeley

Clearly, I have confused the Committee, for which I apologise. I spoke to Amendment No. 110A, which relates to Schedule 3. My Amendment No. 110 relates to disputes about penalty payments and proposes adjudication. We have talked about adjudication and appeals. With reference to line 12 on page 61, my noble friend spoke about how utilities could appeal. I cannot see such a provision at line 12 on page 61; perhaps I am looking in the wrong place.

Nevertheless, having confused the Committee completely but having got on to the subject of appeals, perhaps it would be helpful to point out that there needs to be some kind of appeals procedure against fixed penalties. There is for parking, and there should be here. I have put forward one suggestion as to how it would be done, but there are probably many others. Clearly, it needs to be an appeal to a body that is independent of the authority making the penalty. I would be grateful to my noble friend the Minister for his comments.

Lord Evans of Temple Guiting

I am going to confuse the Committee even more, because I gave the wrong reference. The correct reference is page 63, line 6.

The Bill provides for the utility to make representations to the local authority, which can, if it is persuaded, withdraw the fixed penalty notice. To put it mildly, that may not satisfy Members of the Committee, but that is the arrangement in the Bill at the moment.

Viscount Astor

Before my noble friend winds up, I have to say that I do not believe that that satisfies either myself or the noble Lord, Lord Berkeley. There seems to be a need for an appeal system, and I hope that the Minister will consider that matter between now and Report. It would save us all an enormous amount of work if his officials came up with an appeal system rather than us trying to draft one. Perhaps that is something that we could discus with the Minister before Report.

Members of the Committee on all sides of the House feel that an appeal system would be beneficial, not necessarily for the benefit of one side or the other but because it would make the whole process work better. Anything that can encourage sensible, quick arbitration so that costs are kept down and issues are dealt with quickly and easily must be a good idea. I hope that the Minister will take that on board.

Lord Berkeley

I entirely agree with the noble Viscount. There has to be some appeals mechanism. I know that some local authorities will perform with absolute perfection but, sadly, there will be others that will not. They will give the penalty and, as my noble friend said, clearly it will be fixed at whatever level is deemed appropriate, even if the name of the street is spelt wrong. There needs to be an appeals mechanism to a body separate from the street authority which is supposed to consider the representations mentioned on page 63.

Lord Lucas

I would have thought that that was an absolutely gross injustice. As the noble Lord says, such a provision is provided everywhere else, so I am sure that in this case it is an omission. If the Government try to maintain their position at Report, I shall be very rude about it.

Lord Rotherwick

I am grateful to the Minister for what he said and shall take his response away to consider it. However, I am most interested in what he has to say about legal costs. It comes as no shock that legal costs can be greater than fines, so that is certainly a concern. People may not appeal because they will think it not worth their while, even if they consider that the fine was unfair.

Clause 39 agreed to.

Schedule I agreed to.

Clause 40 [Fixed penalty notices]:

[Amendment No. 110 not moved.]

Clause 40 agreed to.

Schedule 2 agreed to.

Schedule 3 [Schedule 4B to the New Roads and Street Works Act 1991]:

[Amendments Nos. 110A to 110C not moved.]

Schedule 3 agreed to.

Clause 41 [Duty of street authority to co-ordinate works]:

Lord Bradshaw had given notice of his intention to move Amendment No. 111: Page 20, line 1, at end insert— () After subsection (2) there is inserted— (2A) A street authority shall in particular ensure the coordination of relevant activities by the Highway Authority."

The noble Lord said: I believe that we have dealt with the matter under the amendment in other parts of the Bill. We have now covered adequately the issue that the highway authority must consider itself one of the bodies that the street authority takes into account. We shall expect all authorities to appoint someone separate from the highway authority to be responsible for all street works.

[Amendment No. 111 not moved.]

Clause 41 agreed to.

Clause 42 [Directions relating to timing of street works]:

Lord Lucas moved Amendment No. 111A: Page 20, line 27, at end insert— () A direction may not be given under subsection (1A) in respect of works for which a permit has been issued under a permit scheme which is in effect under Part 3 of the Traffic Management Act 2004.

The noble Lord said: I would simply like to know how the two acts are going to work together. I beg to move.

Viscount Astor

My amendment is grouped with the amendment moved by my noble friend Lord Lucas. They are similar in that they aim to ensure that an authority may not give a direction under this section regarding works for which a permit under Part 3 has already been issued. That is a small simple question, I hope. In fact, it might be a small complicated question, but it is certainly a small question. I look forward to the Minister's answer.

Lord Evans of Temple Guiting

Amendment No. 111AA relates to the power under Section 56 of the New Roads and Street Works Act 1991 for street authorities to direct an undertaker as to the times at which it can carry out street works. The amendment is intended to have the effect that a street authority should not give an undertaker a direction relating to the timing of one of its works where a permit had already been issued for that works. Amendment No. 111A would have a similar effect except that would apply only in relation to "subsisting" works— that is to say, works which had already started.

Clause 36(8) of the Bill provides that regulations made by the appropriate national authority may set out provisions that modify or disapply primary and subordinate legislation. Depending upon the exact structure of permit schemes, in the light of the consultation that we discussed earlier and the work of the working group, I would expect it to be necessary for the regulations to set aside certain sections of the New Roads and Street Works Act 1991 which currently set down how, where and when roadworks can be carried out. That would be necessary to ensure that we do not duplicate controls in certain areas.

We have asked the working group of utilities and local authorities to consider which existing legislation should be dealt with in that way. Parliament will of course have an opportunity to scrutinise the regulations once they are laid. It may be that the power to make directions under Section 56 is one that we would want to set aside in cases where a permit has been issued, but this is a matter best left for the working group to consider and to report back on, rather than for us to be prescriptive in the Bill.

In the light of my comments, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Lucas

I should be very grateful if the Minister would give me at least a preliminary view of which bits of legislation it is intended to set aside. I should also be grateful to know under which power in the Bill we shall allow regulations to set aside large parts of other Acts. I had missed that that was something that would be possible under this Bill. If the Minister could answer those questions, I shall be very grateful.

5 p.m.

Lord Evans of Temple Guiting

We hope to have the draft ready and out for consultation by the beginning of September this year.

Lord Lucas

I thank the Minister for that, but the second part of my question was, "Under which clause in the Bill are we giving the regulations powers to set aside chunks of other acts in this unspecified manner?".

Lord Evans of Temple Guiting

Clause 35(3)(b).

Lord Lucas

Perhaps that is something to which we will need to return. I had not realised that the ambit of that clause was so large. I will need to think about that, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 111.AA not moved.]

Clause 42 agreed to.

Clause 43 agreed to.

Clause 44 [The street works register]:

On Question, Whether Clause 44 shall stand part of the Bill?

Viscount Astor

The clause concerns the street work register. I have a number of general points to raise with the Minister. The street works register came in under the 1991 Act. This clause adds to that register. So that I have got it right, can the Minister say whether the Government regard the current register as being successfully kept and kept up to date? I assume it is open for public inspection so that the records are accessible. Does the clause include access to the Transport for London street works scheme? Does it have a register, or does that come under a separate part of the Bill? I would be grateful for a brief explanation.

Lord Evans of Temple Guiting

The clause concerns the register which street authorities are required to keep containing information on the streets for which they are responsible. At present, registers have to contain, among other things, information on utility street works being carried out on these roads as well as authorities' own road works. The clause will allow the regulations to require that other information must also be kept on the registers, notably about skips and scaffolding which occupy the road and the position of apparatus buried beneath the roads. The clause also clarifies the fact that central registers can be set up containing information on more than one authority area and that the Secretary of State may require authorities to provide information on their streets to the body operating a central register.

Authorities already have a duty to co-ordinate all works that take place on their roads in order to help to reduce the disruption that they cause. Given that, we think it would be sensible to be able to require that other activities that can cause disruption, such as scaffolding from building works that intrudes into the road, should also be included on the register. It would also be sensible to ensure that those operating centralised registers are able to obtain the information that they need, so that their registers are comprehensive. We would, of course, consult extensively with authorities, utilities and others before implementing any such regulations in order to ensure that we were not imposing unreasonable burdens on them.

The noble Viscount, Lord Astor, asked three questions, which I hope to answer. The first was whether these registers have been kept successfully. The answer that I have starts with the word "patchy". Some authorities are much better than others. The Government wish to see standards improved across the board. Secondly, registers are required to be open for inspection at reasonable times. Presumably, "reasonable times" means when the local authority buildings are open. In addition, Transport for London is covered by the same requirements.

The noble Lord, Lord Lucas, will be interested to know that I very much hope that electronic delivery will be possible so that utilities and others can access necessary information from a website 24 hours a day.

Viscount Astor

I am grateful for the Minister's explanation. I am always concerned when I hear the approach's success described as patchy, because it implies that accessing information electronically will perhaps be a greater task than one can imagine. If the success of the first approach is patchy, the next one could be very patchy. We shall have to see whether we wish to include a provision in the Bill to encourage local authorities to keep their registers up to date and to see what may be done. I am grateful for the Minister's explanation of the details.

Clause 44 agreed to.

Clause 45 agreed to.

Clause 46 [Duties relating to the location of unexpected apparatus]:

Viscount Astor moved Amendment No. 111AB: Page 23, line 7, leave out "and keeps

The noble Viscount said: In moving this amendment, I shall speak also to Amendments Nos. 111AC to 111AE. The amendments would ensure that records of all unexpected apparatus are held in a central place thus increasing safety. The Bill as currently drafted provides for a utility to be required to record any unexpected apparatus that it finds when excavating the street—that is, unexpected to the utility as opposed to unexpected generally. When they find something that is not in the records and that they did not expect to find, that is important information for local services such as drainage authorities. Local authorities, as road network managers, should be required to keep those records when those excavating the street report such information to them. That could be achieved by regulations made under Section 79 or Section 53 of the New Roads and Street Works Act 1991.

It seems eminently sensible that any person executing works in the street who happens upon unexpected things under the ground should be asked to record to it. It also seems sensible that those records should be held in a central place. Indeed, proposed subsection (5) in Clause 46(6) allows for just that.

The Minister in another place, in Standing Committee, commented: It is right and sensible to set up a practical regulatory regime … that balances the need to ensure that all apparatus under the street is accurately recorded with not placing an unfair burden on the 'innocent' persons carrying out the work".

He continued: They are not responsible for what they find under the road, but as and when they find apparatus, it seems logical to mark it and inform whoever keeps the register".—[Official Report, Commons Standing Committee A, 3/2/04; col. 229.]

To ask utilities to store as well as make records of apparatus that does not belong to them seems not only an inappropriate burden but would require a search of every utility's records of discovered apparatus to determine whether there was any. That does not seem the place for the records to be kept.

It seems sensible and logical for the local authority, as the road network manager, to be required to keep those records. That would not only further the Government's stated intention of balancing the need for record-keeping without unfairly burdening innocent parties, it would also increase safety and accessibility to relevant information for interested parties.

What could be unduly burdensome is a regime that requires undertakers and local authorities to keep those records. It seems sensible that they should be kept in one place. That must be the Government's intention, but it is not clear from the Bill, which is why I move the amendment. I beg to move.

Lord Evans of Temple Guiting

The amendments would restrict the duty imposed on undertakers to keep a record of unrecorded apparatus that they find. The amendments would mean that they have only to make the record, not keep it.

Section 80 of the New Roads and Street Works Act 1991 sets out the duties that a person carrying out street works must comply with, where he discovers apparatus belonging to another person that is not recorded or wrongly marked on existing records. It is important that the location of apparatus is accurately recorded. For example, the consequences of hitting a gas main that was unmarked or wrongly marked in existing records could be serious. So, where such apparatus is located, the opportunity needs to be taken to make an accurate record for the future. Even where such apparatus is found, it may not always be possible to identify the owner and so require them to amend their own records so that they are accurate.

Clause 46(4) substitutes a new subsection (2) in Section 80 of the 1991 Act. On reflection, we felt that the original Section 80 placed an unfair burden on the undertaker who accidentally located the apparatus, which is why the section has never been commenced. Clause 46, therefore, provides that, where a person finds unmarked or wrongly marked apparatus that does not belong to him and is unable to ascertain to whom it belongs after taking reasonable steps to find out, he must comply with requirements set down in regulations.

I shall give an example. A contractor in Scotland examined all the records from other utilities, after his team had hit a fibre optic cable while working. When the police and Army arrived, they discovered that they had hit the line between the White House and the US nuclear base at Holy Loch, which was not, for obvious reasons, marked on the records.

The regulations may prescribe that the undertaker who finds the unrecorded apparatus should make and keep a record of its location. Amendment No. 111AB would restrict that requirement, so that the regulations were able to prescribe only that the undertaker must make a record of the apparatus. Amendment No. 111AC is consequential and would restrict the provision in new subsection (2A)(a), as set out in Clause 46, which allows for regulations to set out the form and manner of records of unrecorded apparatus that is found. The amendment would mean that only the form and manner in which records were made rather than kept could be prescribed.

Amendment No. 111AD would delete the reference in new subsection 2A(c) for regulations to make provision that records of unrecorded apparatus can be included in records kept by undertakers under Section 79(1); that is, records of their own apparatus. Amendment No. 111AE would restrict the provision for regulations to allow for the establishment of one or more registers of information.

The purpose of the amendments appears to be to allow undertakers to avoid having a duty to keep any records of unrecorded apparatus that they find. The implication is that, once they have made a record, they would give it to a street authority, and it would be the authority's duty to keep the record.

As I explained, Clause 46 allows for the exact arrangements covering the finding of such apparatus to be set out in regulations. In deciding what they will be, we will ensure that they do not place an unfair burden on utilities that find apparatus, and the details will be discussed with utilities and authorities before any regulations are made.

It seems sensible that regulations may be made so that a record is kept by the undertaker who finds the apparatus, in the same way that an authority records unexpected apparatus that they might find in the course of their works. It is possible that a central register of unrecorded apparatus will eventually be set up, in which case it is likely that the undertakers would simply have to pass on the record that they have already made. However, given that they already have a duty to keep records of their own apparatus, it is not an unfair requirement to ask undertakers to keep additional records of unrecorded apparatus when they find it. There will be very few such cases, and keeping a record should not prove any more of a burden than making it in the first place. I hope that in the light of my explanation the noble Lords will feel able to withdraw their amendments.

5.15 p.m.

Lord Astor

There could be an unfair burden here. If a utility discovers something unexpected, I understand that it should report it; there is no disagreement about that. The Minister accepts that the matter should be reported to the local authority. I am sure that when an undertaker is producing the plans of what it has done to a road it will have in its records what it found while digging the road or filling it in.

The Minister talked about a central register, but for the information to be useful it needs to be stored by the local authority; otherwise, how would anyone else find it? Someone would have to trawl the utilities to see whether they have records of anything unexpected. We ought to be somewhat prescriptive and place a duty on the local authority to hold those records so it is the first place anyone goes to conduct a search about what might be there. That is what I am attempting to do; I wish neither to put an unfair burden on the local authority nor to take away any responsibility from the utility. Once things are found, someone must work out where the information will be stored.

Obviously a central register would be helpful, but, in the meantime, it is important that there is a duty on the local authority to keep these records. We do not want a situation where the local authority has not kept the record properly and someone carries out work in the street at a later date and finds something unexpected which creates a problem that results in delay, congestion and expense. I hope that the Minister understands the principles on which I base my remarks and can give me some comfort that these issues will be dealt with by regulations.

Lord Evans of Temple Guiting

The Bill does not prevent the duty being placed on the local authority to keep these records. That may well be the case. The noble Viscount has laid out the problem very fairly and we must think about the matter between now and Report.

Lord Astor

I am very grateful to the Minister for that helpful reply. The Government need to look at whether there is a clear explanation of the duties of a local authority in this area, either in the Bill or in regulations. It would help local authorities to understand what their responsibilities are and it would be helpful to the utilities. I am grateful for his response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 111AC to 111AE not moved.]

Clause 46 agreed to.

Clauses 47 and 48 agreed to.

Clause 49 [Restriction on works following substantial road works]:

Lord Evans of Temple Guiting moved Amendment No. 111 AF: Page 25, line 13, at end insert "and for "three months" there is substituted "such period as may be prescribed"

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 111AG. The amendments have been tabled in response to recommendations made to us by the working group of local authorities and undertakers. We asked the group to consider, among other things, what form of secondary legislation we should make in relation to the power in the New Roads and Street Works Act 1991, as amendment by Clause 49, which allows a highway authority to restrict further works being carried out in a street where they have carried out "substantial" road works.

On the first of these, the authority must notify in advance certain persons—for instance, a person who has apparatus located in that street—of the proposed restriction, so as to give them the chance to carry out any works of their own before the substantial works proceed and the restriction takes effect. The relevant persons must be notified at least three months before the substantial works start. However, having given that more thought, on the working group's recommendation, we believe that there is a strong case for allowing more flexibility to require more than three months advance notice to be given in certain circumstances. Amendment No. 111AF provides, therefore, that the advance notice given must be more than, such period as may be prescribed".

On a related matter, the 1991 Act lists those persons who must be notified of forthcoming restrictions. At present that is limited to a relatively small range of bodies such as bridge, transport and sewer authorities. Again, on the working group's recommendation, we believe that added flexibility would be sensible here to prescribe certain other persons who should be notified—for instance those persons living in, or I hose persons based in, the street where the restriction is to be introduced, and who might also wish to ask for work to be carried out before the restriction takes effect. I beg to move.

On Question, amendment agreed to.

Lord Evans of Temple Golfing moved Amendment No. 111AG: Page 25, line 13, at end insert— () In subsection (3) after paragraph (e) there is inserted "and (f) any other person of a prescribed description:" (and the word "and" after paragraph (d) is omitted).

On Question, amendment agreed to.

Clause 49, as amended, agreed to. Clause 50 agreed to.

Schedule 4 [Schedule 3A to the New Roads and Street Works Act 1991]:

Lord Lucas moved Amendment No. 111B: Page 66, line 20, after "authority;" insert— () where no reasonable alternative method exists for the connection of a customer to a utility;

The noble Lord said: The intention of the amendment is simply to tease out the Government's intention with regard to this part of the Bill. If a number of existing utilities are planning ahead and are told that the street will be off-limits, they need to know for what period that will be the case—will it be six months, a year or two years, for example? In that way, they can bring forward plans that they have for particular developments under that road, the work all gets done in a nice and co-ordinated way and the street stays clean and pristine for whatever period the Government intend.

Let us suppose, however, that under that road we have the trunk for one of the new broadband providers, and a major customer half a mile away wants to contract with that provider for the provision of broadband services, which would require a fibre-optic cable to be put in from the trunk to his premises. Is the customer to be told that that cannot be done for two years because the street has just been polished? In that case, presumably, the customer would go off to BT, which has an existing trunk running up the required street. Will special provision be made for the eventuality, because there does not appear to be any arrangement here for anyone to be exempted unless by the good will of the local authority, which may care more for its street than the competitive difference between BT and some other provider in the provision of broadband services? I beg to move.

Viscount Astor

The amendment relates to paragraph 5 of the schedule, sub-paragraph (1) of which refers to paragraph 4, which refers to the direction restricting further works. The start of that paragraph gives the local authority power to restrict works in the street. Can the Minister give us some idea of how often that happens? Does it happen now, under the 1991 Act? Is it something that the Government expect to happen often? Is it meant for major trunk roads or can it be for minor roads? Are there any parameters, and will there be guidance on how the legislation is to be used, or will it be done by regulations?

On the particular point made by my noble friend in his amendment, should there be a restriction? What happens to someone who needs to get connected? Has that happened, and what do they do about it? Is there any process by which they can go along and plead their case, if it is an important matter? I should like a little clarity on the effect of paragraph 5.

Lord Evans of Temple Guiting

Amendment No. 111B would add customer connections, where no reasonable alternative method of carrying them out existed, to the list of types of works which could be carried out in a particular street, even where a highway authority had placed a restriction on any further works being carried out in that street for a period. In fact, paragraph 5(2)(c) of new Schedule 3A already allows regulations to prescribe other types of work that could be carried out during a restriction period. However— and this is the important aspect—we have charged the working group of utilities and local authorities looking at the detailed arrangements for introducing the new powers to consider what exemptions should be allowed for.

All of us with common sense can work out that, with the example given by the noble Lord, Lord Lucas, of the fibre-optic cable, it would be absolutely potty to restrict access to repairing it in order to give back to everyone in the street their access to broadband. So, for instance, the regulations governing the equivalent powers allowing highway authorities to restrict street works after substantial road works set out exemptions for, among other things, urgent works and customer connections which it was not practicable to carry out before the restriction began.

As yet we have not decided what exemptions it would be sensible to allow for in relation to the new power, and I am sure that the House would agree that it is sensible to retain the flexibility for which the Bill provides. The power is likely to apply to major roads only. As I said, the regulations will be able to exempt certain work, and the working group is considering what the exemptions should be. Given that we could all describe what we see as the right sort of exemptions, I am sure that the working group will come up with exemptions that will satisfy Members of the Committee.

In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Lucas

Yes. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. Schedule 4 agreed to.

Clauses 51 and 52 agreed to.

Clause 53 [Power of street authority to require undertaker to re-surface street]:

Lord Lucas moved Amendment No. 111C: Page 27, line 7, leave out from "to" to end of line 8 and insert— (a) execute such re-surfacing works in the street as may be specified, or (b) make a specified financial contribution to the cost of future resurfacing works.

The noble Lord said: In moving the amendment, I shall also speak to Amendments Nos. 111D and 111E.

I do not place any particular importance on the drafting of these amendments. I am aiming to provide an illustration of what might be done to provide certainty to a utility or someone else digging holes in the road as to what their liability will be. If a connection is being put in for a customer, the company will want to charge the customer at the time, or ask the customer to bear the cost at the time of the works being done to make the connection. The company will not want to discover, five years down the line, that it suddenly has a bill for several thousand pounds from a local authority that has just decided to resurface the roads and has made a note that the company was party to damaging them.

That is not the sort of basis on which we can ask commercial concerns to operate. We ought to offer certainty, and there is no reason why it should not be a fairly generous certainty in terms of the contributions being made. It should be specified in some way so that a company knows how much a disruption to 100 yards of street will cost it for resurfacing. The payment should be made or provided for on day one, so that the company can charge its customer or bill it to its own expenses, as it chooses. It should not be left with some unspecified liability hanging over it that its auditors will not know how to deal with in the accounts and that might amount to several times what the company expected, several years in the future. We should not impose that on utilities. I beg to move.

5.30 p.m.

Viscount Astor

I am not sure whether I agree with my noble friend's amendment as regards its effect on Clause 53. However, it raises an important issue that we must consider.

Clauses 53 and 54 give local authorities the opportunity to require utilities to either undertake or pay towards the cost of resurfacing the whole or part of a road, over and above their current statutory requirement to reinstate the area that they have excavated to a required standard. Clauses 53 to 55 provide for local authorities to require utilities to undertake or pay towards the cost of resurfacing some or all of a road at any time in the future. That is over and above their statutory duty to reinstate the area that they have excavated to the required standard.

Giving local authorities the ability to require utilities to carry out such works either immediately after they have undertaken the works or at any time in the future—that is the important aspect—could have a detrimental effect on utilities' operational planning and effectiveness. They will not know when or where they will be required to undertake such works.

Alternatively, local authorities can ask for a contribution at any time to the cost of full or half-width reinstatement undertaken by the authority itself, another utility or a contractor. The complexity of those costs and of calculating what each utility and the local authority might contribute could make the proposals unworkable, as there are so many variables—for example, the current state of the road, its composition and the surrounding ground conditions; the type and number of vehicular movements on the road, whether cars or heavy lorries; the number, type and scale of excavations; and at what point the decision is triggered to resurface the road.

Such requirements will introduce regulatory and balance-sheet uncertainty, as utilities will be unable to assess when such costs may be due and how much they might be. They may have to add sums to their balance sheet without really understanding what their liabilities might be.

There is a perception that these requirements could allow local authorities to get their roads resurfaced on the cheap at the expense of utilities. Resurfacing a larger proportion of the road than necessary will require lengthier and greater occupation of the road, causing more congestion not less. Of course we consider that a utility should be required to undertake to repair a road to the state in which it found it. But it is important that the local authority can use the requirement of reinstatement to put an unfair burden on utilities, as ultimately those costs will be passed on to the consumer. That is why I support the thrust of my noble friend's amendment.

Lord Berkeley

The noble Lords who spoke gave good arguments about the difficulties involved. However, when water, gas, electricity and telecom apparatus runs along the same road, it will need to be resurfaced each time it is dug up. When local authorities come to carry out such works, drainage is the responsibility of the drainage authority but it is the local authority that installs gullies. I do not know where the difference lies, because gullies are usually installed at the highest point of the road so that there is a good flood. When the utilities reinstate a road after digging a hole, the result is usually a nice hump, causing yet further holes.

There is a minefield of problems. I hope that my noble friend has some solutions or that the working parties will produce one, because I envisage endless legal actions between different authorities and not much work being done on the ground. I hope that I am wrong.

Lord Evans of Temple Guiting

I am sure that we all know situations where a street has been dug up over several years by a succession of undertakers and as a result looks very unsightly. My noble friend Lord Berkeley has given us a very graphic picture of such roads. As well as the visual effect, even if individual works are carried out well, such a succession of works can adversely affect the longevity of the road structure, especially with the increased risk of water getting into the foundations.

Furthermore, a series of trenches can lead to a very uneven road surface, which makes it uncomfortable, and possibly even dangerous, for cyclists and motorcyclists. As we have heard, several Members of the Committee are keen to ensure that the interests of road users on two wheels are kept in mind. I remember in particular my noble friend Lord Davies of Oldham, who is not with us today. In such circumstances it is only right that those who have caused such effects should contribute towards the cost of rectifying them. Clause 53, along with Clauses 54 and 55, provides powers to achieve that.

The circumstances in which a street authority will be able to require an undertaker to resurface all or part of a street will be prescribed in regulations. We do not intend that that will be widespread but that it will be used where problems are serious. To be covered by this requirement, such an undertaker would have to have carried out works within a period that may be prescribed in regulations, to be currently carrying out works, or to have given notice that it intends to carry out works.

Amendments Nos. 111C to 111E would fundamentally change that position. In particular, Amendment 111D would exclude undertakers who had previously carried out works in the street in question and those currently carrying out works. That is not fair either to the undertakers who are covered or to the authority, which would have to pick up much more of the cost of resurfacing.

Amendments 111C and 111E would also give the undertakers the option of paying a contribution, to be prescribed, towards future resurfacing. That does not fit with the purpose of the clauses. The trigger for resurfacing will be that there is a problem now. It is not provision for future resurfacing that is needed but resurfacing now or when the current or planned works are finished. Clause 54 already provides for circumstances to be prescribed when an undertaker can decide not to do the resurfacing itself but instead pay a sum of money to the authority. Thus the principle of choice behind the amendment is already in the Bill but in the context of an imminent need to resurface rather than some future need.

I hope that, with that explanation, and with the reassurance that the regulations and guidance will be the subject of discussions and consultation with utilities and authorities, the noble Lord will withdraw his amendments.

I wish to respond to at least two of the questions raised by the noble Viscount, Lord Astor, and the noble Lord, Lord Lucas. I was asked about the uncertainty of some utilities and companies about whether they might incur costs some years later. It is right that utilities that damage the road should contribute to its resurfacing. We do not intend that that power will be invoked frequently, so the costs should not be unreasonable. It is not a means for local authorities to do their resurfacing on the cheap, if that thought occurred to any Members of the Committee.

In response to the point made by the noble Viscount, Lord Astor, that utilities may have to carry a liability on their balance sheet for many years, regulations can limit how long a utility can be liable to pay a contribution for a particular works—for example, they cannot be asked to pay more than five years after the works took place.

I hope that in the light of those explanations the noble Lord will feel able to withdraw his amendment.

Viscount Astor

Before my noble friend withdraws his amendment, may I say to the Minister that his response was helpful in principle but it concerns me that areas here will cause us difficulty. At one point he gave me great comfort when he said that resurfacing would be a requirement given at the beginning of the process or while the utility is doing the work. When he finished he then said that regulations may prescribe that it might be five years before it has to be done. The important point is when they will know. It is crucial to the utilities that, if they are expected to do a resurfacing, whether in one year, three years or whatever, they know when they are doing the original work that they will have to do it. It does not seem to be right that the utility could do the work, think that it had done it satisfactorily—there would be no reason for it to assume that it had not—and then someone comes along later and says that the road must be resurfaced. That is the point. I do not think that the Government intend this. I hope that the regulations will be able to deal with that point and that the Minister will be able to give me some comfort on that.

Lord Evans of Temple Guiting

I hope that I can reassure the noble Viscount that the local authority will know that the road needs to be resurfaced only when the conditions I described earlier are triggered. That is the first point. The second point is that this will be prescribed in regulations and it will be fair. It will not happen that a local authority will say to a utility, "Resurface this road because it is unsightly and you were working on it 10 years ago". I hope that when the draft regulations are available the noble Viscount will be reassured on that point.

Lord Lucas

I hope that we will see these draft regulations before Report because the Minister said very little that I found comforting. As the Minister describes it, the situation is that at some point a road will clearly need resurfacing, at which point, under rather unspecified circumstances, it may be decided that utilities should bear a share. I would like some clarity, even an outline, of the Government's thinking on the circumstances in which a road will trigger this charge-back on utilities that have previously worked on the road. The Minister said a limit of five years. Is that what it will be? That would be helpful. He said that it will not be many roads. What will the main restrictions be? I do not require this answer today but I would like it in writing before Report because it will be a problem. Imagine if the Mayor of London were to operate congestion charging in this way: he would put cameras up around London and in five years' time he would say, "I am going to resurface Oxford Street. Any car using Oxford Street will pay me £5 for every time it has used it in the past five years". People would not be pleased suddenly to discover that they have a bill for £10,000 because they had been up and down Oxford Street and had not realised when they did it that it would require resurfacing.

There must be some certainty in these matters. A utility that does something to the road must know that it is likely to have to provide part of the cost of resurfacing it or that it is unlikely. The cost of resurfacing a road, even a fifth share, if that is what it turns out to be, may be several times the cost of the installation that the utility made to a customer's premises. These are very large sums of money that could entirely alter the commerciality of a particular connection. It would be extremely hard to get it back from the customer and will be extremely hard to provide for properly on balance sheets. Unless there is a very clear limitation, this could cumulatively have a significant effect on the viability of a commercial concern. All companies do not have balance sheets like BT. We must have more certainty on this before we come to Report. I hope that the Minister will be able to write to me.

5.45 p.m

Lord Evans of Temple Guiting

The noble Lord. Lord Lucas, raised some very interesting and reasonable points. I undertake to write to him well before Report, giving him, I hope, assurances that will satisfy him.

Lord Lucas

I, too, hope so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 111D and 111E not moved.]

Clause 53 agreed to.

Clause 54 [Re-surfacing: regulations and guidance]:

Lord Berkeley moved Amendment No. 111F: Page 29, line 4, at end insert— () specify that road markings or surface materials which indicate the presence of a bus lane, cycle lane, cycle track or waymarked cycle route should be reinstated on a "like-for-like" basis;

The noble Lord said: I shall speak to Amendment No. 111F briefly. I believe that the resurfacing regulations must include the need to ensure that road markings and surface materials are replaced at least on a "like-for-like" basis, so that bus lanes, cycle lanes, cycle tracks and so forth should be reinstated. Road markings and surface materials are usually part of the legal requirements and signs on a road that give confidence to cyclists, motorcyclists, road users and pedestrians. I believe that if they are not there, that would be highly dangerous.

There is slight worry that, with an incentive to carry out street works more quickly in order to reduce congestion for cars or motorbikes, corners might be cut. This is just a suggestion that the regulations should specify that suitable road markings and surface materials are put down quickly after the work is completed. I beg to move.

Lord Evans of Temple Guiting

Amendment No. 111F would write into the Bill a requirement that the regulations may in particular specify that all road markings and surfacing materials for bus and cycle facilities should be reinstated like-for-like when the resurfacing powers are invoked.

I can understand that the noble Lord wishes to ensure that where specific provision has been made for buses or cyclists, that is not lost when resurfacing is carried out under the new powers in Clauses 53 to 55 of the Bill. I am entirely in agreement with that intent.

As with existing requirements under the New Roads and Street Works Act for the reinstatement of utilities excavations, the intention is that there should normally be like-for-like resurfacing. That would include any special surface treatments and the replacement of road markings. That would apply to pedestrian crossings, to road markings generally and not just to those associated with bus and cycle facilities. To single out buses and cycles in the Bill would therefore be inappropriate.

The regulations and guidance will of course be subject to discussion and consultation with all the interested parties. Bus and cycle interests will be able to have their say. I hope therefore that with that reassurance the noble Lord will withdraw his amendment.

Baroness Scott of Needham Market

I am not terribly reassured. As a member of a local authority and someone who works with a number of others, it is often the case that utilities do not replace the white lines, nor do they replace or render completely usable surfaces that have been put in at significant public cost. This brings to mind the point made by the noble Lord, Lord Lucas, who is no longer in his place. He spoke about the reasonable costs for reinstating roads and who should pay. Put simply, when reinstatement has to be done, someone has to pay for it. Therefore, the debate is whether it is fairer for the wider public purse to pay for it through council tax or whether the individual customer should pay via utility bills.

Lord Berkeley

I am grateful to the noble Baroness for that intervention. I am partly comforted by what my noble friend said. I would refer him—as I will many more times—to this lovely book called, The Traffic Signs Regulations and General Directions. 2002, which gives all the pictures. Noble Lords can obtain it from the Printed Paper Office if they want some bedtime reading. The key is that it has got colours, all the rules and both road markings and traffic signs. I entirely agree with the noble Baroness that these should be reinstated on a like-for-like basis. With those comments, I shall read carefully what my noble friend has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Clause 55 agreed to.

Clause 56 [Inspections]:

Lord Bradshaw moved Amendment No. 112: Page 30, line 40, at end insert— () Guidance under this section shall provide for the funding of inspections by fees and permits to defray costs.

The noble Lord said: I do not think that we have touched on this issue, but I ask the Minister to pay particular attention to it. In fixing fees and permits, I should like the Government to have regard to the costs to local authorities of issuing these permits, but, more particularly, the costs that would be necessary to carry out the inspections required under the legislation.

Currently, local authorities have few, generally badly paid people to inspect roadworks. They have a duty to inspect all roadworks, report any defects and have them made good. However, the people who go around and inspect utility works are very lowly paid officials. As such, those officials would be open to bribery. They are people who are paid very little money in the hierarchy of local government.

I am sure that all Members of the Committee have heard about people who look after building control and the enforcement of planning regulations and the little amount of that that is done. They may have heard how people have often said, "He must know someone who is a building inspector or a planning inspector. They must be in his pocket rather than the local authority's pocket".

It is important that when we have a perfect system of inspecting street works, the people responsible for carrying out those regulations are properly informed about what is going on. They should not find out what is going on so long after the event that it does not matter. Inspectorates should be staffed by people who are adequately paid and motivated to do the job properly. In a moment, I shall turn to the issue of the people who enforce environmental controls.

The fines that are levied on people whose vehicles flout the omissions controls are so low that local authorities cannot afford to enforce the regulations. They cannot afford to pay the environmental health officers whose job it is to enforce the regulations, and the Government give no help. The same will apply to the people whose job it will be to inspect street works, unless they are adequately trained and adequately paid. I hope that the Minister can give us some comfort on this matter. I beg to move.

Viscount Astor

I am a bit perplexed by this amendment moved by the noble Lord, Lord Bradshaw. He said that the inspectors should be adequately paid. Presumably, they would be part of the pay scheme within a local authority budget and standard. It seems to me that the matter should be dealt with on that basis. In Amendment No. 112 the words, shall provide for the funding of inspections by fees and permits also confuse me. It is difficult to know who will pay that and on what basis. I am a little confused about whether this will be an additional cost to the permit. Presumably, under the permit scheme that we discussed in earlier amendments, all local authorities will be able to charge reasonable and appropriate costs. It may be that I have not clearly understood the amendment tabled by the noble Lord, Lord Bradshaw, but I am a little confused. No doubt the Minister will probably have an explanation that will give us a third alternative when looking at this issue.

Baroness Scott of Needham Market

If I may assist the noble Viscount, the point here is that when the Government are setting the scale of charges and fees, we hope that they will take into account that part of the costs incurred by local authorities will be inspection of the reinstatement. If that is not taken into account, local authorities will simply not be able to afford to perform the inspection. In that case, much of this part of the Bill will be rendered useless.

That has happened with other elements of government policy, especially, as we heard from my noble friend, with regard to emissions testing. Because they are cash-strapped, authorities have a choice between doing a particular piece of work or doing something else. They would rather that did not happen with inspection of reinstated roads.

Lord Evans of Temple Guiting

As we have heard, the amendment would extend the power of the Secretary of State to make guidance for street authorities dealing with inspection of an undertaker's work. It would allow the guidance to provide that the inspections are funded by, fees and permits to defray costs". Section 75 of the New Roads and Street Works Act 1991 sets out certain rules covering inspection by highway authorities of individual street works. Those inspections are carried out to ensure that they meet the relevant national standards, such as quality and reinstatement.

Section 75 also provides that: An undertaker executing street works shall, subject to the provisions of any scheme under this section, pay to the street authority the prescribed fee in respect of each inspection of the works carried out by the authority". The amendment is therefore unnecessary, as there is already provision to cover the funding of inspection of utilities works through a scheme set under regulations. Regulations made under Section 75 of the 1991 Act already provide that a street authority can inspect up to 30 per cent of utilities' works and charge a fee of £21. They can inspect more than 30 per cent. but cannot charge a fee, although they can recover their costs from an undertaker if a reinstatement defect is found.

Clause 36(5) allows for the level of permit fees to be set out in regulations. We have asked the working group, made up of representatives of utilities and local authorities, to consider whether those applying for a permit would need to pay a fee and, if so, at what level the fee should be set. The noble Lord, Lord Bradshaw, raised the spectre of bribery and corruption. We will draw the committee's attention to his point through Hansard, so that it can form part of the working group's considerations.

The group will be considering whether part of the fee should cover the costs of ensuring that conditions of a permit are complied with. However, that will be a separate matter from ensuring that works are carried out according to national standards. There are already provisions to deal with the funding of such inspections. I hope that, in the light of my comments, the noble Lord will feel able to withdraw the amendment.

Lord Bradshaw

I thank the noble Lord for that reply. However, I am pretty dissatisfied with it. He reiterated that the fee is £21. If someone is pretty conscientious and goes round by car to perform, say, 10 inspections a day and fills in the necessary forms, the fee will not even pay his wages for the day. What local authority can be expected to take on extra people, whose wages they cannot pay? Highway inspectors are the lowest in the hierarchy, yet we still cannot afford to pay their wages.

That new sort of money —£21—does not constitute a reasonable amount. If you call out the gas man, or someone of that sort, someone to do a bit of plumbing, or something, he will charge at least £60 to come to your house, let alone to do any work.

I would press the Minister very hard that fee levels should be adequate and should bear some comparison with the fee levels charged by other people who are called out to inspect other work. I do not expect profits to be made; I simply expect a reasonable sum of money to be raised so that local authorities can afford to pay people decent wages to do a decent job.

6 p.m.

Lord Evans of Temple Guiting

Before the noble Lord sits down, it may be helpful to him, when he argues that the £21 fee is too low, to know that that figure is based on a recent study and represents the average actual cost of an inspection.

Lord Bradshaw

I note what the Minister says. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

Clause 57 [Strategic roads in London]:

Lord Bradshaw moved Amendment No. 113: Page 31, line 32, at end insert— () Before exercising any of the powers conferred on him under this section, the Secretary of State shall first publish guidance setting out under what criteria he will designate a road as a strategic road under this section.

The noble Lord said: We now turn to Part 5, which covers strategic roads in London and the initial designation by the Secretary of State.

I am anxious that in London—this issue has been raised before—we ensure that the Secretary of State sets out guidance to ensure that we know which roads form the strategic road network. We have referred several times today to forthcoming guidance. As the noble Viscount, Lord Astor, has said several times and has been reiterated by other Members of the Committee, it is difficult to guess what will be in the guidance when it comes. In many cases, it will arrive some time after the Bill is published.

It is most important that the Secretary of State himself publishes guidance. In future amendments, we will turn to the issue of whether the Mayor of London, because he presides over a number of borough highway authorities, will be able to issue guidance in turn to those authorities, so that there is a hierarchy of guidance and some coherence of control over the strategic road network. I beg to move.

Lord Rotherwick

I support the noble Lord, Lord Bradshaw, on Amendments Nos. 113 and 114. As he said, the aim is to gain further clarification of the criteria that will be used to determine whether roads should be designated as strategic roads and, most importantly, the relationship between Transport for London and local authorities on the strategic issue.

We are grateful for having been given yesterday a briefing on the development of strategic roads in London. As I understand it—I have probably got it wrong, because I am not very good at these things—a steering group has been established to advise the Minister but, as yet, it has not considered the definition and/or the criteria for strategic roads.

As I also understand it, a consultation exercise is to take place after the mayoral elections in June that will last for another 12 weeks. I am bemused that the steering group has yet to consider the specific criteria, but must do so in the next four to six weeks and report back to the Minister. Maybe that is what they are doing, which is great news for us all because then the Minister can then come back to tell us what are the criteria. Can the Minister enlighten us on where the steering group is? Maybe it has moved on since yesterday and is about to consider the specific criteria, because I also understand that it now has the information that it needs to do that. If so, when will it be able to issue the guidance on the criteria to the Minister? Is my understanding of the timetable correct? Notwithstanding that, can the Minister also answer the second point, to which I alluded earlier, concerning the relationship between Transport for London and local authorities?

Lord Faulkner of Worcester

Briefly, I support the amendments. It is important that there are clear criteria. If there are no criteria, selection of the roads would appear to be arbitrary. The criteria must be sufficiently broadly defined so that the unique nature of London's roads, which we discussed in Committee on Tuesday, is properly recognised and so that the purpose of strategic roads can be implemented to the full.

Lord Berkeley

I also support the amendments. I have one question for my noble friend. Presumably, a strategic road is also a street. As we have been talking about traffic, which includes cyclists, motorcyclists and pedestrians, strategic cycle routes could also be included in that network. TfL has produced an interesting and useful book on the strategic cycle network for London. I should be interested in hearing my noble friend's views on that.

Lord Evans of Temple Guiting

Before I speak to the amendment, I reiterate that there is a briefing paper on the table on the development of strategic roads in London which has been provided to assist the Committee in its consideration of Clauses 57 to 60.

Amendment No. 113 amends Clause 57 so that before the Secretary of State uses his power to designate certain roads in London as strategic, he first issues guidance on the criteria for designating a road as such. Similarly, Amendment No. 114 amends Clause 58 so that the Greater London Authority must issue guidance on the criteria before designating a road as strategic. It is not intended that guidance will be issued on the initial designation of which roads will be strategic as the question of what will be considered strategic will be covered in the consultation document to be published prior to the Secretary of State exercising the power.

The noble Lord, Lord Rotherwick, mentioned that consultation, which is now taking place. Comments received will be taken into account before the Secretary of State makes his final decision on which roads should become strategic under Clause 57. The steering group has met twice already; the third meeting, which will be held shortly, will define a network. After June, when the work on that is finished, we will consult—not necessarily immediately after the election, but shortly after.

Lord Rotherwick

Can the Minister tell us when the criteria will be published? I understand that the consultation will be conducted in June, so obviously the criteria must be set by then.

Lord Evans of Temple Guiting

As I believe I said, there is no intention to publish criteria separately.

Lord Rotherwick

It would help enormously if we could understand what are the criteria. I think that that is what the noble Lord is asking for and it is important that we should see them. Is there no chance of the Minister writing to us later with the criteria, in the light of our discussion?

Lord Evans of Temple Guiting

The consultation will provide a list of possible routes and will seek views on those roads. Given the way the process is going, it will go out to consultation on the routes. A decision will then be made by the Secretary of State in the light of the feedback he gets from that consultation.

Lord Bradshaw

I thank the Minister for that reply. I think he now fully understands where we are coming from, and the fact that there is a need for this guidance. Since speaking earlier, I have obtained the paper issued yesterday, of which I was not aware. We await the publication of the guidance. I hesitate to repeat the word "shortly" because it has very unfortunate connotations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clause 58 [Orders of the Greater London Authority changing what are strategic roads]:

Lord Bradshaw had given notice of his intention to move Amendment No. 114: Page 32, line 13, at end insert— () Before exercising any of the powers conferred on it under this section, the Greater London Authority shall first publish guidance setting out under what criteria it will designate a road as a strategic road under this section.

The noble Lord said: We can deal fairly quickly with Clause 58, which requires the Greater London Authority, Transport for London or the Mayor to publish guidance to set out the criteria for a road that is strategic. However, that can hardly be done until the national guidance is available. Under the previous amendment, we heard that that guidance will be available shortly. Therefore, in the light of that, it was somewhat premature to put down this amendment.

[Amendment No. 114 not moved.]

Clause 58 agreed to.

Clause 59 [London borough council exercising powers under Highways Act 1980 so as to affect strategic roads]:

Lord Bradshaw moved Amendment No. 115: Page 33, line 3, at end insert— () Under this section, the Greater London Authority shall not refuse consent to a London borough council that wishes to carry out works that may affect a road designated as a strategic road under section 57 or 58 of this Act unless it has first published criteria setting out on what grounds it will withhold such consent.

The noble Lord said: I beg to move.

Lord Rotherwick

I understand that Transport for London would have the power to refuse to allow any local authority works to take place on a strategic road where, for example, two adjacent boroughs were planning to undertake works on a major route at the same time. The Government have said that the aim of this provision is to try to ensure the more effective planning of works rather than to prevent them taking place. However, that is not made clear in the wording of the Bill and I feel that it is only fair, in following good governance, transparency and accountability, that Transport for London should have to publish the grounds on which it withholds consent.

As drafted, the Bill only requires the borough to notify Transport for London or a neighbouring borough of any works it is planning. That may affect strategic roads. Given that the provisions of the Bill seek to reduce congestion through the more effective planning of works, it seems sensible to place a similar requirement on Transport for London to notify the borough of any works it is planning to undertake on the Transport for London road network that may affect the new strategic road network. This would help to ensure that boroughs could undertake advance planning to overcome any traffic displacement resulting from Transport for London's own planned works.

There have been examples of situations where severe congestion has been caused on borough roads as a result of works on the Transport for London road network. One such example occurred in 2000 following the closure of two lanes on the A2 to allow works on a railway bridge at New Cross Gate. Those works were not preceded by any warning to the local authorities concerned. They caused severe congestion on the surrounding road network.

In light of the arguments for good governance, transparency, accountability and practicality, I support these amendments.

6.15 p.m.

Lord Faulkner of Worcester

I rise only because of the last remarks made by the noble Lord, Lord Rotherwick. He referred to the case of the closure of lanes on the A2 at New Cross Gate. The matter was set out in the Association of London Government briefing which has been sent to a number of noble Lords. Unfortunately, it is very wide of the mark. I have been informed that Transport for London was told on 21 March 2001 that they had received notification from Railtrack that the New Cross Gate bridge had a zero-weight loading on the two outside traffic lanes. Someone from Transport for London briefed the head of Lewisham Transportation on 18 April 2001. Traffic counts were carried out by Lewisham Council, letters were sent out to local MPs, ward members, Lewisham officers and 5,000 residents in the same month. Some 30 advance warning signs were erected and a Lewisham Direct team was then appointed as a contractor by Transport for London to install barrier restrictions on the bridge.

It is a pity that the ALG is putting out information that is quite clearly wrong and misleading. I am afraid that I oppose these amendments on the basis that they are far too restrictive. They would make it impossible for the concept of the strategic network to function properly.

Lord Evans of Temple Guiting

These amendments seek to amend Clauses 59 and 60 respectively so that the GLA must issue the criteria that it will use when withholding consent for a borough to carry out works on strategic roads. Transport for London can already prevent borough works which may affect GLA roads taking place under Section 301A of the Highways Act 1980 and Section 121B of the Road Traffic Regulation Act 1984. Under these Acts, criteria describing when TfL might prevent works taking place are not required and so it would be inconsistent with these existing powers to produce criteria for TfL to prevent works on strategic roads.

Amendment No. 117 inserts a new clause that intends that where TfL is carrying out works that may affect strategic roads, they should first inform the borough responsible for that strategic road. This amendment aims to achieve what is already covered by Section 59 of the New Roads and Street Works Act 1991 where a street authority has a duty to co-ordinate with other street authorities where works in a street for which one authority is responsible affects streets for which other authorities are responsible.

I hope that, with this explanation, the noble Lord will feel able to withdraw the amendment.

Lord Bradshaw

I thank the Minister for that response and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. Clause 59 agreed to.

Clause 60 [London borough council exercising powers under Road Traffic Regulation Act 1984 so as to affect strategic roads]:

[Amendments Nos. 116 and 117 not moved.]

Clause 61 [Fixed penalty offences under the Highways Act 1980]:

Lord Evans of Temple Guiting moved Amendment No. 117ZA: Page 34, line 11, at end insert— () Regulations under subsection (1)(b) may—

  1. (a) make provision for Greater London different from that made for the rest of England;
  2. (b) make consequential provision (including provision disapplying sections 8 to 11 of, and Schedule 2 to, the London Local Authorities and Transport for London Act 2003 in relation to any offence prescribed in such regulations);
  3. (c) make transitional provision."

The noble Lord said: The purpose of Amendments No. 117ZA, 117ZB, 117ZC and 128A is to deal with certain Highways Act 1980 offences which can become fixed penalty—FPN—offences under the Bill that are also covered under the London Local Authorities and Transport for London Act 2003.

Clause 61 inserts new Section 314A into the Highways Act, which allows for certain criminal offences under the Act to be subject to fixed penalty notices rather than automatic criminal prosecution. Schedule 5 of the Bill inserts new Schedule 22A into the Highways Act, which lists the offences that can be subject to FPNs. Some of those offences relate to skips and scaffolding on the highway and can also become FPN offences under Schedule 4 of the London Act.

The relevant overlap offences, as listed in new Schedule 22A, refer to the following sections of the Highways Act: Section 139(3), which concerns offences relating to the depositing of a skip on the highway without permission; Section 139(4), which refers to offences relating to failing to light or mark a skip or not removing it as soon as practicable once it is filled, or not complying with any conditions attached to placing it in the street; and Section 169(5) which refers to offences relating to obstruction caused by the placing of scaffolding or similar structures on the highway.

The Secretary of State has recently approved an application from the ALG that in London a number of FPN offences will be subject to a penalty of £ 100. That includes the overlap offences relating to skips and scaffolding. However, the Bill allows us to impose maximum penalty amounts of up to £300 for the skip offences and £1,500 for the scaffolding ones. A working group will be looking at appropriate amounts for the penalty, and we shall also be liasing with the Home Office and the Department for Constitutional Affairs. Setting the limits that high was intended to give us maximum flexibility, rather than as a statement of intent. However, the overlap presents a possible conflict of having two separate regimes for the same offences. Also there is the potential for the amounts of the overlap penalties in London to fall below those set outside London. The amendments give us flexibility to allow for different solutions to the possible conflict.

Amendment No. 117ZA inserts a new subsection into new Section 314A of the Highways Act. It allows regulations to make provision in London different to that in the rest of England. That could mean that we introduced FPNs under the Bill only outside London and left the London system in operation. In effect, there would be two separate systems for the overlap FPNs. The amendment also allows that if regulations brought into effect FPNs under the Bill they could disapply the overlap London FPNs. In effect, that would replace them with FPNs under the Bill. Transitional provisions could be made to deal with any changes from one FPN system to another.

Amendment No. 117ZB inserts a new subsection into Clause 61, which in turn inserts a new subsection into the London Act. This will give the Secretary of State a reserve power under that Act to make regulations to increase the rate of the overlap FPNs in London. It would be possible to make regulations as described above that could then apply the Bill's FPNs just outside London. Once such an increase had been made, it would not be possible for the London boroughs or Transport for London to set lower amounts for the penalties.

Schedule 6 allows for regulations which provide further details of the FPNs under the Bill. Amendment No. 117ZC provides for regulations to make different provision for different areas. That could be used, for example, to set a higher amount for the penalties in London compared to elsewhere. Amendment No. 128A amends a typographical error in Schedule 12 of the Bill which repeals the financial provisions in the 2003 Act as far as they apply to the provisions relating to fixed penalty notices. It was not the intention to repeal these provisions.

The amendments give us flexibility to address the possible conflicts that I have outlined. They are intended as reasonable safeguards which can be used depending on the proposed amounts for the overlap offences. As well as liasing with other government departments, we would consult ALG and TFL before implementing any solutions. I beg to move.

Lord Astor

I thank the Minister for such a detailed and comprehensive explanation of his amendments. I struggled to keep up with it and I look forward to reading Hansard. However, since in the absence of the noble Lord, Lord Davies, he has shown such extraordinary ability this afternoon in dealing with the complexities of this clause and his amendments, I am sure that he will not mind if I ask him a couple of questions.

The Minister explained that the amendments deal with Highways Act offences that can become fixed penalty offences under the Bill, and which are also covered under the London Local Authorities and Transport for London Act 2003. They relate to skips and scaffolding on the highway. The overlap of the Bill and the Act presents the problem of two separate regimes for the same offence. There is also a potential for the overlap to allow the levels of fixed penalty notices for London to fall below those set elsewhere. The Minister explained that the Bill allows the Government to impose a maximum fixed penalty of up to £300. But, if I heard him correctly, he said that this is for skip offences and that it is the intention of the Government to limit it to £100. I am sure that he will correct me if I am wrong. He said that there would be a maximum fine of £1,500 for scaffolding offences and explained that these are set as maximums to provide flexibility rather than as a statement of intent. I am surprised. Penalties are normally fixed by regulations rather than in a Bill. If the Government ever want to amend them, whether up or down, as they may well do, they could do so by regulation rather than in primary legislation. I wonder whether the Minister has considered that. Can he tell us whether the Government have consulted on this issue and whether they have done any form of cost-benefit analysis on whether those using or responsible for skips could afford such fines? If they have not, will there be consultation, and under what criteria?

As the Minister said, the amendments give the Government the flexibility to allow for different solutions to the problem of overlap, so that they can disapply the overlap and replace it with one in this Bill or raise the level of London notices and apply the notices in this Bill only outside London. I am somewhat nervous of leaving this issue unresolved and to be dealt with by regulation. It would be helpful if the Minister could confirm that there will be a full consultation before implementing any of these solutions. It is important that we have an assurance that there will be full consultation with those involved before the Government use this flexibility to deal with the overlap. He gave me to understand that, but he will appreciate that his explanation of the amendments was somewhat lengthy. It would be helpful if he could deal with those few points.

Lord Evans of Temple Guiting

I shall deal first with the question of consultation. As well as liaising with other government departments, we will consult with the ALG and TfL before implementing any of the solutions, although I gather that the consultation will be much wider than that. I can assure the noble Viscount that consultation is the order of the day. In addition, there will be a regulatory impact assessment.

I will write on the other matters. On the particular point made by the noble Viscount, I do not think I said that the Secretary of State has recently approved an application from the ALG that in London a number of FPN offences should be subject to fines of £100, with fines of £300 for skip offences and £1,500 for scaffolding ones.

I went on to say—and this is where the confusion starts and ends—that a working group should be looking into appropriate levels of penalty. We shall liaise with the Home Office on that. It is my understanding that this is an interim arrangement made by the Secretary of State after an application from the ALG and may be modified when the working group produces a solution. However, if that is an incorrect or inaccurate answer, I shall write to the noble Viscount.

Viscount Astor

I am grateful to the Minister for that explanation.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendment No. 117ZB: Page 34, line 16, at end insert— () In the London Local Authorities and Transport for London Act 2003 (c. iii), in section 11 (fixed penalties: reserve powers of Secretary of State) after subsection (6) there is inserted— (7) The Secretary of State may make regulations increasing the level of fixed penalty under this Act in respect of an offence listed in Schedule 22A to the Highways Act 1980 (as well as Schedule 4 to this Act). (8) While regulations under subsection (7) are in force in respect of an offence, the borough councils and Transport for London may not set the level of fixed penalty in respect of that offence below that set by the regulations."

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Schedule 5 agreed to.

Schedule 6 [Schedule 22B to the Highways Act 1980]:

Lord Evans of Temple Guiting moved Amendment No. 117ZC: Page 70, line 21, leave out from "may" to end of line 22 and insert "—

  1. (a) make different provision (including provision prescribing the amount of the penalty or the discounted amount) for different purposes or areas;
  2. (b) make consequential or transitional provision."

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clauses 62 and 63 agreed to.

Clause 64 [Builders' skips: charge determined by reference to duration of occupation of highway]:

Lord Evans of Temple Guiting moved Amendment No. 117ZD: Page 37, leave out lines 17 to 21.

The noble Lord said: I shall speak also to Amendments Nos. 117ZE, 117ZF and 117ZG in the group. These are minor amendments relating to placing builders' skips, scaffolding or similar items in the street.

Amendments Nos. 117ZD and 117ZE remove an ambiguity in the language of the provision made under the Bill for two different charging regimes: one to charge the owners of skips where the period they occupy the road exceeds an agreed period; and a second to charge them for the entire period that the skip occupies the road. This applies to the power for regulations to prescribe different charges according to different circumstances—such as what proportion of the road the skip occupies, and provides that this applies consistently to both charging schemes.

Amendments Nos. 117ZF and 117ZG simply remove an inconsistency in the language of the provision relating to charges imposed where the period for which scaffolding, building materials or temporary minor excavations occupy the road for longer than an agreed period by inserting the terms "relevant period" and -relevant structure" which are used elsewhere in the clause. I beg to move.

Viscount Astor

I understand what the noble Lord has said about the latter part of his amendments, but Amendment No. 117ZD removes subsection (d) of Clause 64 which states: The regulations may prescribe different rates of charge according to —

  1. (a) the extent to which the skip occupies the highway;
  2. (b) the place and time of the occupation;
  3. (c) such other factors as appear to the Secretary of State to be relevant".
Is the noble Lord saying that it is otiose because it can be dealt with elsewhere in the Bill? I am not entirely clear about the position. However, I am happy for the Minister to write to me if that would be more convenient.

Lord Evans of Temple Guiting

The brief answer is that the subsection is not necessary because the provisions are covered in another part of the Bill.

Viscount Astor

I am grateful to the Minister. Perhaps he will write to me before we reach the Report stage to explain where the point is covered. I do not need to know now, but that would be helpful for the next stage.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendment No. 117ZE: Page 37, line 25, leave out "(9)" and insert "(8)

On Question, amendment agreed to.

Clause 64, as amended, agreed to.

Clause 65 [Scaffolding, building materials and excavations: charge for occupation of highway for unreasonable period]:

Lord Evans of Temple Guiting moved Amendments Nos. 117ZF and 117ZG: Page 38, line 5, leave out first "the" and insert "a relevant Page 38, line 42, leave out from first "the" to end of line 43 and insert "relevant period

On Question, amendments agreed to.

Clause 65, as amended, agreed to.

Clauses 66 to 69 agreed to.

Clause 70 [Contraventions subject to civil enforcement]:

Lord Berkeley moved Amendment No. 117A: Page 42, line 23, at end insert— () cycle lane and cycle track contraventions:

The noble Lord said: We have moved on to Part 6 dealing with civil enforcement. In moving Amendment No. 117A, for the convenience of the Committee I shall speak also to Amendments Nos. 118A and 118B.

Subsection (2) lists four categories of road traffic contraventions subject to civil enforcement. They cover various kinds of parking, bus lanes, London lorry lane bans and moving traffic contraventions set out in Schedule 7. Bus lanes are specifically identified, but no reference is made to cycle facilities. During the various Commons debates on Schedule 7, an assurance was given that this provision would cover some cycle lane and cycle track contraventions. Since then, however, more detailed investigations have revealed various anomalies in cycle and other facilities.

For example, parking on cycle tracks would be subject to decriminalised enforcement, but not parking on segregated cycle lanes. Drivers stopping within the limits of zebra, pelican and puffin crossings would face penalty notices, but not for stopping on toucan, single-cycle or pedestrian crossings. Driving a moped—the noble Lord, Lord Rotherwick, will tell us exactly what kind of vehicle that is—through an alleyway with a "no motor vehicles" sign would attract a penalty notice, but not if it was signed with a shared separated pedestrian and cycle route. Moreover, drivers proceeding the wrong way along a one-way street with a cycle contraflow lane could not face a penalty notice for the one-way traffic scheme enforcement. I could cite several more instances.

The amendments seek to bring cycling provision contravenions up to the same level as contraventions in bus lanes. I hope that my noble friend will agree that it is just as important to ensure that fixed penalties can be issued to people contravening rules ensuring the safety of cyclists as they can for those which prevent bus delays.

The amendments cover the detail in a new Part 2A in Schedule 7. However, I have not been able to reproduce with my amendments copies of all the coloured signs for reference. I will be able to do so upstairs if I can locate a colour photocopier. But the signage is listed in the amendments and is reasonably self-explanatory. With that short explanation, I beg to move.

Lord Rotherwick

I support sympathetic policing; that is where I am coming from. Cyclists are very important, and I could not agree more with the noble Lord that drivers should be policed on parking in areas where their vehicles can cause serious problems to a cyclist; for example, on a bicycle way. As a bicyclist and a motorcyclist I know that cyclists receive considerable goodwill from cars. It would worry me considerably if cars and the like were persecuted in a draconian way that set them against cyclists. I therefore suggest that any such provisions should be sympathetic.

Bicyclists do a very good job at jumping red lights and abusing other road regulations. Is the noble Lord, Lord Berkeley, suggesting that policing should go both ways? If bicyclists have these great privileges, should they not go with balanced policing of their responsibilities? I am not sure whether the noble Lord is opening a can of worms that could backfire on bicyclists. I support the noble Lord in principle but raise a flag of caution.

Viscount Simon

Diagrams 1043 and 1044 in the Statutory Instrument show the box-junction markings. At Second Reading, I expressed suspicion that the markings shown do not cover roundabouts, which would mean that civil enforcement could not take place on roundabouts. I am not certain whether that is right, but if they can be part of it, the table could of course be used.

Lord Berkeley

I agree entirely with the comments of the noble Lord, Lord Rotherwick. Cyclists should not be above the law. They should obey traffic lights and comply with other road signals. If a way can be found to penalise them with a fixed penalty, that would be entirely fair. Similarly, however, one must respect the fact that motorcyclists, cyclists and moped riders are more vulnerable on the outside than cars. The green boxes or advance stop signs at traffic lights have been very successful. They are used illegally by motorcyclists also, but I would not object to that, because at least the motorist sees people.

I tabled the amendments to open a discussion. I would be very pleased if I could have a discussion with my noble friend before Report, as I have probably got some of the numbers or letters wrong. In addition, noble Lords may have other ideas to contribute. It is important to recognise and to clarify, if necessary, some of the anomalies that I mentioned.

Lord Rotherwick

The noble Lord, Lord Berkeley, has an incredibly interesting bedside reading book with him. I do not have it. I do not mind whether it is in black and white or colour, but we would love to see the drawings in his book.

Green cyclist boxes and lanes are not working very well in London. A number of them, particularly one on the Embankment that was drawn on the pavement at extreme expense, are never used by bicyclists. It does not matter whether the boxes in front of traffic lights are green or less expensively painted; they are used in the same way. Some thought on the issue is needed.

Lord Berkeley

We could carry on this discussion for a long time. The book is available in the Printed Paper Office in full colour.

6.45 p.m.

Lord Evans of Temple Guiting

There are two documents available to noble Lords. One is headed "Civil Enforcement of Traffic Offences (Completely New Enforcement Powers Provided in the Bill Are Highlighted)". The document, which will be handed out, outlines the new offences. We then have the pictures, referred to by my noble friend Lord Berkeley, of traffic signs subject to civil enforcement under Part 4 of Schedule 7. The documents are now available for all Members of the Committee.

I start by dealing with the point raised by my noble friend Lord Simon. He said that box junctions did not cover roundabouts. The traffic sign regulations explicitly acknowledge that box junctions can be used at roundabouts. I hope that that satisfies my noble friend.

The overall purpose of the amendment is to make driving in a cycle lane or on a cycle track an offence subject to civil enforcement. Parking in cycle lanes bounded by a solid white line, known as mandatory cycle lanes, will often amount to the enforceable contravention of a traffic regulation order made under Sections 1, 6 or 9 of the Road Traffic Regulation Act 1984. Parking on advisory cycle lanes marked with broken white lines is not enforceable.

Part 6 of the Bill provides for the civil enforcement of parking restrictions on cycle lanes and therefore addresses the main complaint of cyclists—vehicles parking in cycle lanes forcing them to move out into the main flow of traffic, from which cycle lanes are designed to segregate them.

Parking in a mandatory cycle lane is likely to be an offence under Section 5, 8 or 11 of the Road Traffic Regulation Act 1984 and will therefore be subject to civil enforcement by virtue of paragraphs 3(2)(b) and 4(2)(b) of Schedule 7. Parking on a cycle track, an offence under Section 21 of the Road Traffic Act 1988, is also subject to civil enforcement under the Bill by virtue of paragraphs 3(2)(g) and 4(2)(h) of Schedule 7.

Driving on a route for use by buses and pedal cycles only is one of the moving vehicle contraventions caught under the provisions of Part 4 of Schedule 7. The signs listed in Part 4 mirror those listed in Schedule 3 to the London Local Authorities and Transport for London Act 2003.

Amendment No. 118B suggests the addition of a number of other signs to the list in Part 4 that would enable civil enforcement of contraventions of routes or lanes provided to benefit cyclists. I should point out that it is intended that enforcement of traffic signals should remain a matter for the police. It is important that the enforcement of advance cycle stop lines remains with the police because of the difficult judgment calls often raised. For example, sometimes a driver may be faced with the choice to continue over a junction or to stop, but only after they have inevitably moved into the cycle reservoir between stop lines. The driver who accelerates to clear the junction may cause a greater danger, but it may be the driver who brakes and decreases his speed who is caught by camera going over the first stop line on red. In such a situation, camera enforcement without appropriate analysis and discretion may have an adverse road safety impact.

The powers to enforce moving traffic contraventions in the London Local Authorities and Transport for London Act 2003 have not yet been used in practice. Their use will be piloted by six London boroughs, including Camden and Hammersmith and Fulham, for Traffic for London. The pilot is due to begin in June.

Against that background, our initial inclination was to gather some experience of the civil enforcement of moving traffic contraventions before expanding the lists of signs that can be enforced. However, I have listened carefully to my noble friend and would like to consider further the case for adding now to Part 4 of Schedule 7 signs that would enable the civil enforcement of the contravention of driving in a mandatory cycle lane. On that understanding, I invite my noble friend to withdraw his amendment.

Lord Berkeley

I am grateful to my noble friend the Minister for that very detailed response, which I shall have to read because I cannot remember all the references. In particular, I am grateful to him for his last assurance. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 agreed to.

Schedule 7 [Road traffic contraventions subject to civil enforcement]:

Viscount Astor had given notice of his intention to move Amendment No. 118: Page 70, line 27, at end insert—